DILG tells mayors: Leave your offices and supervise public road clearing

Published August 5, 2019, 8:34 AM

By Chito Chavez

To meet the 60-day deadline given to them, the Department of Interior and Local Government (DILG) said the country’s mayors need to leave their
offices and directly compel their barangay chairmen to ensure that all obstructions on public properties in their turfs are removed.

DILG Undersecretary and spokesman Jonathan Malaya

(PCOO / MANILA BULLETIN)

President Duterte earlier declared that public roads should not be used for any other purposes. He specifically targeted public properties being
utilized for financial gains by private groups.

DILG Undersecretary and spokesman Jonathan Malaya stressed that all structures unlawfully built on government lots are not off the hook and
should be dismantled.

National Capital region Police Office (NCRPO) Chief Major General Guillermo Lorenzo Eleazar led the dismantling of police precincts constructed on
public lands.

Police also supervised the crackdown on barangay halls and other similar structures standing on government properties.

Malaya appealed for public understanding stressing that these measures are needed to ensure the smoother flow of traffic and public safety.

Numerous sidewalk vendors illegally plying their trade insisted the move was simply anti-poor and accused the government for miserably failing to
solve the country’s poverty and unemployment woes.

Instead of targeting them, illegal sidewalk vendors insisted that affluent business firms with unlawful structures should also be dealt with
accordingly.

Malaya noted that since the 60-day deadline was imposed, the DILG has received numerous reports that barangay officials had simply ignored the
order.

He also asked the public to report barangay officials who tolerate the use of public lots for private use, particularly government properties for
business purposes.

President Duterte, in his recent State-of-the-Nation-Address (SONA), asked the DILG to suspend erring and negligent mayors who fail to carry out
his obstruction clearing operations.

Malaya reminded the mayors of their duty to discipline the barangay officials based on the National Government Code.

Under Section 32 of the Local Government Code, mayors have the power to impose disciplinary action on erring barangay chairmen.

Dante Liban, et al. v. Richard Gordon, G.R. No. 175352, January 18, 2011

I. THE FACTS

Petitioners Liban, et al., who were officers of the Board of Directors of the Quezon City Red Cross Chapter, filed with the Supreme Court what they
styled as “Petition to Declare Richard J. Gordon as Having Forfeited His Seat in the Senate” against respondent Gordon, who was elected Chairman
of the Philippine National Red Cross (PNRC) Board of Governors during his incumbency as Senator.

Petitioners alleged that by accepting the chairmanship of the PNRC Board of Governors, respondent Gordon ceased to be a member of the Senate
pursuant to Sec. 13, Article VI of the Constitution, which provides that “[n]o Senator . . . may hold any other office or employment in the
Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries,
during his term without forfeiting his seat.” Petitioners cited the case of Camporedondo vs. NLRC, G.R. No. 129049, decided August 6, 1999, which
held that the PNRC is a GOCC, in supporting their argument that respondent Gordon automatically forfeited his seat in the Senate when he
accepted and held the position of Chairman of the PNRC Board of Governors.

Formerly, in its Decision dated July 15, 2009, the Court, voting 7-5,[1] held that the office of the PNRC Chairman is NOT a government office or an
office in a GOCC for purposes of the prohibition in Sec. 13, Article VI of the 1987 Constitution. The PNRC Chairman is elected by the PNRC Board of
Governors; he is not appointed by the President or by any subordinate government official. Moreover, the PNRC is NOT a GOCC because it is a
privately-owned, privately-funded, and privately-run charitable organization and because it is controlled by a Board of Governors four-fifths of
which are private sector individuals. Therefore, respondent Gordon did not forfeit his legislative seat when he was elected as PNRC Chairman
during his incumbency as Senator.
The Court however held further that the PNRC Charter, R.A. 95, as amended by PD 1264 and 1643, is void insofar as it creates the PNRC as a private
corporation since Section 7, Article XIV of the 1935 Constitution states that “[t]he Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such corporations are owned or controlled by the Government or any
subdivision or instrumentality thereof.” The Court thus directed the PNRC to incorporate under the Corporation Code and register with the
Securities and Exchange Commission if it wants to be a private corporation. The fallo of the Decision read:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office or an office in a
government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that
Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95, as amended by
Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private corporation or grant it corporate powers.

Respondent Gordon filed a Motion for Clarification and/or for Reconsideration of the Decision. The PNRC likewise moved to intervene and filed its
own Motion for Partial Reconsideration. They basically questioned the second part of the Decision with regard to the pronouncement on
the nature of the PNRC and the constitutionality of some provisions of the PNRC Charter.

II. THE ISSUE

Was it correct for the Court to have passed upon and decided on the issue of the constitutionality of the PNRC charter? Corollarily: What is the
nature of the PNRC?

III. THE RULING

[The Court GRANTED reconsideration and MODIFIED the dispositive portion of the Decision by deleting the second sentence thereof.]

NO, it was not correct for the Court to have decided on the constitutional issue because it was not the very lis mota of the case. The PNRC is sui
generis in nature; it is neither strictly a GOCC nor a private corporation.

The issue of constitutionality of R.A. No. 95 was not raised by the parties, and was not among the issues defined in the body of the Decision; thus, it
was not the very lis mota of the case. We have reiterated the rule as to when the Court will consider the issue of constitutionality in Alvarez v.
PICOP Resources, Inc., thus:

This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It is a well-established rule that a court should not pass upon
a constitutional question and decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised,
if the record also presents some other ground upon which the court may [rest] its judgment, that course will be adopted and the constitutional
question will be left for consideration until such question will be unavoidable.

[T]his Court should not have declared void certain sections of . . . the PNRC Charter. Instead, the Court should have exercised judicial restraint on
this matter, especially since there was some other ground upon which the Court could have based its judgment. Furthermore, the PNRC, the entity
most adversely affected by this declaration of unconstitutionality, which was not even originally a party to this case, was being compelled, as a
consequence of the Decision, to suddenly reorganize and incorporate under the Corporation Code, after more than sixty (60) years of existence in
this country.

Since its enactment, the PNRC Charter was amended several times, particularly on June 11, 1953, August 16, 1971, December 15, 1977, and
October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of several laws relating to the
PNRC’s corporate existence notwithstanding the effectivity of the constitutional proscription on the creation of private corporations by law is a
recognition that the PNRC is not strictly in the nature of a private corporation contemplated by the aforesaid constitutional ban.

A closer look at the nature of the PNRC would show that there is none like it[,] not just in terms of structure, but also in terms of history, public
service and official status accorded to it by the State and the international community. There is merit in PNRC’s contention that its structure is sui
generis. It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained valid and effective from the time of its
enactment in March 22, 1947 under the 1935 Constitution and during the effectivity of the 1973 Constitution and the 1987 Constitution. The PNRC
Charter and its amendatory laws have not been questioned or challenged on constitutional grounds, not even in this case before the Court now.

[T]his Court [must] recognize the country’s adherence to the Geneva Convention and respect the unique status of the PNRC in consonance with its
treaty obligations. The Geneva Convention has the force and effect of law. Under the Constitution, the Philippines adopts the generally accepted
principles of international law as part of the law of the land. This constitutional provision must be reconciled and harmonized with Article XII,
Section 16 of the Constitution, instead of using the latter to negate the former. By requiring the PNRC to organize under the Corporation Code just
like any other private corporation, the Decision of July 15, 2009 lost sight of the PNRC’s special status under international humanitarian law and as
an auxiliary of the State, designated to assist it in discharging its obligations under the Geneva Conventions.
The PNRC, as a National Society of the International Red Cross and Red Crescent Movement, can neither “be classified as an instrumentality of the
State, so as not to lose its character of neutrality” as well as its independence, nor strictly as a private corporation since it is regulated by
international humanitarian law and is treated as an auxiliary of the State.

Although [the PNRC] is neither a subdivision, agency, or instrumentality of the government, nor a GOCC or a subsidiary thereof . . . so much so that
respondent, under the Decision, was correctly allowed to hold his position as Chairman thereof concurrently while he served as a Senator, such a
conclusion does not ipso facto imply that the PNRC is a “private corporation” within the contemplation of the provision of the Constitution, that
must be organized under the Corporation Code. [T]he sui generis character of PNRC requires us to approach controversies involving the PNRC on a
case-to-case basis.

In sum, the PNRC enjoys a special status as an important ally and auxiliary of the government in the humanitarian field in accordance with its
commitments under international law. This Court cannot all of a sudden refuse to recognize its existence, especially since the issue of the
constitutionality of the PNRC Charter was never raised by the parties. It bears emphasizing that the PNRC has responded to almost all national
disasters since 1947, and is widely known to provide a substantial portion of the country’s blood requirements. Its humanitarian work is
unparalleled. The Court should not shake its existence to the core in an untimely and drastic manner that would not only have negative
consequences to those who depend on it in times of disaster and armed hostilities but also have adverse effects on the image of the Philippines in
the international community. The sections of the PNRC Charter that were declared void must therefore stay.

[Thus, R.A. No. 95 remains valid and constitutional in its entirety. The Court MODIFIED the dispositive portion of the Decision by deleting the
second sentence, to now read as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is not a government office or an office in a
government-owned or controlled corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.]

CASE DIGEST: BOY SCOUTS OF THE PHILIPPINES v. COMMISSION ON AUDIT. G.R. No.177131; June 7, 2011.

FACTS: This case arose when the COA issued Resolution No. 99-011on August 19, 1999 ("the COA Resolution"), with the subject "Defining the
Commissions policy with respect to the audit of the Boy Scouts of the Philippines." In its whereas clauses, the COA Resolution stated that the BSP
was created as a public corporation under Commonwealth Act No. 111, as amended by Presidential Decree No. 460 and Republic Act No. 7278;
that in Boy Scouts of the Philippines v. National Labor Relations Commission, the Supreme Court ruled that the BSP, as constituted under its
charter, was a "government-controlled corporation within the meaning of Article IX(B)(2)(1) of the Constitution"; and that "the BSP is appropriately
regarded as a government instrumentality under the 1987 Administrative Code." The COA Resolution also cited its constitutional mandate under
Section 2(1), Article IX (D).Finally, the COA Resolution reads:

NOW THEREFORE, in consideration of the foregoing premises, the COMMISSION PROPER HAS RESOLVED, AS IT DOES HEREBY RESOLVE,to conduct
an annual financial audit of the Boy Scouts of the Philippines in accordance with generally accepted auditing standards, and express an opinion on
whether the financial statements which include the Balance Sheet, the Income Statement and the Statement of Cash Flows present fairly its
financial position and results of operations.

xxxx

BE IT RESOLVED FURTHERMORE, that for purposes of audit supervision,the Boy Scouts of the Philippines shall be classified among the government
corporations belonging to the Educational, Social, Scientific, Civic and Research Sectorunder the Corporate Audit Office I, to be audited, similar to
the subsidiary corporations, by employing the team audit approach

ISSUE: Does COA have jurisdiction over BSP?

HELD: After looking at the legislative history of its amended charter and carefully studying the applicable laws and the arguments of both
parties, [the Supreme Court found] that the BSP is a public corporation and its funds are subject to the COA's audit jurisdiction.

The BSP Charter (Commonwealth Act No. 111, approved on October 31, 1936), entitled "An Act to Create a Public Corporation to be Known as the
Boy Scouts of the Philippines, and to Define its Powers and Purposes" created the BSP as a "public corporation"

There are three classes of juridical persons under Article 44 of the Civil Code and the BSP, as presently constituted under Republic Act No. 7278,falls
under the second classification.Article 44 reads:

Art. 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2)Other corporations,institutions and entities for public interest or purpose created by law; their personality begins as soon as they have been
constituted according to law;
(3) Corporations, partnerships and associations forprivate interest or purposeto which the law grants a juridical personality, separate and distinct
from that of each shareholder, partner or member.

The BSP, which is a corporation created for a public interest or purpose, is subject to the law creating it under Article 45 of the Civil Code, which
provides:

Art. 45.Juridical persons mentioned in Nos. 1 and 2 of the preceding article are governed by the laws creating or recognizing them.

Private corporations are regulated by laws of general application on the subject.

Partnerships and associations for private interest or purpose are governed by the provisions of this Code concerning partnerships.

The purpose of the BSP as stated in its amended charter shows that it was created in order to implement a State policy declared in Article II,
Section 13 of the Constitution, which reads:

Section 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic
affairs.

Evidently, the BSP, which was created by a special law to serve a public purpose in pursuit of a constitutional mandate, comes within the class of
"public corporations" defined by paragraph 2, Article 44 of the Civil Code and governed by the law which creates it, pursuant to Article 45 of the
same Code. DENIED.

PHILIPPINE SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS vs. COA. G.R. No. 169752 September 25, 2007

FACTS:

The petitioner was incorporated as a juridical entity over one hundred years ago by virtue of Act No. 1285, enacted on January 19, 1905, by the
Philippine Commission. The petitioner, at the time it was created, was composed of animal aficionados and animal propagandists. The objects of
the petitioner, as stated in Section 2 of its charter, shall be to enforce laws relating to cruelty inflicted upon animals or the protection of animals in
the Philippine Islands, and generally, to do and perform all things which may tend in any way to alleviate the suffering of animals and promote their
welfare.

At the time of the enactment of Act No. 1285, the original Corporation Law, Act No. 1459, was not yet in existence. Act No. 1285 antedated both
the Corporation Law and the constitution of the SEC.

For the purpose of enhancing its powers in promoting animal welfare and enforcing laws for the protection of animals, the petitioner was initially
imbued under its charter with the power to apprehend violators of animal welfare laws. In addition, the petitioner was to share 1/2 of the fines
imposed and collected through its efforts for violations of the laws related thereto.

Subsequently, however, the power to make arrests as well as the privilege to retain a portion of the fines collected for violation of animal-related
laws were recalled by virtue of C.A. No. 148. Whereas, the cruel treatment of animals is now an offense against the State, penalized under our
statutes, which the Government is duty bound to enforce;

When the COA was to perform an audit on them they refuse to do so, by the reason that they are a private entity and not under the said
commission. It argued that COA covers only government entities. On the other hand the COA decided that it is a government entity.

ISSUE: WON the said petitioner is a private entity.

RULING:

YES. First, the Court agrees with the petitioner that the “charter test” cannot be applied. Essentially, the “charter test” provides that the test to
determine whether a corporation is government owned or controlled, or private in nature is simple. Is it created by its own charter for the exercise
of a public function, or by incorporation under the general corporation law? Those with special charters are government corporations subject to its
provisions, and its employees are under the jurisdiction of the CSC, and are compulsory members of the GSIS.

And since the “charter test” had been introduced by the 1935 Constitution and not earlier, it follows that the test cannot apply to the petitioner,
which was incorporated by virtue of Act No. 1285, enacted on January 19, 1905. Settled is the rule that laws in general have no retroactive effect,
unless the contrary is provided. All statutes are to be construed as having only a prospective operation, unless the purpose and intention of the
legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. In case of doubt, the doubt
must be resolved against the retrospective effect.
 Second, a reading of petitioner’s charter shows that it is not subject to control or supervision by any agency of the State, unlike GOCCs. No
government representative sits on the board of trustees of the petitioner. Like all private corporations, the successors of its members are
determined voluntarily and solely by the petitioner in accordance with its by-laws, and may exercise those powers generally accorded to private
corporations, such as the powers to hold property, to sue and be sued, to use a common seal, and so forth. It may adopt by-laws for its internal
operations: the petitioner shall be managed or operated by its officers “in accordance with its by-laws in force.”

Third. The employees of the petitioner are registered and covered by the SSS at the latter’s initiative, and not through the GSIS, which should
be the case if the employees are considered government employees. This is another indication of petitioner’s nature as a private entity.

Fourth. The respondents contend that the petitioner is a “body politic” because its primary purpose is to secure the protection and welfare of
animals which, in turn, redounds to the public good. This argument, is not tenable. The fact that a certain juridical entity is impressed with public
interest does not, by that circumstance alone, make the entity a public corporation, inasmuch as a corporation may be private although its charter
contains provisions of a public character, incorporated solely for the public good. This class of corporations may be considered quasi-public
corporations, which are private corporations that render public service, supply public wants, or pursue other eleemosynary objectives. While
purposely organized for the gain or benefit of its members, they are required by law to discharge functions for the public benefit. Examples of
these corporations are utility, railroad, warehouse, telegraph, telephone, water supply corporations and transportation companies. It must be
stressed that a quasi-public corporation is a species of private corporations, but the qualifying factor is the type of service the former renders to the
public: if it performs a public service, then it becomes a quasi-public corporation.

Authorities are of the view that the purpose alone of the corporation cannot be taken as a safe guide, for the fact is that almost all corporations are
nowadays created to promote the interest, good, or convenience of the public. A bank, for example, is a private corporation; yet, it is created for a
public benefit. Private schools and universities are likewise private corporations; and yet, they are rendering public service. Private hospitals and
wards are charged with heavy social responsibilities. More so with all common carriers. On the other hand, there may exist a public corporation
even if it is endowed with gifts or donations from private individuals.

The true criterion, therefore, to determine whether a corporation is public or private is found in the totality of the relation of the corporation to
the State. If the corporation is created by the State as the latter’s own agency or instrumentality to help it in carrying out its governmental
functions, then that corporation is considered public; otherwise, it is private. Applying the above test, provinces, chartered cities, and barangays
can best exemplify public corporations. They are created by the State as its own device and agency for the accomplishment of parts of its own
public works.

Fifth. The respondents argue that since the charter of the petitioner requires the latter to render periodic reports to the Civil Governor, whose
functions have been inherited by the President, the petitioner is, therefore, a government instrumentality.

This contention is inconclusive. By virtue of the fiction that all corporations owe their very existence and powers to the State, the reportorial
requirement is applicable to all corporations of whatever nature, whether they are public, quasi-public, or private corporations—as creatures of
the State, there is a reserved right in the legislature to investigate the activities of a corporation to determine whether it acted within its
powers. In other words, the reportorial requirement is the principal means by which the State may see to it that its creature acted according to the
powers and functions conferred upon it.

THE PROVINCE OF NORTH COTABATO, et al . v . THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES, et al .

President Gloria Macapagal-Arroyo, in line with the government‘s policy of pursuing peace negotiations with the Moro Islamic Liberation Front
(MILF), asked Prime Minister Mahathir Mohammad to convince the MILF to continue negotiating with the government. MILF, thereafter, convened
its Central Committee and decided to meet with the Government of the Republic of the Philippines (GRP). Formal peace talks were held in Libya
which resulted to the crafting of the GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement 2001) which consists of three (3) aspects: a.) security
aspect; b.) rehabilitation aspect; and c.) ancestral domain aspect. Various negotiations were held which led to the finalization of the Memorandum
of Agreement on the Ancestral Domain (MOA-AD). The said memorandum was set to be signed last August 5, 2008. In its body, it grants ―the
authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the Bangsamoro to the Bangsamoro Juridical Entity (BJE). The latter, in
addition, has the freedom to enter into any economic cooperation and trade relation with foreign countries. ―The sharing between the Central
Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE. The MOA-AD further provides for the
extent of the territory of the Bangsamoro. It describes it as ―the land mass as well as the maritime, terrestrial, fluvial and alluvial domains,
including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. With regard to
governance, on the other hand, a shared responsibility and authority between the Central Government and BJE was provided. The relationship was
described as ―associative. With the formulation of the MOA-AD, petitioners aver that the negotiation and finalization of the MOA-AD violates
constitutional and statutory provisions on public consultation, as mandated by Executive Order No. 3, and right to information. They further
contend that it violates the Constitution and laws. Hence, the filing of the petition.

ISSUES:

1) Whether or not the MOA-AD violates constitutional and statutory provisions on public consultation and right to information 2) Whether or not
the MOA-AD violates the Constitution and the laws.
HELD:

The MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which b
affects the lives of the public at large. Intended as a ―splendid symmetry to the right to information under the Bill of Rights is the policy of public
disclosure under Section 28, Article II of the Constitution which provides that subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public interest. Moreover, the policy of full public disclosure
enunciated in above-quoted Section 28 complements the right of access to information on matters of public concern found in the Bill of Rights. The
right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give
information even if nobody demands. The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a
genuinely open democracy, with the people‘s right to know as the centerpiece. It is a mandate of the State to be accountable by following such
policy. These provisions are vital to the exercise of the freedom of expression and essential to hold public officials at all times accountable to the
people. Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this
principle, it is merely directed to provide for ―reasonable safeguards.‖ The complete and effective exercise of the right to information necessitates
that its complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to
say that the broader right to information on matters of public concern is already enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy. An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion
be maintained to the end that the government may perceive and be responsive to the people‘s will. Envisioned to be corollary to the twin rights to
information and disclosure is the design for feedback mechanisms. The imperative of a public consultation, as a species of the right to information,
is evident in the ―marching orders‖ to respondents. The mechanics for the duty to disclose information and to conduct public consultation
regarding the peace agenda and process is manifestly provided by E.O. No. 3. The preambulatory clause of E.O. No. 3 declares that there is a need
to further enhance the contribution of civil society to the comprehensive peace process by institutionalizing the people‘s participation. One of the
three underlying principles of the comprehensive peace process is that it ―should be community-based, reflecting the sentiments, values and
principles important to all Filipinos and ―shall be defined not by the government alone, nor by the different contending groups only, but by all
Filipinos as one community. Included as a component of the comprehensive peace process is consensus-building and empowerment for peace,
which includes ―continuing consultations on both national and local levels to build consensus for a peace agenda and process, and the
mobilization and facilitation of people‘s participation in the peace process.Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to
effectuate “continuing” consultations, contrary to respondents’ position that plebiscite is “more than sufficient consultation.Further, E.O. No. 3
enumerates the functions and responsibilities of the PAPP, one of which is to ―conduct regular dialogues with the National Peace Forum (NPF) and
other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and timely reports on the
progress of the comprehensive peace process. E.O. No. 3 mandates the establishment of the NPF to be ―the principal forum for the Presidential
Adviser on Peace Progress (PAPP) to consult with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on
both national and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives. In fine, E.O. No. 3 establishes petitioners’ right to be consulted on the peace agenda, as a
corollary to the constitutional right to information and disclosure. In general, the objections against the MOA-AD center on the extent of the
powers conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed those granted to any local government under
present laws, and even go beyond those of the present ARMM. Before assessing some of the specific powers that would have been vested in the
BJE, however, it would be useful to turn first to a general idea that serves as a unifying link to the different provisions of the MOA-AD, namely, the
international law concept of association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind. Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE.
It is in the last mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and
the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative, judicial and administrative institutions with defined powers and
functions in the comprehensive compact. A period of transition shall be established in a comprehensive peace compact specifying the relationship
between the Central Government and the BJE. The nature of the ―associative relationship may have been intended to be defined more precisely
in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of ―association in international law, and the MOA-AD
– by its inclusion of international law instruments in its TOR– placed itself in an international legal context, that concept of association may be
brought to bear in understanding the use of the term ―associative in the MOA-AD. The MOA-AD contains many provisions which are consistent
with the international legal concept of association, specifically the following: the BJE‘s capacity to enter into economic and trade relations with
foreign countries, the commitment of the Central Government to ensure the BJE‘s participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of the Central Government over external defense. Moreover, the BJE‘s right to
participate in Philippine official missions bearing on negotiation of border agreements, environmental protection, and sharing of revenues
pertaining to the bodies of water adjacent to or between the islands forming part of the ancestral domain, resembles the right of the governments
of FSM and the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter affecting them. These provisions of the MOA
indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it. The concept of association is not recognized under the present Constitution. No province, city, or municipality, not even the
ARMM, is recognized under our laws as having an ―associative‖ relationship with the national government. Indeed, the concept implies powers
that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it
provide for a transitory status that aims to prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD‘s provisions, therefore, already requires for its validity the amendment of constitutional
provisions, specifically the following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. SECTION 15. There shall be created autonomous
regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.
It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from
that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a
permanent population, a defined territory, a government, and a capacity to enter into relations with other states.
The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present Constitution, it
is not surprising that many of the specific provisions of the M OA-AD on the formation and powers of the BJE are in conflict with the Constitution
and the laws. Article X, Section 18 of the Constitution provides that ―[t]he creation of the autonomous region shall be effective when approved by
a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be included in the autonomous region.
The BJE is more of a state than an autonomous region. But even assuming that it is covered by the term ―autonomous region in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the present
geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM during the 2001
plebiscite – Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal – are automatically part of the BJE without need of another plebiscite, in
contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the ARMM and the above-
mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary under the Constitution,
precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE.
Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: ―The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and
development. An associative arrangement does not uphold national unity. While there may be a semblance of unity because of the associative ties
between the BJE and the national government, the act of placing a portion of Philippine territory in a status which, in international practice, has
generally been a preparation for independence, is certainly not conducive to national unity.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying them,
namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until
that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative relationship
between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions from the President dated March 1, 2001,
addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a
guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the
amendment process is through an undue influence or interference with that process.

BBL RA No. 11054 Summary

But what is the Bangsamoro Basic Law? In a nutshell, the BBL answers the Muslims’ aspiration for self-determination and self-identity. It will create
a new Bangsamoro homeland composed of contiguous provinces, cities and municipalities who want and have voted to become part of the entity.
The BBL lays out the framework for its governance, with provisions that take into consideration Muslim culture and traditions and, addresses the
basic needs of its constituents.

The Bangsamoro Transition Commission was officially tasked with crafting the new Bangsamoro Basic Law last March 6, 2017. The BTC
Commissioners signed the draft basic law on June 16, 2017 and submitted it to the President and Congress.

With the interest of the Bangsamoro people in mind and the need to implement signed agreements, particularly the Comprehensive Agreement on
the Bangsamoro (CAB), the new proposed BBL remains faithful to the letter and spirit of the CAB and considered the other agreements gained
through decades of peace negotiations, namely the Tripoli agreement and the Final Peace agreement.

It is now more inclusive, as the Commission was composed of all important stakeholders in the prospective Bangsamoro homeland, taking into
consideration the diverse needs of the Bangsamoro people, non-Bangsamoro indigenous tribes and settler communities, united under one goal of
establishing a just, dignified and lasting peace in the Bangsamoro, in Mindanao and in the Philippines as a whole. It is seen as the means towards
redressing decades of discrimination and injustice suffered by the Moro peoples and an antidote to violent extremism because, once passed and
implemented, it will erase any doubts and suspicions that accompanied the previous failed peace efforts.
Once established, the Bangsamoro government would be at the forefront of keeping public order and safety, dispensing justice within the bounds
of the law, and addressing the basic requisites of a good life that Muslims are entitled to.

The BBL is currently under review of Congress who is tasked with passing it into law. Given that the President has expressed full support of for the
BBL, the chances are good that this time around, a homeland for the Moro people, will finally come to pass, sooner than later. Nonetheless,
advocates are working round the clock to ensure the bill’s passage, given the peace process’ history of failure and the vagaries of politics. It is
hoped that the Law be passed as soon as possible as to help arrest the spread of extremism in the area.

Duterte: Federalism must be within the Constitution

shares

Alexis Romero (Philstar.com) - March 22, 2019 - 7:06pm

MANILA, Philippines — Efforts to adopt a federal type of government should be in accordance with the Constitution, President Rodrigo Duterte
said, after Moro National Liberation Front (MNLF) founder Nur Misuari threatened to declare war if the federalism push fails.

Duterte, who previously claimed federalism would end the longstanding conflict in Mindanao, said moves to change the type of government from
unilateral to federal has to undergo a process.

"Federalism is being crafted by Congress. Maybe somehow we can now craft a...the set up within the federal structures. But it has to go into a
process and I’m sure chairman Misuari knows that - that everything must be in accordance with the Constitution," the president said in a chance
interview after the 122nd anniversary of the Philippine Army in Fort Bonifacio.

"We’ll just have to craft something there that would be allowed by the Constitution and by law," he added.

Duterte said Misuari talked about going to war because "he is fighting a revolution." He said the Moro leader was just clinging to a promise made
by the late president Corazon Aquino, who allegedly vowed to adopt federalism.

"He (Misuari) has slowed down because he wants to talk and the original agreement I think, that was assurance given to him by Cory Aquino was
that there will be a federal system that would govern this country, I mean the structure. And he is sticking to that agreement," the president said.

Misuari is facing a rebellion charge over the 2013 Zamboanga siege, which resulted in the deaths of more than 200 people. He has also been
charged with graft and malversation in connection with the allegedly anomalous purchase of more than P77 million worth of "ghost" textbooks
when he was governor of the Autonomous Region in Muslim Mindanao.

Misuari, however, was allowed to attend conferences abroad after Duterte assured the courts and government forces that the Moro leader would
return to the country.

Last Wednesday, Duterte revealed Misuari had expressed readiness to go to war if the Philippines does not adopt federalism. The president told
Misuari he was prepared to form a panel to discuss the MNLF founder's concerns.

Dutere made a "counter threat" that he and Misuari would "die together" if efforts to promote federalism fail, according to presidential spokesman
Salvador Panelo.

"That means I will fight back. That’s what the president meant. If you fight the government, I will fight back," Panelo said in a press briefing last
Thursday.

Federalism's implications on our legal and judicial systems

The emergence of separate and distinct legal and judicial systems within the country need not necessarily divide Filipinos, but it bears to recognize
that such a threat does exist, and it should at least cause one to think though the consequences of shifting to a federalist systemR

This is the first of a series of articles the authors (and other collaborators) will be writing on constitutional change. The intent of the series is to
influence the process of amending or revising the Constitution that is about to be launched this January.

President Rodrigo Duterte has laid the foundations for this process with the issuance of Executive Order No. 10 last December 7, 2016. The order
creates a 25-member Consultative Committee that is tasked to “study, conduct consultations, and review the provisions of the 1987 Constitution
including but not limited to the provisions on the structure and powers of the government, local governance, and economic policies.” The President
is expected to appoint the chairperson and members of the Committee that has a 6-month deadline to submit its recommendation to him.
Eventually, their work will be submitted to Congress that is expected to convene as a constituent assembly.

This article is on the implications of federalism, as distinguished from a unitary system, on our legal and judicial systems. It will be followed by
articles on the economic provisions, human rights, public accountability, social justice, and on the debate between a parliamentary versus a
presidential system of government.
Legal consequences of federalism

Equitable development and genuine, lasting peace. These are among the positive outcomes envisioned and often cited by advocates of a shift from
the country’s current unitary system to federalism. Advocates argue that these outcomes will be realized as a result of more power and discretion
placed in the hands of the states or "federal regions" (according to one proposal by Congress, the 2008 Joint Resolution No. 10), rather than being
concentrated in distant "imperial" Manila. Indeed, a key feature of a federalist set-up is the sharing of sovereignty and jurisdiction between a
national/federal/central government and the governments of individual states or regions. Presumably, similar to other federalist jurisdictions, the
national government will retain control and authority over defense and foreign affairs, including trade.

Beyond these areas specifically allocated to the central government, the state/regional governments are supposedly granted greater power,
discretion, and resources to independently determine the fates of their own units and constituencies. Moreover, the people are theoretically
enjoined to greater participation in political life as they are brought closer to their elected leaders, and in turn, the latter are made more
accountable to the citizens.

One significant consequence of this sovereignty-sharing arrangement is the likelihood of having discrete legal and judicial systems within the
Philippines. In other words, while still sharing the same citizenship and a common set of national or federal officials, Filipinos could be subjected to
different laws (and, to a certain extent, moral codes), depending on which state/region they are residing or conducting their activities in. Hence,
there is a myriad of questions that need to be asked – and eventually answered – in terms of the changes in the way that people would perceive
and interact with the law and with the courts.

The more obvious and certain differences will be readily observed in the statutes relating to fiscal matters and regulatory concerns, since the shift
to federalism is precisely rooted in the belief, among others, that the problems of unequal income and development, as well as of social unrest and
armed violence, are best resolved by granting the various parts of the country (regions) broader autonomy in their decision-making and making
them more "in-control" of their own resources. There is indeed much to be said about this proposition and the possible consequences of having tax
rates differential and distinct regulatory policies across the states/regions. This article focuses, however, on the less expected, or at least less
discussed, effect of a shift to federalism, namely, the emergence of multiple legal and judicial systems within the country.

Assuming, for purposes of this piece, that the Bill of Rights enshrined in Article III of the 1987 Constitution will subsist in the shift to federalism,
there remain a number of possible variations in the civil, criminal, and administrative laws that each state/regional legislature can formulate on its
own.

For instance, under a federalist system, the minimum ages (i) for criminal responsibility, (ii) for marriage, and (iii) for access to work may be altered,
lowered, or set differently by each of the states/regions. It bears to ask in this regard whether or not the country is prepared to treat each Filipino
child differently, and whether or not such resulting disparate treatment would be consistent with Philippine international obligations under
relevant treaties, particularly the Convention on the Rights of the Child (CRC).

Relatedly, the requisites for marriage might vary across states/regions, such that same-sex marriage may become allowed in the more "liberal"
jurisdictions. Restrictions might likewise be loosened in some states/regions, enabling the legalization of divorce. How these changes in
laws/statutes governing persons and family relations would affect the provisions in the present Constitution – treating the family as ‘the
foundation of the nation" and marriage as "an inviolable social institution… [to be] protected by the State" – is a question that Congress (acting as a
constituent assembly) or members of a constitutional commission have to contend with.

As in other countries that have a federalist system like the United States of America, France, and India, certain activities may be legalized or
decriminalized in various parts of the Philippines, but remain to be criminal acts in others. On the upside, in the light of the present lacuna in
the law, online harassment can be properly defined and made punishable – perhaps at a faster pace – by some state/regional statutes. This would
largely depend on the attitude of the population in a given state/region towards the balance between the exercise of the right to freedom of
expression in cyberspace vis-à-vis the perceived governmental duty to protect victims of harassment in any form or medium. In connection to this,
some states/regions may finally heed calls made in the past to decriminalize libel and to impose prohibitive monetary fines instead.

Conversely, there is also the possibility of declaring legal in particular states/regions the use of marijuana and other addictive drugs for medical
purposes. Indeed, given the greater capacity of different sets of peoples, through their respective governments, to determine what activities are
objectionable, and therefore punishable, the country would possibly have to deal as well with the reality that citizens of the Philippines have
differing or conflicting opinions and moralities. A grave concern in this regard is whether such realization would affect the people’s sense of
national unity, which is said to be a foundation of national security.

The judiciary in a federalist system

Concomitant to these foreseen changes in the statutes and the legal system as a whole, one also ought to ask how these would affect the way that
courts work.

Advertisement

Critically, much thought has to be devoted to the reorganization of existing courts, the creation of new ones, and the determination of the
hierarchy and relationship amongst them. Should judges in the state/regional courts become elected officials, or should they still be appointed like
their peers in the federal/national courts? Can state/regional courts motu proprio refer cases to, or request opinions from, the federal courts, and
vice-versa?

Additionally, although not a natural or necessary consequence of the shift to federalism, this might likewise be an opportune moment to deliberate
on the pros and cons of establishing a constitutional court in the Philippines. This constitutional court would sit alongside the current Supreme
Court, and would adjudicate only on cases involving constitutional questions. The existing Supreme Court may be replaced by or renamed as the
Federal Supreme Court, and would continue to act as the court of last resort for all types of cases. The appellate jurisdiction of the Constitutional
Court and of the Federal Supreme Court will thus have to be clearly delineated.

In connection to this, there exists a potential agency problem: why should a federal court, which presumably is not directly constituted by the
people of a specific state/region, be granted authority to pass upon the proper application and construction of a law crafted by the state/regional
legislature that the said people themselves have elected? Relatedly, should a federal court’s interpretation of a state/regional law prevail over the
interpretation of a state/regional court? The problem might also be framed in a conflict-of-laws perspective: would it be proper for a federal
supreme court, in its appellate jurisdiction, to apply state/regional law, instead of federal law, which is theoretically the only law that the federal
court is authorized and competent to interpret?

Federalism and the legal profession

With the creation of distinct state/regional governments, including judiciaries, another critical aspect to consider is the impact of these changes on
the legal profession, i.e., the lawyers. With the shift to federalism, will there then be separate bar associations to be formed per state/region? Will
existing lawyers authorized to practice law in the entire Philippines be required or compelled to “re-take” the bar examinations in each
state/region? To recall, the present Supreme Court has traditionally been the sole entity constitutionally mandated and authorized to regulate the
practice of law in the country. With the shift to federalism and the creation of discrete state/regional courts, would it then become acceptable for
the supreme courts in each state/region to independently determine the qualifications for admission to the bar, thereby opening up the possibility
of having divergent or inconsistent bar admission and ethical rules? In turn, how would these affect legal education in the country? Are the existing
law schools adequate in number (per state/region) and sufficiently prepared to train would-be lawyers and to teach the newly-enacted
state/regional laws?

A related situation that needs to be addressed is the possibility of having a dearth of lawyers in one state/region and a surplus in another. This can
potentially impact on the people’s constitutional right to competent and independent counsel. All of these clearly require careful deliberation,
inasmuch as these are quite delicate matters riddled with important constitutional implications. The debates and discussions about whether or not
to pursue the shift to federalism should therefore include these issues/questions.

Advertisement

A charter that unites us

As a final note, without refuting or discounting the advantages of adopting a federalist system, one should still ponder the potential harms of such
a shift, including an increased divisiveness or a diminished sense of unity among Filipinos, as a result of having distinct/discrete legal and judicial
systems to govern their everyday lives. This raises an imperative for crafting a fundamental law, i.e., a constitution, that would continue to
highlight, and serve as reminder of, the subsistence of our shared and common experiences and characteristics as one Filipino people, in spite of
the admitted existence of particular idiosyncrasies (cultural, religious, political) among the population and which idiosyncrasies are made manifest
in the content of laws.

Law, being a potent instrument of social change, as well as a product or expression of human nature and creativity, has a critical role in steering a
nation to the people’s desired destination. Accordingly, reforms in the law or laws, not to mention in entire legal and judicial systems, especially
those as far-reaching as the ones mentioned in this piece, would most likely bear significant consequences not only on the manner by which
government is organized, but more importantly, with respect to the very way that people live their daily lives, perceive their roles within a society
and a country, and deal with political, economic, and social institutions that the law has shaped as well.

The policy choice to shift to federalism, if thoroughly studied and prudently executed, will probably bring about significantly positive results,
including those that advocates are expecting and rooting for. Foremost of such results must be that many Filipinos would begin to reap benefits
that they desire but could previously not enjoy due to, among others, the undue concentration of power and resources to the "center." However,
the recognition and accommodation of differences and discretion that lie at the heart of a federalist system should not jeopardize more than a
century’s worth of nation-building efforts, which were based on finding sufficient common and shared interests among a people of different views
and backgrounds.

The emergence of separate and distinct legal and judicial systems within the country need not necessarily divide Filipinos, but it bears to recognize
that such a threat does exist, and it should at least cause one to think though the consequences of shifting to a federalist system, or urge one to
explore all possible means to avoid the potential dangers accompanying such shift and to design a federal system that unites and not dviides. –
Rappler.com