Chua, Joseph

Cruz, Ivan Kristel

Cueto, Kristina Mae
I. Bangsamoro Basic Law
General Principles and Policies
Bangsamoro Basic Law is a certified urgent bill proposed to the Congress by the
President to be the Basic Law of the new Bangsamoro political entity that will replace the
current Autonomous Region in Muslim Mindanao (ARMM). When approved into law,
the proposed BBL will implement the Framework Agreement on the Bangsamoro (FAB)
and its Annexes entered into between the Government of the Philippines (GPH) and the
Moro Islamic Liberation Front (MILF). When approved into law, the proposed BBL will
implement the Framework Agreement on the Bangsamoro (FAB) and its Annexes entered
into between the Government of the Philippines (GPH) and the Moro Islamic Liberation
Front (MILF).1
Its purpose is to establish a political entity, provide for its basic structure of government
in recognition of the justness and legitimacy of the cause of the Bangsamoro people and
their aspiration to chart their political future through a democratic process that will secure
their identity and posterity and allow for meaningful selfgovernance. (Art. 1, sec. 3)2
It can be said that passing the Bangsamoro Basic Law (BBL) may be the solution to the
long-term conflict in Mindanao that will finally bring peace to the Bangsamoro people of
Mindanao. The purpose of this law, according to the Office of the Presidential Adviser on
the Peace Process, is to establish the new Bangsamoro political entity and provide for its
basic structure of government, in recognition of the aspirations of the Bangsamoro
people.3
However, despite attempts to pass the said bill, there are many who have opposed to such,
all expressing their views through media, blogs, and even social networking sites. Among
the few influential people against the said bill, the very vocal of whom is Senator Miriam
Defensor Santiago.
1 Primer on the proposed Bangsamoro Basic Law, http://www.hdcentre.org/uploads/tx_news/Primer-onthe-proposed-Bangsamoro-Basic-Law.pdf, (last visited May 25, 2015)
2 Id.

3 Edrian Echague, Deal or No Deal? Should the Bangsamoro Basic Law be given a chance, March 8,
2015

The basic constitutional issues are laid down, to better understand whether it
conforms to our constitution or not.
Amendment to the Constitution
The Senate and the House acting only by themselves cannot approve the proposed
BBL in its present form. It has to be promulgated by nothing less than an amendment to
the Constitution.
A constitutional amendment should apply the method prescribed by the
Constitution itselfconstitutional convention, constituent assembly, or peoples initiative
with revisions subject to ratification by the national electorate in a plebiscite.
The amendments the House ad hoc committee introduced in its version of the BBL
draft failed to reconcile the bill with the Constitution, specifically on issues of
sovereignty, autonomy, the creation of a sub-state, and territorial integrity. 4

Violation of national sovereignty and territorial integrity

The BBL is unconstitutional because it violates what the Constitution provides for as
national sovereignty and territorial integrity of our country.
The national territory comprises the Philippine Archipelago, with all the islands
and waters embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction.5
As stated in Article II, Section 1 of the 1987 Constitution, The Philippines is a
democratic and republican state. Sovereignty resides in the people and all government
authority emanates from them.
The term sovereignty means the supreme, absolute, and uncontrollable power by
which any independent state is governed; supreme political authority; the supreme will;
paramount control of the constitution and frame of government and its administration; the
self-sufficient source of political power, from which all specific political powers are
derived; the international independence of a state, combined with the right and power of

4 http://miriam.com.ph/newsblog/2015/05/21/miriam-new-name-wont-cure-bbl/#more-2556
5 1987 Constitution, Article I

regulating its internal affairs without foreign dictation; also a political society, or state,
which is sovereign and independent.6
Those are the guidelines set by the Constitution in providing for autonomous regions for
regional authority. Its obvious that in the contemplation of the Constitution, the territorial
units of our country are provinces, cities, barangays, municipalities, and autonomous
regions. Theres no mention at all of a sub-state. What was only stated is that there shall
be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided. 7
While the Philippines remains a sovereign state, the changes sought by the BBL conspire
to create a part-sovereign state or a sub-state, meaning a political community in which
part of the powers of external sovereignty are exercised by the home government, and
part are vested in or controlled by some other political body or bodies. Thus creating
what today we usually call a sub-state, the BBL creates an entire state within the
Philippine state.8
This was supported by the following provisions therein stated in the proposed bill, among
the following are:
The powers of the central government shall be determined by the Agreement, thus
turning Bangsamoro into a substate.
The Autonomous Region for Muslim Mindanao, which is provided for by the
Constitution, will be abolished by mere agreement with the MILF, which is not
surprising if you consider that the Bangsamoro has become a substate.
Allocation to the Bangsamoro of all powers exercised by the national government
over local government units.
Although the Constitution provides that natural resources belong to the state, in
the Bangsamoro territory, only Bangsamoro will have exclusive jurisdiction over
natural resources.
The Annex on Power Sharing gives to Bangsamoro so-called exclusive powers,
which is defined as a tautology, as powers or matters over which authority and
jurisdiction pertain to the Bangsamoro government.
6 Blacks Law Dictionary, 6th Edition
7 1987 Constitution, Article X, Section 1
8 Report by the Committee on Constitutional Amendments and Revision of Codes, Office of Senator
Miriam Santiago

 Only the Bangsamoro shall be under a ministerial form of government, while the
rest of the country will operate under a presidential form of government.
The Agreement in Part 7, para. 4, subpara (b) enumerates the functions of the
Transition Commission which at present is reportedly drafting the Bangsamoro
Basic Law. One of the functions of the Transition Commission is as follows: To
work on proposals to amend the Philippine Constitution for the purpose of
amending and enriching in the Constitution the agreements of the Parties
whenever necessary without derogating from any prior peace agreement. 9
Santiago added that the name itself showed that the BBL is intended to have the same
effect as the constitution or constitutional law of the Bangsamoro territory, in the
same manner that the 1987 Constitution is supreme in the territory of the Republic of the
Philippines. 10
It goes without saying that two different constitutional instruments cannot have legal
effect at the same time and in the same territory. The proposed BBL must be consistent
with the provisions of the Constitution of the Philippines, she said.
Parliamentary form of Government
BBL is contrary to the Constitutional provision that the autonomous region should
consist of an executive and legislative branch, both of which shall be elective and
representative of constituent unit.
Executive infringing on Congress power
The executive branch infringed upon the powers of the legislative branch in
negotiating the agreement with the MILF. The agreement should not have identified the
executive as the Philippine government.
The reality is that only one of the 3 branches of government the executive
branch, consisting of the Office of the President acting through a peace panel of
negotiators represented the government. The executive branch alone does not represent
the Philippine Government. Thus, the executive branch, in negotiating the Agreement had
no power to bind the two other branches legislative and judicial.
9 Ayee Macaraig, Bangsamoro deal illegal, creates substate, April 02, 2014,
http://www.rappler.com/nation/54510-miriam-bangsamoro-deal-illegal
10 Miriam: New name wont cure BBL, May 21, 2015, http://miriam.com.ph/newsblog/2015/05/21/miriamnew-name-wont-cure-bbl/#more-2556

Santiago said the executive misrepresented itself as the government. Thus, the
Agreement is concluded between one branch mistakenly identifying itself as the
government, and what will turn out to be a substate.
Excess of Decentralization
The BBL seeks to establish a political entity so far unknown in the rest of
constitutional democracies. While the Constitution takes care to define the limits of local
autonomy, the BBL is vested with powers far beyond constitutional limits.
Sen. Santiago cautioned that the Autonomous Region in Muslim Mindanao is
less-than-sovereign self-determination, but the excess of decentralization under the
BBL may lead to a spectre of Balkanization, the action of dividing an area into smaller,
eventually hostile states.
Enumeration of powers, questionable
The House panel retained three types: Reserved powers reside only on the national
government; concurrent powers are shared; while exclusive powers rest solely on the
Bangsamoro government.
The concept of concurrent powers and exclusive powers tear asunder the
supreme authority possessed by the sovereignty of the people. These will make the
Bangsamoro government co-equal with the national government, and thus a subs-state,
the senator said.
Santiago particularly opposed the extensive taxing and revenue raising powers the
BBL would give the Bangsamoro government. Effectively, the Bangsamoro government
will have seceded from, yet remain financially supported by the Philippine government,
she added.
The provision granting the Bangsamoro exclusive powers and use of natural
resources found in the area also drew Santiagos criticism. Under constitutional
language, nothing of value may be exclusively allocated to any territorial part of the
Philippine archipelago, she said.
Principle of Subsidiarity

Instead of implying a transfer of sovereignty from the national government to the

Bangsamoro Government, the BBL should observe the principle of subsidiarity as a way
to allocate decision-making power, the senator said in her first recommendation.
Subsidiarity is the principle that a central authoritys function should be subsidiary,
performing only tasks that cannot be performed effectively at a mere local level.
The proposed BBL must provide a minimal threshold of competencies in order to
ensure that the national sovereignty of the Philippines remains intact, and is not limited
nor shared.
Exercise of Local Autonomy
Although the BBL purports to be an exercise in local autonomy, it bursts its
bounds and turns into a part-sovereign state or a sub-state. The term Bangsamoro
territory implies that although it is under the jurisdiction of the Philippines, it is a
separate part.
Transition Commission, void.
The Transition Commission which drafted it is void because President Aquino III
has no power to create a public office. No constitutional provision or law allows its
creation. In no way can it be considered an existing agency prior to its creation. It cannot
be justified as a means by which the President ensures that the laws are faithfully
executed precisely because its creation is for the purpose of abrogating the existing
organic act of the ARMM
Legally speaking, therefore, the draft Bangsamoro Basic Law does not exist, and
because it does not exist, the President cannot certify it as urgent, and the Congress
cannot act on the same.
Framework Agreement, unconstitutional
The Agreement is between the Philippine Government (GPH) and the MILF. It is
misleading for the Agreement to identify that one party is the "Philippine Government."
The reality is that only one of the three branches of government - the executive branch,
consisting of the Office of the President acting through a peace panel of negotiators represented the government. The executive branch alone does not represent the Philippine
Government. Thus, the executive branch, in negotiating the Agreement had no power to
bind the two other branches - legislative and judicial. In negotiating for the government,

the executive branch not only exceeded its powers, but may have infringed upon the
powers of the legislative branch.
When the executive branch misrepresenting itself as the Philippine Government
enters into an agreement with the rebel group, the result is not a mere autonomous region
as provided for by our Constitution, but a substate. Thus, the Agreement is concluded
between one branch mistakenly identifying itself as the government, and what will turn
out to be a substate.
The Philippine Constitution provides for the powers of the state. The Constitution
is supreme. The Agreement reserves to the central government the exercise of certain socalled "reserved powers," which are described as powers "retained by the central
government." Thus, the Agreement diminishes the sovereignty of the Philippine
Government by listing what are the powers that the central government can retain. In
other words, the Agreement attempts to redefine the sovereignty of the Philippine state.
In addition, the Agreement provides that the powers reserved to the central government
will depend upon further negotiation by providing:
"This list is without prejudice to
additional powers that may be agreed upon by the parties." Thus, the Agreement not only
reduces the sovereignty of the central government, but also provides that in the future,
such sovereign powers as have been reserved may be further increased, provided the
Bangsamoro agrees. It will therefore be the Bangsamoro which willdetermine what
should be the remaining sovereign powers of the central government.11
No true representation
Santiago believed that even after the BBL is passed, under its present form, the war in
Mindanao would continue because the people are not truly represented.
The first thing that would happen the moment that Bangsamoro law is passed is
there will be internal war, another non-international armed conflict, this time among
those claiming to be leaders, Santiago said.
The first thing that the two panels negotiationg for the peace in Mindanao should
have done was to present their credentials.

11 Shad Blax, The Bangsamoro Basic Law is unconstitutional for two principal reasons,
http://www.academia.edu/9810938/The_Bangsamoro_Basic_Law_is_unconstitutional_for_two_principal
_reasons, (last visited May 25, 2015)

Since events have already taken place, it would be best if Malacaang would form
its own review committee to check the BBL for unconstitutional features instead of
letting other branches of the government do it for them, especially the Supreme Court.
She said Malacaang should tap the legal luminaries who attended the Senate
hearing on the BBL.12
Bangsamoro Territory
Former Supreme Court Justice Vicente Mendoza states that to call the proposed political
entity as a "Bangsamoro territory" is to consider it a separate part of the Philippines
although under its jurisdiction. Such a political entity is only a little different to the
"associative relationship" of the Bangsamoro Juridical Entity under the MOA-AD. The
Constitution does not contemplate any state in the jurisdiction of the state much less does
it provide for a transition status that prepares any part of the Philippines for
independence.
However, former Supreme Court Justice Adolf Azcuna says otherwise, saying that
Bangsamoro means "nation of the Moro." It's a recognition of a nation of people with a
distinct culture. There can be many nations within a state. Although it is thinking out of
the box, it is not unconstitutional.
Bangsamoro People
Provisions referring to "Bangsamoro people" limit suffrage and membership to the
Bangsamoro government to those who ascribe to the Bangsamoro identity thus denying
the rights and privileges of national citizenship guaranteed in the national Constitution,
according to Former CJ Mendoza. Gascon posits however that, everything in the
provisions affirm the rights of all citizens. There is no two-tier citizenship. What it does
say is that the Bangsamoro shall have the opportunity for self-governance by way of the
establishment of a political entity that will govern themselves day to day. Bangsamoro
shall be governed by all those elected by all citizens of the Bangsamoro, whether they
ascribe to be Bangsamoro or not. There is nothing in the Bangsamoro Basic Law that
says that only the Bangsamoro may be elected.
II. Freeze Order on the Bank Accounts of Vice President Binay

12 Amita O. Legaspi, Miriam to Govt, MILF: Scrap Bangsamoro Law, renegotiate peace deal, March 5,
2015, GMA News

A resolution, which was dated May 11, granted a petition of the Anti-Money
Laundering Council (AMLC) to allow the council to scrutinize the bank accounts of
Binay and members of his family, as well as corporations linked to the Vice President.
A division of the Court of Appeals (CA) has frozen 242 bank accounts and
insurance policies belonging to Vice President Jejomar Binay. The Court of Appeals
found that from 2008 to 2014 Vice President Binay and his supposed dummies had large
and frequent bank transactions during the construction of the allegedly overpriced Makati
parking building and Makati Science High School.13 A freeze order was issued by the
First Division, which is composed of Presiding Justice Andres Reyes Jr. and Associate
Justices Edwin Sorongon and Ricardo Rosario which shall last for 6 months. The AMLC
and the Office of the Ombudsman wanted to ensure that personal assets of Binay that
were allegedly ill-gotten would not be dissipated and so a freeze order must be issued by
the appellate court.
The Court of Appeals issued the resolution on the basis of finding probable cause with
the petition filed by AMLC. It also ordered banks to immediately make a reporting of
amounts remaining in the bank accounts of the Binays within 24 hours after the banks
concerned receive a copy of the order.14 In the freeze order, the Court of Appeals stated
that the AMLC observed an increase in the net worth of Vice President Binay. Such
increase were not commensurate to their declared incomes, assets, liabilities, and
business interest. However, Binays lawyer said that the Binays can explain the bank
transactions through the Vice Presidents Statement of Assets, Liabilities and Net Worth
and records from the Bureau of Internal Revenue. They added that the AMLC failed to
include the money received by the Vice President from 2010 campaign. The contribution
is worth P231 million and only P218 million was used.15
According to Harry Roque, law professor from University of the Philippines, the freeze
order was unconstitutional. Since it violates his immunity from suits as mandated by the
Constitution.16 This contradicts the earlier statement of Justice Secretary Leila De Lima
who said that only the president is immune from suits. The Constitution states that:
The President, the Vice President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be
13 Ayee Macaraig, Nancy Binay on freeze order: Roxas so desperate, May 13, 2015, Rappler
14 Jomar Canlas, CA Freezes Binays bank accounts, May 13, 2015, The Manila Times
15 Ayee Macaraig, Nancy Binay on freeze order: Roxas so desperate, May 13, 2015, Rappler
16 Janvic Mateo, Freeze order vs Binays assets unconstitutional-lawyer, May 17, 2015, The Philippine
Star

removed from office, on impeachment form and conviction of, culpable

violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust.17
Both the President and the Vice President are considered impeachable officer but only the
President is immune from suit while in office. 18 Impeachability means that the President
or Vice President cannot be removed from office except through impeachment. Secretary
De Lima said that any suit filed against the Vice President that would not result in his
removal from office, like a civil suit for forfeiture of ill-gotten wealth, is allowed. 19
There has been no legal basis or doctrine in constitutional or political law that would
provide immunity from suits of impeachable officials, except the President. Thus, Binay
is not immune from suit or investigations, such as the inquiry conducted by the AMLC on
his alleged violation of Anti-Money Laundering Act.
The Constitution does not expressly postulate presidential immunity from suit but the
Supreme Court believes that it is already implied based on jurisprudence. In the case of
In Re: Bermudez, the Court expressly held that it is equally elementary that incumbent
Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure.20 In the said case, the immunity from suit of the incumbent Vice
President was not stated. The purpose of the said immunity was discussed in the case of
Soliven, et. al v Makasiar. The Court held that: The rationale for the grant to the
President of the privilege of immunity from suit is to assure the exercise of Presidential
duties and functions free from any hindrance or distraction, considering that being the
Chief Executive of the Government is a job that, aside from requiring all of the office
holder's time, also demands undivided attention.21 The President needs to concentrate on
his duty of running the government. Again in this case, it is not expressly nor impliedly
stated whether the Vice President is immune from suit. The issue on the immunity of the
Vice President would be best settled by the Supreme Court.
III. The Alleged Responsibility of the Commander-in-Chief in the Mamasapano
incident
17 1987 Constitution, Article XI, Section 2
18 Janvic Mateo, Freeze order vs Binays assets unconstitutional-lawyer, May 17, 2015, The Philippine
Star
19 Jerome Aning, De Lima: Only President immune from suit, not VP Binay, May 22, 2015, Philippine
Daily Inquirer
20 See G.R. No. 76180 October 24, 1986

21 See G.R. No. 82585 November 14, 1988

Oplan Exodus is a police operation that took place last January 25, 2015 aimed at
arresting the most wanted terrorist Zulkifli bin Hir alias Marwan and Abdul Basit Usman
The operation led to the death of 44 members of the Philippine National Police Special
Action Force.
The PNP Board of Inquiry report found that President Benigno Aquino III
bypassed the chain of command in the PNP hierarchy that cost the lives of 44 SAF
troopers22. The Senate panel also found that President Aquino is ultimately liable for the
clash because he allowed the then suspended PNP chief General Alan Purisima to be
involved in the operation. The suspension of the PNP chief inhibits him from official
activities. President Aquino III violated Executive Order 226 or the rule in command
responsibility. Section 1 of the said order states that:
Neglect of Duty Under the Doctrine of "Command Responsibility". Any government official or supervisor, or officer of the Philippine National
Police or that of any other law enforcement agency shall be held
accountable for "Neglect of Duty" under the doctrine of "command
responsibility" if he has knowledge that a crime or offense shall be
committed, is being committed, or has been committed by his subordinates,
or by others within his area of responsibility and, despite such knowledge,
he did not take preventive or corrective action either before, during, or
immediately after its commission.

Executive Order 226 highlights the need for strict and effective management and control
of an organization by the supervisor as critical in ensuring the responsive delivery of the
services by the government, especially in police matters. 23 There is chain of command in
the PNP and in other government agencies as stated in the said order. The PNP is subject
to the authority of the secretary of the Department of Interior and Local Government who
is thereby under the President. The President is, therefore, on top of the hierarchy.
Where there is a chain of command, the doctrine of command responsibility
generally applies24. Malacanang defended Aquino saying that PNP is a purely civilian
22 Mark Meruenas, De Lima: 90 to be charged over Mamasapano clash, April 16, 2015, GMA News
23 FVR:PNoy liable in Mamasapano fiasco for violating command responsibility, March 18, 2015, GMA
News
24 Ernie Reyes, De Lima doctrine on Aquinos command responsibility assailed in Senates
Mamasapano report, InterAksyon.com

agency and not part of the Armed Force or military where the chain of command
responsibility applies25; thus, the President as chief executive of civilian organization has
the prerogative to talk to his subordinate and cannot be compelled to follow PNPs
internal procedure. But based on Executive Order 226 command responsibility applies to
all government offices, military or civilian. As the chief executive of the PNP, President
Aquino has liability. He has direct control and supervision of PNP.26
In the case of Saez vs Macapagal-Arroyo 27, the Supreme Court laid down the rule on the
command responsibility of the president. The court enumerated the following elements
that must be obtained to hold someone liable under the doctrine of command
responsibility:
1. The existence of superior-subordinate relationship between him
and the perpetrator of the act of omission;
2. The superior knew or had reason to know that the act or omission
was about to be or had been committed or omitted;
3. The superior failed to take the necessary and reasonable measures
to prevent the act or omission or punish the perpetrator.

Based on the ruling of the said case, President Aquino would appear to be liable.
Under Section 18 Article VII of the 1987 Constitution, the President shall be the
Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion.28 Even though the PNP is a civilian entity, it is also an armed force.
Therefor as stated in the Constitution, the President is the Commander-in-Chief of PNP.
Thus command responsibility for PNP resides in the President. There exist a superiorsubordinate relationship between him and the PNP officials. Under Executive Order 226
or the Institutionalization of the Doctrine of Command Responsibility, the superior may
be charge with constructive knowledge. It is presumed that the superior had knowledge
of the act or irregularities. President Aquino also admitted having knowledge of the
25 Jose C. Sison, Command Responsibility, March 20, 2015, The Philippine Star
26 FVR:PNoy liable in Mamasapano fiasco for violating command responsibility, March 18, 2015, GMA
News
27 See G.R. 183533, February 25, 2012

28 1987 Constitution Article VII

general details of the operation but refused to tell whether or not he gave the go signal. 29
As to the last element, the president being the Commander-in-Chief has the power to
effectively control and give commands to his subordinate. A commander is responsible
for what his subordinate does or fails to do.
In defense, Senate President Drilon argued that he does not believe that the
President is liable for the bloody incident. The principle of command responsibility does
not apply in this case. As stated in the said order, the superior incurs liability if he has
knowledge that a crime or offense shall be committed, is being committed, or has been
committed by his subordinates. In this case the SAF troopers are there not to commit a
crime but to serve warrants of arrest to the high-ranking terrorist.30
The President having the immunity can only be held liable for the charges after his
term of office ends or by impeachment proceedings. But under Section 2 Article XI of
the 1987 Constitution, the President may be removed from office, on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes or betrayal of public trust. 31 The alleged liability of the
President in the Mamasapano incident is therefore not among the grounds that could
impeach the President.

1. Following the concepts of Freedom of Speech and of Information, will there be a

constitutional violation if the government prohibits the publication of exit polls
before the national election, on the basis that such exit polls unduly influence the
voting public and create an imbalance in the playing field of candidates? Discuss
thoroughly.

There would be no constitutional violation if the publication of exit polls before the
closing of the polls for the national election is banned. Exit polls as defined by
29 Angela Casauay, Miriam: Determine command responsibility over Mamasapano, February 2, 2015,
Rappler
30 Id.

31 1987 Constitution Article XI

COMELEC Resolution Nos. 3636 and 6520 is a species of electoral survey conducted by
qualified individuals or groups of individuals for the purpose of determining the probable
result of an election by confidentially asking randomly selected voters for the names of
candidates they have voted for, immediately after they have officially cast their ballots 32.
These resolutions are in accordance with RA 9006 or the Fair Election Act. According to
Sec. 5.5 (d) of the Act exit polls may be announced after the closing of the polls on
election day. It is important to note that the Act uses the word may rather than the word
must in prescribing the time of publication of exit polls 33. Another important thing to
note is that under the concept of Freedom of Speech and of Information is not absolute
and may be subjected to regulation or restraint by the State. Such interference or
regulation takes the form of Police Power which allows the State to interfere with certain
rights. Still, the case of ABS-CBN v. COMELEC (G.R. No. 133486), and the concepts of
Freedom of Speech and of Information shed light on why there would be no
constitutional violation if the publication of exit polls before the closing of the national
election polls is banned.
ABS-CBN v. COMELEC involves COMELEC Resolution No. 98-1419 which outright
prohibits ABS-CBN or any other groups, their agents, and representatives on conducting
an exit poll for the 1998 National Election and ABS-CBNs petition to lift the restraining
order promulgated by COMELEC in accordance with said resolution. Respondent
COMELEC asserts that the holding of exit polls can unduly influence the voting public
and may also result in confusion among the other voters on who are the real or potential
winners or losers in the election. It also further asserts that such exit polls violate the
sanctity of the ballot and that being charged to promote clean, honest, orderly and
credible May 11, 1998 elections it is in its power to ban such exit polls. On the other
hand, petitioner ABS-CBN invokes the constitutional rights of Freedom of Speech and of
Information, as well as Freedom of the Press as the reasons to allow the conduct of exit
polls. While the case focuses on the outright prohibition on exit polls it serves as a
landmark case for here the Court laid down guidelines and even possible measures to be
followed in conducting exit polls. The Court also discussed a little about the Clear and
Present Danger Rule/ Test to determine whether the freedom of speech or information
must be regulated.34
To begin with, Freedom of Speech and of Information is not an absolute right. For the
Freedom of Speech, the Clear and Present Danger Rule/Test is applied to determine
32 COMELEC Resolution Nos. 3636, 6520
33 RA 9006, Sec.5.5 (d)
34 ABS-CBN v. COMELEC, G.R. No. 133486 (January 28, 200)

whether such right must be regulated. The Clear and Present Danger Rule states that a
right may be regulated when there is a clear and present danger of a substantive evil
which the State has the right to intervene or prevent. This test is frequently applied to
circumstances in which the Freedom of Speech is invoked. However, it must be important
to remember that freedom of speech also involves the freedom to remain silent. It does
not only encompass the freedom to agree or disagree, but also to remain silent. In
addition, there are two elements of freedom of speech; 1.) Freedom from prior restraint or
censorship, and 2.) Freedom from subsequent punishment. Freedom from censorship
involves the restraint prior to the publication or dissemination of speech or ideas.
Censorship involves an approval of the content of any publication before it is published.
On the other hand, freedom from subsequent punishment means freedom from threat of
being punished after words have been uttered or ideas have been published. The case at
hand involves censorship since exit polls are outright banned by the COMELEC. The
Court in arriving at a decision applied the Clear and Present Danger Test to determine if
there is indeed a need to ban exit polls. Here the Court and ABS-CBN and even
COMELEC recognized that announcing exit polls prior to the closing of polls for
national election produces the danger of a bandwagon effect or unduly influencing the
voters. As such RA 9006 and the subsequent COMELEC resolutions came to be, which
prescribes that exit polls may be announced after the closing of polls on election day. In
the end, the Court ruled that exit polls may not be outright banned since it would violate
the freedom of speech, but instead must adhere to certain standards and measures in order
to ensure clean, honest, and orderly elections.
Freedom of Information, on the other hand, as provided by the Constitution
involves the right to access to information involving matters, particularly to official or
governmental records subject to such limitations as may be provided by law. The phrase
subject to such limitations as may be provided by law indicates that the right is not
absolute and may be subject of regulation. As such, regulatory discretion involves not just
the determination on what matters are of public concern and the manner of how such
information may be accessed. Exit polls while not an accurate tally or forecast of the
winners of an election gives the public an overview of who might be the winners
especially in the national elections. National elections being integral to determine the
next set of leaders of the country, it is only right that the people has an access to
information that may give them an idea on how the tally is going, one of which is the exit
polls. However, recognizing the danger of undue influence that the exit polls may have on
those who have not cast their ballots yet it is only proper that the manner of how the
information may be accessed be regulated. This would bring us back to the promulgation

of RA 9006 and the subsequent COMELEC resolutions which prescribe that exit polls
may be announced after the closing of polls on election day.
To sum it up, both Freedom of Speech and of Information is not absolute and may
be regulated through legislation. For Freedom of Speech, it may be regulated or restricted
when there is a clear and present danger of a substantive evil which the State has the right
to intervene or prevent. On the other hand, Freedom of Information may be regulated on
what matters are of public concern and how such information may be accessed. In
addition, keeping in mind that RA 9006 and COMELEC Resolution Nos. 3636 and 6520
prescribes that exit polls may be announced after the closing of polls on election day and
that the word may can be construed as a mandatory rather than directory under
statutory construction it is clear that there would be no constitutional violation if the
announcement of exit polls before the closing of polls for national election is banned.
First, as ruled by the Court in ABS-CBN v. COMELEC there is a danger of unduly
influencing those who have not cast their votes yet if exit polls are announced before the
closing of polls on election day and therefore it must be regulated but not banned
outright, recognizing that banning the exit polls would be a violation of the Freedom of
Speech or Press. This resulted in RA 9006 and COMELEC Resolution Nos. 3636 and
6520 which recognizing that under the Freedom of Information, matters of public
concern may be regulated through the manner by which information may be accessed,
prescribed that exit polls may be announced after the closing of polls in election day.
Therefore, banning the announcement of exit polls before the closing of polls for
National Election is only proper and in accordance not just with law but also with the
concepts of Freedom of Speech and of Information.

2. Discuss the idea of Academic Freedom

Academic freedom is a right guaranteed by the Constitution in Art. XIV, Sec. 5,

paragraph 2 which states that academic freedom shall be enjoyed in all institutions of
higher learning. Furthermore, as defined by the 1940 Statement of Principles of the
American Association of University Professors (AAUP), academic freedom means that:
(a) The teacher is entitled to full freedom in research and in
the publication of the results, subject to the adequate
performance of his other academic duties(b) The teacher is

entitled freedom in the classroom in discussing his subject, but he

should be careful not to introduce into his teaching controversial
matter which has no relation to his subject(c) The college or
university teacher is a citizen, a member of learned profession,
and an officer in an educational institution. When he speaks or
writes as a citizen, he should be free from institutional censorship
or discipline, but his special position in the community imposes
special obligations. As a man of learning and an educational
officer, he should remember that the public may judge his
profession and his institution by his utterances. Hence, he should
at all times be accurate, should exercise appropriate restraint,
should show respect for the opinion of others, and should make
every effort to indicate that he is not an institutional
spokesman.35
Basing on the definition it can be seen that the idea of academic freedom originally
involves only the freedom of an educator in teaching. The educator is free to teach his
subject in any manner he sees fit without any interference as long as the discussion and
the manner that it is done are relevant to the subject matter at hand. Additionally,
academic freedom would also encompass the freedom enjoyed by the educator in
conducting academic researches and publishing them. On the other hand, such
interference would include not just the imposition of restrictions in his way of teaching
but also censorship or control over the content of his discussions relevant to his subject.
Still, despite having the benefit of academic freedom, special obligations are imposed
upon the educator since he represents the institution he is under. The educator
notwithstanding the benefit of academic freedom must still be careful with his
discussions as well as publications since the public may judge him based on such manner,
with it having an effect not just on his image as a man in the educational field but also in
his image as a private individual and ultimately, the image of the institution hes working
for. His life may be likened to that a politician, whose behaviour is always under scrutiny
by the public.
Academic freedom despite starting as the freedom on a teacher in his classroom
gradually evolved to include the freedom enjoyed by the very institution that the teacher
represents. This can be gleamed on the second part of the definition provided earlier. The
second part which states that the educator has freedom over the discussion of his subject
35 JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES:
A COMMENTARY 1297 (2009).

but subject to the limitation that he may not discussed things not relevant to the subject at
hand shows an emphasis on institutional academic freedom in which the institution may
determine for itself; 1.) who will teach, 2.) what may be taught, 3.) how it should be
taught, and 4.) who may be admitted to study. Such institutional freedom was first
introduced in the 1973 Constitution which stated that All institutions of higher learning
shall enjoy academic freedom. As noted by Fr. Joaquin Bernas, SJ in his book, The 1987
Constitution of the Republic of the Philippines: A Commentary, the guarantee of
academic freedom for the faculty members did not appear in the Constitution with the
possible implication that the faculty members academic freedom must be anchored on
the general guarantee of freedom in the Bill of Rights. It can be also noted that such
provision broadened the scope of academic freedom to include private education
institutions, protecting them against the regulatory powers of the State yet at the same
time providing a balance between the regulatory powers of the State and the academic
freedom enjoyed by educational institutions. Such provision was preserved in the 1987
Constitution.36
Academic Freedom is composed of four aspects: 1.) Who will teach, 2.) What may be
taught, 3.) How it should be taught, and 4.) Who may be admitted to study, with each
aspect being composed of finer details in which an education institution has the freedom
to control. An example would be providing for a Masters degree as one of the
qualifications in a teaching post for the first aspect. Likewise, an education institution has
the freedom of not only choosing its faculty members but also on what subjects to include
in its curriculum. On the other hand, books and other educational materials mandated by
an educational institution for use falls by the students or faculty members alike fall under
the third aspect. Lastly, conducting an admission test to for those who would like to enter
a university or any educational institution belongs under the fourth aspect. Still, other
details would include what facilities are going to be used or constructed for the benefit of
the students, or the faculty members, or both, the ways of how the institution may
generate revenue, its tuition fee, and many others. Additionally, academic freedom may
perhaps be likened to the idea of management prerogative in labor law. Management
prerogative in labor means that the company or employer has the freedom of choosing
who to hire, what product/s to sell, how to sell it, and who will be their customers. It
follows the same concept of allowing as much as freedom as possible to the company in
the management of affairs. The same can be said with education institutions since under
the concept of academic freedom an educational institution has the freedom of managing
its own with little or no interference coming from the public or the government.
36 BERNAS, S.J., supra, at 1301.

Academic Freedom despite being a very broad mantle of protection for

educational institutions is not an absolute power. Even though such right is guaranteed by
the constitution it still must yield to the power of the government at times, specifically the
Police Power. The Police Power being the most pervasive and least limitable power of the
State, the government therefore has the power to interfere at times to restrict or even
prohibit certain actions of education institutions in the interest of public welfare or public
good. In fact, Police Power can be even used to outright regulate the very existence of
educational institutions by prescribing minimum standards for them and with the
academic freedom not being a valid excuse to advance the interests of such institutions to
the detriment of the public. This is one of the reasons why organizations like CHED and
PAASCU were formed, to regulate and ensure that educational institutions would be able
to provide quality education. Furthermore, the right to a quality education being
guaranteed by the Constitution and since education is invested with public interest, it is
only appropriate that the government help in achieving quality education through
legislation, regulation, and other acts which though may interfere with academic freedom
is necessary to reach such objective.
As such, jurisprudence in the Philippines would show the various circumstances in
which academic freedom in relation to student, subjects, or faculty members is discussed.
One good example is Mercado v. AMA Computer College Paranaque City which
involves teachers who were not given salary increases due to them not passing the higher
standards for hiring and maintaining teachers implemented by AMA for the year 20002001, this eventually lead to the non-renewal of their teaching contracts with the
institution. Here, the Court discussed that academic freedom includes the right of the
school or college to decide and adopt its aims and objectives, and to determine how these
objectives can best be attained, free from outside coercion or interference, save possibly
when the overriding public welfare calls for some restraint. It also includes the right of
the school to set minimum or higher standards to ensure that it will be able to provide
quality education and at the same time to regulate the employment of its faculty
members, subject to the limits provided by the Labor Code and other laws 37. Another case
of significance is Calawag v. University of the Philippines Visayas in which a group of
students in Master of Science in Fisheries Biology filed a petition for preliminary
mandatory injunction to compel the dean of UP Visayas to approve their thesis titles
which said dean disapproved since such titles are not appropriate their respective masters
degrees. Here, the Court ruled in favour of the institution, it appearing that the dean has
the power to approve thesis titles as provided by school policy and as such would also
37 Mercado v. AMA Computer College Paranaque City, G.R. No. 183572 (April 13, 2010)

imply that he has also the power to disapprove them. Furthermore, the Court stated that
under the aspect of who may be admitted to study, an education institution has the
freedom to establish requirements for graduation, such as the completion of thesis and the
manner of how it is to be accomplished. In regard to this the Court may not interfere with
the institutions discretion unless there is a clear showing that such discretion is
arbitrarily or capriciously exercised38. Lastly, Regino v. Pangasinan Colleges of Science
and Technology is a good example regarding an educational institutions academic
freedom in determining tuition fees. Here, a girl was not allowed to take her final
examinations in two subjects since she wasnt able to buy the tickets for a party organized
by the school as a fundraising campaign for the construction of its tennis and volleyball
courts. Here, the Court discussed that upon enrolment, students and the school enter into
a reciprocal contract which involves the student complying with the policies of the school
and the itemized fees to be paid upon being informed by the school and while the school
enjoys academic freedom in determining its fees, specifically the tuition fee, it cannot,
after the enrolment of the student, vary the terms of the contract by requiring fees other
than those it specified upon enrolment.39

38 Calawag v. University of the Philippines Visayas, G.R. No. 207412 (August 7, 2013)
39 Regino v. Pangasinan Colleges of Science and Technology, G.R. No. 156109 (November 18, 2004)