BEDAN LAW REVIEW

June 2022 | Volume X

Chairperson
Clara Angela R. Murallos

Vice Chairperson
Ma. Clarissa S. Malig-on

Senior Executive Editor

Andrea Nicole V. Fabregas

Features Editor
Criszus Niño V. Ibon

Article Editor
Jimael Salam D. Salliman

Layout Editor
Eloisa Fe C. Buño

Research Editor
Olivia Althea E. Violeta

BEDAN LAW REVIEW Business Circulation Manager

Kaye Alexandhra M. Mercado
The Official Publication of the San Beda Alabang School of Law
Senior Associate Editors
Patricia Mae E. Dela Rosa
Rhaymund Lorenz M. Gratela
Aily Liezel M. Mabanglo

Junior Associate Editors

Arjuna Debi U.Roxas
William Jay L.Terencio
JUNE 2022 Kristine H. Rasing
VOLUME X Lara Linda L. Ramos
DISCUSS, DEBATE, DISSENT Patricia Ann P. Salvador
Paulo Rafael C. Bautista
Aaron Jan M. Madarang
Rica Joy C. Rodriguez
Joanna Colleen A. Simbulan
Jasmin Denisse J. Dela Cruz

Moderator
Vice Dean Carlo D. Busmente

The Bedan Law Review (ISSN 2244-5307) is the official law journal of San Beda College Alabang School
of Law, featuring various articles on different aspects of law, giving special emphasis on contemporary
San Beda College developments, contributed by members of the Bedan community and other legal experts.

SCHOOL OF LAW The views expressed in these articles are those of the contributors and do not necessarily reflect the views
of San Beda College Alabang School of Law and the Board of Editors of The Bedan Law Review.
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MESSAGE
My dearest Bedans,
The theme of the 10th founding anniversary of the Bedan Law Review is
befitting for the recently concluded 2022 National and Local Elections. The theme,
Democracy in the Philippines: “Discussion, Debate, and Dissent: Revisiting the Sta-
tus of Philippine Democracy” is a subject matter which should not only be examined
through a microscopic lens but a concept that all students must constantly reflect on to
be able to grasp and discern the truth that underlies within.
Crawford Brough Macpherson, an influential Canadian political scientist,
once said that “The main problem of participatory democracy is not how to run it, but
how to reach it.” And with this quote, I would like to challenge this new generation
of lawyers to take a step further to not only revisit our laws but to reexamine in its
entirety the Constitution that we adhere to and reevaluate if we have already gotten
used to running it as it is or are we ready to further push the limits of democracy to
what it should be.
My heartfelt congratulations to the Bedan Law Review for its 10th founding
anniversary. May you continue to challenge your readers both to think deeper and to
embrace the hard truths that are highlighted in the law articles you have all worked
hard to publish.
God bless the Bedan community! God bless our country!
Yours,
DEAN ULPIANO P. SARMIENTO III
Dean, San Beda College Alabang – School of Law
MESSAGE
My warmest felicitations to the “Bedan Law Review” for celebrating its 10th
year founding Anniversary! This year’s theme, “Democracy in the Philippines: “Dis-
cussion, Debate, and Dissent: Revisiting the Status of Philippine Democracy”, is very
much timely since we have just concluded the 2022 National and Local Elections,
which is arguably the most important democratic exercise in modern Philippine his-
tory. Needless to say, the outcome of this election will radically alter our country’s
political future. But the question remains on whether Filipinos are mature enough for
democracy.
Democracy in the Philippines is quite an enigma. It was the first country in
the region to peacefully topple an authoritarian rule. Signs of a dynamic democracy
are extensive such as high voter turnout, political engagement, and institutional re-
forms that apparently promote accountability and safeguard rights and freedom. Yet,
the flaws in the democratic process are also pervasive: elite dominance, political dy-
nasty, lack of voter education, and prevalent abuse of public office, which suggest true
representation is largely whimsical or illusory. In the light of these observations, this
anniversary volume aptly features articles on various aspects of Philippine Democracy
in answer to the call for law students and lawyers to join the discussion, participate in
the debate, and express your dissent on how it is to be in a democratic country during
this time of political and economic uncertainty.
The choice of its anniversary logo highlighted with the Roman numeral “X” is
likewise commendable. “X” is the most powerful letter in the alphabet inasmuch as the
symbol of “X” has been used in so many fields, from algebra to science, astronomy, and
spirituality. In the context of theology, “X” is the sign of the cross where our Lord Jesus
Christ was crucified, or for Christ himself. But this symbol, or marker, can also be un-
derstood as a “crossing over” to another dimension: a transcendence or transformation.
As it celebrates its 10th founding anniversary, I believe that the “Bedan Law Review”
will transcend to a new dimension of transformative journalism and achieve even great-
er heights. I, thus, look forward to another decade of Christ-centered, thought-pro-
voking, and timely pieces on issues, events, and institutions of legal significance.
VICE DEAN CARLO B. BUSMENTE
Vice Dean, San Beda College Alabang – School of Law
MESSAGE
Democracy has always been a tough topic to dissect, but I have always known
that the Bedan Law Review would eloquently articulate the concept through wide array
of articles that do not only exemplify the gist of democracy, but more so, allow all of
us—law students, and lawyers alike—to breathe in its significance, especially now that
we are entering a new Administration.
Congratulations to the entire Bedan Law Review staff for ensuring that this
Volume will not only tackle topics that are close to our hearts, but topics which also
challenge our perception as legal professionals in the Philippines.
Once again, my warmest congratulations to the whole Bedan Law Review
for their ten years of continuously challenging perceptions through discussion, debate,
and dissent.
God Bless us all!
ATTY. ROBEN B. CADUGO, JR.
Administrative Officer and Law School Professor
San Beda College Alabang—School of Law
FOREWORD
“So, this is how liberty dies… with thunderous applause.”
- Senator Amidala, Star Wars: Episode III - Revenge of the Sith (2005)
The campaign period in the Philippines is notoriously known as a great circus.
People from different classes come together to view politicians not as mere statesmen,
but as entertainers that would have them forget their realities. Regrettably, this gives the
majority of the voting population false hope that once their candidates are put into po-
sition, promises will be enforced and put into action, theoretically reviving our country
from the void that it has become. Unfortunately, that spectacle will be nothing but a
mere façade disguised to simply appeal to the poor people of this poor country.
The authority—which the masses proffer to these politicians—allows those in
position to remain drunk in power. Yet, in contrast, sobriety is required to be able to
maintain the guise of “serving the people” which Filipinos constantly devour up until
this very day.
We are not simply taking care of our country’s liberty for our desires in our
lifetimes. The freedom that we are all taking advantage of is not ours to abuse, but
ours to protect so that the future generation could still voice out their grievances and
acclamations to the Government; the Government that the people built, and not the
Government that is created to adhere only to the privileged few.
Democracy is the end goal, but the process of attaining liberty is a progression
that all citizens must work hard to attain. Democracy only becomes a reality once every-
one acknowledges and appreciates its importance, and its preeminence must constantly
be inculcated in the heart of every Filipino who embraces not only their rights but their
goal of wanting a better country for their descendants.
Lamentably, our democracy is debilitated, only trying to claw its way out
through the votes of the Filipino masses. During times like this, wherein our democracy
is incessantly being threatened by exhaustive and impetuous misinformation, we need
to secure to ourselves the value of the freedom that we have inherited and the future
generations will inherit. We must allow the truth of our country’s chaotic, yet very col-
orful history to be instilled not only in books that are now being burnt but most impor-
tantly, it must be ingrained in the hearts of every Filipino to be able to find nationalism
even in the most paralyzing of times.
Woefully, misinformation has dethroned the truth. The constant mockery of
one’s educational attainment and idealism towards the country’s revival has become
the weapon of vehement trolls who persistently expunge the shadow of our country’s
wounded past—a once rich history that is now being altered to adhere to a delusion of
grandeur. But apparently, it is easier to forget than to remember. And now that we’re
back to square one, let us constantly remind ourselves that empires always fall and that
they always collapse from within.1
1  Ego is the Enemy by Ryan Holiday
FOREWORD TABLE OF CONTENTS

The right to dissent is essential to freedom – that only when all views are heard Violation Of Information Privacy As Tort 1
can citizens make informed decisions, and only when minority voices are empowered Atty. Timoteo Aquino and Atty. Leona Isabelle A. Aquino
can we find the best ideas.2 To recapitulate from two of the most important jurispru-
dence of our time, if people are stripped naked of their rights as human beings, democ-
racy cannot survive and the government becomes meaningless.3 A democracy is only as Social Media Regulation: Saving Democracy Or Silencing Dissent? 21
secure as its elections. It is only as resilient as the faith of its people in its mechanisms Atty. Mae Diane Azores
for suffrage.4

Thus, even with the continuous misinformation and burning down of history, Agora: On Housing And The Value Of Public Space 32
may we all strive hardest to protect the principles of our democracy, unceasingly uphold Paulo Rafael C. Bautista
the value of our freedoms, and perpetually embrace only unembellished history.
Update: Modification On The Rule In Regard To Adverse Possession
- By A Third Party In Petitions For Issuance Of Writs Of Possession 37
In The Case Of Sps. Rosario vs. GSIS, And Brief Analysis Thereof
The 10th volume of the Bedan Law Review aims to capture its tagline by not Atty. Moujeck Steve Olayvar Cabales
only discussing topics that encapsulate the heart of democracy, but mostly, to dissent on
certain matters, debate on important things, and reprobate laws or the lack of it. Democratic And Republican Principles At The Time Of The 48
Philippine Revolution
This volume became possible with the hard work and commitment of my Dr. Juan Ruffo D. Chong
Vice-Chairperson, Ma. Clarissa Malig-on, the entire Editorial Board, the Associate
Writers, our adviser Vice Dean Carlo Busmente, our beloved dean Dr. Ulpiano P. Fair, Representative, And Democratic Elections: 60
Sarmiento III, Atty. Roben Cadugo, Jr., and all our esteemed contributors. Examining Proportional Representation In The Philippines
Jasmin Denisse J. Dela Cruz
I would also like to extend our utmost appreciation to our parents who have
supported us in our law school journey, may it be our academic pursuits or our ex- A Gruesome Exchange: Civil And Political Rights For Sale 66
tra-curricular activities, our friends, significant others, and pets. Mostly, we would like Patricia Mae E. Dela Rosa
to give our unending gratitude to God for allowing the stars to align upon us by making
the 10th volume of the Bedan Law Review a success. Ne Exeat Regno: “Offloading” International-Bound Filipino Passengers 70
And The Right To Travel
Andrea Nicole V. Fabregas

The Bangsamoro Organic Law: A Glimpse of National Identity, Unity, and 77

Security Under the Philippine Political System
Rhaymund Lorenz M. Gratela
CLARA ANGELA ROBLES MURALLOS
Editor-in-Chief, Bedan Law Review Volume X Inclusion: Democratic Participation Of Persons With Special Needs And 88
Disabilities
Criszus Niño V. Ibon

Ut Alii Vivant: So That Others May Live 93

A Peek Into The Lives Of Filipino Nurses Amidst The Covid-19
Pandemic: Are They Hereos or Victims?
Lara Linda Lazo- Ramos

2  Decisions and Dissents of Justice Ruth Bader Ginsburg: A Selection, Penguin Classics Politics and Press: What Politics Wants Media to Cover 98
3  In Re: Letter of Atty. Jose C. Corales, [A.M. No. P-12-3049. June 29, 2021.] Aily Liezel M. Mabanglo
4  Marcos, Jr. vs. Robredo, [P.E.T. Case No. 005. February 16, 2021.]
TABLE OF CONTENTS TABLE OF CONTENTS

Basic Income In The Philippines: Social Justice Amid The Covid-19 Pan- 103 An Analysis On The Feasibility Of Adopting A Jury System In The 228
demic And Beyond Philippines
Aaron Jan M. Madarang Joanna Colleen A. Simbulan

Friend Or Foe? Utilizing Social Media In Pursuit Of Democracy In The 110 Kasarinlan: Protecting The Integrity Of Philippine Elections From Foreign 235
Digital Age Electoral Interference
Ma. Clarissa S. Malig-on William Jay L. Terencio

Who's Watching? Addressing The Challenges Of Taxing The Digital 121 Protection Of Labor And The Right To Life: A Precarious Balancing Act In 246
Economy In The Philippines The Time Of Covid
Kaye Alexandhra M. Mercado Althea Olivia E. Violeta

Beyond The Rainbow: Obliterating Gender Discrimination And 131 San Beda College School Of Law, Alabang True To Its Tradition Of 251
Stereotypes In Sports Excellence
Clara Angela R. Murallos Justice Japar B. Dimaampao

The Strictest Of Scrutinies: Reevaluating The Restrictiveness Of Quo 138

Warranto On The Liberty Of The Press
Ferdinand Elbert D. Jomilla, JD

Free Money: The Constitutional Aspects Of Cryptocurrencies 151

Atty. Rafael Angelo M. Padilla

The Price To Pay For Free Speech 184

Dean Rico Paolo R. Quicho

Mouths Kept Shut: The Human Rights Crisis Of Environmental 191

Defenders In The Philippines
Kristine H. Rasing

Lack Of Financial Rigor As A Ground For Declaring Nuisance 202

Candidacies: A Jurisprudential Examination
Rica Joy C. Rodriguez

Clearing Clogged Court Culture: Decongesting Dangers In The Philippine 210

Democracy
Arjuna Debi Roxas

The Relationship Between The Criminalization Of Abortion And Its 219

Impacts On The Reproductive Autonomy Of Filipino Women
Patricia Ann P. Salvador

Democracy In The Philippines: Unfinished, Undefeated 226

Commissioner Rene V. Sarmiento (Ret.)
 violation of INFORMATIONAL PRIVACY as tort
TIMOTEO B. AQUINO
AB Economics San Beda University, College of Arts and Sciences (1984)
LLB, San Beda University College of Law (Valedictorian, Class 1988)
8th Place, 1988 Bar Examinations

Author and Co-Author, Torts and Damages, Reviewer of Civil Law, Reviewer on Commercial Law,
Essentials of Credit Transactions and Insolvency Law, Essentials of Insurance Law, Notes and Cases on
Negotiable Instruments Law and Banking Law, Commentaries and Jurisprudence on the Revised Cor-
poration Code of the Philippines, Revised Corporation Code of the Philippines A Short Introduction,
Fundamentals of Negotiable Instruments Law, Fundamentals of Obligations and Contracts, Handbook
on Summary and Small Claims Procedure
and
LEONA ISABELLE A. AQUINO
AB Philosophy, University of Philippines, Diliman (Cum Laude)
Juris Doctor, San Beda College Alabang, School of Law (2019)
Data Protection Officer Certification from the University of Asia and the Pacific (2020)
Senior Associate, Sycip Gorres Velayo and Co.

Introduction

This article presents the different laws that protect informational privacy in the Philippines
as well as the tort liability that may result in case the right to informational privacy is violated.

Initially, the article discusses the relationship between democracy and civil rights and
how these rights are protected in tort law under the Civil Code and special laws. The article then
focuses on the specific right which is the right to informational privacy and its relationship to
democracy. The alternative statutory bases of the liability for tort of violation of the informational
right to privacy are cited and discussed. The article also identifies the means through which the right
to informational privacy is protected under the Data Privacy Act of 2012 and the Civil Code. This
article aims to identify the provisions of the Data Privacy Act of 2012 and other existing laws that
justify the imposition of tort liability for violation of informational privacy.

1. Democracy and Civil Rights

Under the classical liberal view of democracy, the democratic government protects the
interest of the people by endowing them with rights that act as claims against an overbearing
State.1 The classical liberal view considers rule of law as constraints on government which entails
grant of rights to the citizens of the State. Under a civic republican view of democracy, personal
liberty and liberty of the State are intimately and irremovably bound together so it is incumbent
on the democratic State to protect all its members by encouraging them to be good citizens.2 It is
undeniable that personal liberty is an important ingredient of democracy.

1  Iain MacKenzie, Politics, 2009 Ed., p. 110.

2  Ibid., pp. 110-111.

1
 BEDAN LAW REVIEW
2. Democracy and Civil Law
Democracy is one of the fundamental principles that is being upheld under the New
Civil Code. The Code Commission explained how democracy is being upheld under the New Civil
Code:
“It may at first sight seem strange that a civil code should concern
itself with democracy, which it may be argued, is properly a matter for a political code.
But democracy being more than a mere form of government, affecting as it does, the very
foundations of human life and happiness, cannot be overlooked by an integral civil code,
particularly since the last two world wars which showed all too tragically that democracy
as a way of life must be inculcated into the hearts and minds of men and women.”3
Consequently, the Civil Code contains provisions that aim to protect and uphold the
principle of democracy in this jurisdiction. Thus, there are provisions in the Civil Code that
provide relief to those whose rights are violated. These provisions are mainly those that allow
the injured party to recover damages and provide deterrence to prevent the continuation of the
unacceptable conduct that violates the rights of every person.
3. Constitutional Right to Privacy
In the Philippines, the right to be let alone is a constitutional right. The Supreme
Court considers the right to privacy as one of the fundamental constitutional rights. “Privacy is a
fundamental right, essential for freedom, democracy, psychological well-being, individuality, and
creativity.”4
In Morfe v. Mutuc,5 the Supreme Court adopted the ruling of the United States Supreme
Court in Griswold v. Connecticut6 that there is a constitutional right to privacy holding that:
“The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an unconstitutional
invasion of the right of privacy of married persons; rightfully it stressed “a relationship
lying within the zone of privacy created by several fundamental constitutional guarantees.”
It has wider implications though. The constitutional right to privacy has come into its
own.
So, it is likewise in our jurisdiction. The right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection. The language of Prof. Emerson is particularly apt: ‘The concept
of limited government has always included the idea that governmental powers stop short
of certain intrusions into the personal life of the citizen. This is indeed one of the basic
distinctions between absolute and limited government. Ultimate and pervasive control of
the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can control. Protection
of this private sector — protection, in other words, of the dignity and integrity of the
individual — has become increasingly important as modern society has developed. All
the forces of a technological age — industrialization, urbanization, and organization —
operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the difference between
a democratic and a totalitarian society.’”
In Blas F. Ople v. Ruben D. Torres, et al.,7 the Supreme Court confirmed that the right
3  Report, p. 28.
4  Daniel J. Solove, Understanding Privacy, 2008 Ed., p. 5.
5  Morfe v. Mutuc, G.R. No. L-20387,22 SCRA 424 (1968).
6  Grisworld v. Connecticut, 381 U.S. 479 (1965).
7  G.R. No. 127685, July 23, 1998; See Kilusang Mayo Uno, et al. v. Director General, G.R. No. 167798, April 19, 2006
2 3
BEDAN LAW REVIEW
is recognized and enshrined in Sections 1, 2, 3(1), 6, 8 and 17 of the 1987 Constitution. The
Supreme Court observed that “the essence of privacy is the ‘right to be let alone.’ In the 1965 case
of Griswold v. Connecticut, the United States Supreme Court gave more substance to the right of
privacy when it ruled that the right has a constitutional foundation. It held that there is a right
of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth
Amendments” of the United States Constitution. The zones of the constitutional right to privacy
are discussed in the case of In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon:8
“Zones of privacy are recognized and protected in our laws. Within these zones,
any form of intrusion is impermissible unless excused by law and in accordance with
customary legal process. The meticulous regard we accord to these zones arises not only
from our conviction that the right to privacy is a ‘constitutional right’ and ‘the right most
valued by civilized men,’ but also from our adherence to the Universal Declaration of
Human Rights which mandates that “no one shall be subjected to arbitrary interference
with his privacy” and “everyone has the right to the protection of the law against such
interference or attacks.”
More recently, in Versoza v. People9, the guardians of a 24-year old man with cognitive
disability were sued for allegedly making the person under guardianship undergo bilateral
vasectomy without his consent. The case against the guardians was dismissed. However, in his
separate opinion, Justice Leonen stated the principle of law prevailing in the Philippines relying
also on Morfe v. Mutuc10 and Ople v. Torres:11
“There will always be a sphere of autonomy within an individual’s life with
which the State cannot interfere. This pertains to the exercise of his or her basic human
rights. The protection of the inherent dignity of every individual is guaranteed by no less
than the Constitution. The State is obliged to ensure that every individual can make
choices free from personal restraint, especially if what is at stake is a fundamental human
right.
This is relevant in reproductive health rights. The area of freedom where
decisions surrounding one’s right to procreate are made is sacrosanct, the protection
further bolstered by one’s right to privacy.
Although the right to privacy is intertwined with the right to liberty, it is a
distinct right that is equally entitled to protection under the Constitution. Article III,
Section 3 (1) states that ‘[t]he privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law.’
The right to privacy, however, not only pertains to privacy of one’s
communication and correspondence. It has many dimensions, referred to as ‘zones of
privacy,’ which are embedded in other constitutionally guaranteed freedoms.”
Related to the foregoing, the Supreme Court stated that “(i)n assessing the challenge that
the State has impermissibly intruded into these zones of privacy, a court must determine whether
a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has
been violated by unreasonable government intrusion.”12 The Court ruled in Ople v. Torres,13 that in
passing laws and rules, adequate safeguards should be maintained regarding the people’s reasonable
(there is no bar to the adoption of a reasonable ID system); White Light Corp. v. City of Manila, G.R. No. 122846,
January 20, 2009.
8  535 Phil. 687, 714-715 (2006) cited in Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, G.R. Nos. 20335,
203299, 203306, 203359, 203378, 203391, 203407, 203440, 203453, 203454, 203469, 203501, 203509, 203515
and 203518, February 18, 2014.
9  G.R. No. 184535 (Resolution), September 3, 2019.
10 Supra.
11 Supra.
12  Jose Jesus M. Disini, Jr., et al. v. The Secretary of Justice, supra, citing In the Matter of the Petition for Issuance of Writ
of Habeas Corpus of Sabio v. Senator Gordon, ibid.
13  G.R. No. 127685, July 23, 1998.
 BEDAN LAW REVIEW
expectation of privacy. “The reasonableness of a person’s expectation of privacy depends on a two-
part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2)
whether this expectation is one that society recognizes as reasonable. The factual circumstances of
the case determine the reasonableness of the expectation. However, other factors, such as customs,
physical surroundings and practices of a particular activity, may serve to create or diminish this
expectation.”14
4. Spheres of Privacy “First, in today’s Information Age, privacy is an issue of paramount significance
Privacy in the Constitutional sphere includes: (1) privacy in a physical sense, (2) privacy
in an informational sense, (3) proprietary privacy, and (4) privacy in a decisional sense.15 This was
further explained:16
In his speech, ‘The Common Right to Privacy,’ retired Chief Justice Reynato S.
Puno distinguished among three (3) different aspects or ‘strands’ of the right to privacy,
namely: (1) locational privacy; (2) informational privacy; and (3) decisional privacy.
Locational privacy, also known as situational privacy, pertains to privacy that
is felt in a physical space. It may be violated through an act of trespass or through an
unlawful search. Meanwhile, informational privacy refers to one’s right to control ‘the
processing — i.e., acquisition, disclosure, and use — of personal information.’
Decisional privacy, regarded as the most controversial among the three, refers
to one’s right ‘to make certain kinds of fundamental choices with respect to their personal
and reproductive autonomy.’ It finds relevance in matters that involve one’s reproductive
health.
5. Informational Privacy
As previously noted, informational privacy refers to one’s right to control “the processing
— i.e., acquisition, disclosure, and use — of personal information.”17 Privacy in an informational
sense denotes confidentiality, secrecy or anonymity, especially with respect to correspondence,
conversation and records.18
Therefore, informational privacy includes data privacy of a person. A person has the
right to control his or her personal information. The right is exposed to greater danger because
of technological advances. Obtaining, transferring and storing information through the internet
with the use of powerful computers and handheld devices is a lot easier. Private persons and the
Government are capable of capturing personal information and routinely obtain information for
legitimate purposes. However, the capture and storage of information for legitimate purposes
expose data subjects to perils to their right to privacy.
The right to informational privacy is also described as the individual’s ability to control
the flow of information concerning or describing him, which however must be counter-balanced
by legitimate public concerns.19
14  Ibid.; Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011.
15  Anita L. Allen, Constitutional Law and Privacy, in Blackwell’s A Companion to Philosophy of Law and Legal Theory,
1999 Ed., p. 140, Dennis Patterson, Editor; Anita L. Allen, Privacy, in Oxford Handbook of Practical Ethics, 2005 Ed.,
p. 485.
16  Versoza v. People, G.R. No. 184535 (Resolution), September 3, 2019.
17  Versoza v. People, G.R. No. 184535 (Resolution), September 3, 2019.
18  Anita L. Allen, (1999), ibid.
19  Kilusang Mayo Uno, et al., vs. The Director-General, et al.; G.R. No. 167798, April 19, 2006.
4 5
BEDAN LAW REVIEW
6. Informational Privacy and Democracy
The issues involving information privacy are more important in this information age
because of their relation to freedom and democracy. As it was observed:
for freedom, democracy, and security. One of the central issues of information privacy
concerns the power of commercial and governmental entities over individual autonomy
and decision making. Privacy also concerns the drawing of rules that may limit this
autonomy and decision making by necessarily permitting commercial and government
entities access to personal information. . . .”20
The danger is greater because we are now in the midst of an economic order known as
surveillance capitalism. Search engines, social media networks, websites, online sellers, and the
like capture vast amounts of knowledge and information for their commercial ends. Surveillance
capitalism is an “economic order that claims human experience as free raw material for hidden
commercial practices of extraction, prediction and sales.”21 It “insists on the privilege of unfettered
freedom and knowledge” – “surveillance capitalists know too much to qualify for freedom.”22
Surveillance capitalism also “abandons long-standing organic reciprocities with the people.”23
The absence of organic reciprocity means the orientation is to businesses, intent on anticipating
behavior of populations, groups and individuals using the information that they gathered. This also
means that “surveillance capitalist that operate at hyperscale or outsource to hyperscale operations
dramatically diminish any reliance on their societies as sources of employees, and the few for whom
they do compete . . . are drawn from the most-rarified strata of data science.”24
Professor Spiros Simitis, on the other hand, observed that “the processing of personal data
is not unique to a particular society. On the contrary, the attractiveness of information technology
transcends political boundaries, particularly because of the opportunity to guide the individual’s
behavior. For a democratic society, however, the risks are high: labeling individuals, manipulative
tendencies, magnification errors, and strengthening of social control threaten the very fabric of
democracy. Yet, despite the incontestable importance of its technical aspects, informatization,
like industrialization, is primarily a political and social challenge. When the relationship between
information processing and democracy is understood, it becomes clear that the protection of
privacy is the price necessary to secure the individual’s ability to communicate and participate.”25
7. The Data Privacy Act of 2012 (R.A. 10173)
One significant development in the Philippines is the passage of Republic Act No.
10173, otherwise known as the “Data Privacy Act of 2012’’ (DPA for short). The DPA protects
informational privacy of the data subject. The informational privacy under the DPA concerns
personal information. Section 2 of the DPA provides that it is “the policy of the State to protect the
fundamental human right of privacy, of communication while ensuring free flow of information
to promote innovation and growth. The State recognizes the vital role of information and
20  Daniel J. Solove and Paul M. Schwartz, Privacy and The Media, 4th Ed. (2021), Kindle Ed., Loc. 353.
21  Shoshana Zuboff, The Age of Surveillance Capitalism, 2019 Ed., p. 2.
22  Ibid., pp. 495 & 499
23  Ibid., p. 495.
24  Ibid p. 501.
25  Spiros Simitis, Reviewing Privacy in an Information Society, 135 U.Pa.L. Rev. 707 (1987).
 BEDAN LAW REVIEW
communications technology in nation-building and its inherent obligation to ensure that personal
information in information and communications systems in the government and in the private
sector are secured and protected.”
The sponsorship speech of the author of the law in the Senate explains the reasons for the
passage of the DPA:
“Electronic devices, transactions and processes characterize the information
age in which we live.
Our personal information, pension contributions, bank accounts, credit card
transactions and medical history are now digitally encoded and can be accessed at a click
of a mouse or a push of a button. This liberates us from red tape but also exposes our
confidential information to new dangers, especially to theft and misuse.
Advances in information and communications technology (ICT) enable
businesses and governments to process, analyze, store and transmit large amounts of data.
This is empowering for services delivery but is also fraught with risk.
In this digital era, information is the currency of power – valuable, coveted,
but at a very high risk.”26
The author of the DPA likewise emphasized “the need for a legislative framework aligned
with international standards to safeguard information stored in the ICT systems of both the
government and the private sector.”27 This framework likewise fosters the creation of “a conducive
business environment and adherence to global standards.”28
While the Senate focuses primarily on the economic advantages of the Data Privacy Act,
there is also an acknowledgement of the prevalence of Surveillance Capitalism, to wit: “In this
digital era, information is the currency of power – valuable, coveted, but at a very high risk.”
Hence, in this age in which data or personal information is commodified and even weaponized, it is
imperative to enact comprehensive data privacy laws to protect privacy rights and address the rapid
technological advances and their effects on our society.
Consistently, it was observed that “one of the central issues of information privacy concerns
the power of commercial and government entities over individual autonomy and decision making.
Privacy also concerns the drawing of rules that may limit this autonomy and decision making by
necessarily permitting commercial and government entities access to personal information.”29
a. Personal Information Processing.
The Data Privacy Act concerns itself primarily with the protection of the rights of data
subjects as well as the regulation of the processing of personal information and those who process it.
Processing refers to “any operation or any set of operations performed upon personal information
including, but not limited to, the collection, recording, organization, storage, updating or
modification, retrieval, consultation, use, consolidation, blocking, erasure or destruction of data.”30
Processing need not be done through digital means. For example, Company A engages a warehouse
owner to store their physical employee records temporarily while they move their main office.
The warehouse owner is processing personal data in this instance as they are storing documents
containing personal information.
26  Journal of the Senate, Session No. 22, 15th Congress, September 21, 2011, pp. 360-362.
27 Ibid.
28 Ibid.
29  Daniel J. Solove and Paul M. Schwartz, Privacy and The Media, 4th Ed. (2021), Kindle Ed., p. xxvii.
30  Sec. 3, (j), R.A. 10173.
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Personal Information is defined under the DPA as “any information whether recorded in
a material form or not, from which the identity of an individual is apparent or can be reasonably
and directly ascertained by the entity holding the information, or when put together with other
information would directly and certainly identify an individual” (Sec. 3, (g), R.A. 10173). Certain
information is classified as Sensitive Personal Information (Sec. 3, (l), R.A. 10173):
1) individual’s race, ethnic origin, marital status, age, color, and religious or political
affiliations;
2) individual’s health, education, genetic or sexual life of a person, or to any proceeding
for any offense committed or alleged, the disposal of such or the sentence of any court;
3) issued by government agencies peculiar to an individual which includes: social security
numbers, health records, licenses or its denials, suspension or revocation, and tax returns;
4) specifically established by an executive order or an act of Congress to be kept classified
Information need not on its own reveal the identity of an individual in order to be
considered Personal Information within the contemplation of the DPA. It is enough that,
collectively with other information, that particular piece of information may reveal the identity of
a person. For instance, a viral Facebook post contained the picture of a motorcycle laying on the
ground with the caption that a woman who looks like she is in her twenties wearing a pink shirt,
jeans, and a yellow helmet fell from her motorcycle and suffered a head injury at the corner of
Taft Avenue and Gil Puyat Avenue at around 10:30am on May 20, 2021. Although the name of
the woman was not mentioned, all the information stated constitutes personal information as it is
sufficient information to determine her identity. The fact of her head injury can also be considered
sensitive personal information as it refers to her health.
Section 3 (k) of the DPA defines Privileged information as “any and all forms of data
which under the Rules of Court and other pertinent laws constitute privileged communication”.
Section 15 of the DPA provides for extension of privileged communication, stating that: “personal
information controllers may invoke the principle of privileged communication over privileged
information that they lawfully control or process. Subject to existing laws and regulations, any
evidence gathered on privileged information is inadmissible.”
The criteria for lawful processing of personal information are provided for under Section
12 of the DPA, which states that the processing of personal information shall be permitted only if
not otherwise prohibited by law, and when at least one of the following conditions exists:
(a) The data subject has given his or her consent;
(b) The processing of personal information is necessary and is related to the fulfillment of
a contract with the data subject or in order to take steps at the request of the data subject
prior to entering into a contract;
(c) The processing is necessary for compliance with a legal obligation to which the
personal information controller is subject;
(d) The processing is necessary to protect vitally important interests of the data subject,
including life and health;
(e) The processing is necessary in order to respond to national emergency, to comply with
the requirements of public order and safety, or to fulfill functions of public authority
which necessarily includes the processing of personal data for the fulfillment of its
mandate; or
(f ) The processing is necessary for the purpose of the legitimate interests pursued by
the personal information controller or by a third party or parties to whom the data is
disclosed, except where such interests are overridden by fundamental rights and freedoms
of the data subject which require protection under the Philippine Constitution.
Examples of lawful processing under Section 12 include the processing of employee
information by a company’s Human Resources Department pursuant to a valid employment contract
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(Sec. 12 (b) and by a Local Government Unit processing and collecting personal information of
its constituents in relation to COVID-19 Vaccination programs or Contact Tracing (Sec. 12 (e)).
The processing of sensitive personal information and privileged information is subject to
more stringent rules under the DPA. Section 13 provides that the processing of sensitive personal
information and privileged information shall as a general rule be prohibited subject to certain
exceptions enumerated in the same provision.
b. Persons Involved under the DPA.
Under the DPA, obligations are imposed on the Personal Information Controller (PIC)
and Personal Information Processor (PIP). Personal Information Controller (PIC) refers to, “a person
or organization who controls the collection, holding, processing or use of personal information,
including a person or organization who instructs another person or organization to collect, hold,
process, use, transfer, or disclose personal information on his or her behalf.”31 There is control if the
person decides what information is collected, or the purpose or extent of its processing.32
Personal Information Processor (PIP) “refers to any natural or juridical person or any
other body to whom a personal information controller may outsource or instruct the processing of
personal data pertaining to a data subject.”33
On the other hand, Data Subjects “refers to an individual whose personal information
is processed.”34 For example, Mr. X wants to order food from a restaurant and calls the delivery
hotline. The person who answers the call is an employee of the call center that the restaurant
has hired to process deliveries. Here, Mr. X is the data subject, the call center is the PIP, and the
restaurant is the PIC.
The key difference between a PIC and a PIP is that a PIC processes information or directs
the processing of information for its own purposes while a PIP processes information on behalf of
another and not for its own purposes. As we can see in the example given, the call center is the PIP
as it is processing information for deliveries only on behalf of the restaurant, while the restaurant
directs the call center to process such information and is thus the PIC.
It must be noted, however, that a person or entity can be both a PIC and a PIP. For
example, G Company has a mobile application that processes bills payments for an electric
company; however, G Company also offers its own unrelated services such as e-wallet services.
For purposes of processing bills payments for the electric company, G Company is a PIP; however,
when G Company collects information for their e-wallet services, G Company is the PIC.
c. Informational Privacy Principles.
Of particular concern for a PIC is upholding information privacy principles in the
formulation of its own privacy policies and framework. The intent of Congress is for the DPA to
uphold APEC information privacy principles which include: (1) Preventing Harm; (2) Notice;
(3) Collection Limitation; (4) Uses of Personal Information; (5) Choice; (6) Integrity of Personal
Information; (7) Security Safeguards; (8) Access and Correction; and (9) Accountability. Under
31  Sec. 3, (h), R.A. 10173.
32  NPC Data Privacy Toolkit.
33  Sec. 3, (i), R.A. 10173.
34  Sec. 3, (c), R.A. 10173.
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Section 11 of the DPA, the following principles are included:
1) Consent. Personal information cannot be collected, processed and shared without
the consent of the data subject. Consent “refers to any freely given, specific, informed
indication of will, whereby the data subject agrees to the collection and processing of
personal information about and/or relating to him or her. Consent shall be evidenced by
written, electronic or recorded means. It may also be given on behalf of the data subject
by an agent specifically authorized by the data subject to do so.”35
2) Transparency Principle. The data subject must be aware of the: (1) nature, purpose
and extent of processing; (2) risks and safeguards; (3) identity of personal information
controller; (4) rights as a data subject and how these can be exercised.36
3) Legitimate Purpose Principle. The processing of information shall be compatible with
a declared and specified purpose which must not be contrary to law, morals or public
policy. Processing of personal data should have the individual’s consent, or must be
authorized or allowed by the Constitution or by law.37
4) Proportionality Principle. The processing of information shall be adequate, relevant,
suitable, necessary, and not excessive in relation to a declared and specified purpose.
Personal data shall be processed only if the purpose of the processing could not be
reasonably fulfilled by other means.38
5) Confidentiality, Integrity and Availability. The security measures which the DPA of
2012 requires must maintain “availability, integrity, and confidentiality of personal data
and are intended for the protection of personal data against any accidental or unlawful
destruction, alteration, and disclosure, as well as against any other unlawful processing.39
Although the Data Privacy Act and its implementing rules emphasize the accountability
of PICs for personal information in their custody, Section 51 of the DPA’s IRR provides that “any
natural or juridical person or other body involved in the processing of personal data” can be liable
for violation of the provisions of the DPA, its IRR, and other issuances of the National Privacy
Commission. Section 51 of the IRR does not distinguish between a PIC and a PIP. Hence, it is
possible that the liability for the violation of the prohibitions under the DPA and the violation of
the rights of a data subject may fall on both a PIC and a PIP.
d. Rights of Data Subject.
Chapter IV of the DPA enumerates the rights of a data subject. Under Section 16 of
the Act, a data subject has the right to be informed that his/her personal information shall be,
is being, or has been processed. A data subject has the right to object to the processing of their
personal information or to demand the erasure of such information from a PIC’s or PIP’s database
or system. This right to erasure is known in some jurisdictions as the “Right to be Forgotten.”40
The data subject also has the right to access his/her personal information and to obtain a copy of
that information. Where the personal information is processed by electronic means, Section 18 of
the DPA states that the data subject shall have the right “to obtain from the personal information
controller a copy of data undergoing processing in an electronic or structured format, which is
commonly used and allows for further use by the data subject. The National Privacy Commission
may specify the electronic format referred to in Section 18, as well as the technical standards,
modalities and procedures for their transfer.” Finally, Section 16 (f ) of the DPA expressly recognizes
the data subject’s right to damages and to file a complaint.
e. Accountability under the DPA.
35  Sec. 3, (b), R.A. 10173.
36  Sec. 11, R.A. 10173.
37 Ibid.
38 Ibid.
39  Sec. 25, IRR of DPA.
40  Article 17, General Data Protection Regulation (of the European Union)
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Distinguishing between a PIC and a PIP is necessary as their obligations and accountability
differ under the DPA and its Implementing Rules and Regulations (IRR). For instance, it is the PIC
which is obliged to inform the data subjects and the National Privacy Commission of the occurrence
of a data breach, regardless of the fact that the breach occurred against the PIP’s systems.41 Further,
the Principle of Accountability under Sec 21. of the DPA emphasizes the accountability of the PIC,
particularly:
“Principle of Accountability. – Each personal information controller is responsible
for personal information under its control or custody, including information that
have been transferred to a third party for processing, whether domestically or
internationally, subject to cross-border arrangement and cooperation.
(a) The personal information controller is accountable for complying with the
requirements of this Act and shall use contractual or other reasonable means to
provide a comparable level of protection while the information are being processed
by a third party.
(b) The personal information controller shall designate an individual or individuals
who are accountable for the organization’s compliance with this Act. The identity
of the individual(s) so designated shall be made known to any data subject upon
request.”
The PIC’s accountability is further emphasized by the National Privacy Commission
under Rule XII of the DPA IRR:
Section 50. Accountability for Transfer of Personal Data. A personal information
controller shall be responsible for any personal data under its control and custody,
including information that have been outsourced or transferred to a personal
information processor or a third party for processing, whether domestically or
internationally, subject to cross-border arrangement and cooperation.
(a) A personal information controller shall be accountable for complying with the
requirements of the Act, these Rules, and other issuances of the Commission. It
shall use contractual or other reasonable means to provide a comparable level of
protection to the personal data while it is being processed by a personal information
processor or third party.
(b) A personal information controller shall designate an individual or individuals
who are accountable for its compliance with the Act. The identity of the individuals
so designated shall be made known to the data subject upon request.
In other words, there are instances where the PIC may be liable where the PIP is not under
the DPA and it is the PIC that is primarily liable for ensuring compliance with the DPA. However,
this is subject to the liability of the PIP under the Civil Code for torts. The liability for tort may
even be solidary in proper cases.
8. Torts Under DPA
a. Liability Damages under DPA.
Section 16 (f ) of the DPA recognizes the right of a data subject to be indemnified for
any damages sustained due to inaccurate, incomplete, outdated, false, unlawfully obtained or
unauthorized use of personal information. In addition, Section 37 provides that “restitution for
any aggrieved party shall be governed by the provisions of the New Civil Code.”
Article 19 in relation to Article 20 of the Civil Code serves as statutory basis of liability
for any other violation of the provisions of the DPA whether or not the damage was sustained due
to inaccurate, incomplete, outdated, false, unlawfully obtained or unauthorized use of personal
41  Section 38, Rule IX, Implementing Rules and Regulations of the Data Privacy Act of 2012
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information.
Article 19 of the Civil Code provides that, “every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give everyone his due, and observe honesty
and good faith.” While Article 19 lays down a rule of conduct of human relations and for the
maintenance of social order, a specific remedy is not provided for its violation.42 The remedy may
be based on Article 20 of the Civil Code, which provides that “every person who, contrary to law,
willfully or negligently causes damage to another, shall indemnify the latter for the same.” Acts in
violation of existing law can be the basis for an injury and under Article 20, recovery for damages is
allowed whether the act that caused such damage was willful or negligent.43
Violation of the provisions of the DPA that causes damage to another shall give rise to an
obligation to pay damages not only for the acts specifically identified under Section 16 (f ) of the
DPA but also for other acts or omissions that violate the DPA. It may also be based on Article 20
in relation to Article 19 of the Civil Code, which concerns violation of existing law – the DPA in
this case.
b. Tort Liability For Delict.
There are penal sanctions for violation of the DPA. The provisions that impose criminal
liability are:
Section 5 - Unauthorized Processing of Personal Information and Sensitive
Personal Information (Section 25).
Section 26 - Accessing Personal Information and Sensitive Personal Information
Due to Negligence. –
Section 27 - Improper Disposal of Personal Information and Sensitive Personal
Information.
Section 28 - Processing of Personal Information and Sensitive Personal
Information for Unauthorized Purposes.
Section 29 - Unauthorized access or intentional breach.
Section 30 - Concealment of security breaches involving sensitive personal
Information.
Section 31 - Malicious disclosure by any personal information controller or
personal information processor or any of its officials, employees or agents of
unwarranted or false information relative to any personal information or
personal sensitive information obtained by him or her,
Section 32 - Unauthorized disclosure (without the consent of the data subject)
by any personal information controller or personal information processor or any
of its officials, employees or agents, to a third party personal information or third
party sensitive information.
Section 33 - Any combination or series of acts as defined in Sections 25 to 32.
Section 34 of the DPA provides that if the offender is a corporation, partnership or any
juridical person, the penalty shall be imposed upon the responsible officers, as the case may be, who
participated in, or by their gross negligence, allowed the commission of the crime. If the offender
is an alien, he or she shall, in addition to the penalties prescribed, be deported without further
proceedings after serving the penalties prescribed under the DPA. Sections 32 and 36 of the DPA
likewise make public officers criminally liable.
42  St. Martin Polyclinic, Inc. v. LWV Construction Corp., G.R. No. 217426, December 4, 2017.
43 Ibid.
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It is a postulate in Article 100 of the Revised Penal Code that “every person criminally
liable for a felony is also civilly liable.” Consistent with this principle, a person is also civilly liable if
he or she is criminally liable for violation of the penal provisions of the DPA. Civil liability arising
from delict is considered tort liability in this jurisdiction. Thus, the Supreme Court explained in
Banal v. Tadeo:44
“Generally, the basis of civil liability arising from crime is the fundamental
postulate of our law that ‘Every man criminally liable is also civilly liable.’ Underlying this
legal principle is the traditional theory that when a person commits a crime he offends
two entities, namely: (1) the society in which he lives in or the political entity called the
State whose law he had violated; and (2) the individual member of that society whose
person, right, honor, chastity or property was actually or directly injured or damaged by
the same punishable act or omission. However, this rather broad and general provision
is among the most complex and controversial topics in criminal procedure. It can be
misleading in its implications especially where the same act or omission may be treated
as a crime in one instance and as a tort in another or where the law allows a separate civil
action to proceed independently of the course of the criminal prosecution with which
it is intimately intertwined. Many legal scholars treat as a misconception or fallacy the
generally accepted notion that the civil liability actually arises from the crime when,
in the ultimate analysis, it does not. While an act or omission is felonious because it
is punishable by law, it gives rise to civil liability not so much because it is a crime but
because it caused damage to another. Viewing things pragmatically, we can readily see
that what gives rise to the civil liability is really the obligation and the moral duty of
everyone to repair or make whole the damage caused to another by reason of his own act
or omission, done intentionally or negligently, whether or not the same be punishable
by law. In other words, criminal liability will give rise to civil liability only if the same
felonious act or omission results in damage or injury to another and is the direct and
proximate cause thereof. Damage or injury to another is evidently the foundation of
the civil action. Such is not the case in criminal actions for, to be criminally liable, it is
enough that the act or omission complained of is punishable, regardless of whether or not
it also causes material damage to another.”45
Consistent with the above-quoted view, while an act or omission is a crime under the
DPA because the special law makes the act or omission punishable, the civil liability arises not so
much because it is a crime but because the violation of the provisions of the DPA caused damage to
another. Hence, the tort action for violation of any of the penal provisions is founded on presence
of damage or injury caused to the injured party.
9. Protection of the Right to Privacy Under the Civil Code
The Civil Code already protected the right to privacy even before the passage of the DPA.
The Civil Code protects the right to informational privacy through specific tort provisions which
include Articles 26 and 32. Article 32 of the Civil Code embodies what is known in tort law as
Constitutional Tort. On the other hand, Article 26 of the Civil Code expressly imposes damages for
“prying into the privacy of another’s residence” and “meddling with or disturbing the private life or
family relations of another.” In addition, as previously discussed, violation of the right to privacy
that is a violation of special law can also be premised on Article 20 of the Civil Code.
a. Constitutional Tort.
The concern for a democratic way of life is the reason why the Civil Code includes provisions
that implement the civil liberties guaranteed by the Constitution. “The civil liberties guaranteed by
the Constitution need further implantation.”46 Thus, Article 32 provides for an independent civil
action for damages against “any public officer or employee, or any private individual, who directly
44  156 SCRA 325 (1987).
45 Ibid.
46  Report, ibid.
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and indirectly obstructs, defeats, violates or in any manner impedes or impairs the civil rights and
liberties of another person.”47 Article 32 was included to correct the inadequate protection that was
given to individual rights as intended by the fundamental law.48
If there is a violation of the constitutional right to privacy that causes damage to another,
the offender is liable for tort under Article 32 of the Civil Code. The claim for damages may be
anchored on deprivation of due process, violation of the right against unreasonable searches and
seizure, or violation of the right to the privacy of communication and correspondence and other
related rights specified in Article 32.
As the Code Commission explained, democracy being more than a mere form of
government, affecting as it does, the very foundations of human life and happiness, cannot be
overlooked by an integral civil code; democracy must be inculcated into the hearts and minds of
men and women.49 One way of doing this is to provide deterrence against human rights violation
and disrespect to the democratic way of life, which is governed by the rule of law and respect for the
fundamental rights of every person guaranteed by the Constitution. One deterrent is the provision
on liability for damages under Article 32 of the Civil Code.
With respect to the liability of public officers for violation of constitutional rights, the
Supreme Court observed in Vinzons-Chato v. Fortune Tobacco Corp.:50
“Juxtaposed with Article 32 of the Civil Code, the principle may now
translate into the rule that an individual can hold a public officer personally liable
for damages on account of an act or omission that violates a constitutional right only
if it results in a particular wrong or injury to the former. This is consistent with this
Court’s pronouncement in its June 19, 2007 Decision (subject of petitioner’s motion for
reconsideration) that Article 32, in fact, allows a damage suit for ‘tort for impairment of
rights and liberties.’
It may be recalled that in tort law, for a plaintiff to maintain an action for
damages for the injuries of which he complains, he must establish that such injuries
resulted from a breach of duty which the defendant owed the plaintiff, meaning a
concurrence of injury to the plaintiff and legal responsibility by the person causing it.
Indeed, central to an award of tort damages is the premise that an individual was injured
in contemplation of law. Thus, in Lim v. Ponce de Leon, we granted the petitioner’s
claim for damages because he, in fact, suffered the loss of his motor launch due to the
illegal seizure thereof. In Cojuangco, Jr. v. Court of Appeals, we upheld the right of
petitioner to the recovery of damages as there was an injury sustained by him on account
of the illegal withholding of his horserace prize winnings.”
b. Tort under Article 26 of the Civil Code.
Another tort provision that imposes damages for violation of the right to privacy is Article
26 of the Civil Code which provides that:
Art. 26. Every person shall respect the dignity, personality, privacy and peace of
mind of his neighbors and other persons. The following and other similar acts,
though they may not constitute a criminal offense shall produce a cause of action for
damages, prevention and other relief:
(1) Prying into the privacy of another’s residence;
(2) Meddling with or disturbing the private life or family relations
of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect, or
other personal condition.
47  Report, pp. 28-29.
48  Report, p. 29.
49  Report, p. 28.
50  G.R. No. 141309 (Resolution), December 23, 2008.
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The Report of the Code Commission contains the following explanation of the foregoing
statutory provision:
“The sacredness of human personality is a concomitant of every plan for human
amelioration. The touchstone of every system of laws, of the culture and civilization of
every country, is how far it dignifies man. If in legislation, inadequate regard is observed
for human life and safety; if the laws do not sufficiently forestall human suffering or do
not try effectively to curb those factors or influences that wound the noblest sentiments;
if the statutes insufficiently protect persons from being unjustly humiliated, in short, if
human personality is not properly exalted — then the laws are indeed defective. Sad to
say, such is to some degree the present state of legislation in the Philippines. To remedy
this grave fault in the laws is one of the principal aims of the Project of Civil Code.
Instances will now be specified.
The present laws, criminal and civil, do not adequately cope with the interferences and
vexations mentioned in Article 28.
The privacy of one’s home is an inviolable right. Yet, the laws in force do not squarely and
effectively protect this right.”51
The violations mentioned in Article 26 “are not exclusive but are merely examples and do
not preclude other similar or analogous acts. Damages therefore are allowable for actions against a
person’s dignity, such as profane, insulting, humiliating, scandalous or abusive language.”52 Senator
Tolentino explained that Article 26 protects the following principal rights: (1) right to personal
dignity, (2) right to personal security, (3) right to family relations, (4) right to social intercourse, (5)
right to privacy, and (6) right to peace of mind.53
The Code Commission justifies the protection of the right to privacy by invoking the aim
to exalt human personality.54 The Code Commission is concerned with edifying the sacredness of
human personality that was not previously addressed by the laws at the time they crafted the draft
of the New Civil Code.55 The explanation of the Code Commission is consistent with the Civil law
tradition. It has been observed that traditionally, “the rationale underlying these privacy protections
in the civilian idea of tort is inherently personality or dignity-based, rather than animated by the
libertarian idea of ‘being left alone’ in areas delimited by space.”56
It has been observed that privacy covers many aspects of a person’s life. Justice Romero
observed in her concurring opinion in Blas Ople v. Ruben D. Torres, et al.57 that “privacy is central to
dignity and individuality or personhood. Privacy is also indispensable to a sense of autonomy — to
a feeling that there is an area of an individual’s life that is totally under his or her control, an area
that is free from outside intrusion.”58
c. Classification of Violation of the Right to Privacy.
In addition to the specific acts mentioned under Article 26 of the Civil Code, the
following types of tort of violation of privacy are also recognized in this jurisdiction: (1) Intrusion;
(2) Publication of private facts; (3) Making one appear before the public in an objectionable false
light; and (4) Commercial appropriation of likeness of another.
51  Report, p. 32.
52  Concepcion v. Court of Appeals, G.R. No. 120706, January 31, 2000.
53  II Tolentino 92-93.
54  Report, p. 32.
55  Ibid.
56  Eltis, Karen, Can the Reasonable Person Still be Highly Offended? An Invitation to Consider Tradition’s Personality-Rights
Based Approach to Tort Privacy (2008), University of Ottawa Law and Technology Journal, Vol. 5, Nos. 1-2, 2008.
Available at SSRN: http://ssrn.com/abstract=1304653
57  G.R. No. 127685, July 23, 1998.
58  Harvard Law Review, Privacy, Photography and the Press, February, 1998, Vol. 111, No. 4.
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The development of violation of right to privacy as tort started in the United States with
the seminal article of Warren and Brandeis published in the Harvard Law Journal in 1890 entitled
“Right to Privacy.” The focus of the article is the tort of publication of public facts. In 1960, another
influential article was published regarding privacy, that is, the article of Dean Prosser which analyzed
different cases involving privacy and classified them into four types of invasion. The American Law
Institute’s Restatement (Second) of Torts has adopted this four-fold division of privacy.59
As previously noted, tort actions for violation of the right to privacy may be premised
on the provisions of Articles 32 and 26 of the Civil Code. Hence, the violation of the right to
informational privacy may also be considered a breach of the mentioned provisions as well as of
Articles 19, 20 and 21 of the Civil Code. These torts of violation of the right to privacy may also be
in the form of Intrusion, Publication of Private Facts, False Light and Commercial appropriation
of likeness of another. Violation of informational privacy may take the form of intrusion or
publication of private facts.
d. Intrusion as Violation of Informational Privacy.
The tort of intrusion upon a person’s solitude protects his or her sense of locational and
psychological privacy.60 The growing acceptance of the existence of this tort is equated with the
increasing capability of the electronic devices’ capacity to pry into an individual’s anonymity, intrude
upon his most intimate activities and expose his most personal characteristics to public gaze.61
Thus, there can be liability for damages in case of an intrusion into one’s residence and in
taking pictures of such residence.62 There is also a violation of the right to privacy if a person installs
video surveillance cameras directly facing another person’s business office or residence or covering
a significant portion thereof, without the latter’s consent. These intrusions may be for the purpose
of obtaining information of the victim of the tort without the victim’s consent. The intrusion must
be one which would be offensive and objectionable to a reasonable person of ordinary sensibilities.
Even persons in the media may be liable for this violation. The freedom of the press is not a
license to trespass or to intrude by electronic means into the premises of another’s home or office.63
Newsworthiness may be invoked in some cases but in those cases, the newsworthiness inquiry is
only the first step; if the story concerns a matter of public interest, the question becomes whether
its newsworthiness outweighs the privacy interest of the individual plaintiff.64
e. Publication of Private Facts.
The liability for publication of private facts involves the right to be free from unwarranted
publicity, from the wrongful publicizing of the private affairs and activities of an individual which
are outside the realm of legitimate public concern.65 The elements are as follows: (a) There must be
a public disclosure; (b) the fact disclosed must be a private fact; (c) the matter must be one which
would be offensive and objectionable to a reasonable person of ordinary sensibilities.66
59  Section 652A-652E (1977).
60  Harvard Law Review, Privacy, Photography and the Press, 1998, Vol. 111, No. 4, p. 1088.
61  Dietemann v. Time, Inc., 449 F. 2d 245 (9th Cir., 1971), citing Briscoe v. Reader’s Digest Ass’n (1971).
62  Padalhin v. Lavina, G.R. No. 183026, November 14, 2012.
63  Dietemann v. Time, Inc., supra..
64  Ibid.
65  Ayer Productions, Ltd. Pty., et al. v. Hon. Ignacio Capulong, et al., G.R. Nos. 82380 and 82398, April 29, 1988.
66  62A Am. Jur. 2d 708.
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Our Court of Appeals ruled in Cordero, et al. v. Buigasco, et al.,67 that “there would be an
actionable violation of the right of privacy if: (1) publicity is given to any private or purely personal
information about a person, (2) without the latter’s consent, (3) regardless of whether or not such
publicity constitutes a criminal offense, like libel or defamation.” The fact that the publication is
made with intent of gain or for commercial and business purposes aggravates the violation of the
right.
Note however, that with respect to media, there is a defense of newsworthiness of the
subject. It is settled that because of the interest they generate and their newsworthiness, public
figures, most especially those holding responsible positions in government, enjoy a more limited
right to privacy as compared to ordinary individuals, their actions being subject to closer public
scrutiny.68 As a public figure, the subject must be regarded as having passed into public domain
and as an appropriate subject of expression and coverage by any form of mass media.69 To be
liable, the defendant must be guilty of knowing and reckless disregard of truth. This is included in
what is referred to as qualified privilege. The privilege is not limited to dissemination of news; it
also extends to information or education or even entertainment or amusement, by books, articles,
pictures, films and broadcasts concerning interesting phases of human activity in general, as well as
reproduction of the public scene in newsreels and travelogues.70 following cases
10. Violation of Statute as Tort
Zones of privacy are recognized and protected in our laws. Invasion of privacy is an offense
in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual
Property Code.
The Rules on the Writ of Habeas Data issued by the Supreme Court likewise protects the
right to privacy. The writ of habeas data is available as an independent remedy to enforce one’s right
to privacy.71 The writ of habeas data is a remedy available to any person whose right to privacy is
threatened by an unlawful act or omission of a public official or of a private individual or entity
engaged in the gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.72
11. Tort Vioaltion for Breach of Confidentiality
Privileged information refers to any and all forms of data which under the Rules of Court
and other pertinent laws constitute privileged communication.73 Section 15 of the DPA provides
that “personal information controllers may invoke the principle of privileged communication over
privileged information that they lawfully control or process.” The law further provides that “subject
67  17 CAR 2s 517, 539 (1972).
68  Ayer Productions Pty. Ltd. v. Capulong, supra; Cohen v. Marx, 211 P. 2d 321 (1949).
69  Ayer v. Capulong, ibid.; See Guingguing v. Court of Appeals, G.R. No. 128959, September 30, 2005 and the discussion
of public figures in defamation cases in Chapter 10 of this work.
70  Ayer v. Capulong, ibid.
71  Vivares v. St. Theresa’s College, G.R. No. 202666, September 29, 2014; Gamboa v. Chan, G.R. No. 193636, July 24,
2012.
72  Section 1, SC A.M. 08-1-16-SC, Rules on the Writ of Habeas Data; See also P/Supt. Felixberto Castillo, et al. v. Dr.
Amanda T. Cruz, et al., G.R. No. 182165, November 25, 2009; Melisa Roxas v. Gloria Macapagal-Arroyo, et al., G.R.
No. 189155, September 7, 2010; Manila Electric Company v. Lim, G.R. No. 184679, October 5, 2010.
73  Section 3 (k), DPA.
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to existing laws and regulations, any evidence gathered on privileged information is inadmissible.”74
Privileged information therefore includes information received by lawyers, doctors and
auditors. These persons include those specified in Section 24 of Rule 130 of the 2019 Revised Rules
on Evidence, which provides:
Section 24. Disqualification by reason of privileged communications.
- The following persons cannot testify as to matters learned in confidence in the
following cases:
(a) The husband or the wife, during or after the marriage, cannot be
examined without the consent of the other as to any communication received in
confidence by one from the other during the marriage except in a civil case by one
against the other, or in a criminal case for a crime committed by one against the
other or the latter’s direct descendants or ascendants.
(b) An attorney or person reasonably believed bv the client to be licensed to
engage in the practice of law cannot, without the consent of the client, be examined
as to any communication made by the client to him or her, or his or her advice given
thereon in the course of, or with a view to, professional employment, nor can an
attorney’s secretary, stenographer, or clerk, or other persons assisting the attorney
be examined without the consent of the client and his or her employer, concerning
any fact the knowledge of which has been acquired in such capacity, except in the
(i) Furtherance of crime or fraud. If the services or advice of the lawyer
were sought or obtained to enable or aid anyone to commit or plan to commit what
the client knew or reasonably should have known to be a crime or fraud;
(ii) Claimants through same deceased client. As to a communication
relevant to an issue between parties who claim through the same deceased client,
regardless of whether the claims are by testate or intestate or by inter vivos transaction;
(iii) Breach of duty by lawyer or client. As to a communication relevant to
an issue of breach of duty by the lawyer to his or her client, or by the client to his or
her lawyer;
(iv) Document attested by the lawyer. As to a communication relevant to
an issue concerning an attested document to which the lawyer is an attesting witness;
or
(v) Joint clients. As to a communication relevant to a matter of common
interest between two or more clients if the communication was made by any of them
to a lawyer retained or consulted in common, when offered in an action between any
of the clients, unless they have expressly agreed otherwise.
(c) A physician, psychotherapist or person reasonably believed by the
patient to be authorized to practice medicine or psychotherapy cannot in a civil case,
without the consent of the patient, be examined as to any confidential communication
made for the purpose of diagnosis or treatment of the patient’s physical, mental
or emotional condition, including alcohol or drug addiction, between the patient
and his or her physician or psychotherapist. This privilege also applies to persons,
including members of the patient’s family, who have participated in the diagnosis
or treatment of the patient under the direction of the physician or psychotherapist.
A “psychotherapist” is:
(a) A person licensed to practice medicine engaged in the diagnosis or
treatment of a mental or emotional condition, or
(b) A person licensed as a psychologist by the government while similarly
engaged.
(d) A minister, priest or person reasonably believed to be so cannot,
without the consent of the affected person, be examined as to any communication
or confession made to or any advice given by him or her, in his or her professional
character, in the course of discipline enjoined by the church to which the minister
or priest belongs.
(e) A public officer cannot be examined during or after his or her tenure
as to communications made to him or her in official confidence, when the court
finds that the public interest would suffer by the disclosure. The communication
74  Section 3 (k), DPA.
17

shall remain privileged, even in the hands of a third person who may have obtained
the information, provided that the original parties to the communication took
reasonable precaution to protect its confidentiality. (24a)
In the field of tort, there is an emerging tort called Breach of Confidentiality Tort which
provides protection against non-consensual disclosures. “To establish liability under the tort, a
plaintiff must prove that the defendant owed the plaintiff a duty of confidentiality and that the
defendant breached that duty.”75 In the Philippines, the probable basis of liability for damages for
breach of confidentiality may be Articles 19, 20 and 21 of the Civil Code. Disclosure can be abuse
of right under Article 19 in relation to Article 20 of the Civil Code, or act contra bonos mores
under Article 21 of the Civil Code.
12. Taxonomy of Violation of the Right
The torts under the Civil Code, the DPA and other laws may be analyzed in the light
of Professor Solove’s classification of the different activities that may cause harm or problems
concerning the right to informational privacy.76 It is believed that the classification is also applicable
in this jurisdiction. The kinds of activities are as follows:
a. Information Collection.
(1) Surveillance - watching, listening to or recording of an individual’s information;
(2) Interrogation – questioning or probing of information;
b. Storage, Manipulation and Use.
(1) Aggregation – combination of various pieces of data about a person.
(2) Identification – linking information to a particular person;
(3) Insecurity – carelessness in protecting stored information from being leaked or from given. There may be liability for damages for aggregation if a mobile application collects the user’s
unauthorized access;
(4) Secondary use – use of personal information for a different purpose;
(5) Exclusion – preventing other persons to have access to, or use or otherwise process the New Civil Code and civil liability based on delict. Obviously, insecurity, that is, carelessness in
the data,
c. Dissemination of Information.
(1) Breach of confidentiality;
(2) Disclosure;
(3) Increased accessibility – amplifying the accessibility of information;
(4) Blackmail – threatening to disclose information;
(5) Appropriation – use of another’s identity;
(6) Distortion – dissemination of false or misleading information.
d. Invasion into Private Affairs.
(1) Intrusion that disturb one’s tranquility and solitude;
(2) Decisional interference - government’s intrusion into the under the above-cited statutory provisions.
decisions of persons concerning their private affairs.77
The performance of the above-enumerated activities or irregularities, abuse, bad faith or
negligence in the pursuit of thereof may give rise to a cause of action based on torts. The acts
or omissions specified in the classification give rise to an action in favor of the offended party
(active subject) against the offender (passive subject) in case damage or injury results. The source
of obligation may be quasi-delict, delict or law. The wrong that creates the vinculum juris can be
any of the activities enumerated in the above classification under certain circumstances. Liability
for each of these acts or omissions can be the basis of tort actions that are all authorized under the
75  Solove and Swartz (2021), p. 146.
76  Daniel J. Solove, A Taxonomy of Privacy, 154 U.A. Pa. L. Rev. 477 (2006).
77  Daniel J. Solove, ibid.
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Civil Code and special laws.
Invasion of private affairs enumerated above are also considered violation of the right to
privacy but do not involve informational privacy. However, act of intrusion that disturbs one’s
tranquility and solitude and decision interference is also considered tort that is supported by
Articles 26 and 32, as well as Article 21 in relation to Article 19 of the Civil Code.
Irregularities and abuse in information collection - including surveillance and interrogation
– are also torts in this jurisdiction. The tort action can be actional based on Articles 32 and Article
21 in relation to Article 19 of the Civil Code. The action can also be based on Article 20 of the
Civil Code. For example, the surveillance may be a violation of law like Republic Act No. 4200,
otherwise known as “An Act to Prohibit and Penalize Wire-tapping and other related violations
of the Privacy of Communication and for Other Purposes” as well as the DPA. There may be a
violation of the DPA if there is information collection without the consent of the data subject or
without following the principles of data privacy collection. In the cases when these special laws
are violated, the tort can be based on Article 20 of the Civil Code because the act or omission is in
violation of law. It can also be an action that is justified under Section 16 (j) of the DPA, which
covers damages caused by unlawfully obtained information. The action for damages may even be
based on delict defined under Section 25 of the DPA.
On the other hand, actions for damages caused by the irregularities or abuse in the
storage, manipulation and use of personal information are all covered by the DPA. For example,
aggregation, identification and allowing secondary use violates the DPA if the same is done without
the consent of the data subject or is being done not for the purpose for which the consent was
advertising ID and advertising data from the user’s devices without the prior consent of the data
subject. The liability may be premised on Section 25 (j) of the DPA as well as Articles 20 and 19 of
protecting stored information from being leaked or from unauthorized access is not only a violation
of the DPA but may also justify an action for damages for quasi-delict under Article 2176 of the
Civil Code. On the other hand, unlawful exclusion of the data subject from access to his personal
information is a violation of the right of the data subject under the DPA. Liability may also be for
abuse of right under Articles 19, 20 and 21 of the Civil Code.
Finally, irregularities in the dissemination of information, such as breach of confidentiality,
unauthorized disclosure, increased accessibility which is either unauthorized or not consistent with
the purpose or the principle of proportionality, blackmail, appropriation and distortion are all
violations of the DPA. The offenders may be made liable for damages in performing those acts
Conclusion
Protection of personal liberty and the rights of every person is indispensable in a society
that upholds democracy as a fundamental principle. Violation of constitutional rights threatens
democracy. In particular, violation of the right to informational privacy also threatens democracy.
Hence, it is important to promulgate statutory rules that are designed for the protection of democracy
and specific constitutional rights like the right to informational privacy. In the Philippines, there
are laws that are designed to prevent or deter violation of constitutional rights. Democracy is
being upheld under the Civil Code and under special laws. The statutory protection includes the
imposition of tort liability for its protection.
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One of the rights that is protected not only under the Constitution but also under existing
statutes is the right to privacy. In particular, the right to informational privacy is protected under
the Civil Code and under the Data Privacy Act of 2012. The Civil Code and the Data Privacy Act
of 2012, together with the Revised Penal Code, serve as the bases of liability for the tort of violation
of the right to privacy. The tort liability provisions therefore serve an important role in upholding
the principle of democracy in this jurisdiction
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Social Media Regulation: Saving Democracy or Silencing Dissent?
Mae Diane Azores*
I. Introduction
Social media has dramatically changed the relationships of individuals to society. It has
revolutionized the way people connect, share information, circulate news and conduct discussions.
Anyone with an internet connection can easily access and post anything online. Now, it’s almost
impossible to meet someone who isn’t on Facebook, Twitter, Instagram and other social media
platforms.
In the 2021 annual report of the advertising firms, We Are Social and Hootsuite, the
Philippines emerged again for the 6th straight year as the country with the most social media users
worldwide. Based on the report, Filipinos spend an average of 4 hours and 15 minutes on social
media, while the global average for social media usage is only 2 hours and 25 minutes.1
This hyperconnectivity among Filipinos caused the digitalization of almost every aspect
of our lives, including political engagements. Social media made it easier for people to be more
interested and involved in political dialogues. Because of this, social media can be perceived as an
equalizing force for disenfranchised individuals. When viewed through rose-colored glasses, one
can say that social media is a blessing to democracy. An active and engaged civil society is indeed
one of the measures of a working and effective democracy.
However, as social media evolves and ages, the optimism towards it has faded. The
increasing list of harms and negative effects of social media have caused growing criticisms on
its effects on society. Social media has evolved into a platform for fake news, disinformation,
propaganda and violent ideologies. Social media is also a game changer for political campaigns; it
has sparked novel political discourse in the country’s election history. Online political discussions
are more insolent and hostile than those in real life. The increasing polarization in the digital spaces
has caused an unprecedented divisiveness in the country. Practices such as trolling and red-tagging
have likewise flourished.
This current state of social media and the absence of a clear-cut law regulating social
media interactions put into test the strength of our democratic institutions. More importantly, with
the crucial 2022 elections at hand and the limitations still in place because of the pandemic, it is
imperative to discuss the interplay of social media and democracy and the challenges that it poses
to our democracy. This article considers how present laws and government policies are applied to
social media interactions. This article will also explore possible formal regulation on social media
usage that may counter harmful uses of social media while fostering diversity, inclusiveness and
democracy and ensuring protection to fundamental freedoms.
* The author is a lawyer and a professor of accountancy and law. As a young lawyer, she is a staunch believer in speaking
truth to power to obviate the pernicious effects of tyranny and oppression. She is also a firm advocate of employees,
women, and children’s rights and conducts various lectures to educate and bring the law closer to the laymen.
1  Kyle Chua, PH Remains Top In Social Media, Internet Usage Worldwide – Report, RAPPLER, Jan. 28, 2021, available
at https://www.rappler.com/technology/internet-culture/hootsuite-we-are-social-2021-philippines-top-social-media-
internet-usage/ (last accessed Dec. 17, 2021).
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II. The Current State of Social Media Platforms in the Philippines
In the Philippines, the most popular social media platform remains to be Facebook.
According to a survey conducted by Pulse Asia in 2021, “ownership of a Facebook account is nearly
universal among internet users in the Philippines as a whole (99%) and across geographic areas and
socio-economic groupings.” Meanwhile, 57% of internet users own YouTube accounts, 17% with
TikTok accounts, 14% with Instagram accounts, and 8% are registered on Twitter.2 The survey
also wrote that nearly half or 48% of Filipino adults get their political news from the internet,
of this, 44% cited Facebook. The survey also showed that messaging applications are frequently
used among Filipino adults. Almost all of those who access the internet use instant messaging
applications (99%), with Facebook Messenger being the most used instant messaging application
(98%).3
In the 2016 Presidential elections, the sudden popularity of the then presidential candidate
Rodrigo Duterte was widely attributed to the mobilization of social media, particularly Facebook.
Studies show that Duterte’s victory was made possible largely because of trolls and fake accounts on
Facebook who were paid to manipulate information.4
The University of Oxford published a study in 2017 entitled “Troops, Trolls and
Troublemakers: A Global Inventory of Organized Social Media Manipulation,” which included
the Philippines in the list of countries where cyber troops or troll armies have been deployed by
the government.5 The study suggests that Duterte has a “keyboard army” that inflates popular
support for government policies. The study listed 2016 as the year of the earliest report of organized
social media manipulation in the Philippines. During that year “keyboard trolls” were hired to
spread propaganda for then presidential candidate Duterte and many of them continue to amplify
messages in support of the president’s policies now that he’s in power.6 The study also said that
Duterte’s political party spent around $200,000 or around 10 million pesos to hire a social media
army composed of about 400 to 500 individuals for the 2016 presidential election campaign.7
In a press conference, Duterte admitted that he deployed a team of social media
commentators to support his candidacy.8
In 2019, Facebook took down 200 pages, groups and accounts linked to a network
organized by Nic Gabunada, the social media campaigner of President Rodrigo Duterte, for
engaging in “coordinated inauthentic behavior”.9
2  Kaela Malig, Facebook is Most Popular Social Media Platform Among Internet Users in Philippines — Pulse Asia, GMA
NEWS, October 12, 2021, available at https://www.gmanetwork.com/news/scitech/science/806672/facebook-is-most-
popular-social-media-platform-among-internet-users-in-philippines-pulse-asia/story/ (last accessed Mar. 12, 2022).
3  Pauline Macaraeg, Nearly Half of Filipinos Get News from internet, Facebook – Pulse Asia, RAPPLER, available at https://
www.rappler.com/nation/nearly-half-filipinos-get-news-internet-facebook-pulse-asia-september-2021(last accessed Mar.
12, 2022).
4  Audrey Morallo, Watchdog: Social Media Influencers Paid to Back Duterte, PHIL. STAR, available at https://www.
philstar.com/headlines/2017/11/14/1758866/watchdog-social-media-influencers-paid-back-duterte (last accessed Mar.
12, 2022).
5  Computational Propaganda Reasearch Project, Troops, Trolls and Troublemakers: A Global Inventory of Organized
Social Media Manipulation, available at https://demtech.oii.ox.ac.uk/wp-content/uploads/sites/89/2017/07/Troops-
Trolls-and-Troublemakers.pdf (last accessed Mar. 12, 2022).
6  Mikas Matsuzawa, Duterte Camp Spent $200,000 for Troll Army, Oxford Study Finds, PHIL. STAR, available at https://
www.philstar.com/headlines/2017/07/24/1721044/duterte-camp-spent-200000-troll-army-oxford-study-finds (last
accessed Mar. 12, 2022).
7  Id.
8  Pia Ranada, Duterte Says Online Defenders, Trolls Hired Only During Campaign, RAPPLER, available at ttps://www.
rappler.com/nation/duterte-online-defenders-trolls-hired-campaign (last accessed Mar. 12, 2022).
9  Xave Gregorio, Facebook Takes Down 200 Accounts Linked to Man Behind Duterte Social Media Campaign, CNN,
available at https://www.cnnphilippines.com/news/2019/3/29/Facebook-Nic-Gabunada-Rodrigo-Duterte.html (last
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The use of trolls and fake accounts for political campaigning is merely the tip of the
iceberg. Recently, twelve senators seek reports that public funds are oiling the operation of troll
farms that spread fake news and misinformation on social media.10
The fact that the Philippines became a breeding ground for fake news and misinformation
did not come as a surprise. Despite the amount of time and energy spent by Filipinos on social
media, this sphere is still largely free of regulation and likewise lacks effective mechanisms to curtail
the sharing of inaccurate and false information. Especially because of the restrictions brought about
by the COVID-19, false and misleading information became more prevalent on social media
ranging from slanderous rumors, inaccurate and harmful medical hoaxes and conspiracy theories.
In the words of Tedros Adhanom Ghebreyesus, the Director-General of the World Health
Organisation (WHO), fake news “spreads faster and more easily than this virus” and “we are
not just fighting an epidemic; we are fighting an infodemic”.11
Social media has ushered a space rife with false, malicious or misleading information
online. More often than not, people do not bother to check whether the article they’ve read or
the video they watched came from legitimate sources before sharing it to others. This has become
more concerning with the upcoming 2022 elections. Social media’s handling of political content
has facilitated the spread of falsehoods and disinformation about politics. Today, it is a norm to
see heated and uncivilized disagreements online about candidates, issues, values or ideologies with
some people backing their arguments on unverified and false information they saw online.
This widely disseminated disinformation and toxic environment attacks our democracy
to its core. The decision-making process of voters are now greatly influenced by what is trending or
who is leading online polls on social media. The threat to our democracy and credible elections is
now bigger than ever due to restrictions brought by the pandemic.
In the recent 2020 US elections, Facebook and Twitter have become more proactive
in preventing disinformation while Youtube’s policies remain to be lax. Despite the changes in
algorithm and the tweaks in the platforms to prevent the spread of false news, disinformation still
slipped through.12
Aside from the threat it poses to our electoral process and democracy, online attacks and
disinformation can actually bring physical harm. Social media cultivated an environment of hate
under the guise of freedom of expression and of speech.
As the country struggles to contain the spread of the deadly virus comes the intensified
crackdown against activists, human rights defenders, indigenous peoples, journalists, lawyers,
celebrities and basically anyone who expresses dissent and dissatisfaction in the government’s
handling of the pandemic. These dissenters have either been trolled, harassed, threatened, arrested13,
accessed Mar. 12, 2022).
10  Press Release by Senate of the Philippines, 18th Congress, 12 Senators Seek Investigation into Troll Farms (July 12,
2021) (on file with the Senate of the Philippines).
11  WHO Director-General, World Health Organization, Speech at Munich Security Conference (Feb. 15, 2020)
(transcript on file with WHO) available at from https://www.who.int/dg/speeches/detail/munich-security-conference
(last accessed Mar. 12, 2022).
12  Andres Bautista, [ANALYSIS] What Can the Philippines Learn from the US Elections?, available at https://www.
rappler.com/voices/thought-leaders/analysis-what-can-philippines-learn-us-elections/ (last accessed Mar. 12. 2022).
13  CNN Philippines Staff, NBI Arrests Teacher for Online Post Offering P50M for Duterte Slay, CNN, available at
https://www.cnn.ph/news/2020/5/12/nbi-arrests-teacher-duterte-bounty.html (last accessed Mar. 13, 2022);CNN
Philippines Staff, Human Rights Group Calls for Release of Teacher Arrested Over ‘Seditious’ Facebook Post, CNN, available
at https://www.cnn.ph/news/2020/3/29/karapatan-teacher-arrest-sedition-charges-coronavirus.html (last accessed Mar.
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or worse “red-tagged”. Red-tagging or red-baiting is a form of harassment or persecution of a person
identified or suspected as a communist sympathizer.14
The author of this article has personally been the subject of vicious vilification and red-
tagging on social media for posts perceived to be against the government. Based on experience, trolls
can leave hurtful and threatening comments or messages. Some attacked my personal appearance,
called me names, others tried to discredit my achievements and integrity, but what’s really agitating
are messages of threat of physical harm. For some activists, however, being “red-tagged” is akin to
a death sentence. Many of those who were labeled were killed extra-judicially15 or detained16 for
baseless criminal charges.
On social media, the most notorious public official who is blatantly red-tagging
individuals and organizations is National Task Force to End Local Communist Armed Conflict
(NTF-ELCAC)’s, spokesperson Lieutenant General Antonio Parlade, Jr.
Parlade have been on a red-tagging spree on Facebook and have been known for his
relentless anti-communist urgency views. To name a few, Parlade red-tagged eighteen schools
and claimed that they are “recruitment havens for the New People’s Army”. In another instance,
Parlade red-tagged a student organization for conducting a webinar entitled Abante Babae and
suggested where Kabataan Partylist representative Sarah Elago and human rights lawyer Sol Taule
were speakers.17 Celebrities Angel Locsin, Catriona Gray and Liza Soberano were also not spared by
Parlade’s baseless red-tagging.18
Parlade was slammed for these remarks but Parlade said that he was only taken out of
context.19 After enjoying impunity for so long for his red-tagging remarks, Parlade was finally
ordered investigated by the Armed Forces of the Philippines after he accused journalist Tetch
Torres-Tupas of “aiding terrorists by spreading lies.”
Despite the investigation, Parlade again made headlines when he likened community
pantry organizer Ana Patricia Non to Satan. Ana Patricia Non started the community pantry
initiative, and has inspired similar efforts in other parts of the country. But a few days later, Non
briefly suspended their operations due to safety concerns after the Quezon City Police District and
13, 2022).
14  IGI Global, What is Red-Baiting/Red-Tagging, available at https://www.igi-global.com/dictionary/red-baitingred-
tagging/81680 (last accessed Mar. 12 2022).
15  Jairo Bolledo, Leaders Lost: The 9 Activists Killed by Duterte Gov’t on ‘Bloody Sunday’, RAPPLER, available at https://
www.rappler.com/newsbreak/iq/names-activists-killed-by-duterte-government-bloody-sunday-march-7-2021/ (last
accessed Mar, 12, 2022); Jun N. Aguirre, Indigenous Leaders Killed in Philippines were ‘Red-Tagged’ Over Dam Opposition,
MONGABAY, available at https://news.mongabay.com/2021/02/indigenous-leaders-killed-in-philippines-were-red-
tagged-over-dam-opposition/ (last accessed Mar. 12, 2022); Phil Robertson, Two More Philippine Activists Murdered,
HUMAN RIGHTS WATCH, available at https://www.hrw.org/news/2020/08/18/two-more-philippine-activists-
murdered (last accessed Mar 12, 2022).
16  Gabriel, Pabico Lalu, Journo Lady Ann Salem from red-tagged site arrested on Human Rights Day, PHIL. DAILY INQ.
available at https://newsinfo.inquirer.net/1370345/journo-from-red-tagged-site-arrested-nujp-other-orgs-confirm (last
accessed Mar. 12, 2022); PHILSTAR.COM, Red-Tagged Peasant, Labor Leaders Arrested in Separate Raids, PHIL. STAR,
available at https://www.philstar.com/headlines/2021/03/30/2088042/red-tagged-peasant-labor-leaders-arrested-
separate-raids (last accessed Mar. 12, 2022).
17  Gabriella Baron, Parlade Slammed for Red-Tagging Another Student Organization, MANILA BULL. available at https://
mb.com.ph/2021/03/24/parlade-slammed-for-red-tagging-another-student-organization/ (last accessed Mar. 12, 2022).
18  Bea Cupin, ABS-CBN Defends Angel Locsin, Liza Soberano Against Red-Tagging, RAPPLER, available at https://www.
rappler.com/entertainment/celebrities/abs-cbn-statement-defending-angel-locsin-liza-soberano-parlade-red-tagging/
(last accessed Mar. 12, 2022).
19  Christia Marie Ramos, CHR: Parlade Warning to Liza Soberano, Catriona Gray ‘Tantamount to Harassment, Red-Tagging’,
PHIL. DAILY INQ. available at https://newsinfo.inquirer.net/1351602/chr-parlade-warning-to-liza-soberano-catriona-
gray-tantamount-to-harassment-red-tagging (last accessed Mar. 12, 2022)
24
the NTF-ELCAC red-tagged them on social media.20
This indiscriminate red-tagging by the NTF-ELCAC and Parlade triggered senators to
revive the proposals to defund the government’s anti-communist task force.21
Against this backdrop, it is imperative to discuss how the law can regulate these platforms
without jeopardizing the fundamental freedoms of expression, privacy and speech.
III. Current Regulatory Legal Framework for Social Media
Despite being the world’s top social media user, the Philippines surprisingly remains to
be free of any social media regulation. This gap in legislation has affected not only ordinary citizens
but also provoked the ire of government officials. In August, a lawmaker sought investigation of
Facebook for allegedly censoring his opinion on COVID-19. This was after the lawmaker’s post
advocating the use of ivermectin to cure COVID despite warnings from health experts.22 Lorraine
Badoy, the spokesperson of NTF-ELCAC, suffered the same fate when she was likewise restricted by
Facebook from posting or commenting for 30 days after it took down at least three posts that violate
community standards.23 The President himself threatened to stop Facebook in the Philippines after
it took down a fake network linked to the country’s police and military. Duterte accused Facebook
of helping and “encouraging” communists by blocking the government’s efforts.24 Hours after the
President’s threat to ban Facebook, his spokesperson said that the President is not keen on banning
Facebook.25
These instances and the problematic state of social media platforms give rise to debates
on whether social media should be regulated. To be clear, these platforms are not entirely free of
policies to regulate their content. The problem lies in the consistency in enforcing these policies.
Realistically speaking, this inconsistency can be attributed to the fact that these social media
platforms are not incentivized in regulating hateful or violent speech because of their ad-driven
business models that keep their users engaged. Because of this self-interest, it goes without saying
that it must be the government who should write the rules of regulation for effective enforcement.
However, social media regulation is not as easy as it sounds because of the danger that it
can trample on the freedom of speech. For one, imposing restrictions on social media content may
be construed as censorship.
Article III, Section 4 of the Constitution instructs that “no law shall be passed abridging
the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.”
20  Jairo Bolledo, Parlade Likens Rapid Spread of Community Pantries to Work of ‘Satan’, RAPPLER, available at https://
www.rappler.com/nation/ntf-elcac-parlade-says-ana-patricia-non-same-satan/ (last accessed Mar. 12, 2022).
21  Bella Perez-Rubio, ‘Sayang Lang Pera’: Senators Want to Defund Red-Tagging Task Force, PHIL. STAR, available at
https://www.philstar.com/headlines/2021/04/22/2092997/sayang-lang-pera-senators-want-defund-red-tagging-task-
force (last accessed Mar. 12, 2022)
22  RG Cruz, Mike Defensor blocked from Facebook, Seeks Probe for ‘Censorship’, ABS-CBN News, available at https://news.
abs-cbn.com/news/08/02/21/mike-defensor-blocked-from-facebook-seeks-probe-for-censorship (last accessed Mar. 12,
2022).
23  Xave Gregoria, Did Facebook Restrict NTF-ELCAC Spokesperson’s Account?, PHIL. STAR, available at https://www.
philstar.com/headlines/2021/03/06/2082403/did-facebook-restrict-ntf-elcac-spokespersons-account (last accessed Mar.
12, 2022).
24  Sofia Tomacruz, Duterte Threatens to Stop Facebook in the Philippines, RAPPLER, available at https://www.rappler.com/
nation/duterte-threatens-stop-facebook-philippines/ (last accessed Mar. 12, 2022).
25  Id.
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 BEDAN LAW REVIEW
In the case of Gonzales v. Commission on Elections26, the Supreme Court explained what is
embraced in the foregoing provision and held that:
“…At the very least, free speech and free press may be identified with the
liberty to discuss publicly and truthfully any matter of public interest without censorship
and punishment. There is to be no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for damages,
or contempt proceedings unless there be a clear and present danger of substantive evil that
Congress has a right to prevent. The vital need of a constitutional democracy for freedom
of expression is undeniable, whether as a means of assuring individual self-fulfillment; of
attaining the truth; of assuring participation by the people in social, including political,
decision-making; and of maintaining the balance between stability and change. As early
as the 1920s, the trend as reflected in Philippine and American decisions was to recognize
the broadest scope and assure the widest latitude for this constitutional guarantee. The
trend represents a profound commitment to the principle that debate on public issue
should be uninhibited, robust, and wide-open.”
The Supreme Court further held that “[t]o be truly meaningful, freedom of speech and
of the press should allow and even encourage the articulation of the unorthodox view, though
it be hostile to or derided by others; or though such view ‘induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger.’”27
With the primacy and high esteem afforded to the freedom of speech, is it even possible
to regulate social media content? Well, the Supreme Court explained that the freedom of expression
is “not an absolute nor an unbridled license that gives immunity for every possible use of language
and prevents the punishment of those who abuse this freedom. As such, certain types of speech such
as slander or libel, lewd or obscene speech, and “fighting words” are subject to regulation, which is
justified under the police power of the State.28
Application of existing laws to social media platforms
Absent any regulation specifically directed to social media platforms, it is necessary
to examine existing laws that may be used as remedy to the perils brought by social media and
determine whether these are effectively enforced or whether these laws are weaponized instead to
silence dissent.
As to the pervasive effects of social media on our electoral processes, the Commission on
Elections (Comelec), through Resolution No. 10488, classified “social media post” as “election
propaganda” for the first time during the 2019 elections. However, this was not intended to be
content regulation (as it should be), Comelec only sought transparency and full disclosure, as well
as campaigning finance reporting when it issued the resolution.
For the 2022 elections, it is expected that candidates will migrate a massive portion of
their campaigning online due to the prevailing effects of the pandemic. For this reason, Comelec
expanded its social media regulation for the May 2022 elections. Among the provisions of the
expanded social media regulation issued by the COMELEC are the limitation of the running
of campaign ads to verified websites, blogs and social media pages registered by candidates and
political parties only, and they must disclose that these are paid ads and identify who paid for them,
26  In the Matter of Petition for Declaratory Relief Re Constitutionality of Republic Act No. 4880. Arsenio Gonzales and
Felicisimo R. Cabigao, G.R No. L-27833, April 18, 1969
27  Chavez v. Gonzales, G.R. No. 168338, 569 Phil. 155-297 (2008).
28  Id.
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and the prohibition of “microtargeting” of campaign ads. Comelec defined microtargeting as “a
form of targeting online advertisements that uses recent technological developments to analyze a
person’s online usage, to preferentially serve advertisements and other information that specifically
reflect that individual user’s preferences and personality.”29
While the foregoing may somehow aid the Comelec in ensuring a fair and transparent
2022 elections, the absence of a legislative framework which will clearly define their authority in
regulating social media campaigning still poses a major challenge.30
For the toxic environment cultivated by social media, our penal laws may provide relief to
victims of threats, disinformation and unwarranted hate.
Uttering threat on social media is a crime31 under the Revised Penal Code. Further, the
Safe Spaces Act signed into law last 2019 punishes gender-based online sexual harassment which
includes acts that use information and communications technology in terrorizing and intimidating
victims through threats (physical, psychological, and emotional), unwanted sexual misogynistic,
transphobic, homophobic and sexist remarks and comments online whether publicly or through
direct and private messages, invasion of the victim’s privacy through cyberstalking and incessant
messaging, uploading and sharing without the consent of the victim any form of media that
contains photos, voice, or video with sexual content, any unauthorized recording and sharing of
any of the victim’s photos, videos or any information online, impersonating identities of victims
online or posting lies about victims to harm their reputation or filing false abuse reports to online
platforms to silence victims.32
Spreading fake news is also a crime under Article 154, paragraph 1 of the Revised Penal
Code.33 When the Bayanihan to Heal as One Act or RA 11469 was passed in 2020, it included a
provision punishing peddling of fake news on social media and other platforms. In less than a month
since its implementation, 47 persons were nabbed for the alleged violations of the provision.34 This
provision have been questioned for being violative of the freedom of speech guaranteed by the
Constitution and was alleged to have been used to stifle dissent instead of protecting the general
public.35 When the Bayanihan Act expired on June 24, 2020, the succeeding law Bayanihan to
Recover as One Act or Bayanihan 2 repealed the fake news provision.
Further, online malicious imputation of a crime, or of a vice or defect, real or imaginary,
or any act, omission, condition, status, or circumstance on another that causes dishonor, discredit
or content of the person defamed constitutes as cyber-libel under RA 10175 or the Cybercrime
Prevention Act. One of the most notable convictions under this law is 2021 Nobel Peace Prize
winner and press freedom icon, Maria Ressa. The case hinged on an article published by Rappler
two years before the new cyber libel laws came into effect. Prosecutors have argued that a correction
made to the story after the law passed constituted a “republication” and meant it could be considered
29  Donna C. Pazzibugan, Comelec Expands Rules on Pol Ads Run on Social Media, PHIL. DAILY INQ. available at https://
newsinfo.inquirer.net/1517074/comelec-expands-rules-on-pol-ads-run-on-social-media (last accessed Mar. 12, 2022).
30  Jauhn Etienne Villaruel, ​​Why Comelec is ‘handicapped’ in Regulating Social Media Campaigning, ABS-CBN NEWS,
available at https://news.abs-cbn.com/news/11/05/21/why-comelec-cant-control-social-media-campaigning (last
accessed Mar. 12, 2022).
31  See An Act Revising the Penal Code and Other Penal Laws {REV. PENAL CODE], Act No. 3815, §§ 282 &285.
32  Philippine Commission on Women, Primer on Republic Act No. 11313: Safe Spaces Act (Bawal Bastos Law)https://
pcw.gov.ph/republic-act-no-11313-safe-spaces-act-bawal-bastos-law/
33  REV. PENAL CODE §154.
34  Christopher Lloyd Caliwan, PNP Nabs 47 Covid-19 Fake News Peddlers, PHILIPPINE NEWS AGENCY, available at
https://www.pna.gov.ph/articles/1099910 (last accessed Mar. 12, 2022).
35  Jeremiah Joven B. Joaquin and Hazel T. Biana, Philippine Crimes of Dissent: Free Speech in the Time of COVID-19
available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7399561/ (last accessed Mar. 12, 2022).
27
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as “cyber libel.” Maria Ressa and her lawyers called the charges politically motivated.36
Several arrests were also made for “seditious posts” on social media. Under the Revised
Penal Code, a person can incite sedition by means of “speeches, proclamations, writings, emblems,
cartoons, banners, or other representations tending to the same end” against the country or any
duly constituted authority.
In one instance, a case for “inciting to sedition” under Article 142 in relation Section 6 of
the Cybercrime Prevention Act was filed against Rodel Jayme for allegedly sharing posts and videos
online against the Duterte administration. In another case, a 55-year old public school teacher
Juliet Espinosa was arrested without warrant in General Santos City, again for inciting to sedition,
after allegedly publishing a Facebook post urging residents without food to raid the gym in Brgy.
Lagao, where relief goods are reportedly kept. The post was published under an account with a
different name, “Yet Rodriguez Enosencio”. It contained criticism against the local government’s
lack of appropriate response to the health crisis, which the user said is resulting in the starvation of
residents.37
In Aklan, another case of inciting to sedition was filed against a worker who posted on
social media that he would offer a P100 million reward to anyone who could kill President Rodrigo
Duterte. This comes a day after Ronnel Mas, a teacher from Pangasinan, was apprehended by the
National Bureau of Investigation for posting on Twitter that he will offer a P50 million reward for
Duterte’s killing.38 The case against Mas was eventually dismissed by the court.39
As if the attacks on the freedom of speech are not troubling enough, in 2020, the
controversial Anti-Terrorism Act (ATA) was passed into law. Even when the ink on the new law
has barely dried, several petitions were immediately filed before the Supreme Court by various
personalities, groups and organizations to question the law for being unconstitutional. Among
others, the petitioners oppose the provisions that trample upon fundamental freedoms, including
the freedom of speech. In particular, Section 9 of the ATA proscribes speech, proclamations,
writings, emblems, and banners that fall under the new crime of “inciting to terrorism,” imposing
a penalty of 12 years in prison. This provision of the law causes grave concern particularly because
terrorism is vaguely defined under the ATA. Further, the law also allows suspected terrorists to be
arrested without warrant and detained without charges for up to 24 days.
Human rights groups, activists and media practitioners argue that the law will only be
used to amplify the crackdown against dissenters and will likewise “encourage self-censorship out of
fear of being prosecuted for social media posts that are critical of the government”.40
The fears surrounding the ATA were further exacerbated when military officials suggested
that social media use should be regulated by the anti-terror law.41 Senator and former Justice
36  James Griffiths, Philippines Journalist Maria Ressa Found Guilty of ‘Cyber Libel’ in Latest Blow to Free Press, CNN
BUSINESS, available at https://edition.cnn.com/2020/06/14/asia/maria-ressa-philippines-cyber-libel-intl-hnk/index.
html (last accessed Mar. 12, 2022).
37 https://cnn.ph/news/2020/3/29/karapatan-teacher-arrest-sedition-charges-coronavirus.html
38  Consuelo Marquez, Inciting to Sedition Raps Filed vs Aklan Man Who Offered P100-M bounty on Duterte’s Head,
PHIL. DAILY INQ. available at https://newsinfo.inquirer.net/1274567/inciting-to-sedition-raps-filed-vs-aklan-man-
who-offered-p100-m-bounty-on-dutertes-head (last accessed Mar. 12, 2022).
39  Mike Navallo, Court Drops Inciting to Sedition Rap vs Teacher Over Anti-Duterte Post, ABS-CBN NEWS, available
at https://news.abs-cbn.com/news/06/25/20/ronnel-mas-sedition-charge-dropped-duterte-threat (last accessed Mar. 12,
2022)
40  Carlos Santamaria, Why Do Duterte’s Critics Fear His New Anti-Terror Law?, GZERO, available at https://www.
gzeromedia.com/why-do-dutertes-critics-fear-his-new-anti-terror-law (last accessed Mar. 12, 2022).
41  Rambo Talabong, Social Media Use Should be Regulated by Anti-Terror Law – AFP, RAPPLER, available at https://
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Secretary Franklin Drilon said that such expansion goes beyond the intent of the law and will violate
the freedom of speech guaranteed by the Constitution, and therefore illegal and unconstitutional.42
Subsequently, Justice Secretary Guevarra later on clarified that there are no provisions regulating
social media use in the Anti-Terrorism Act.43
All of the foregoing points out that while it has been settled that the freedom of speech is
not absolute and there are already existing laws that may address some of the problems associated
with social media, they have unfortunately been used to stifle dissent. Given the present status of
the freedom of speech in the country, the question of whether social media regulation will bring
more problems than solutions is inevitable. Be that as it may, Filipinos should not be made to
choose between despotic laws or no regulation at all. The perils that social media brings to the very
fabrics of our democratic society require well-thought and calibrated laws that delicately strikes the
balance between the need for social media regulation and the people’s fundamental freedoms of
speech and expression.
IV. Suggestions And Recommendations on How to Effectively Regulate Social Media
Attempts to regulate social media
In the past, there were attempts to introduce bills to regulate social media platforms.
In 2019, Senator Sotto authored the Anti-Fake News Bill seeking to ‘protect the public
from the deleterious effects of false and deceiving content online’ and imposes stiff penalties
and prison time on violators. While the intent of the bill is defensible, the sweeping and broad
punishable acts enumerated in the bill immediately raised concerns from human rights groups.
The bill empowers the Department of Justice (DOJ), the Philippine National Police (PNP) and
the National Bureau of Investigation (NBI) to determine permissible content, and to censor online
information on any platform according to their judgment. These officials can order the information
to be corrected, taken down, or blocked. These provisions arguably abridge freedom of speech and
expression. It likewise focused more on social media users rather than regulating the platforms
where fake news and disinformation are being proliferated. For these reasons, the problematic bill
did not gain much traction.
Another bill was introduced in 2019, but this time to restrict minors under thirteen years
old from social media sites and apps. It sought to provide protection for children and minors. The
bill also requires the social media platforms to add “natural stopping points” so users can stop
scrolling after a certain amount of consumed content. It also seeks to automatically limit use of
social media apps to 30 minutes per day. However, this bill has not progressed.
Other countries have passed laws ostensibly seeking to regulate harms on social media.
However, these laws ended up curtailing the freedom of speech instead. In African countries, for
www.rappler.com/nation/afp-chief-gapay-says-social-media-use-should-be-regulated-by-anti-terror-law/ (last accessed
Mar. 12, 2022); Christia Marie Ramos, Parlade Defends Social Media Regulation Proposal, PHIL. DAILY INQ.
available at https://newsinfo.inquirer.net/1326287/parlade-defends-social-media-regulation-proposal (last accessed
Mar. 12, 2022).
42  Christia Marie Ramos, Regulate Social Media Under Terror Law? Drilon Says it’s ‘Illegal, Unconstitutional’, PHIL.
DAILY INQ available at https://newsinfo.inquirer.net/1316525/regulate-social-media-under-terror-law-drilon-says-its-
illegal-unconsitutional (last accessed Mar. 12, 2022).
43  CNN Philippines Staff, Guevarra: No Social Media Regulation in Anti-Terrorism Law as IRR Reaches Final Stages,
CNN PHILIPPINES, available at https://www.cnn.ph/news/2020/10/8/anti-terror-act-social-media-irr.html (last
accessed Mar. 12, 2022).
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example, vague laws were weaponized to stifle dissent and, in some instances, were also used by
African governments to shut down internet access.44 Laws regulating social media introduced in
Asian countries like Vietnam45, Indonesia46, Thailand47, Pakistan48, and India49, among others,
which include localization requirements and notice-and-takedown rules that track territorial
boundaries and undermine an open internet50, also raised serious concerns on its undue restrictions
on the freedom of speech.
Any similar regulation in the Philippines will most likely fail due to the high barrier that
these regulations must hurdle. The Supreme Court has been consistent in ruling that in any attempt
to restrict the freedom of speech, must show there is a clear and present danger that will bring about
the substantive evils that the State has the right to prevent.
Social Media as a Public Utility
What then is the best way to move forward? A report published by the Forum for
Information and Democracy suggests that social networks should be required to release details of
their algorithms and core functions to trusted researchers, in order for the technology to be vetted.
It also suggests adding “friction” to online sharing, to prevent the rampant spread of disinformation.
Another core recommendation of the report is the creation of a “statutory building code”, which
describes mandatory safety and quality requirements for digital platforms.51
From a legal point of view, one suggestion that was offered is to address the root cause of
the problems, which is the systematic ability of social media companies to insert critical features
at the development stage of the platform without any regulatory oversight. In an article published
in the website of University of Oxford Faculty of Law, it was recommended that there needs
to be a structuralist regulation focusing on systematic changes that deal with the mechanics of
monetization of advertisement, profiling, algorithms, verification and bots. The author explained
that structuralist regulation that aims at systematic reforms does not raise the risk of undermining
freedom of speech. Such reforms are crucial from a public utility perspective. Social media platforms
have become an indispensable infrastructure for the modern economy. This avenue of reform tends
to be appealing for its conception of public utilities as not just economic entities, but moral and
social actors.52
44  Tomiwa Ilori, How Social Media Companies Help African Governments Abuse “Disinformation Laws” to Target
Critics, available at https://restofworld.org/2021/social-media-africa-democracy/ (last accessed Mar. 12, 2022).
45  Sarah Logan, Facebook and Vietnam’s New Cybersecurity Law available at https://www.lowyinstitute.org/the-
interpreter/facebook-and-vietnams-new-cybersecurity-law (last accessed Mar. 12, 2022).
46  Article 19, Indonesia: Ministerial Regulation 5 will Exacerbate Freedom of Expression Restrictions available at https://
www.article19.org/resources/indonesia-ministerial-regulation-5-will-exacerbate-freedom-of-expression-restrictions/ (last
accessed Mar. 12, 2022).
47  International Commission of Jurists, Dictating the Internet: Curtailing Free Expression and Information Online
in Thailand, available at https://www.icj.org/wp-content/uploads/2021/06/Thailand-Dictating-the-Internet-FoE-
Publication-2021-ENG.pdf (last accessed Mar 12, 2022)
48  Riazul Haq, Cabinet Approves Amendments to Controversial Social Media Rules, DAWN, available at https://www.dawn.
com/news/1649144 (last accessed Mar. 12, 2022).
49  Dashveenjit Kaur, India’s New Social Media Rules Explained, TECHWIRE ASIA, available at https://techwireasia.
com/2021/06/indias-new-social-media-rules-explained/ (last accessed Mar. 12, 2022).
50  Jenny Domino, Filipinos are Left to Pick Between Repressive Social Media Laws — or None at All, available at https://
restofworld.org/2021/philippines-social-media-regulation/ (last accessed Mar. 12, 2022).
51  Forum on Information and Democracy, Concrete Solutions Against the Infodemic, available at https://
informationdemocracy.org/working-groups/concrete-solutions-against-the-infodemic/ (last accessed Mar. 12, 2022).
52  Israr Khan, How Can States Effectively Regulate Social Media Platforms?, available at https://www.law.ox.ac.uk/
business-law-blog/blog/2021/01/how-can-states-effectively-regulate-social-media-platforms (last accessed Mar. 12,
2022).
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Treating social media as a public utility which can justify its regulation is defendable.
A public utility was defined by the Supreme Court as a “business or service engaged in regularly
supplying the public with some commodity necessary for the maintenance of life and occupation
of the residents.”53
While social media may not be as vital as conventional public utilities such as water,
natural gas and electricity, the dependence and influence that social media plays in our lives is
undeniable, so much that it may be said that it has already attained utility status. Aside from
being an important tool for communication, social media as a news source in the Philippines
rose to up to 72% in 2021.54 The fact that social media is becoming a major source of news
and information alone already makes a good argument for its regulation as a public utility. In
addition, they’re also essentially monopolies that provide essential services to a dependent public.
The public utility concept offers a dynamic and flexible set of regulations to exercise oversight on
these private companies and protect public interest. For this purpose, regulations may be issued
to require social media users to be more transparent on how their algorithms disseminate ads and
content, how their system detects and acts against fake news and harmful content and require
stricter standards concerning user privacy and data processing. Ultimately, the aim of regulating
social media platforms as public utilities is to assert public power and to strengthen democracy.
V. Conclusion
Admittedly, however, despite the foregoing suggestions and recommendations, no
regulation can instantly solve the problems we are currently facing in the digital space. Regulations
will only be effective if the government itself is not actively involved in peddling fake news and
violating human rights online. Whether the Philippine government will decide to regulate social
media in the near future or at least modify government policies on social media spaces depends
largely on the results of the upcoming 2022 elections.
The ironic truth is that because of the pandemic, these candidates need social media to
win. Absent any regulation, we can expect social media to sow further division and polarization in
Philippines society and politics. Indeed, the stakes for these elections are high more so because our
democracy is already hanging by a thread.
53  Alexander B. Cabrera, ‘Public untility’: The lesser evil vs the greater good, PWC PHILIPPINES, May 9, 2021, available
at https://www.pwc.com/ph/en/as-easy-as-abc/column/public-utility-the-lesser-evil-vs-the-greater-good.html (last
accessed Mar. 12, 2022)
54  Patricia B. Mirasol, More Smartphone-Dependent Filipinos Seek News on Social Media — Reuters Report, BUSINESS
WORLD, available at https://www.bworldonline.com/more-smartphone-dependent-filipinos-seek-news-on-social-
media-reuters-report/ (last accessed Mar. 12, 2022).
31

Agora: On Housing and the Value of Public Space
Paulo Rafael C. Bautista
Introduction: The Importance of Public Spaces
The ancient Greeks considered the Agora to be one of the most revered places in their
city. Greek for “open place of assembly,”1 the Greeks conducted their business, their state affairs,
and even their recreational socialization in that space.2 The Greeks believed that for democracy
to flourish, not only must the citizenry participate in public affairs, but they must also have real,
physical places for such participation.3
In contemporary society, and more specifically, in the Philippines’ Metropolitan Manila,
the version of public spaces that were treasured by the ancient Greeks are dwindling. While libraries
and parks are still considered public spaces, the concept itself expanded to shopping malls.4 The
key difference, however, is that shopping malls are privately-owned and managed, meaning the
control of these semi-public, semi-private spaces is supervised almost entirely by a private entity.
This increase does not seem to be completely unwelcome, however, as there is still a surge of these
sprawling shopping malls, notwithstanding the existence of a global pandemic.5 While much of the
criticism against the decline of public spaces are centered on efforts to combat climate change,6 the
negative effect of this decline is not exclusive to detriments to the environment. It includes not only
the loss of space for parks and greenery, but also the loss of space for the fulfillment of public goals.
This includes the loss of spaces for housing the urban poor.
Providing housing for the poor is one of the core public policies of the government. The
Constitution itself devotes an entire section to guaranteeing the state objective of providing housing
for the underprivileged. Article XIII, Section 9 states:
SECTION 9. The State shall, by law, and for the common good, undertake,
in cooperation with the public sector, a continuing program of urban land reform and
housing which will make available at affordable cost decent housing and basic services to
underprivileged and homeless citizens in urban centers and resettlements areas…7
This provision, according to Christopher Tan in his article in the Ateneo Law Journal
named Social Justice, the Urban Poor, and the 1987 Constitution, recognizes the right of the
underprivileged and homeless to decent and affordable housing.8
In line with this, laws have been enacted for the furtherance of the constitutionally
mandated imperative. The approach of the government is two-fold. First, legislation that explicitly
devotes resources to the creation of public housing has been passed. An example is Republic Act
No. 11201, or the “Department of Human Settlements and Urban Development Act.”9 The law
1  World History Encyclopedia, Agora, available at https://www.worldhistory.org/agora/ (last accessed Dec 1, 2021)
2  Id.
3  Id.
4  Boo Chanco, Too Many Malls, Not Enough Parks, PHIL. STAR, Dec. 5, 2016, available at https://www.philstar.com/
business/2016/12/05/1650279/too-many-malls-not-enough-parks (last accessed Dec 5, 2021)
5  Iris Gonzales, ALI to Expand Malls in Metro Manila, Cavite, PHIL. STAR, May 3, 2021, available at https://www.
philstar.com/business/2021/05/03/2095374/ali-expand-malls-metro-manila-cavite (last accessed Dec 1, 2021)
6  Ragene Andrea Palma, Metro Manila Needs More Public Parks and Green Spaces. Here's Why, CNN Philippines, available
at https://www.cnnphilippines.com/life/culture/2019/8/20/public-green-spaces-manila.html (last accessed Dec 5, 2021)
7  PHIL. CONST. art. XIII § 9 (1)
8  Christopher A. Tan, Social Justice, the Urban Poor, and the 1987 Constitution, 39 ATENEO L.J. 188 (1995)
9  An Act Creating the Department of Human Settlements and Urban Development, Defining its Mandate, Powers and
32
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creates the aforenamed department, with the objective of creating and implementing programs for
low-cost housing.
The second approach is to control the market forces that consume public spaces for private
use. This act of control is called “zoning.” The World Bank defines zoning to be,
… a planning control tool for regulating the built environment and creating
functional real estate markets. It does so by dividing land that comprises the statutory
area of a local authority into sections, permitting particular land uses on specific sites to
shape the layout of towns and cities and enable various types of development.10
For this, zoning ordinances are created, and the said ordinances are the legal texts used
by a government to supposedly enable development. The Supreme Court also described zoning’s
purpose to be one that regulates lands for the community. Specifically, the Court said, “[b]y creating
distinct zones and ensuring strict compliance, the local government can control the growth and
development of its territory, optimizing its potential without sacrificing the safety and comfort of
its constituents.”11
It must be pointed out, however, that the provided definitions are general ones, as local
governments are empowered to define, limit, or enhance the function or purpose of zoning. An
example is Quezon City’s zoning ordinance, which defines zoning as the “division of the city into
land use zones, the specification of patterns, nature, and characteristics of uses and the provision
of density, and environmental regulations in consonance with the Comprehensive Land Use Plan
and strategies…”12
One of the many ills represented by market consumption of public spaces and the
subsequent conversion of such land into private ones is gentrification. While there are contentions
regarding the definition13 and the effects14 of the phenomenon, Merriam-Webster’s Dictionary
defines it as “a process in which a poor area (as of a city) experiences an influx of middle-class
or wealthy people who renovate and rebuild homes and businesses and which often results in an
increase in property values and the displacement of earlier, usually poorer residents.”15
In the Philippines, not only is Metro Manila being affected by gentrification, which is due
in large part to its rapid and uneven urbanization,16 the prevalence of this phenomenon also affects
areas outside the dense urban cities of the capital region.17 Zoning ordinances are supposedly able
to address this, if only because the government can control the manner of use of specific lands.18
Functions, and Appropriating Funds Therefor [Department of Human Settlements and Urban Development Act],
Republic Act No. 11201 (2019).
10  World Bank, Zoning and Land Use Planning, available at https://urban-regeneration.worldbank.org/node/39 (last
accessed Dec 6, 2021).
11  Cordillera Global Network v. Paje, G.R. No. 215988, 901 SCRA 261 (2019)
12  Sangguniang Panlungsod of the City of Quezon, Comprehensive Zoning Ordinance of 2016, SP-2502, S-2016, § 4.
13  Lance Freeman, Five Myths About Gentrification, WASH. POST, June 3, 2016, available at https://www.washingtonpost.
com/opinions/five-myths-about-gentrification/2016/06/03/b6c80e56-1ba5-11e6-8c7b-6931e66333e7_story.html (last
accessed Dec. 8, 2021).
14  See also Loretta Lees, Gentrification and Social Mixing: Towards An Inclusive Urban renaissance?, 45 Urban Studies
2449–2470 (2008).
15  Merriam-Webster Dictionary, Definition of Gentrification, available at https://www.merriam-webster.com/dictionary/
gentrification (last accessed Dec. 16, 2021).
16  Narae Choi, Metro Manila Through the Gentrification Lens: Disparities in Urban Planning and Displacement Risks, 53
Urban Studies 577–592 (2014).
17  Thomas M. Orbos, The Gentrification of our Countryside, BUSINESSMIRROR, Apr. 12, 2021, available at https://
businessmirror.com.ph/2021/04/12/the-gentrification-of-our-countryside-2/ (last accessed Nov. 19, 2021).
18  World Bank, supra note 10. See also Cordillera Global Network v. Paje, G.R. No. 215988, 901 SCRA 261 (2019)
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While there has been relative progress with respect to laws related to housing,19 zoning
ordinances on the other hand have been questionable in terms of its effects on stifling gentrification
or the decrease of public land for public use. In this regard, this paper will examine the exacerbation
of gentrification and the deterioration of public spaces due to zoning ordinances by themselves or by
the questionable application of the local governments that enacted them. Zoning laws in Quezon
City, with light references to some other zoning ordinances in Metro Manila, will be examined.
Zoning Laws on Public Spaces and Gentrification
As previously stated, zoning laws are meant to prevent or temper the effects of gentrification,
as well as supposedly increase public use of public lands. Theoretically, it curbs gentrification because
of the control of local governments in determining the purpose of a specific parcel of land.20 To see
how zoning ordinances affect both issues, one must first have a view of how both problems exist
within the Philippine context.
However, it is difficult to discuss one problem without the other, as they are almost
inextricably linked: gentrification affects the further reduction of public space.21 One of the many
consequences of this problem is the overall effect of the COVID-19 pandemic on the urban
landscape of Metro Manila, due partly to the severe lack of public parks in Metro Manila.22 The
lack of public parks served as a worsening of the chokehold that the pandemic had on the people’s
collective psyche.23 This problem could be attributed to the mentioned rise of shopping malls, as
they have served as the main substitute for public spaces.24
In the above instance, while the classification of land is a prerogative of Congress,25 the
manner in which land is used still lies within the discretion of the local government. As such, a
proper zoning ordinance, which could have accounted for use of land for public parks, could have
helped. Nevertheless, the way that the zoning ordinances in the region are formed does not appear
to have accounted for use of certain areas of the region as public land.
However, there are situations where the zoning ordinances might have exacerbated the
effects of gentrification and/or deprivation of public land for public use. The zoning ordinance
of Quezon City characterizes, for example, certain areas as “growth centers” and “growth areas.”
A growth center is defined by the ordinance as “small town or villages which have the potential of
becoming nuclei for the future economic, social and political development of the surrounding area;
central places that perform functions or offer services patronize by a wide-ranging [sic] clientele
that extends beyond their immediate environs.”26 A growth area is an area located in a growth
19  Louise Maureen Simeon, Government Ramps Up Low-Cost Housing in Metro Manila, PHIL. STAR, November 12,
2021, available at https://www.philstar.com/business/2021/11/12/2140595/government-ramps-low-cost-housing-
metro-manila (last accessed Nov. 19, 2021).
20  World Bank, supra note 10.
21  See e.g, note 4.
22  Pia Ranada, Parks Will Save Us: Pandemic Highlights Lack of Metro Manila Green, Open Spaces, RAPPLER, Oct. 7,
2020, https://www.rappler.com/newsbreak/in-depth/covid-19-pandemic-highlights-lack-metro-manila-green-open-
spaces/ (last accessed Dec. 6, 2021).
23  Id.
24 Chanco, supra note 4.
25  Title and Application of the Act, Lands to Which It Refers, and Classification, Delimitation, and Survey Thereof
for Concession. [Public Land Act], Act No. 2874 (as amended). See also Sara Mae D. Mawis, Deconstructing PH
land classification system, PHIL. DAILY INQ., Apr. 21, 2018, available at https://business.inquirer.net/249597/
deconstructing-ph-land-classification-system (last accessed Nov 20, 2021).
26  Comprehensive Zoning Ordinance of 2016, SP-2502, S-2016, § 5, 8.
34
zone.27 An example is the Novaliches-Lagro area.28 Coincidentally, an article written in Business
World talks about how Ayala Land Inc. has been constructing an 11-hectare real estate venture
called The Junction Place since 2019, within the Novaliches area.29 What is remarkable is that the
spokesperson of the project explicitly stated that they seek to “gentrify the area.”30
In this regard, the zoning ordinance has no clear nor noticeable effect on preventing
gentrification. In fact, perhaps the classification of the Novaliches-Lagro area as a growth area
actively resulted in the said attempt at gentrification. While it is difficult to establish a causation
between the two, it cannot be denied that there is a relationship between them. However, it is
unsurprising that the two are related, as one of the primary functions of zoning, according to the
World Bank, is to stimulate development.31 If the stimulation of economic growth in an area is
one of the purposes of zoning, then a zoning ordinance that is not mindful of the effects of such
economic growth will likely be unable to prevent gentrification, or even, as in this case, aggravate it.
While zoning laws can itself be a problem with respect to the aforementioned issues,
what can further worsen its negative effects are the misapplication of zoning ordinances, or more
specifically, its selective application. An example was when SM Development Corporation (SMDC)
constructed a 42-story condominium building along Katipunan. The problem here was that the
maximum height that a building could reach was six stories, which meant that the condominium
unit was a staggering 36 stories above the height limit, as set by the zoning ordinances of Quezon
City at that time. Ateneo De Manila University, a university in the area, as well as some resident
groups, opposed the construction of the building. They even filed graft and corruption cases against
the Quezon City Council for approving the exemption to SMDC. In the end, however, the building
was constructed, and no opposition to the construction succeeded.32
In the previous scenario, the locals fought against the grant, not only because it was
believed to be an egregious exemption, but because they believed that their quality of life would
suffer.33 While this may be viewed as an attempt to enable a public-private partnership in providing
housing so as to comply with the constitutional mandate, the nature of the building itself obviously
indicates that it does not. A condominium building is not what the laws envisioned in providing
affordable housing for the poor.
That opposition to the SMDC project failure should not be surprising, as analysis
on jurisprudence might reveal that resorting to the courts could prove unhelpful. More cases
discuss the powers or jurisdiction of the Housing and Land Use Regulatory Board or the local
government with respect to zoning permits or disputes,34 or they discuss violations with respect
to environmental impact35 and not with respect to housing vis-à-vis Article II, Section 9 of the
27  Id.
28  Id.
29  Cathy Rose A. Garcia, ALI's Pocket Urban Development to Help Transform Novaliches, BUSINESSWORLD, November
12, 2019, available at https://www.bworldonline.com/alis-pocket-urban-development-to-help-transform-novaliches/
(last accessed Nov 20, 2021).
30  Id.
31  World Bank, supra note 10
32  Leila B. Salaverria, Ateneo, Subdivisions Take Fight vs. SM Condo Building to Ombudsman, PHIL. DAILY INQ.,
December 11, 2011, available at https://newsinfo.inquirer.net/111199/ateneo-subdivisions-take-fight-vs-sm-condo-
building-to-ombudsman (last accessed at Nov. 31, 2021), See also Tarra Quismundo, Ateneo Files Graft Raps vs. QC
Council Over SM Condo, PHIL. DAILY INQ., December 14, 2011, available at https://newsinfo.inquirer.net/110595/
ateneo-files-graft-raps-vs-qc-council-over-sm-condo (last accessed Nov. 31, 2021).
33  Randy David, Katipunan Blues, PHIL. DAILY INQ., August 13, 2011, available at https://opinion.inquirer.net/9923/
katipunan-blues (last accessed Nov. 31, 2021).
34  The Iloilo City Zoning Board of Adjustment and Appeals v. Gegato-Abecia Funeral Homes, Inc., G.R. No. 157118
(2003).
35  Cordillera Global Network v. Paje, G.R. No. 215988, 901 SCRA 261 (2019).
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Constitution. Additionally, many of the disputes regarding zoning ordinances are factual in nature,
so issues involving the propriety of the issuance of valid permits are generally not considered.36
Even if the matter is passed upon, the fact that factual findings of administrative agencies are given
great weight and, at times, finality, by the Supreme Court37 makes it even more arduous to prove
misapplication or selective application of zoning laws.
Mindfulness in Zoning Legislation: Recommendations
While the idea of zoning per se is not in itself an evil to be avoided, it can be seen that its
effects are negligible at best, and destructive at worst. As mentioned, the enforcement of current
zoning ordinances, specifically in Quezon City, has encouraged gentrification and has done nothing
against the decline of public space. Furthermore, the selective application of the laws, as seen in the
granting of outlandish exemptions, amplifies the already existing problems.
To improve upon the effectiveness of zoning ordinances, the effects of gentrification and
the dwindling public spaces available must be at the forefront of the conversations in crafting
the subsequent legislation. This must also be done in the granting of exemptions, so as not to
disenfranchise the residents that will be affected by the creation of another building.
A more direct solution would be to improve upon efforts to devote more public space to
housing, such as the increase of projects under socialized housing. Socialized housing has already
been declared by the Supreme Court for public use as early as 1987.38 The local government, as
observed by the Court, has also been obligated by law to allocate portions of land for socialized
housing.39 So, while the solution is not technically novel, an improvement on this front certainly
would be beneficial.
As public spaces are the foundation of the founders of the ideals of democracy, the
government must be mindful of the decreasing public spaces available to its citizens. Not only is
it beneficial in handling pandemics better,40 but it is also beneficial in the engagement of the civic
prowess of the nation. A solid foundation for a democracy is the key to its flourishing. The nation’s
leaders must then be adamant in their desire to protect the very bedrock of our institutions.
36  Laya v. Martin, G.R. No. 158965 (2008).
37  Abpi v. Commission on Audit, G.R. No. 252367 (2020).
38  Sumulong v. Guerrero, G.R. No. L-48685 (1987).
39  City of Manila v. Te, G.R. No. 169263 (2011).
40 Ranada, supra note 22.
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Update: Modification on the Rule in regard to
Adverse Possession by a Third Party in Petitions for Issuance of Writs of Possession in the
case of Sps. Rosario vs. GSIS, and Brief Analysis Thereof
Moujeck Steve Olayvar Cabales1
Abstract
In the recent case of Spouses Wilfredo and Dominica Rosario vs. Government Service Insurance
System, G.R. No. 200991, March 18, 2021, the Supreme Court modified the rule in regard to
Adverse Possession by a Third Party in Petitions for Issuance of Writs of Possession, in that:
“x x x the issuance of a writ of possession ceases to be ministerial if a
condominium unit or subdivision lot buyer intervenes to protect their rights against a
mortgagee bank or financial institution. The court must order a hearing to determine
the nature and source of the buyer's supposed right to the foreclosed property. Should
the judge be satisfied that the opposition to the issuance of the writ are bona fide
condominium or subdivision buyers who are in actual possession of the property, the writ
should thus be issued excluding the aforesaid buyers from its implementation. x x x”2
This pronouncement had thereby modified mutatis mutandis the case of China Banking
Corp. (CBC) vs. Spouses Lozada3 and the subsequent line of established jurisprudence, wherein
essentially,
“x x x condominium buyers who derive their right from the developers are not
third parties who possess the foreclosed property adversely from the mortgagor. x x x the
rights of a condominium buyer are not the same as a co-owner, agricultural tenant, and
usufructuary who possess the property in their own right. They are merely transferees
or successors-in-interest of the developer-mortgagor. Thus, x x x it was mandatory and
ministerial for the trial court to grant the ex-parte petition and order the issuance of a
writ of possession in the latter's favor over the foreclosed property.”4
However, the Sps. Rosario vs. GSIS was decided only by the Supreme Court First (1st)
Division, but it modified and reversed the ruling in China Banking Corp. Both cases have essentially
the same factual milieu, but had substantially different rulings. It should also be emphasized that
both cases resolved the nature of the possession of the subject foreclosed properties by third parties.
In effect, this is a departure from the constitutional proviso that “x x x no doctrine or principle
of law laid down by the court in a decision rendered en banc or in division may be modified or
reversed except by the court sitting en banc.”5
Such imperfection notwithstanding, the Author highly lauds this decision of the Court,
wherein, it ratiocinated in its prefatory statement that, “[a] home is not just property; it is a
sanctuary, a realized dream. If for justifiable causes it must be seized, courts must ensure that the
same is in accordance with law and upon observance of the requisites of due process.”6
1  ’16 Juris Doctor, San Beda College Alabang. The legal opinion and views expressed herein by the Author are not
necessarily the same as, nor do they reflect, that of the Bedan Law Review nor of the San Beda College Alabang –
School of Law. The Author’s previous works published in the journal were Legalize It, Medically: Medical Marijuana and
Cannabis Regulation, The Bedan Review, Vol. IV, No.1, March 2016; Art. 319 of the Revised Penal Code and its Repeal by
Necessary Implication under the Personal Property Security Act, The Bedan Review, Vol. IX, July 2021.
2  Spouses Wilfredo and Dominica Rosario vs. Government Service Insurance System, G.R. No. 200991, March 18, 2021,
available at https://sc.judiciary.gov.ph/20001/ (last accessed 23 November 2021).
3  Id.
4  China Banking Corp. (CBC) vs. Spouses Lozada, G.R. No. 164919, 579 Phil. 454 (2008).
5  PHIL. CONST. art. VIII, § 4(3).
6  Sps. Rosario, G.R. No. 200991, March 18, 2021.
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Statutory Background and the Summary Nature of a Petition for Writ of Possession
An application for the issuance of a writ of application before the Regional Trial Court is
usually the consequent legal action after a mortgagee (more often a financial institution) has extra-
judicially foreclosed the mortgagor’s real property, even during the one (1) year redemption period
from the annotation of the certificate of sale in the title. The statutory basis therefor is found in Act
No. 3135,7 the pertinent portions of which provide:
‘Section 6. In all cases in which an extrajudicial sale is made under the special
power hereinbefore referred to, the debtor, his successors in interest or any judicial
creditor or judgment creditor of said debtor, or any person having a lien on the property
subsequent to the mortgage or deed of trust under which the property is sold, may
redeem the same at any time within the term of one year from and after the date of the
sale; and such redemption shall be governed by the provisions of sections four hundred
and sixty-four to four hundred and sixty-six, inclusive, of the Code of Civil Procedure, in
so far as these are not inconsistent with the provisions of this Act.
Section 7. In any sale made under the provisions of this Act, the purchaser
may petition the Court of First Instance of the province or place where the property
or any part thereof is situated, to give him possession thereof during the redemption
period, furnishing bond in an amount equivalent to the use of the property for a period
of twelve months, to indemnify the debtor in case it be shown that the sale was made
without violating the mortgage or without complying with the requirements of this Act.
Such petition shall be made under oath and filed in form of an ex parte motion in the
registration or cadastral proceedings if the property is registered, or in special proceedings
in the case of property registered under the Mortgage Law or under section one hundred
and ninety-four of the Administrative Code, or of any other real property encumbered
with a mortgage duly registered in the office of any register of deeds in accordance
with any existing law, and in each case the clerk of the court shall, upon the filing of
such petition, collect the fees specified in paragraph eleven of section one hundred and
fourteen of Act Numbered Four hundred and ninety-six, as amended by Act Numbered
Twenty-eight hundred and sixty-six, and the court shall, upon approval of the bond,
order that a writ of possession issue, addressed to the sheriff of the province in which the
property is situated, who shall execute said order immediately.’8
Stated otherwise, after the mortgaged property is extrajudicially foreclosed and the
mortgagee emerged as the highest bidder, the mortgagee (or whoever is the highest bidder in the
public auction sale, other than the mortgagee) will file an application for a writ of possession before
the Regional Trial Court having territorial jurisdiction over the place where the property is situated,
in order to have physical possession over the same, even during the one (1) year redemption period.
An application for a writ of possession, however, is unlike an ordinary civil action as
contemplated in the Rules of Court. The Supreme Court elucidated:
“[A] petition for the issuance of the writ, under Section 7 of Act No. 3135, as
amended, is not an ordinary action filed in court, by which one party ‘sues another for
the enforcement or protection of a right, or prevention or redress of a wrong.’ It is in the
nature of an ex parte motion which the court hears only one side. It is taken for granted
at the instance and for the benefit of one party, and without notice to or consent by any
party adversely affected. Accordingly, upon the filing of a proper motion by the purchaser
in a foreclosure sale, and the approval of the corresponding bond, the writ of possession
issues as a matter of course and the trial court has no discretion on this matter.”9 In
another case, the Supreme Court succinctly explained that ‘petitions for the issuance of
writs of possession, a land registration proceeding, do not fall within the ambit of the
Rules of Court.’10
7  An Act To Regulate The Sale Of Property Under Special Powers Inserted In Or Annexed To Real-Estate Mortgages, Act
No. 3135 as amended by Act No. 4118 (1924).
8  Id., section 6-7.
9  Metropolitan Bank and Trust Company vs. Sps. Bance, G.R. No. 167280, 553 SCRA 507, 515-516 (2008) (citing De
Vera v. Agloro, G.R. No. 155673, 448 SCRA 203, 215 (2005); Arquiza v. Court of Appeals, G.R. No. 160479, 459
SCRA 753, 766 (2005); Yulienco v. Court of Appeals, G.R. No. 141365, 393 SCRA 143, 153 (2002)).
10  Espinoza et al. vs. United Overseas Bank, G.R. No. 175380, 630 Phil. 342 (2010).
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That an application for a writ of possession is not an ordinary civil action is underscored
by the fact that issuance of such writ, as was stated, is a ministerial duty of the Court. In the much
cited case of China Banking Corp. vs. Sps. Lozada11, the Supreme Court summed up a long line of
jurisprudence, in holding that “[t]he purchaser, therefore, in the public auction sale of a foreclosed
property is entitled to a writ of possession; and upon an ex parte petition of the purchaser, it
is ministerial upon the RTC to issue such writ of possession in favor of the purchaser."12 Also,
such ministerial duty is also bolstered by the fact that, at least in theory, the petitioner for a writ
of possession need not actually present any evidence to be entitled to that writ. “The law does
not require that a petition for a writ of possession may be granted only after documentary and
testimonial evidence shall have been offered to and admitted by the court. As long as a verified
petition states the facts sufficient to entitle the petitioner to the relief requested, the court shall issue
the writ prayed for. The petitioner need not offer any documentary or testimonial evidence for the
court to grant the petition.”13
In sum thus, “[t]he proceeding in a petition for a writ of possession is ex parte and summary
in nature. It is a judicial proceeding brought for the benefit of one party only and without notice
by the court to any person adverse of interest. It is a proceeding wherein relief is granted without
giving the person against whom the relief is sought an opportunity to be heard.”14 Succinctly put,
an opportunity to be heard, which is part of the procedural due process, is not afforded to the
respondent-mortgagors in these proceedings.
The Adverse Third-Party Possessor and Jurisprudential Background
There are instances however, wherein the property being sought to be recovered by the
petitioner-mortgagee is in physical possession of and is occupied by another person other than the
defaulting mortgagor, and the nature of such possession by the former is adverse to that of the latter
(i.e. the possessor is not a successor-in-interest of the mortgagor.) Such instance is provided for by
the Rules of Court, where Sec. 33 of Rule 39 provides that:
“Section 33. Deed and possession to be given at expiration of redemption
period; by whom executed or given. — x x x Upon the expiration of the right of
redemption, the purchaser or redemptioner shall be substituted to and acquire all the
rights, title, interest and claim of the judgment obligor to the property as of the time of the
levy. The possession of the property shall be given to the purchaser or last redemptioner
by the same officer unless a third party is actually holding the property adversely to the
judgment obligor. (35a)”15
Pursuant to section 6 of the Act No. 3135,16 the applicability of the above-cited rule had
also been extended to extra-judicial foreclosure sales.
The meaning of the phrase “unless a third party is actually holding property adversely to
the judgment obligor” had been first defined by the Supreme Court, although quite loosely, in the
seminal case of China Banking Corp. (CBC) vs. Spouses Lozada.17 There, the Court explained:
“[t]he exception provided under Section 33 of Rule 39 of the Revised Rules of
Court contemplates a situation in which a third party holds the property by adverse title
11  G.R. No. 164919, 579 Phil. 454 (2008).
12  Id.
13  Sps. Oliveros et al. vs. Hon. Presiding Judge, et al., G.R. 165963, 558 Phil. 715 (2007); (citing Santiago v. Merchants
Rural Bank of Talavera, Inc., G.R. No. 147820, 453 SCRA 756, 763-764 (2005)).
14  LZK Holdings Dev’t Corp. vs. Planters Development Bank, G.R. No. 187973, 725 Phil. 83 (2014).
15  1997 Rules of Civil Procedure, rule 39, § 33 (2).
16  supra, note 6.
17  G.R. No. 164919, 579 Phil. 454 (2008).
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or right, such as that of a co-owner, tenant or usufructuary. The co-owner, agricultural
tenant, and usufructuary possess the property in their own right, and they are not merely
the successor or transferee of the right of possession of another co-owner or the owner of
the property.”18
“[I]n co-ownership, each co-owner owns the whole, and over it he exercises
rights of dominion, but at the same time he is the owner of a share which is really abstract
because until the division is effected, such share is not concretely determined. While there
is co-ownership, a co-owner's possession of his share is co-possession which is linked to
the possession of the other co-owners.”19
As to agricultural tenants:
“[they] are protected by Presidential Decree No. 1038, which provides that no
tenant-tiller of private agricultural lands devoted to crops other than rice and/or corn,
including but not limited to abaca, banana, coconut, coffee, mongo, durian and other
permanent crops shall be removed, ejected, ousted or excluded from his farmholding
unless for causes provided by law and directed by a final decision or order of the court.
Sale of the land is not included as one of the just causes for removal of tenants.”20
Similarly, a usufructuary likewise has a legal right to possess the property of another, as
a “[u]sufruct gives a right to enjoy the property of another with the obligation of preserving its
form and substance”,21 and “[t]he owner of property the usufruct of which is held by another,
may alienate it, but he cannot alter its form or substance, or do anything thereon which may be
prejudicial to the usufructuary.”22
It thus consequently follows that, “a third party is actually holding property adversely to
the judgment obligor” could also be a possessor that has to a certain extent a legal and equitable
right over the same, other than in the concept of a co-owner, agricultural tenant, and usufructuary,
but (and the Court could not have been more clear in this) not a successor or transferee of the right
of possession of another co-owner or the owner of the property. Succinctly put, the third party’s
right over the property must not have sprung from, but must be independent with that of, another
co-owner or the owner of the same, such that the former could even assert or raise such right against
the latter.
A brief summary of the 2008 case of China Banking Corp. (CBC) vs. Spouses Lozada23
is necessary to provide the proper context for this entire discussion. In 1995, the Spouses Lozada
entered into a Contract to Sell with the Primetown Property Group, Inc. (PPGI) for the purchase of
Unit 402 in Makati Prime City Condominium Townhomes Project. Later on, PPGI executed Deeds
of Real Estate Mortgage in favor of China Banking Corp. (CBC) to secure the credit facilities of the
latter. The real estate mortgage covered several units of the said condominium project, including the
Unit 402 subject of the said Contract to Sell between Spouses Lozada and PPGI.24
PPGI availed of the credit facilities of the CBC, but thereafter failed to pay its indebtedness
despite repeated demands. Thus, the CBC applied for the extrajudicial foreclosure of real estate
mortgage, then emerged as the highest bidder in the public auction sale, and accordingly certificates
of sale were issued in its favor over the foreclosed properties. Among those foreclosed was Unit
18  Id. (citing St. Dominic Corp. vs. The Intermediate Appellate Court, G.R. No. L-70623, 151 SCRA 577, 590 (1987);
Gatchalian v. Judge Arlegui, 166 Phil. 236, 248 (1977); Clapano v. Hon. Gapultos, 217 Phil. 409, 414-415 (1984);
An Act to Ordain and Institute the Civil Code of the Philippines [Civil Code], Republic Act No. 386, arts. 562, 581,
603, 612 (1949)).
19  Gatchalian v. Judge Arlegui, 166 Phil. 236, 248 (1977) (citing Lopez vs. Gonzaga Vda. de Cuaycong, 74 Phil. 601,
604-605 (1944)).
20  See Clapano v. Hon. Gapultos, 217 Phil. 409, 414-415 [1984].
21  An Act to Ordain and Institute the Civil Code of the Philippines [Civil Code], Republic Act No. 386, art. 562 (1949).
22  Id., art. 581.
23  G.R. No. 164919, 579 Phil. 454 (2008).
24 Id.
40
402.25
Consequently, because the Spouses Lozada were still in physical possession of the Unit
402, the CBC filed an ex parte petition for writ of possession over the said unit before the Regional
Trial Court of Makati. The petition proceeded even without the presence of the Spouses Lozada,
and the RTC thus granted the writ of possession in favor of CBC.26
Then, the Spouses Lozada filed a petition for certiorari and prohibition with application
for writ of preliminary injunction/ temporary restraining order before the Court of Appeals against
the RTC Makati, Sheriff, CBC and PPGI. The Spouses essentially contend, among others, that
the lower court acted with grave abuse of discretion amounting to lack or excess of jurisdiction
in granting CBC’s petition for writ of possession, without giving them [the Spouses Lozada] the
opportunity to fully ventilate their possession over Unit 402.27
The Court of Appeals ruled that there was grave abuse of discretion on the part of the
RTC Makati. The Court held, among others, that the court a quo should have afforded the Spouses
Lozada a hearing considering that Unit 402 was no longer in possession of the original debtor/
mortgagor PPGI, but was already being enjoyed by the Spouses Lozada. Also, the said unit was in
possession of the Spouses under a legitimate claim of ownership on the strength of the Contract to
Sell executed in their favor by PPGI.28
The CBC then filed a petition for review on certiorari before the Supreme Court, which
reversed and set aside the Court of Appeals ruling, and instead reinstated the order of the RTC
Makati that granted the writ of possession in favor of CBC. Essentially, the Supreme Court held:
“[t]he exception provided under Section 33 of Rule 39 of the Revised Rules of
Court contemplates a situation in which a third party holds the property by adverse title
or right, such as that of a co-owner, tenant or usufructuary. The co-owner, agricultural
tenant, and usufructuary possess the property in their own right, and they are not merely
the successor or transferee of the right of possession of another co-owner or the owner of
the property. The spouses Lozada cannot claim that their right of possession over Unit
No. 402 is analogous to any of these.”29
The Court explained:
“x x x it must be emphasized that what PPGI executed in favor of the spouses
Lozada was a Contract to Sell, a mere promise to sell, which, at the moment of its
execution, did not yet transfer possession, much less, title to Unit No. 402 from PPGI
to the spouses Lozada. When PPGI constituted the real estate mortgage on Unit No.
402 in favor of CBC six months later, possession of and title to the property still resided
in PPGI. And when PPGI subsequently ceded possession of Unit No. 402, upon its
completion, to the spouses Lozada, such right was already burdened by the terms and
conditions of the mortgage constituted thereon. By merely stepping into the shoes of
PPGI, the spouses Lozada’s right of possession to Unit No. 402 cannot be less or more
than PPGI’s.”30
Consequently, in effect:
“[t]he spouses Lozada, having succeeded PPGI in the possession of Unit No.
402, cannot be considered a third party holding the said property adversely to PPGI, the
defaulting debtor/mortgagor. Resultantly, the general rule, and not the exception, applies
to the instant Petition. It was the mandatory and ministerial duty of the Makati City
RTC to grant the ex parte petition of CBC and order the issuance of a writ of possession
25  Id.
26  Id.
27  Id.
28  Id.
29  Id.
30  Id.
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in the latter’s favor over Unit No. 402.”31
To succinctly reiterate in gist, the general rule is that “[t]he possession of the property
shall be given to the purchaser or last redemptioner”.32 An exception thereto exists when there is a
third party actually holding the property adversely to the judgment obligor,33 which contemplates
a situation in which a third party holds the property by adverse title or right, such as that of
a co-owner, tenant or usufructuary. The co-owner, agricultural tenant, and usufructuary possess
the property in their own right, and they are not merely the successor or transferee of the right
of possession of another co-owner or the owner of the property.34 In effect, “when the foreclosed
property is in the possession of a third party holding the same adversely to the defaulting debtor/
mortgagor, the issuance by the RTC of a writ of possession in favor of the purchaser of the said real
property ceases to be ministerial and may no longer be done ex parte.”35
A Digest of the Case of Spouses Wilfredo and Dominica Rosario vs.
Government Service Insurance System, G.R. No. 200991, March 18, 2021
The case of China Banking Corp.36 was briefly discussed because the antecedent facts and
the primary issues involved therein were very similar to the case of Spouses Rosario,37 which is the
main subject of this article.
In 1997, New San Jose Builders Inc. (NSJBI) and the Government Service Insurance
System (GSIS) had entered into a Loan Agreement wherein the latter would finance the amount
of Php 600 Million in favor of the former for the completion of its housing projects. NSJBI, in
turn, would mortgage three (3) parcels of land with improvements in Bacoor, Cavite, and several
condominium units St. John Condominium, situated in Quezon City. Among those mortgaged
units was Unit 205 of the said condominium, which was allegedly sold by the NSJBI to the Sps.
Wilfredo and Dominica Rosario (the petitioners therein).38
Unfortunately, the NSJBI defaulted in the payment of the loan. Accordingly, in 2003,
the GSIS applied for the extrajudicial foreclosure of the mortgaged properties. An auction sale was
subsequently conducted wherein the GSIS was the highest bidder.39
NSJBI then failed to exercise its right of redemption. Consequently, the title/ownership of
the mortgaged properties was consolidated in favor of the GSIS. Claiming that NSJBI continued
to be in physical possession of the foreclosed properties despite demands to vacate, the GSIS filed
a petition for writ of possession against the NSJBI and all occupants for the foreclosed properties
before the Regional Trial Court (RTC) of Quezon City.40
The Sps. Rosario, and other buyers of the condominium units, then filed their pleadings-
in-intervention in the said petition. The RTC then resolved to grant the Sps. Rosario et al.’s
31 Id.
32  1997 Rules of Civil Procedure, rule 39, § 33 (2).
33  Id.
34  China Banking Corp. (CBC), G.R. No. 164919, 579 Phil. 454 (2008).
35  Id.
36  Id.
37  G.R. No. 200991, March 18, 2021.
38  Id. at p. 2.
39  Id.
40  Id. pp. 2-3.
42
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motion to intervene, and granted GSIS’s application for writ of possession but only as to the
unsold condominium units and lots that are not in possession of third-party buyers. The RTC
also subsequently denied the GSIS’ motion for partial reconsideration. Aggrieved, the GSIS filed a
petition for certiorari before the Court of Appeals.41
The Court of Appeals granted the GSIS’ petition and reversed the resolutions of the
RTC. In essence, it found that the RTC committed grave abuse of discretion in granting the Sps.
Rosario’s motion for intervention in ex-parte proceeding for the issuance of writ of possession. The
Court of Appeals ratiocinated that the RTC erred in restraining the implementation of the writ
of possession against the Sps. Rosario et al. since the latter are not third parties who are in adverse
possession of the foreclosed property. It explained that the proper remedy for Sps. Rosario et al. is
to seek annulment of the mortgage or foreclosure before the House and Land Use Regulatory Board
(HLURB) for non-compliance with Section 18 of the Presidential Decree (PD) No. 957. Thus, the
Sps. Rosario filed a petition for review on certiorari before the Supreme Court.42
The Sps. Rosario essentially argued that they should be allowed to intervene since they
are third-party possessors of the foreclosed property who were not impleaded in the GSIS’ ex-parte
application. The main issue therefore, is whether the Court of Appeals was correct in holding that
the RTC had committed grave abuse of discretion in allowing the Sps. Rosario et al. to intervene in
the GSIS’ ex-parte application for writ of possession, and exempting from its implementation the
Unit 205 which was being possessed by the Sps. Rosario.43
Ruling in the negative, the Supreme Court reversed and set aside the Court of Appeals’
decision, and reinstated the resolutions of the RTC. In essence, the Supreme Court ruled that
there was no grave abuse of discretion on the part of the RTC in allowing the Sps. Rosario et
al. to intervene in the GSIS’ ex-parte application for writ of possession, and exempting from its
implementation the Unit 205 which was being possessed by the Sps. Rosario.44
Ratio Decidendi and Analysis
At the outset, to reiterate, the rule is that “transferees or successors of the judgment debtor
or mortgagors have generally not been considered as third-party possessors. Their interest in the
mortgaged property have not been treated as independent or adverse to the judgment mortgagor
since their claim on the property merely stems from the latter.”45 This was the ruling in China
Banking Corp., and which was subsequently re-applied and echoed in Rural Bank of Sta. Barbara
(Iloilo), Inc. vs. Centeno46, Spouses Marquez vs. Spouses Alindog,47 Cabling vs. Lumapas48 and Bascara
vs. Javier,49 and several others. The common factual milieu in these cases is that the mortgagee
applies for a writ of possession over a foreclosed subject real property, and there is a third party who
is actually in possession of, and purchased, the same, from the mortgagor.
Preliminary to the modification and reversal of China Banking Corp., the Court resolved
first the pertinent issues to ratiocinate such reversal. Firstly, the Court held that the “[t]he right
41  Id.
42  Id. pp. 3-4.
43  Id. p. 4
44  Id. p. 15.
45  Id. p. 12.
46  G.R. No. 200667, 706 Phil. 106 (2013).
47  G.R. No. 184045, 725 Phil. 237 (2014).
48  G.R. No. 196950, 736 Phil. 582 (2014).
49  G.R. No. 188069, 760 Phil. 766 (2015).
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to possess a foreclosed property after the redemption period is subject to the rights of third-party
possessors.”50 The Supreme Court cited the earlier cases of Bank of Philippine Islands vs. Icot,51 Sy
vs. China Banking Corp.,52 and Dayot vs. Shell Chemical Co. (Phils.), Inc.53, wherein essentially the
writs of possession were recalled and affirmed the rights of third-party possessors. In gist, the Court
explained that:
“x x x the writ does not issue in case of doubt, nor will a question of legal title
be tried or decided in proceedings looking to the exercise of the power of the court to
put a purchaser in possession x x x an application for writ of possession is a summary
proceeding over which the court cannot decide on questions of the property’s title and
ownership.”54
For instance, in the case of Development Bank of the Phils. vs. Prime Neighbor Association,55
“[the] Court also affirmed the recall of a writ of possession based on the plea of third parties who
were allegedly transferees of the true owner of the foreclosed property. In that case, it was claimed
that the judgment mortgagor’s supposed right to the property was hinged on a spurious title.”56
Prescinding therefrom, the Supreme Court finds that “x x x individuals who buy condominium
units or subdivision lots from developers are also entitled to the same treatment. Thus, writs of
possession issued upon the application of mortgagee banks or financial institutions should exclude
units or lots actually occupied by individual buyers.”57
Secondly, on such premise that the right to possess a foreclosed property after the redemption
period is subject to the rights of third-party possessors, the Supreme Court ratiocinated further,
that “condominium and subdivision buyers are parties protected by law against compromising
mortgages that would deprive them of their hard-earned property.”58 It underscored that:
“condominium and subdivision lot buyers are protected by PD No. 957
or the Subdivision and Condominium Buyers’ Protective Decree x x x”5960, which has
been characterized as an ‘instrument of social justice meant to protect small lot and
condominium unit buyers as against gigantic financial institutions who developers
50  Sps. Rosario, G.R. No. 200991, March 18, 2021, p. 5.
51  G.R. No. 168061, 618 Phil. 320 (2009).
52  G.R. No. 213736, June 17, 2020, available at http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/66539 (last
accessed 23 November 2021).
53  G.R. No. 156542, 552 Phil. 602 (2007).
54  Sps. Rosario, G.R. No. 200991, March 18, 2021, p. 5.
55  G.R. Nos. 175728 & 178914, 605 Phil. 660 (2009).
56  Sps. Rosario, G.R. No. 200991, March 18, 2021, p. 6.
57  Id., p. 8.
58  Id., pp. 8-9.
59  Id., p. 9.
60  Regulating the Sale of Subdivision Lots and Condominiums, Providing Penalties for Violations Thereof [Subdivision
and Condominium Buyers’ Protective Decree], Presidential Decree No. 957 (1976). The preamble states:
WHEREAS, it is the policy of the State to afford its inhabitants the requirements of decent human settlement and to
provide them with ample opportunities for improving their quality of life;
WHEREAS, numerous reports reveal that many real estate subdivision owners, developers, operators, and/or sellers have
reneged on their representations and obligations to provide and maintain properly subdivision roads, drainage, sewerage,
water systems, lighting systems, and other similar basic requirements, thus endangering the health and safety of home
and lot buyers;
WHEREAS, reports of alarming magnitude also show cases of swindling and fraudulent manipulations perpetrated
by unscrupulous subdivision and condominium sellers and operators, such as failure to deliver titles to the buyers or
titles free from liens and encumbrances, and to pay real estate taxes, and fraudulent sales of the same subdivision lots to
different innocent purchasers for value;
WHEREAS, these acts not only undermine the land and housing program of the government but also defeat the
objectives of the New Society, particularly the promotion of peace and order and the enhancement of the economic,
social and moral condition of the Filipino people x x x
44
normally deal with.”61
The Supreme Court cited the cases of Philippine National Bank vs. Dee,62 Barican vs.
Intermediate Appellate Court,63 Philippine National Bank vs. Court of Appeals,64 wherein in gist, the
Court therein upheld the possessory rights of the property buyers and affirmed the contract to sell
between the latter and the developer, despite the provisions of Act No. 3135. Accordingly, “the
possessor cannot be summarily dispossessed on the strength of a mere ex-parte possessory writ,
since to do so would be tantamount to his summary ejectment, in violation of the basic tenets of
due process.”65 As such, applying the aforecited jurisprudence, the “[GSIS] should not be allowed
to summarily divest [the Spouses Rosario] of their possession of Unit 205. The protection afforded
to a subdivision lot buyer under PD No. 957 should not be defeated, particularly by someone who
is not a mortgagee in good faith.”66
Penultimately, “guided by the provisions and policy behind PD 957”67, the Supreme
Court thus held that “[t]he ruling in Chinabank vs. Lozada should be modified”68, specifically in
that the:
“[i]ndividual buyers of condominium units or subdivision lots, while
having privity with developer-mortgagors, should be excluded from the issuance or
implementation of a writ of possession if they are actually occupying the unit or lot’69,
because ‘these small property buyers would suffer deleterious consequences if they continue
to be treated as ordinary transferees or successors-in-interest of property developers.”70
The Supreme Court then ultimately modified the China Banking Corp. vs. Sps. Lozada71
in this wise:
“[I]n keeping with the avowed purpose of PD No. 957, the rule should now be that
the issuance of a writ of possession ceases to be ministerial if a condominium unit or subdivision
lot buyer intervenes to protect their rights against a mortgagee bank or financial institution. The
court must order a hearing to determine the nature and source of the buyer’s supposed right to the
foreclosed property. Should the judge be satisfied that the oppositors to the issuance of the wrist are
bona fide condominium or subdivision buyers who are in actual possession of the property, the writ
should thus be issued excluding the aforesaid buyers from its implementation. It should, however,
be clarified that exclusion of such buyers is without prejudice to the outcome of cases concerning
the validity of the mortgage between the developer and the mortgagee financial institution or bank
under Section 18 of PD No. 957.”72 (emphasis mine.)
The concurring opinion of Hon. Justice Caguioa, in his interpretation of Sec. 33 of Rule
39 of the Rules of Court vis-à-vis the Republic Act No. 655273 (“Maceda Law”) and P.D. 95774,
61  Sps. Rosario, G.R. No. 200991, March 18, 2021,p. 9 (citing Philippine National Bank vs. Office of the President, G.R.
No. 104528, 322 Phil. 6 (1996)).
62  G.R. No. 182128, 727 Phil. 473 (2014).
63  G.R. No. 79906, 245 Phil. 316 (1988).
64  G.R. No. 135219, 424 Phil. 757 (2002).
65  Sps. Rosario, G.R. No. 200991, March 18, 2021, p. 11.
66  Id. (citing Luzon Development Bank vs. Enriquez, G.R. Nos. 168646 & 168666, 654 Phil. 315 (2011)).
67  Id., p. 14.
68  Id., p. 12.
69  Id.
70  Id., pp. 14-15.
71  G.R. No. 164919, 579 Phil. 454 (2008).
72  Sps. Rosario, G.R. No. 200991, March 18, 2021, p. 15.
73  An Act to Provide Protection to Buyers of Real Estate on Installment Payments [Realty Installment Buyer Act],
Republic Act No. 6552 (1972).
74  Regulating the Sale of Subdivision Lots and Condominiums, Providing Penalties for Violations Thereof [Subdivision
45
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is incisive. He opined that the said laws “x x x directed every intendment towards the protection
of innocent lot from scheming developers or onerous arrangements x x x”75, and concluded that
“[t]he Maceda Law and P.D. 957, thus, clearly grant installment buyers such as petitioners in this
case substantive rights which are positively assertible against the developer/seller and other parties,
including mortgages of the latter.”76 Consequently, “adverse possession”, “x x x primarily means
a possession that is in the possessor’s own right, such that the third-party possessor may pursue a
cause of action against the judgment debtor in order to preserve his possession over the property
in dispute.”77
Author’s mind and in the grander scheme of things, the ruling in Sps. Rosario is an affirmation of
the eternal and ever-present constitutional proscription that “[n]o person shall be deprived of life,
liberty or property without due process of law, nor shall any person be denied the equal protection
of the laws,”83 and is akin to a clear and cool tributary, that joined with the confluence of the slow
but eternal stream that is our jurisprudence.

Observing that a remedy should be afforded the third party buyers in such instances,
Justice Caguioa concurred that:

“x x x a disposition otherwise would result in a remedial gap that effectively

circumvents the singular objective of both the Maceda Law and P.D. 957. For in the
final analysis, carving out this route would genuinely afford the most just and equitable
remedy for petitioners in this case, who otherwise and despite resort to an action before
the HLURB, must still fear an impending eviction by reason of a writ of possession which
was issued as an ultimate consequence of a defaulted loan they had no hand in taking
out or satisfying.”78

Modification and Reversal by a Division

However, it is particularly apparent that the Sps. Rosario was decided only by the First
(1st) Division,79 and not en banc. As was exhaustively discussed above, both the Sps. Rosario and
China Banking Corp. have essentially similar factual milieu, wherein the mortgagee applies for a
writ of possession over a foreclosed subject real property, and there is a third party who is actually
in possession of, and purchased, the same, from the mortgagor; and the ruling in China Banking
Corp. was the established jurisprudential precedent for a substantial length of time. In effect, the
Author is of the opinion, that such modification or reversal is a departure from the constitutional
proviso that “x x x no doctrine or principle of law laid down by the court in a decision rendered
en banc or in division may be modified or reversed except by the court sitting en banc.”80 Being an
internal matter within the Supreme Court, the Author of course could not offer an explanation as
to why Sps. Rosario was not referred to en banc, when upon a preliminary perusal the said case is
one where a doctrine or principle laid down by the Court en banc or by a Division may be modified
or reversed.81 Moreover, while Sps. Rosario did not raise a novel question of law, it has significant
doctrinal value and an apparent impact on the social and economic life of the nation.

Such imperfection notwithstanding, the Author highly lauds this decision of the Court,
wherein, it ratiocinated in its prefatory statement that, “[a] home is not just property; it is a
sanctuary, a realized dream. If for justifiable causes it must be seized, courts must ensure that the
same is in accordance with law and upon observance of the requisites of due process.”82 To the

and Condominium Buyers’ Protective Decree], Presidential Decree No. 957 (1976).
75  Sps. Rosario, G.R. No. 200991, March 18, 2021 (J. Caguioa, concurring opinion).
76  Id.
77  Id.
78 Id.
79  Then composed of Hon. Chief Justice Diosdado M. Peralta, and Hon. Associate Justices Afredo Benjamin S. Caguioa,
Rosmari D. Carandang and Samuel H. Gaerlan.
80  PHIL. CONST. art VIII, § 4(3).
81  Supreme Court, The Internal Rules of the Supreme Court [A.M. No. 10-4-20-SC], Rule 2, § 3 (May 4, 2010) provides:
‘Section 3: Court En Banc matters and cases – The Court en banc shall act on the following matters and cases: x x x (i)
cases where a doctrine or principle laid down by the Court en banc or by a Division may be modified or reversed x x x’.
82  Sps. Rosario, G.R. No. 200991, March 18, 2021.
83  PHIL. CONST. art III, § 1.

46 47
 BEDAN LAW REVIEW
Democratic And Republican Principles
At The Time Of The Philippine Revolution
Dr. Juan Ruffo D. Chong
Filipinos, almost invariably, would turn their gaze across the Pacific Ocean—specifically
towards the United States—when they think of democracy, instead of taking a gander at Europe.
This is because democratic and republican principles are widely believed to have been brought
to the Philippines by the Americans. A perfunctory reading of what Fr. Joaquin Bernas—one
of the framers of the 1987 Philippine Constitution—wrote tends to lead to the conclusion that
the seeds of democracy were first planted by the Americans when they arrived on their ships:
“Prior to the arrival of the Americans in 1898, constitutional history,
in the sense of British and American constitutional history, did not exist in the
Philippines. Spanish constitutional guarantees of civil and political rights were
not introduced in the Philippines and there was no opportunity for an indigenous
evolution of basic protections against oppression by officialdom…”1
Curiously, pieces of legislation, promulgated at the dawn of the American occupation
of the islands, even curtailed liberties to counteract what the colonizers dubbed the “Philippine
insurrection.” Among others, Act No. 1696 or the Flag Act of 1907—which outlawed the display
of flags, banners, emblems, or devices against American authority—belonged to a set of laws, passed
by the American-dominated Philippine Commission, which can hardly be described as democratic.
This article, though not being the first one dealing with the subject, will briefly
survey constitutional documents that predate the American regime in the archipelago to show
that the Filipino intellectuals who steered the course of the Philippine Revolution were already
very much in tune with democratic principles. These principles, for instance, ostensibly
permeate the Malolos Constitution of 1899 prompting Mona Katigbak to conclude that it
“belongs to the same intellectual and democratic tradition as does the present Constitution.”2
The Enlightenment
During the second half of the eighteenth century or in 1776, the Americans, inspired
by the ideals of The Enlightenment, declared their independence from King George III and
established a republican form of government. A little more than a decade later, the French would
expel their own king from the glittering Palace of Versailles, sentence him to be guillotined,
and institute their own republic—freeing themselves from the yoke of absolute monarchy.
Regicide was not the only fruit of the French Revolution but the latter also resulted in the
propagation of democratic and republican principles—such as liberty, equality, and fraternity—in
the Old Continent. One significant document that came out of this revolution was the Declaration
of the Rights of Man and of the Citizen of 1789 which defined individual and collective rights.
Although the ideas contained in the Declaration may now seem unremarkable, one should
remember that France just then abruptly shifted from the centuries-old Ancien Régime in which
the divine right of kings was believed to be sacrosanct and part of the natural order of things.
Acting within the same period as the French Revolution, the Americans—inspired by the
Magna Carta of 1215 and the English Bill of Rights of 1689—would introduce ten amendments
1  JOAQUIN G. BERNAS, A HISTORICAL AND JURIDICAL STUDY OF THE PHILIPPINE BILL OF RIGHTS
1 (1971).
2  Mona Francesca Katigbak, Historical Transcendence: The Significance of the Bill of Rights of the Malolos Constitution,
73 PHIL. L.J. 350 (1998).
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to their Constitution which would be the United States Bill of Rights. And within three decades
from the French Revolution, the liberal Spanish Constitution of 1812, or the Cádiz Constitution,
was ratified providing for the separation of powers in Spain. Ventura de los Reyes, a Spanish creole
who came from a wealthy Ilocos family and then 71 years of age, was chosen as the representative
of the Philippine province to the Spanish Cortes which ratified the Cádiz Constitution.3
The Philippines had representation in the Spanish Cortes during the three short
periods when the Cádiz Constitution was effective in the islands (1810-1813, 1820-
1823, and 1834-1837) however the Cortes subsequently passed a law, almost unanimously,
discontinuing Philippine representation so after 1837 the Philippines would no longer have
any representation in the Cortes.4 This failure to provide Filipino representation in the Cortes
would be one of the causes of the Ilocano revolt of 1814 as well as other general revolts.5
The liberal Cádiz Constitution had two noteworthy features: the lack of anticlericalism
and the elevation of the Spanish colonies to practical political equality.6 Nonetheless, the verbosity,
cumbersomeness, and liberal provisions—which the Spaniards might not have been prepared for
at that time—have been viewed as the Cádiz Constitution’s infirmities.7 Although King Ferdinand
VII eventually dissolved the Cortes and abrogated the Spanish Constitution of 1812, one of the
achievements of the Cádiz Constitution was the proclamation of the equality of the creoles.8
Arnold Verduin observed that the Cádiz Constitution and the French Constitutions of
1791, 1793, and 1795 bear striking similarities in both underlying principles and governmental
organization.9 For the governmental set-up, the French Constitution of 1791 was most followed
while the Bill of Rights of the Spanish Constitution of 1812 was drawn from the Declaration
of the Rights of Man which was incorporated in all three French Constitutions.10 Studying the
proceedings of the Cortes might leave the impression that French influence was negligible but
this may be due to the fact that Spain, at that time, was overrun by French soldiers and Cadiz
was besieged by Napoleon's legions explicably making anti-French sentiment very high.11
Filipino Founding Fathers
The founding fathers of the Philippine Revolution, many of whom came from
wealth, have been characterized as “a coterie of remarkable youths who, through contact with
books and ideas from the western world that Spain had not been able completely to screen
out, had bluntly rejected the dictum that they were serfs or, at best, second-class citizens.”12
One important element which worked for liberalism in the Philippines were the liberal
Spaniards who made the country their home and worked for reforms in the government.13
After Queen Isabella II’s defeat in the Glorious Revolution, Carlos Maria Dela Torre was sent
3  Maria Dolores Elizalde, The Philippines at the Cortes de Cádiz, Philippine Studies: Historical & Ethnographic Viewpoints,
Vol. 61, No. 3, Archaeology of Meanings (September 2013), at 336.
4  George A. Malcolm, Constitutional History of the Philippines, 6 A.B.A. J. 109 (1920).
5  Id. at 110.
6  ARNOLD R. VERDUIN, MANUAL OF SPANISH CONSTITUTIONS: 1808 – 1931 11 (1941).
7  Id.
8 Elizalde, supra note 3, at 345-46.
9  Arnold R. Verduin, The Spanish Constitution of 1812 and the Influence of the French Revolution Thereon, at 23 (1930)
(Unpublished M.A. thesis, University of Wisconsin) (on file with the University of Wiscosin).
10  Id. at 36-37.
11  Id.
12  LEON WOLFF, LITTLE BROWN BROTHER 27 (1991).
13  MAXIMO M. KALAW, THE DEVELOPMENT OF FILIPINO POLITICS 28-29 (1927).
49
 BEDAN LAW REVIEW
in 1869 to establish liberal reforms in the islands.14 The liberal Governor-General eschewed
pomp and even walked around Manila’s streets in plain civilian clothes and a straw hat.15
With more than three centuries of Spanish rule in the archipelago, at the time of the
Philippine Revolution, the Filipino dons were thoroughly Hispanicized and the opening of the
Suez Canal in 1869 facilitated the education of the ilustrados in Europe. Those who pursued higher
learning but did not have the means to study in the Iberian Peninsula, like Apolinario Mabini,
would not have been disadvantaged by the Occidental education they received in the educational
institutions in Intramuros patterned after their European counterparts. Katigbak wrote that:
“It is generally conceded that the congressmen were, for the most part,
members of the ilustrado class, and hence numbered among the intellectual elite
who had been exposed to the liberal ideas regarding democracy and republicanism
that were then prevalent in Europe. The laws that emanated from them, therefore,
must be examined in relation to the ideas of the French Enlightenment,
imported into the Philippines by those fresh from their European sojourns…”16
The Spanish Constitution of 1869 and The Biak-na-Bato Constitution of 1897
The Spanish Constitution of 1869, promulgated on 6 June 1869, is said to be a democratic
and radical edition of the Spanish Constitution of 1837.17 Fashioned during a tumultuous period in
Spanish history, the Spanish Constitution of 1869 represented a compromise with its Bill of Rights
but still preserving the monarchy and supremacy of the Roman Catholic Church.18 This result was not
surprising since republicans were not included in the Constitutional Commission that made the draft.19
A review of past Philippine Constitutions would be incomplete without mentioning the
Biak-na-Bato Constitution of 1897. This Constitution—attributed to lawyers Felix Ferrer and Isabelo
Artacho—was provisional and meant to last only for two years.20 Bernas, however, pointed out that it was
not original because “the document was almost a carbon copy of the Cuban Constitution of Jimaguayu”
except for four articles—Articles 22 to 25—which constituted the Biak-na-Bato Bill of Rights.21
The temporary peace that would be brokered by Pedro Paterno, who would cunningly
become the President of the Malolos Congress, between the Filipino revolutionaries and the
Spanish authorities, abruptly put an end to the Biak-na-Bato Constitution within two months
of its adoption thus reducing it to somewhat of a mere historical footnote.22 Nevertheless, the
provisional Constitution contributed to the final drafting of the Malolos Constitution of 1899.23
Emilio Aguinaldo, and the other leaders of the revolution, agreed to leave the
Philippines in exchange for monetary indemnity with the signing of the Pact of Biak-na-
14  Id.
15  Id.
16 Katigbak, supra note 2, at 312-13.
17 VERDUIN, supra note 6, at 58.
18  Id.
19  Id.
20 BERNAS, supra note 1, at 6-7.
21 Id.
22  Id.
23 KALAW, supra note 13, at 126.
50
BEDAN LAW REVIEW
Bato.24 But while in Hongkong, the expatriates prepared for their return to the Philippines
and Aguinaldo even asked Mariano Ponce—a member of the Revolutionary Council—to draft
another provisional Constitution.25 Modelled after Francisco Pi’s work as well as some Spanish
Constitutions, Ponce’s 1898 draft likewise contained a Bill of Rights in a rudimentary form.26
The Malolos Constitution of 1899
Not surprisingly, in the Malolos Congress, the legal profession was the most
largely represented cohort.27 Malcolm, an Associate Justice of the Philippine Supreme Court
during the American colonial era, commented on the delegates of the Congress, many of
whom became political survivors that continued to thrive under the American regime:
“Many able Filipinos were included among the members. Some were later to fill
important posts in the American administration. There was Pedro A. Paterno, a prominent
figure during the closing days of the Spanish administration and an intermediary between
the Spanish officials and the Filipino radicals; Benito Legarda, subsequently a member of
the Philippine Commission and a resident commissioner to the United States; Gregorio
Araneta, attorney-general and secretary of finance and justice; Pablo Ocampo, resident
commissioner to the United States; Trinidad A. Pardo de Tavera, member of the Philippine
Commission and organizer of the Federal Party; Alberto Barretto, secretary of finance;
Ignacio Villamor, attorney-general and president of the University of the Philippines;
Arsenio Cruz Herrera, mayor of Manila and member of the Philippine Assembly; Felipe
Buencamino, long a well-known lawyer; and others who became judges or assemblymen.
While a few delegates were graduates of European universities, yet Felipe Calderon, the
member of the convention who assumed the most prominent role in its deliberations, and
whose work, My Memories of the Philippine Revolution, is of a nature similar to that of
The Federalist, and of Prince Ito's Commentaries on the Japanese Constitution, is frank
to admit that they had little or no knowledge of matters political and constitutional...”28
Apart from the Biak-na-Bato Constitution and Ponce’s draft provisional
Constitution, several other documents contributed to the evolution of the Malolos
Constitution: Emilio Jacinto’s The Cartilla and Sanggunian-Hukuman (1896); Mabini's
Constitutional Program of the Philippine Republic (1898); Constitutions of Spain; and
Paterno’s plan (1898).29 Mabini, however, opposed from the beginning the framing of a
Constitution by the Malolos Congress because the body was intended to be merely advisory.30
What Mabini failed to recognize was once the Malolos Congress representatives
were convoked, they would not merely be satisfied to remain as they were.31 Notwithstanding
Mabini’s protest, a Committee headed by Felipe Calderon was appointed to draft the Malolos
Constitution.32 European Constitutions, such those of France and Belgium, were closely
studied plus those of Mexico, Brazil, Nicaragua, Costa Rica, and Guatemala—nations which
the Committee deemed to resemble the Filipino people.33 Maximo Kalaw, nevertheless, noted:
“The American Constitution did not have direct influence except in so far as
the ideas contained in it are found in the South American Constitutions. The preamble,
however, shows marked similarity to that of the American Federal Constitution…”34
24 Bernas, supra note 1, at 7.
25  Id.
26  Id. at 8.
27  George A. Malcolm, The Malolos Constitution, Political Science Quarterly, Vol. 36, No. 1 (Mar., 1921), at 92-93.
28  Id.
29  Id. at 96.
30  CESAR ADIB MAJUL, APOLINARIO MABINI REVOLUTIONARY 77 (1998).
31  Id.
32  KALAW, supra note 13, at 126.
33  Id.
34  Id.
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Arcadio del Rosario, one of the Malolos Congress delegates, argued that the draft should
have been molded by the Constitution of the United States, which, “being the champion of Practically all the provisions on the rights of individuals in Mabini’s Constitutional
liberty, is the most democratic nation, and with which the Filipino people are united by strong Program were copied almost verbatim from the Spanish Constitution of 1876.46 Unlike the latter,
ties of friendship and sympathy.”35 To this, Calderon’s reply prevailed: “the gratitude which the however, Mabini insisted on the non-establishment of a State religion and left the matter of choosing
Filipino people owed to the American Nation did not oblige them to adopt the institutions of the a religion on the individual.47 The separation of church and State was one of the most debated
latter, taking into consideration the differences in their history, usages, and customs, and that the topics by the Malolos Congress.48 However, Calderon was opposed to a non-sectarian republic:
country was most akin, politically, to the South American Republics and other Latin nations.”36
“I knew fully well that Masonry had played a very important part
Mabini tried to delay the Malolos Constitution but ultimately, after certain amendments were in the insurrection; but I was also convinced that Masonry, such as it has
made to the draft, it was finally proclaimed on 25 January 1899.37 Malcolm was not disparaging the framers developed in the Philippines, was, more than an anti-Catholic sect, a society
of the Malolos Congress when he mentioned their inadequate political and constitutional knowledge for the purpose of counteracting the power of the friars, not so much as
because Calderon—identified as the “Father of the Malolos Constitution”—was aware of it himself: ministers of a religion, but as agents of a political character, or, rather, as a
manifestation of the Spanish political colonizing power. I did not overlook,
“I remember perfectly well that at the first meeting of that committee I realized however, that this same Masonry, sadly confounding things, believed that the
that we were completely ignorant of everything relative to political and constitutional
law, and I then firmly resolved that if I had my opportunity, I would make it my business abuses of the friars were defects of the Roman Catholic Apostolic Church.
to teach and spread the knowledge of constitutional and political law in my country.
Mabini had drafted a proposed constitution based on the constitution of the Spanish
Republic, with very insignificant variations, and after studying that constitution, I became In the face of these considerations I took into account that all the
convinced that it was not the most suitable for our country. Pedro Paterno, on his part, Filipinos, even those who boasted they were Masons and sectarians, were
had also given me a proposed constitution, which was that same Spanish constitution
of 1868, with very insignificant small modifications. Inasmuch as that draft was as little Catholics, and that it was extremely dangerous at that time to do sudden violence
satisfactory to me as Mabini's because both sprang from the same source, to wit, the Spanish to the consciences and establish liberty of worship, with its sequel, the separation
constitution of 1868, I attempted to prepare another draft which was to be eclectic…”38
of Church and State, not only because it outraged the consciences of nearly all, but
also, because it created great dissension among the Filipinos, who were divided
Three plans were put before the Malolos Constitutional Committee for
enough as it was in those moments, while what we really needed the most was
consideration: Paterno’s plan; Mabini’s plan expounded in his True Decalogue and
to find all possible means of cohesion between the different elements here…”49
Constitutional Program of the Philippine Republic; and Calderon’s plan.39 Calderon’s plan
triumphed and was reported to the Malolos Congress on 8 October 1898.40 An article-
After much discussion, when the provision on religion was up for a vote there was initially
by-article discussion thereafter ensued which lasted from 25 October to 29 November.41
a tie, but another vote was called for and Pablo Tecson’s vote won the day for those opposed to the
establishment of a State religion.50 But owing to the contentiousness of the said provision, Art. 100
Paterno’s plan for an autonomous government for the Philippines, but under
of the Malolos Constitution suspended its execution until the meeting of the Constituent Assembly.
Spanish sovereignty, was understandably unpopular since even in Kawit, Cavite discussing
autonomy would be deemed treasonous.42 In contrast, Mabini advocated for a republican
form of government but his Constitutional Program of the Philippine Republic was to
take effect only after the termination of the revolution.43 Mabini’s plan contained a form of
subordination to legislative power since it was believed that the legislators would be closer
to the people due to a direct election unlike the President who would be elected indirectly.44

Calderon disagreed with Mabini on making independence a prerequisite for

the formation of a republic since the former believed that establishing the republic earlier
would actually make it easier for foreign powers to recognize Philippine independence
and might prove useful in the talks between the Spanish and Americans in Paris.45

35  U.S. H. REC., Vol. 51, Part 16, at 16016, 63rd Cong., 2nd Sess. (October 1, 1914).
36  Id.
37  FELIPE GONZALES CALDERON, MIS MEMORIAS SOBRE LA REVOLUCIÓN FILIPINA: SEGUNDA
ETAPA (1898 Á 1901) 237 (Teodoro M. Kalaw trans.).
38  Id. at 235.
39 Malcolm, supra note 27, at 94.
40  Id.
41  Id.
42  Teodoro M. Kalaw, The Constitutional Plan of the Philippine Revolution, 1 PHIL. L.J. 204 (1914). 46  Id. at. 51-52.
43  CESAR ADIB MAJUL, MABINI AND THE PHILIPPINE REVOLUTION 201 (1996). 47  Id.
44  Id. at 202-04. 48 CALDERON, supra note 37, at 241.
45  CESAR ADIB MAJUL, supra note 30, at 108. 49  Id. at 242.
50  Id. at 243-44.

52 53
 BEDAN LAW REVIEW

Selected Bill of Rights provisions of the Spanish Constitutions of 1869 and Art. 17. Tampoco Art. 13. Todo Art. 22. Se Art. 20. Tampoco Art. 20. Neither 14. Every Filipino
1876, Biak-na-Bato Constitution of 1897, Malolos Constitution of 1899, and Mabini’s podrá ser privado español tiene establece la podrá ser privado shall any Filipino shall have the
ningún español: derecho: libertad de cultos, ningún filipino: be denied: right:
Constitutional Program are reproduced in the following table to facilitate comparison: Del derecho de De emitir de asociaciones, 1. Del derecho 1. Of the right To freely express
emitir libremente libremente sus de enseñanza de emitir to freely express his ideas and
Spanish Spanish Biak-na-Bato Malolos Malolos Mabini’s sus ideas y ideas y opiniones, y de imprenta, libremente sus his ideas and opinions through
Constitution of Constitution of Constitution Constitution of Constitution of Constitutional opiniones, ya ya de palabra, así como la del ideas y opiniones opinions, be speech or in
186951 187652 of 189753 1899 (Spanish)54 1899 (English)55 Program56 de palabra, ya ya por escrito, ejercicio de toda ya de palabra, they orally or in writing, through
por escrito, valiéndose de clase de profesión, ya por escrito, writing, through the use of the
Art. 2. Ningún Art. 4. Ningún Art. 24. Ningún Art. 7. Ningún Art. 7. No Art. 4. No valiéndose de la imprenta artes, oficios, valiéndose de the use of print or printing press
español ni español, ni individuo sea filipino ni Filipino or Filipino nor la imprenta o de otro é industrias y la imprenta any other similar or other similar
extranjero podrá extranjero, podrá cual fuere su extranjero podrá foreigner can foreigner can be o de otro p ro c e d i m i e n t o reuniones. o de otro means; method, without
ser detenido ni ser detenido sino nacionalidad, ser detenido ni be detained arrested, unless p ro c e d i m i e n t o semejante, sin p ro c e d i m i e n t o 2. Of the right being subject to
preso sino por en los casos y en podrá ser preso preso sino por or imprisoned he is justifiably semejante. sujeción a la Art. 23. Todos semejante; of association for censorship.
causa de delito. la forma que las ó detenido sino causa de delito y except by virtue suspected of a Del derecho censura previa. los filipinos 2. Del derecho all purposes of To peaceful
leyes prescriban. en virtud de con arreglo a las of a crime and in wrongdoing or he de reunirse De reunirse tendrán derecho a de asociarse para human life that assembly.
Todo detenido mandamiento leyes. accordance to the is caught in the pacíficamente. pacíficamente. dirigir peticiones todos los fines de not contrary to To associate
será puesto f u n d a d o , laws. act of committing Del derecho de De asociarse para ó presentar la vida humana public morals; in accordance
en libertad o e x p e d i d o a crime. asociarse para los fines de la vida reclamaciones de que no sean and lastly, with the aims of
entregado a la por tribunal xxx xxx xxx todos los fines de humana. cualquier índole contrarios a la 3. Of the right human beings.
autoridad judicial competente a no la vida humana De dirigir por sí ó por moral pública; y to address a And to direct
dentro de las ser por delitos que no sean peticiones re p re s e n t a c i ó n por último; petition, whether petitions,
veinticuatro horas que afectan a la contrarios a la individual o al Consejo de 3. Del derecho de individually or individually
siguientes al acto Revolución, al moral pública. colectivamente al Gobierno de la dirigir peticiones, collectively, to or collectively,
de la detención. Gobierno y al Y, por último, rey, a las Cortes y República. individual o public powers to Congress,
Toda detención ejército. del derecho de a las autoridades. colectivamente, and authorities. the Senate, the
se dejará sin dirigir peticiones El derecho de a los The right to President of the
efecto o elevará a individual o petición no podrá p o d e r e s petition shall Republic and
prisión dentro de colectivamente a ejercerse por públicos y a las in no way be other authorities.
las setenta y dos las Cortes, al rey y ninguna clase de autoridades. exercised by xxx xxx xxx
horas de haber a las autoridades. fuerza armada. El derecho de means of arms.
sido entregado T a m p o c o petición no podrá
el detenido al podrán ejercerlo ejercerse por
juez competente. individualmente ninguna clase de
La providencia los que formen fuerza armada.
que se dictare parte de una
se notificará al fuerza armada,
interesado dentro sino con arreglo
del mismo plazo a las leyes de
su instituto, en
Art. 16. Ningún No parallel No parallel Art. 19. Ningún Art. 19. No No parallel
cuanto tenga
español que provision. provision. filipino que se Filipino who provision.
relación con este.
se halle en el halleen el pleno finds himself in
pleno goce de goce de sus full enjoyment
sus derechos derechos civiles of his civil and
civiles podrá y politicos podrá political
ser privado del ser impedido en rights shall be
derecho de votar el libre ejercicio prevented from
en las elecciones de los mismos. the free exercise
de senadores, of the same.
diputados a
Cortes, diputados
provinciales y
concejales.

51  Senado de España, Constitución de 1869, available at https://www.senado.es/web/conocersenado/senadohistoria/

senado18341923/Constitucion1869/detalle/index.html?id=18690607_constitucion (last accessed Dec. 31, 2021).
52  Senado de España, Constitución de 1876, available at https://www.senado.es/web/conocersenado/senadohistoria/
senado18341923/Constitucion1876/detalle/index.html?id=18760630_constitucion (last accessed Dec. 31, 2021).
53  The Corpus Juris, 1897 Constitution, available at https://thecorpusjuris.com/constitutions/1897-constitution.php
(last accessed Dec. 31, 2021).
54  Official Gazette, 1899 Malolos Constitution, available at https://mirror.officialgazette.gov.ph/constitutions/the-1899-
malolos-constitution/ (last accessed Dec. 31, 2021).
55  Id.
56  Malacañan Palace Presidential Museum and Library, The Constitutional Program of the Philippine Republic, available
at http://malacanang.gov.ph/8128-the-constitutional-program-of-the-philippine-republic/ (last accessed Dec. 31,
2021).

54 55
 BEDAN LAW REVIEW BEDAN LAW REVIEW

Art. 21. La Art. 11. La Art. 5. El Art. 5. The State Art. 12. The 1899, the defeated First Philippine Republic only survived for about ten months which made
Nación se obliga religión católica, Estado reconoce recognizes the Republic as a T.M. Kalaw remark that the Constitution was “hardly ever in force; in fact it may be said that
a mantener apostólica, la libertad e freedom and collective entity it had never been in force.”63 Thus, as Katigbak noted, jurisprudence never refined or developed
el culto y los romana, es la igualdad de equality of all does not profess
ministros de la del Estado. La todos los cultos, beliefs, as well any religion, the rights envisaged therein.64 Admittedly, viewed in the context that the provisions of the
religión católica. Nación se obliga a así como la as the separation leaving this Constitutions of the Philippine Revolution were never really carried out in the archipelago,
El ejercicio mantener el culto separación de of Church and matter to the the contention of Bernas—that the Philippines does not have a constitutional history in the
público o privado y sus ministros. la Iglesia y del State. conscience of the
de cualquier Nadie será Estado. individual who British or American sense prior to the arrival of the Americans—may essentially be true.
otro culto queda molestado en el will be free to
garantizado territorio español select the religion In any case, given the mine of information about the events that transpired during the
a todos los por sus opiniones that he believes is
extranjeros religiosas ni por most noble and Philippine Revolution, one is led to the inescapable conclusion that the Filipino intellectuals at
residentes en el ejercicio de su logical. that time—who presided over the struggle for Philippine independence from Mother Spain—had
España, sin más respectivo culto, Thus no one may a fundamental understanding of democratic and republican principles by way of the Hispanized
limitaciones salvo el respeto be persecuted
que las reglas debido a la moral for his religious world. The fact that the Philippine Revolution was largely supported by the Filipino masses
universales de cristiana. beliefs or for could indicate that these principles were not just confined to the circle of the sophisticated elites.
la moral y del No se permitirán, the practice of
derecho. sin embargo, otras his faith within
Si algunos ceremonias ni the Philippine When the founding fathers of the First Philippine Republic pondered on democratic
e s p a ñ o l e s manifestaciones territory, unless and republican principles, it is intriguing to know that they did not draw inspiration primarily
profesaren otra públicas que las this violates from the United States but the dons instinctively looked at the Old Continent or even the
religión que de la religión del u n i v e r s a l
la católica, es Estado. morality. United States’ neighbors to the south. One cannot help but wonder at what could have been
aplicable a los Never theless, if only the Philippine Revolution had succeeded in forging a durable Latin republic in
mismos todo lo p u b l i c Southeast Asia. Just less than two decades after the First Philippine Republic was aborted
dispuesto en el manifestations
párrafo anterior. of a religious by the new colonial masters, T.M. Kalaw contemplated on the Philippine Revolution:
nature may not
be carried out “Which of the two tendencies was the best for those days, History
without a license will decide. At all events, whatever be the verdict of posterity, there remains the
from the local indisputable fact that the Philippine Revolution was not, as it has been said, a
authority.
racial war, a licentious outburst of violent passions, but was a war pledged to
and determined for the ideals of liberty, democracy, and constitutionalism.”65

Conclusion
Bibliography
Subsequently echoed in the 1935 Philippine Constitution, the Malolos Constitution
of 1899 was the first Constitution in the Orient to have established the principle of popular Constitutions
sovereignty.57 It may come as a surprise to some that the Bill of Rights in Article III of the 1935
Constitution, which were debated upon in six days, contained these provisions that originated Biak-na-Bato Constitution 1897
from the Malolos Constitution and that are not even expressed in the United States Constitution:58
The liberty of abode and of changing the same within the limits prescribed by
Constitutional Program of the Philippine Republic 1898
law shall not be impaired.59
The privacy of communication and correspondence shall be inviolable except
Malolos Constitution 1899
upon lawful order of the court or when public safety and order require otherwise.60
The right to form associations or societies for purposes not contrary to law shall
Spanish Constitution 1812, 1869, and 1876
not be abridged.61
Philippine Constitution 1935
Alas, because of the war with the Americans, the Malolos Constitution was said to have
never taken effect.62 Although the Malolos Constitution should have taken effect in January Statute and Legislative Record

Act No. 1696 (1907)

57  Maximo M. Kalaw, The New Constitution of the Philippine Commonwealth, 13 FOREIGN AFF. 689 (1935).
58  Bibiano V. Bitanga, Evolution of the Philippine Constitution, at 92-93 (Spring Term 1939) (Unpublished J.S.D.
thesis, National University Law School) (on file with UC Berkeley School of Law). 51 U.S. Cong. Rec. 16016 (1914)
59  1935 PHIL. CONST. art. III, §1(4) (superseded in 1973).
60  1935 PHIL. CONST. art. III, §1(5) (superseded in 1973).
61  1935 PHIL. CONST. art. III, §1(6) (superseded in 1973). 63 BERNAS, supra note 1, at 13.
62 Malcolm, supra note 27, at 95. 64 Katigbak, supra note 2, at 349.
65 Kalaw, supra note 42, at 222.

56 57
 BEDAN LAW REVIEW BEDAN LAW REVIEW

Books Internet Sources

Bernas, J. (1971). A Historical and Juridical Study of the Philippine Bill of Rights. Manila,
Philippines: Ateneo University Press.
Calderon, F. (1907). Mis Memorias Sobre La Revolución Filipina: Segunda Etapa (1898
á 1901). Manila, Philippines: Imp. De El Renacimiento.
Kalaw, M. (1927). The Development of Philippine Politics. Manila, Philippines: Oriental
Commercial Company.
Majul, C. (1998). Apolinario Mabini: Revolutionary. Manila, Philippines: Trademark
Publishing Corporation.
Majul, C. (1996a). Mabini and the Philippine Revolution. Quezon City, Philippines:
University of the Philippines Press.
Malacañan Palace Presidential Museum and Library (n.d.). The Constitutional Program
of the Philippine Republic. Retrieved December 31, 2021, from http://malacanang.gov.ph/8128-
the-constitutional-program-of-the-philippine-republic/
Official Gazette (n.d.). 1899 Malolos Constitution. Retrieved December 31, 2021, from
https://mirror.officialgazette.gov.ph/constitutions/the-1899-malolos-constitution/
Senado de España (2021), Constitución de 1869. Retrieved December 31, 2021, from
https://www.senado.es/web/conocersenado/senadohistoria/senado18341923/Constitucion1869/
detalle/index.html?id=18690607_constitucion
Senado de España (2021). Constitución de 1876. Retrieved December 31, 2021, from
https://www.senado.es/web/conocersenado/senadohistoria/senado18341923/Constitucion1876/
detalle/index.html?id=18760630

Verduin, A. (1946). Manual of Spanish Constitutions: 1808 – 1931. Ypsilanti, MI: The Corpus Juris (2021). 1897 Constitution. Retrieved December 31, 2021, from https://
University Lithoprinters. thecorpusjuris.com/constitutions/1897-constitution.php

Wolff, L. (1991). Little Brown Brother. Singapore: Oxford University Press. The Kahimyang Project (2021). The Memoirs of Felipe G. Calderon – First Part. Retrieved
December 31, 2021, from https://kahimyang.com/kauswagan/articles/1685/the-memoirs-of-
Journal Articles felipe-g-calderon-first-part

Elizalde, M. (2013). The Philippines at the Cortes de Cádiz. Philippine Studies: Historical
& Ethnographic Viewpoints, 61(3), 336-346.

Kalaw, M. (1935). The New Constitution of the Philippine Commonwealth. Foreign

Affairs, 13(4), 689.

Kalaw, T. (1914). The Constitutional Plan of the Philippine Revolution. Philippine Law
Journal, 1(5), 204-222.

Katigbak, M. (1998). Historical Transcendence: The Significance of the Bill of Rights of

the Malolos Constitution. Philippine Law Journal, 73(2), 312-350.

Malcolm, G. (1920). Constitutional History of Philippines. American Bar Association

Journal, 6(5), 109-110.

Malcolm, G. (1921a). The Malolos Constitution. Political Science Quarterly, 36(1), 92-
96.

Theses

Bibiano, B. (1939). Evolution of the Philippine Constitution (Unpublished doctoral

thesis). National University Law School, Washington D.C.

Verduin, A. (1930). The Spanish Constitution of 1812 and the Influence of the French
Revolution Thereon (Unpublished master’s thesis). University of Wisconsin.

58 59
 BEDAN LAW REVIEW
Fair, Representative, and Democratic Elections:
Examining Proportional Representation in the Philippines
Jasmin Denisse J. Dela Cruz
Introduction
Voting systems are the means by which votes are cast in the legislature.1 Those elected to
office have direct control over the kinds of policies passed, as well as the people who benefit or suffer
from those policies. The most prevalent voting system for legislative elections in the Philippines
is the plurality system of voting, wherein public elective offices are filled by those who receive the
highest number of votes cast in the election for that office. In all republican forms of government,
the basic idea is that no one can be declared elected and no measure can be declared carried unless
he or she receives a majority or plurality of the legal votes cast in the election.2 However, there are
various kinds of democratic voting systems, one of which is proportional representation. Essentially,
this voting system ensures that the number of seats a political party or group wins in the legislature
must be proportional to the amount of its support among voters.3
Among the basic kinds of proportional representation systems is the party-list system,
which the Philippines also employs. The party-list system is part of the electoral process that enables
small political parties, and the marginalized and under-represented sectors to obtain possible
representation in the House of Representatives, which is traditionally dominated by parties with
big political machinery.4
This paper aims to re-examine the system of proportional representation in Philippine
elections. It begins with a brief history of such voting system, and proceeds to discuss the substantive
legal bases. Then, the Paper probes prevailing jurisprudence under the 1987 Constitution and
Republic Act No. 7941, otherwise known as the “Party List System Act,” that apply the formula for
what constitutes proportional representation. Finally, a portion of the Paper is devoted to critiquing
party-list representation under the current political sphere in the Philippines as well as the recent
developments under the laws.
A Brief History of the Proportional Representation System in the Philippines
The party-list system is a by-product of the People Power Revolution and the pro-
democracy Constitution of 1987, and was introduced precisely to give room for those who have a
national constituency who may never be able to win a seat on a legislative district basis.5
Section 5 (1), Article VI of the 1987 Constitution provides an allocation of twenty per
centum (20%) of the seats in the House of Representatives for those elected through a party-list
system or registered national, regional, and sectoral parties or organizations in addition to the
two hundred fifty (250) members or less who shall win in the legislative district elections. This
means that one-fifth (1/5) of the members of the House of Representatives shall be composed of
representatives of the labor, peasant, urban poor, indigenous cultural communities, women, youth,
1  DOUGLAS J. AMY, BEHIND THE BALLOT BOX: A CITIZEN’S GUIDE TO VOTING SYSTEMS 1 (2000).
2  Rulloda v. Commission on Elections, G.R. No. 154198, 443 Phil. 649 (2003).
3 AMY, supra note 1, at 65.
4  Commission on Elections, Primer on the Party-List System of Representation in the House of Representatives, Republic
Act No. 7941.
5  2 RECORD OF THE CONSTITUTIONAL COMMISSION, at 259 (1986).
60
and such other communities that the law may provide, except the religious sector.6 In the landmark
case of Veterans Federation Party,7 the Supreme Court ruled that the percentage specified in Section
5 (1) of Article VI is merely a ceiling–the mechanics by which it is to be filled up have been left to
Congress.
In order to give full force and effect to this constitutional provision, the Congress, in
the exercise of its prerogative, enacted Republic Act No. 7941 or the “Party-List System Act.”
The primary objective of this law is to enable Filipino citizens belonging to the marginalized and
underrepresented sectors, organizations, and parties, and those who lack well-defined political
constituencies, to become members of the House of Representatives in order to contribute to the
formulation and enactment of appropriate legislation that will benefit the nation as a whole.8
Legal Framework for Party-List Representation
The Party-List System Act further prescribes that a party, organization, or coalition
participating in the party-list election must obtain at least two percent (2%) of the total votes cast
for the system to qualify for a seat in the house. However, it must be noted that no winning party,
organization, or coalition, can have more than three seats therein.9 In Veterans Federation, 10the
Supreme Court translated the legal parameters of the law into a mathematical formula, to wit:
First, the twenty percent allocation - the combined number of all party-list
congressmen shall not exceed twenty percent of the total membership of the House of
Representatives, including those elected under the party list. Second, the two percent
threshold - only those parties garnering a minimum of two percent of the total valid votes
cast for the party-list system is "qualified" to have a seat in the House of Representatives.
Third, the three-seat limit - each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and
two additional seats. Fourth, proportional representation - the additional seats which a
qualified party is entitled to shall be computed "in proportion to their total number of
votes.
Then Associate Justice Jose Catral Mendoza criticized the 2% threshold computation for
being strict and that applying the same would hardly be considered as proportional representation.
According to Justice Mendoza –
Claiming that it is "obvious that the Philippine style party-list system is a
unique model which demands an equally unique formula," the majority instead allocates
seats to the winning groups in a manner which cannot be justified in terms of the rules
in §11. While it disavows any intention to "reinvent or second-guess [the law]," the
majority, in reality, does so and in the process engages in a bit of judicial legislation.11
Then came the ruling of the Supreme Court in BANAT v. Comelec,12 wherein the Supreme
Court, only as regards the computation of additional seats, abandoned the formula used in Veterans
Federation. The Court found it mathematically impossible to achieve the maximum number of
available party-list seats when the number of available party-list seats exceeds 50. Hence, applying
the 2% percent threshold in distributing additional seats would only frustrate the attainment of the
6  PHIL. CONST. art. VI, § 5.
7  Veterans Federation Party v. Commission on Elections, G.R. No. 136781, 342 SCRA 244 (2000).
8  An Act Providing for the Election of Party-List Representatives through the Party-List System, and Appropriate Funds
Therefore [Party-List System Act], Republic Act No. 7941 § 3 (1995).
9  Veterans Federation, 342 SCRA 244.
10  Id.
11  Veterans Federation, 342 SCRA 244 (J. Mendoza, dissenting opinion).
12  Barangay Association for National Advancement and Transparency v. Commission on Elections, G.R. No. 179271,
586 SCRA 210 (2009).
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20% ceiling that members of the House shall consist of party-list representatives. It was held that
in computing additional seats, the guaranteed seats shall no longer be included, since they have
already been allocated at least one seat for every party, coalition, or organization that receives at
least 2% of the total votes cast.
For more than three decades, the party-list system has been the subject of controversial
decisions and interpretations by the Supreme Court. One of the principal authors of the Party List
System Act, Albay 1st District Representative Edcel Lagman, has previously expressed in a 2019
news conference his disappointment with the current state of the law, which has departed from its
original intent. What was initially a political innovation for members of the marginalized sector
to secure a seat in Congress has paved the way for traditional and elitist politicians to retain their
positions of power and influence.
In the case of Ang Bagong Bayani-OFW Labor Party v. Comelec,13 the Supreme Court ruled
that it is not enough for a candidate to claim that he or she represents the marginalized and under-
represented. The party-list organization or party must factually and truly represent the marginalized
and under-represented constituencies mentioned in Section 5. In that case, the Court concluded
that “the party-list system is a social justice tool designed not only to give more law to the great
masses of our people who have less in life, but also to enable them to become veritable lawmakers
themselves, empowered to participate directly in the enactment of laws designed to benefit them.”14
However, the principle in Ang Bagong Bayani was overturned by the Supreme Court
in Atong Paglaum, Inc. v. COMELEC15. In the said case, the Court pronounced that national or
regional parties or organizations that intend to participate in the party-list elections no longer need
to organize along sectoral lines and represent any marginalized and under-represented sector. On
the other hand, sectoral parties or organizations may either be marginalized and under-represented
or lacking in well-defined political constituencies, and gave an enumeration of the latter group
which includes professionals, the elderly, women and the youth.
The author of this article respectfully submits that the dissenting opinion of then Chief
Justice Sereno on the interpretation of the terms “marginalized and under-represented” offers a
more accurate construction of the law in the case of Atong Paglaum. Since the party-list system is
primarily a tool for social justice, it would run counter to the dictates of the 1987 Constitution and
Republic Act No. 7941 if the Court adopts a construction other than that the term “marginalized
and under-represented” qualifies national, regional, and sectoral parties. Furthermore, when the
law is clear and valid, it simply must be applied; but when the law can be interpreted in more ways
than one, an interpretation that favors the underprivileged must be favored.16
Party-list representation in the current political landscape
In reality, however, the objective of Republic Act No. 7941 on proportional representation
is not realized. Section 9 of R.A. 7941 prescribes the qualifications of a party-list nominee:
SEC. 9. Qualifications of Party-List Nominees. – No person shall be nominated
as party-list representative unless he is a natural-born citizen of the Philippines, a registered
voter, a resident of the Philippines for a period of not less than one (1) year immediately
preceding the day of the election, able to read and write, a bona fide member of the party
13  Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, G.R. No. 147589, 359 SCRA 698 (2001).
14  Id.
15  Atong Paglaum, Inc. v. Commission on Elections, G.R. No. 203766, 694 SCRA 477 (2013).
16  Id.
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or organization which he seeks to represent for at least ninety (90) days preceding the
day of the election, and is at least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25)
but not more than thirty (30) years of age on the day of the election. Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue in office until the expiration of his term.17
As can be culled from the provision, party-list nominees have almost the same qualifications
as district representatives under the Constitution, in addition to requirements that such nominees
must be bona fide members of the party-list group or organization they are to represent and that
they be members of such party for at least three (3) months prior to the elections.18
In 2019, a party-list representative became the first-nominee of Driver’s United for
Mass Progress and Equal Rights-Philippines Taxi Driver Association (DUMPER-PTDA), which
advocates for the rights of public utility drivers and commuters. Representative Claudine Bautista,
who is the daughter of the incumbent governor of Davao Occidental, grew up in a political family,
but claims to “truly understand the life of a driver and their economic conditions,”19 but whether
she actually drives a taxi for a living is unknown. It is only required that a majority of the members of
sectoral parties or organizations, such as DUMPER-PTDA, belong to the marginalized and under-
represented sector they represent, as laid down in Atong Pagalum.20 This interpretation departed
from the decision by the Supreme Court in BANAT21, wherein the Court stated that the nominee
of the sectoral party/organization/coalition must belong to the marginalized and underrepresented
sectors, that is, if the nominee represents fisherfolk, he or she must be a fisherfolk, or if the nominee
represents the senior citizens, he or she must be a senior citizen.
More recently, party-list candidate Malasakit Movement, Inc. was dropped from the
final list of candidates for the 2022 national polls. The Commission on Elections denied the
accreditation of the group because, according to Comelec spokesperson James Jimenez, the group
“failed to meet the requirements for a sectoral party-list organization… They were unable to prove
that they were representing marginalized, under-represented sectors.”22 Malasakit Movement, led
by former Metropolitan Manila Authority (MMDA) spokesperson Celine Pialago, intends to push
for better benefits for health workers and barangay officials who are already part of the government.
Moreover, Pialago aspires to be a voice in Congress of the notorious National Task Force To End
Local Communist Armed Conflict (NTF-ELCAC).23 Whether Malasakit Movement is a sectoral
party “whose principal advocacy pertains to the special interest and concerns of their sector”24 is
upon the Supreme Court to decide, taking into consideration the prevailing jurisprudence.
On December 14, 2021, the Commission on Elections conducted an electronic raffle
which resulted in the placement of 166 party-list groups on the ballots.25 Raffling of party-list slots
17  PARTY-LIST SYSTEM ACT, § 9.
18  Gabriel Paolo L. de Guzman, Time to Get Real Representatives? Re-examining Qualifications of Party-List Nominees in
Light of COMELEC Resolution No. 9366, 57 ATENEO L.J. 279, 299 (2012).
19  Edge Davao, Dumper Partylist Vows Protection of Drivers, Commuters, Edge Davao, May 7, 2019, available at https://
edgedavao.net/latest-news/2019/05/07/dumper-partylist-vows-protection-of-drivers-commuters/ (last accessed Sept.
23, 2021).
20  Atong Paglaum, 694 SCRA 477.
21  BANAT, 586 SCRA 210.
22  Kristine Joy Patag, Comelec Excludes Ex-MMDA Spox Pialogo’s Party-List from 2022 Ballot, THE PHILIPPINE STAR,
January 12, 2022, available at https://www.philstar.com/headlines/2022/01/12/2153422/comelec-excludes-ex-mmda-
spox-pialagos-party-list-2022-ballot (last accessed Feb. 19, 2022).
23  Dwight De Leon, Comelec Shuts Celine Pialago’s Malasakit Movement Out of 2022 Polls, RAPPLER, January 11, 2022,
available at https://www.rappler.com/nation/elections/comelec-excludes-malasakit-movement-party-list-race-2022/
(last accessed Feb. 19, 2022).
24  Republic Act No. 7941, § 3 (d).
25  Dwight De Leon, Results of Raffle of 2022 Party List Slots Now Out, RAPPLER, December 14, 2021, available at
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was first carried out during the 2013 elections wherein the poll body decided the party-list slots at
random. Prior thereto–since the 1998 elections when the first party-list election was conducted––
the groups were listed in alphabetical order. The voters in the poll precincts would then refer to a list
that alphabetically enumerates the groups, and write down the name of their chosen organization
on the blank provided on the ballot. When the elections were automated in 2010, the voters instead
had to shade the corresponding oval of their chosen group.26
In implementing the raffle, the poll body aimed to remove the undue advantage in the
registration of groups with names starting with “1” or “A” ensuring that their group would make
it to the top of the list.27 Hence, as a result of the 2022 raffle, party-list groups Kamalayan, KM
Ngayon Na, and PSIS secured the first three slots, while groups AP Partylist, Akap Pinoy, and
Buhay secured the last three slots on the ballot.28
Meanwhile, the Commission on Elections rejected the registration of seven (7) party-list
groups, including Alliance for Resilience, Sustainability and Empowerment (Arise), Igorot Warriors,
Ang Tinig ng Seniors, Lingkud Bayanihan Party (LBP), Mindanao Indigenous Conference for
Peace and Development (Ipeace Epanaw), Apat Dapat, and Uma Ilonggo.29 The afore-mentioned
groups were able to secure a Temporary Restraining Order (TRO) from the Supreme Court before
the publication and posting of the final list of party-list groups published last December 29, 2021,30
which gave the groups an opportunity to still be in contention for the 2022 elections despite being
initially excluded from the ballot. In addition, five (5) more groups–Abante Sambayanan, Ayuda
sa may Kapansanan, Laban ng Isang Bayan Para sa Reporma at Oportunidad (Libro), Ako Breeder,
and Friends of the Poor and Jobless (FPJ)--included in the Comelec’s final list of party-list groups
after successfully seeking relief from the Supreme Court, making the total to 178 participating
party-list groups in the 2022 national and local elections.31
Recent developments in the law
A notable development in the party-list system, however, is Comelec Resolution No.
10690, which amended Resolution No. 9366, regarding the publication of the new list of nominees
in case of substitution, to wit:
Within five (5) days from the filing of the list of substitute nominees, the party
shall cause the publication of its new and complete set of nominees in two (2) national
newspapers of general circulation. The party shall submit proof of publication of its new
list of nominees with the Law Department within three (3) days from completion of the
said publication. No substitution shall be valid without compliance with the requirements
on publication and submission of proof thereof.32
https://www.rappler.com/nation/elections/results-comelec-raffle-party-list-slots-out-december-14-2021/ (last accessed
Feb. 19, 2022).
26  Reynaldo Santos, Jr., Party-List Groups to Know Ballot Slots by Dec. 17, RAPPLER, December 7, 2012, available at
https://www.rappler.com/nation/elections/17526-party-list-groups-to-know-ballot-slots-by-dec-17/ (last accessed Feb.
19, 2022).
27  Id.
28  Commission on Elections, Rules and Regulations for the Conduct of Raffle of Party-List Groups to Determine the
Order of Their Listing on the Official Ballot in Connection with the 2022 National and Local Elections, Partially
Amending Resolution 10695, Resolution No. 10733, Series of 2021 [COMELEC Resolution No. 10733, s. 2021],
para. 2 (Nov. 24, 2021).
29  Id
30  Ferdinand Patinio, COMELEC Releases Final List of Party-List Candidates, PHILIPPINE NEWS AGENCY, December
29, 2021, available at https://www.pna.gov.ph/articles/1164019 (last accessed Feb. 5, 2022).
31  Dwight De Leon, More Rejected Party-List Groups Get SC Relief Before Printing of Ballots, RAPPLER, January 7, 2022,
available at https://www.rappler.com/nation/elections/more-rejected-party-list-groups-get-supreme-court-relief-before-
printing-ballots-january-2022/?_thumbnail_id=1530928 (last accessed Feb. 19, 2022).
32  Commission on Elections, In the Matter of Setting the Last Day for the Filing of the following: (1) Petitions for
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In addition, if a nominee withdraws his acceptance to the nomination, he or she shall not
be eligible for re-nomination by the same party or any other party.33 Thus, a last-minute change of
mind is no longer allowed.
Conclusion
The long years of dictatorship compelled Filipinos to reaffirm their commitment to
democracy and to reform their democratic institutions through electoral participation.34 Elections
provide a key measure in Philippine democracy since this is how citizens are able to participate in
public life. With the adoption of the Party-List System, the Filipino people are given the opportunity
to elect leaders whom they believe are capable of crafting policies reflecting the concerns of the
marginalized masses. This made it possible for all sectors to have a voice in a government politically
dominated by the “elite.”
In order to effect true democracy, the 1987 Constitution gave Congress enough leeway
to create a mechanism of proportional representation. However, what it means to be “marginalized
and under-represented” and “lacking in well-defined political constituencies” have undergone
several revisions in our jurisprudence over the course of more than two decades since the party-list
election was first conducted. It appears that the State, in developing a “full, free, and open party
system,”35 has allowed traditional politicians to penetrate the party lists in an attempt to manipulate
the political sphere.
As it stands, the law needs serious legislative reform to truly embody the proportional
representation intended by our statutes. Congress must take into consideration that the Party-List
System is a tool for social justice–founded on the protection that should be equally and evenly
extended to all groups as a combined force in our social and economic life.36 However, this writer
also concurs with Atty. Castañeda’s observation that reform alone does not suffice, since one
can hardly expect elites in power to initiate the very change that could oust them from power.37
Strengthening and improving engagement in public life perhaps lies the hope of Philippine politics,
38
which rings true even today. Individuals and organizations outside of the government play an
important role in pushing for initiatives that promote free and fair elections–from lobbying for the
passage of laws to educating the voting public. The participation of both state and non-state actors
is essential if we are to achieve the true democracy we have been longing for as a people.
Registrations of Party-List Groups, Organizations, and Coalition; (2) Manifestation of Intent to Participate; (3)
Submission of Names of Nominees; (4) Filing of Disqualification Cases against Nominees of Groups, Organizations,
and Coalitions under the Party-List System of Representation and Requiring Publication of Substitute-Nominees in
Connection with the 09 May 2022 National and Local Elections, Resolution No. 10690, Series of 2021 [COMELEC
Resolution No. 10690], § 3 (Jan. 27, 2021).
33  Id. § 6.
34  Anna Leah Fidelis T. Castañeda, Philippine Elections: The Right to Political Participation in an Elite Democracy, 41
ATENEO L.J. 314, 367 (1997).
35  Republic Act No. 7941, § 2.
36  Calalang v. Williams, et al., G.R. No. 47800, 70 Phil. 726 (1940).
37  Henry J. Steiner, Political Participation as a Human Right, 1 HARVARD HUM. RTS. Y.B. 77, 85 (1988).
38  16 Castañeda, supra note 34, at 382.
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A Gruesome Exchange: Civil and Political Rights for Sale
Patricia Mae E. Dela Rosa
This article will briefly discuss the definition of civil rights, political rights, and vote-
buying. The paper will also shed light on the situation of vote-buying and vote-selling in the
Philippines and the repercussions of such actions to the country. Lastly, the article will touch upon
a recommendation to the issue at hand which is the implementation of a better education system
for social awareness on voting in elections.
What are civil and political rights?
Civil and political rights are a class of rights that protect individuals' freedom from
infringement by governments, social organizations, and private individuals, and which ensure one's
ability to participate in the civil and political life of the society and the state without discrimination
or repression.1
Political rights are the rights that involve participation in the establishment or
administration of a government. Political rights are usually held to entitle the adult citizen to
exercise the franchise, the holding of public office, and other political activities.2 The right to vote
in elections or the right to exercise suffrage falls squarely under political rights.
On the other hand, civil rights are the non-political rights of a citizen. These are the rights
that people have so that they may have equal treatment and equal opportunities, whatever their
race, sex, or religion may be.3 In exercising your right to vote, these civil rights on equal treatment
and equal opportunity work hand in hand to inculcate a fair environment during the elections. No
one, who is entitled to vote, shall be discriminated against or treated differently because everyone
stands on equal footing – may they be rich or poor, a single person’s vote is as important as the
other’s vote.
What is the importance of civil and political rights?
Civil and political rights are so essential in our day-to-day lives that they have been
included in the 1987 Philippine Constitution. It speaks volumes that these rights are enshrined
in the highest law of the land as they can neither be curtailed nor abused. The citizens, once
these rights are violated, are diminished as mere instruments or mere creatures for who are people
without their rights being respected? Living one’s life without any freedom of expression, security
of abode, or right to vote would be meaningless, to say the least.
Civil and political rights are there precisely because these rights are the basic rights a person
has to have to live a peaceful and well-respected life. If one is not secure in all the basic aspects of
their lives in this society or polity, they can never enjoy the life they have. These are fundamental
rights that ensure a person’s life is well-lived and peacefully lived without any undue interruption
1  Frontline Defenders, Civil and Political Rights, available at https://www.frontlinedefenders.org/en/right/civil-political-
rights (last accessed Feb. 1, 2022).
2  Merriam-Webster, Definition of Political Rights, available at https://www.merriam-webster.com/dictionary/political%20
rights (last accessed Feb. 1, 2022).
3  Collins Dictionary, Definition of Civil Rights, available at https://www.collinsdictionary.com/dictionary/english/civil-
rights (last accessed Feb. 1, 2022).
66
of abuse or infringement from the government, social organizations, and even private individuals.
What is suffrage?
Suffrage is traditionally understood as the right to vote in elections. However, in the 1973
Constitution, Article V, Section 4, it was given the additional meaning of the obligation to vote.
Article V, Section 1 of the 1987 Constitution states that:
Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for
at least six months immediately preceding the election. No literacy, property, or other
substantive requirements shall be imposed on the exercise of suffrage.4
The law provides for the criteria on who may exercise suffrage and it must equally apply to
all. Under the same article, it is stated that Congress must provide for a system to ensure and secure
the secrecy and sanctity of the ballot.5 The law specifically provides that there should be a guard
against any abuse or violation of the right of the people to vote.
It is as important as any other right that the citizens have.
At its very core, the right to vote in elections is what keeps democracy alive. It is the power
of the people to take a hold of their future in the country in which they live. This is the right that
dictates what the future will hold for the citizens of a country. Suffrage is as important as any other
fundamental right of citizens and so it must be protected at all costs.
What is vote-buying?
Frederic Charles Schaffer in the article entitled “What Is Vote Buying?” defined vote-buying
as a simple economic exchange. The candidates buy and the citizens sell their votes the same way
they buy and sell other commodities like apples, shoes, or clothes. The act of buying in this sense is
a contract or even an auction where the voters sell their votes to the highest bidder.6
Vote-buying and vote-selling in the Philippines
It is no secret that vote-buying and vote-selling are prevalent in the Philippines despite
their illegality. It is a reality that a poverty-stricken country has faced since time immemorial. Based
on a study by the Ateneo School of Government (ASOG) on the prevalence of vote-buying among
the poor in Metro Manila, about 40 percent of the poor they surveyed said they saw vote-buying
take place in their community while only 20 percent admitted to selling their votes.7 Even the
current Philippine President, Rodrigo Duterte, admitted such a reality stating that vote-buying is
an integral part of elections in the Philippines—a country that is beset with poverty and a feudal
system. He even claims that vote buying and vote selling comes in many forms.8
4  PHIL. CONST. art. V, § 1.
5  PHIL. CONST. art. V, § 2.
6  Frederic Charles Schaffer, Associate Professor, Massachusetts Institute of Technology, What is Vote Buying?, Speech at
Trading Political Rights: The Comparative Politics of Vote Buying International Conference, Center for International
Studies, MIT, Cambridge (Aug. 26-27, 2002).
7  Joyce Ilas, Why Filipinos Sell Their Votes, and for How Much, CNN PHILIPPINES., Apr. 12, 2019, available at https://
cnnphilippines.com/news/2019/4/12/philippines-vote-buying-2019-elections.html (last accessed Feb. 3, 2022).
8  Alexis Romero and Edith Regalado, Vote Buying an Integral Part of Philippine Elections — Duterte, PHIL. STAR, May
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A study conducted by Freedom House organization, rates people’s access to political rights
and civil liberties in 210 countries and territories through its annual Freedom in the World report.
Individual freedoms—ranging from the right to vote to freedom of expression and equality before
the law—can be affected by state or non-state actors. In the said report, the Philippines scored fifty-
seven out of a hundred making it “partly free” on its democracy scores, twenty-five over a hundred
for political rights, and thirty-one for civil liberties.9
In an exposé article entitled “Why Filipinos sell their votes, and for how much” written by
Joyce Ilas, she interviewed a certain Juan (not his real name) who was hired for two decades now by
political leaders to facilitate the vote-buying scheme every election season. Juan would initially offer
Php 500 per person per vote and would increase to Php 1000 when the election day comes nearer
in exchange for citizens to vote for the politician who hired Juan. Juan would also offer Php 1000
per person in exchange for the person not to vote during elections if he knows the person will vote
for the opposing candidate. An additional Php 300 would be paid after the casting of votes in the
ballot once Juan has ascertained that the transaction was a success.10
Rationale of vote-buying and vote-selling
As previously stated, vote-buying and vote-selling is an economic transaction. In a country
that is poverty-stricken where earning a living is difficult, many citizens see this transaction as “easy
money”. They could easily earn a day’s wage or even more by simply not doing anything like not
voting. At the very root of the transaction, it all boils down to money—or what the citizens will
earn in return for such a small thing or effort on their end. After all, what they need to do is simply
just shade a few circles or just not show up to vote. For others, they get paid and the ballot is already
shaded for them.
The Article “An empirical analysis of vote-buying among the poor: Evidence from elections
in the Philippines” provides that in vote-buying and vote-selling, the main focus is on the poor, as
extensive anecdotal evidence in the Philippines suggest that this could be the group most prone to
sell their votes, in large part because of their needs.11
To a person struggling to feed many mouths in his or her family, the payment of politicians
in exchange for a vote could be a beacon of hope or at least something to get them by. They see the
reward in the act itself rather than the bigger picture or the outcome of the transaction. They focus
on the benefits they can get now rather than the “bigger and brighter future” they could have if they
all voted for the better candidate.
But then again, could we really blame them? A person struggling to survive will grab
anything that will make this better for the present even if it’s a double-edged knife.
14, 2019, available at https://www.philstar.com/headlines/2019/05/14/1917698/vote-buying-integral-part-philippine-
elections-duterte (last accessed Feb 3, 2022).
9 Freedom House, Global Freedom Scores, available at https://freedomhouse.org/countries/freedom-world/
scores?fbclid=IwAR1Z0cm8MplvK4QwfLo92XO1rhKkh8KxB5FfxLEaQLrT1UVWZxBTAsRNFsM (last accessed
Feb. 6, 2022)
10 Ilas, supra note 7.
11  Ronald U. Mendoza et. al., An Empirical Analysis of Vote Buying Among the Poor: Evidence From Elections in the
Philippines, 26(1) SOUTH EAST ASIA RESEARCH 58, 60 (2018).
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The harsh reality of the gruesome exchange
Those who need more in life are the very ones targeted in the system of vote-buying and
selling. It is also them who need better governance because they need more aid and protection from
the government as they are left to fend off for themselves with so little to earn from their wages.
In this gruesome exchange of political rights for money, what have the people really traded
it for? For as low as Php 300, they contributed to the death of our democracy which people have
died and fought for time and time again. These political and civil rights that we so enjoy freely and
so casually are robbed from us in a blink of an eye for empty promises and easy band-aid solutions
to one’s poverty.
People sell their votes because they fail to see the collective benefits trickling down on
them when they vote for a candidate that is qualified and truthful in service. The people have
become very parochial in their view of democracy in the sense that they only look at their personal
benefits from a certain candidate.
Conclusion and recommendation
Vote-buying and vote-selling, despite being a crime under Philippine laws, are rampant
because of the economic and financial situation of most of its citizens. It is a harsh reality that one
must choose between one’s rights and one’s needs. However, one must put a premium on the civil
and political rights that they have because they are the very root of how we all enjoy our freedom in
society. Without the proper exercise of these rights, our democracy will die. The power of the people
to voice out how they want to shape the future of their nation will wither and become obsolete.
There is a pricelessness to these rights that we all must protect while we still can. There must be a
balance between the people’s rights and needs. To what extent can a person sacrifice his rights until
it becomes the very reason why it is so hard to provide for the bare minimum of one’s basic needs?
The balancing act between one’s rights and one’s needs can be properly addressed by
changing the whole system itself. A change that will start from the bottom to the top and it will
take years to correct. Corruption has been a problem since time immemorial in the country and can
only be addressed by a constant, conscious effort among the people and the government. Education
is still the best solution as awareness of the repercussions of one’s actions on the country is the best
deterrent to selling one’s rights. Knowing what is right from wrong and how these choices affect the
country is still the best solution. Better education on voting, elections, and good governance are
necessary. People must not be kept in the dark but must be fully equipped to form wise and bright
decisions that will be for the betterment of the country and not just to serve their personal gain.
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Ne Exeat Regno : “Offloading” International-Bound Filipino Passengers
1 for implementing departure formalities. The implementation of these guidelines is mandated to
and the Right to Travel
Andrea Nicole V. Fabregas
“Freedom of movement across frontiers in either direction, and inside frontiers is a
part of our heritage. Travel may be necessary for livelihood. It may be close to the
heart of the individual as the choice of what he eats, or wears, or reads. Freedom of
movement is basic in our scheme of values. It is an important aspect of liberty.” -
Kent v. Dulles
I. Introduction
Deferred departures, colloquially known as “offloading”, have become a source of concern
for outbound travelers, especially passengers leaving the country for the first time. A passenger is
intercepted at ports of exit during inspection of an immigration personnel upon finding suspicious
grounds for human trafficking and illegal recruitment subject to the Guidelines on Departure
Formalities issued by the Bureau of Immigration. The authority to enforce these guidelines is based
on the mandate of Republic Act (RA) 10364 also known as the Expanded Anti-Trafficking in
Persons Act of 2012 to the Bureau of Immigration to adopt measures for the protection of vulnerable
population against human trafficking and other related offenses. Austere law enforcement, primarily
due to the clamor of the international community to compel the Philippine government to take
action, resulted to thousands of deferred departures. While it effectively detained traffickers and
victims, such also resulted in unfair deferrals causing not only fear but cancelled flights and other
wasted costs of the planned travel. Admittedly, the Bureau of Immigration asserts that offloading is
a mere consequence of guideline implementation and is therefore not a policy. The ramifications of
this measure are remarkable as it affects one’s constitutional rights.
This study aims to evaluate the legal issues surrounding departure measures occurring in
immigration. Firstly, it forwards that offloading, more than a means to implement measures against
human trafficking, is also a form of travel control. Second, offloading affects a person’s right to
travel as well as rights corollary to it: due process and equal protection. To substantiate these claims,
this paper will survey: 1) the scope and power of the Bureau of Immigration; 2) constitutional
provisions; 3) local and foreign jurisprudence tackling the nature of the right to travel (how it
relates to liberty and the right to due process and equal protection), and 4) instances of offloading.
A. Offloading as a Form of Travel Control
Offloading occurs as a consequence of a passenger failing to meet the standards of inspection
set forth by Memorandum Circular No. 7 also known as the Guidelines on Departure Formalities for
International-Bound Passengers.2 The nature of this practice is seemingly controversial. For years 2011
until 2014, the said guideline has been subject to criticisms3 which are then responded with several
1  The term is a post-classical Latin expression ne exeat regno which translates to ‘let him not go out of the kingdom’.
2  Department of Justice, Inter-Agency Council Against Trafficking (IACAT) Revised Guidelines on Departure Formalities
for International-Bound Passengers, Memorandum Circular No. 7 [DOJ Memo. Circ. No. 036], (June 15, 2015).
3  Instances of wrongful screening built clamor among tourists urging the government to declare Memo. No. 7 as
unconstitutional (See Ryan Silverio, Open Letter to Urge CHR to Effectively Act on the Issue of “Offloading” and Denial of Right to
Travel of Filipinos in Philippine Airports, HRONLINEPH, July 6, 2011, available at https://hronlineph.com/2011/07/06/
urgent-appeal-open-letter-to-urge-chr-to-effectively-act-on-the-issue-of-%E2%80%9Coffloading%E2%80%9D-and-
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government press releases.4 It was not until 2015 that the Bureau endorsed an official guideline
the Bureau of Immigration (BI) and the Inter-Agency Council Against Trafficking (IACAT) by
the Department of Justice (DOJ) as a form of, among others, travel control. Travel control laws,
in parallel with the discussions on the right to travel, emerged as a “relatively uncomplicated niche
within the legal community”.5 In fact, in the early 20th century, the right to travel is still regarded
as an unchallenged right – typically assumed than rejected.6 This right is sacredly embodied in
Art. 13 of the Universal Declaration of Human Rights: “(1) Everyone has the right to freedom of
movement and residence within the borders of each state; and (2) Everyone has the right to leave
any country, including his own, and to return to his country.”7
This provision is interpreted in a three-pronged approach: first, the right to travel within
the bounds of one’s country; second, the right to leave one’s country, and; third, the right to return
to one’s own country.8 For the purposes of this study, analysis of travel control will be confined to
measures adopted in screening international-bound travel of Filipino residents.
In the Philippine jurisdiction, the right to travel is enshrined in Section 6, Article III of
the 1987 Constitution: “Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon the lawful order of the court. Neither shall the
right to travel be impaired except in the interest of national security, public safety, or public health, as
may be provided by law.”9
The exceptions adjoining this right empowered law enforcers to be zealous in implementing
travel control.10 Such can be found to be validated by jurisprudence as the Court repeatedly declares11
that travel control is an inherent limitation – “naturally emanating from the right itself ”.12 Among
these limitations are:
1] The Human Security Act of 2010 [restricts] the right to travel of an
individual charged with the crime of terrorism even though such person is out
on bail.
2] The Philippine Passport Act of 1996 [authorizes] the Secretary of
Foreign Affairs or his consular officer to refuse the issuance of, restrict the use of,
or withdraw, a passport of a Filipino citizen.
3] The Anti- Trafficking in Persons Act of 2003 [authorizes] the Bureau
of Immigration to offload passengers with fraudulent travel documents, doubtful
denial-of-right-to-travel-of-filipinos-in-philippine-airports/ (last accessed December 21, 2021); Drei Medina, 40 Pinoys
Get Offloaded at NAIA-1 Everyday – BI, GMA NEWS ONLINE, March 6, 2014, available at https://www.gmanetwork.
com/news/news/pinoyabroad/351441/40-pinoys-get-offloaded-at-naia-1-every-day-bi/story/ (last accessed December
21, 2021).
4  See Press Release by Bureau of Immigration, There is No Such Thing As “Offloading Policy”(2014).
5  Alexander Anolik, Travel Law, 16 GP Solo & Small FIRM 16 (1999).
6  William B. Gould, The Right to Travel and National Security, 1961 Wash. U. L. Q. 334 (1961) (citing Freedom To Travel,
Report of the Special Committee to Study Passport Procedures of the Association of the Bar of the City of New York,
at 5 (1958)).
7  Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 28, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).
8  See classification provided in Tristan A. Catindig, Passports and the Right to Travel, 39 PHIL. L.J. 542, 543 (1964).
9  PHIL. CONSTI. art. III, §6 (emphasis supplied).
10  Right to travel is not absolute.
11  Genuino vs. Delima, G.R. No. 197930 (2018) (citing cases of Manotoc vs. Court of Appeals, G.R. No. L-62100
(1986); Marcos vs. Manglapus. G.R. No. 88211 (1989); Silverio vs. Court of Appeals, G.R. No. 94284 (1991); Office
of the Court Administrator vs. Heusdens, A.M. No. P-11-2927 (2007); SPARKS vs. Quezon City, G.R. No. 225442
(2017)).
12  Office of the Court Administrator vs. Heusdens, A.M. No. P-11-2927 (2007).
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purpose of travel, including possible victims of human trafficking" from our
ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 [allows] the
Philippine Overseas Employment Administration (POEA) to refuse to issue
deployment permit to a specific country that effectively prevents our migrant
workers to enter such country.
5] The Act on Violence against Women and Children restricts movement
of an individual against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 gives the Inter-Country Adoption
Board the power issue rules restrictive of an adoptee’s right to travel "to protect
the Filipino child from abuse, exploitation, trafficking and/or sale or any other
practice in connection with adoption.13
Right to travel may be restricted by the court in cases where a person is charged with a
crime and is prohibited to flee from the country. At the same, the right to travel may be denied
pursuant to law. Among the limitations enumerated, it is the Philippine Passport Act and Anti-
Trafficking Act that authorize travel restriction absent a pending case. Enforcement of travel
control acts such as the issuance of passports and screening of out-bound international travelers
are presupposed to be acts of the executive departments. However, and as expressly provided in the
constitutional provision, they do not themselves grant that power.14 Hence, the role and the scope
of power of the Bureau of Immigration in implementing measures that affect a fundamental right
of a person is worth subject to scrutiny.
B. Legal Basis of Offloading
The guidelines for international-bound travel measures are primarily a means to further
suppress human trafficking. It is promulgated pursuant to the objectives of the Anti-Trafficking in
Persons Act of 200315 and the Migrant Workers and Overseas Filipinos Act of 1995.16 In 2003, the
Philippines is reported17 to be one of the countries that migrates the largest number of people
abroad. Insufficient working opportunities brought about by the economic decline during the
1970s forced Filipinos to emigrate to other countries to find a new source of livelihood. Filipinos
are aided with lawful means for overseas employment to serve as a safeguard against labor abuse.
However, stringent requirements paved the way to illegal alternatives and consequently opened the
channel which made Filipinos vulnerable to human trafficking.18
Human trafficking is made possible by smuggling victims overseas thru local transportation
routes. The same report provides that 71% of smuggled persons are transported by air.19 Because
13  Id
14  For an in-depth analysis of the nature of travel control acts, see Daniel A. Farber, National Security, the Right to Travel,
and the Court, 1981 Sup. CT. REV. 263 (1981).
15  Act to Institute Policies to Eliminate Trafficking in Persons Especially Women and Children, Establishing the Necessary
Institutional Mechanisms for the Protection and Support of Trafficked Persons, Providing Penalties for its Violations,
and for Other Purposes [Anti-Trafficking in Persons Act], Republic Act No. 9208, (2003).
16  Guidelines on Departure Formalities for International-Bound Passengers [DOJ Memo. Circ. No. 036].
17  United Nations Office on Drugs and Crime and NAPOLCOM, A Survey of Government Experts and Law Enforcement
Case Files: Trafficking in Human Beings from the Philippines Executive Summary, available at https://www.unodc.org/pdf/
crime/human_trafficking/Exec_Summary_NAPOLCOM.pdf (last accessed December 21, 2021).
18  UNODC and NAPOLCOM, supra note 19, at 1.
19  Id. at 6.
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of this, surveillance of ports of exit in airports has been a crucial venue for the battle against
human trafficking. Upon the passing of the Anti-Trafficking in Persons Act in 2003, the Bureau of
Immigration was given the authority to:
( … ) Administer and enforce immigration and alien administration laws. It
shall adopt measures for the apprehension of suspected traffickers both at the place of
arrival and departure and shall ensure compliance by the Filipino fiancés/fiancées and
spouses of foreign nationals with the guidance and counseling requirement as provided
for in this Act.20
The Bureau of Immigration explicitly stresses that the exercise of power to defer departure,
regardless of a visa grant from a foreign country or the costs of travel preparation, is lawfully
mandated by Anti-Trafficking in Persons Act.21 This provision strengthened the patrol at our ports
of exit. In 2016, Trafficking in Persons Report released by U.S. Secretary of State John Kerry, the
Philippines’ commitment to combat human trafficking was elevated to Tier 1.22 It retains the same
Tier 1 status in 2021.23
C. Scope of Power: Bureau of Immigration
Philippine Immigration Act of 194024 which created the Bureau of Immigration was signed
into law by the President of the United States on September 3, 1940.25 Bureau of Immigration
was then under the direct administrative supervision of the Office of the President.26 The said law
granted Immigrant Inspectors the large discretion to:
[Examine] aliens concerning their right to enter or remain in the Philippines
( … ). Immigrant Inspectors are [also] authorized to exclude any alien not properly
documented, admit any alien complying with the applicable provisions of the
immigration laws and to enforce the immigration laws and regulations prescribed
thereunder. Immigrant Inspectors are also empowered to administer oaths, to take and
consider evidence concerning the right of any alien to enter or reside in the Philippines,
and to go aboard and search for aliens on any vessel or other conveyance in which they
believe aliens are being brought into the Philippines. Immigrant Inspectors shall have
the power to arrest, without warrant, any alien who in their presence or view is entering
or is still in the course of entering the Philippines in violation of immigration laws or
regulations prescribed thereunder.27
The powers enumerated pertain to the enforcement of immigration laws relating to the
exclusion, deportation, detention, or repatriation of aliens.28 On the one hand, the law is silent
about the power of the Bureau to intercept and detain Filipino residents bound for international
departure.
In 1972, through the issuance of Letter of Implementation No. 20 and as part of the
20  Anti-Trafficking in Persons Act, § 16 (f ).
21  Bureau of Immigration, Exclusion/Offloading, available at https://immigration.gov.ph/faqs/exclusion-offloading#
(last accessed December 21, 2021)
22  U.S. Embassy in the Philippines, Philippines Upgraded to Tier 1 in 2016 US State Department Trafficking in Person,
available at https://ph.usembassy.gov/philippines-upgraded-tier-1-2016-us-state-department-trafficking-persons-report/
(last accessed December 22, 2021).
23  Department of Foreign Affairs, Philippines Maintains Tier 1 in 2021 State Department Trafficking in Persons
Report, available at https://dfa.gov.ph/dfa-news/dfa-releasesupdate/29192-philippines-maintains-tier-1-in-2021-state-
department-trafficking-in-persons-report (last accessed December 22, 2021).
24  An Act to Control And Regulate the Immigration of Aliens into the Philippines [Philippine Immigration Act of 1940,
Commonwealth Act. No. 613, (1940).
25  Bureau of Immigration, History, available at https://immigration.gov.ph/the-bureau/history (last accessed December
22, 2021).
26 Id.
27  Philippine Immigration Act, § 6.
28  Philippine Immigration Act, § 50 (k).
73

reorganization plan conducted by the Marcos administration, the Bureau was granted quasi-judicial
functions. Pursuant to the implementing letter, it was the Board of Commissioners who obtained
the power to hear deportation cases:
Sec. 15.2. The Board of Commissioners shall have exclusive jurisdiction over
all deportation cases and its decision shall become final and executory ( … ).
The Board shall have the following functions, among others:
a. Issue warrants of arrest against aliens complained of or charged;
( ... )
c. Hear charges, evaluate evidence, formulate conclusions and submit its
decision to the President;
d. Review on appeal or motu proprio the decisions of the Boards of Special
Inquiry;
e. Decide deportation cases and applications for pre-arranged employment as
well as extensions of stay, and act on requests of aliens deported as indigents to return to
the Philippines.29
It is the Administrative Code of 1987 which reestablished the office, “Bureau of
Immigration”. Since 1972, its powers and functions have not been expanded nor delimited.
II. Constitutional Right To Travel
Departure formalities or exclusion practices are difficult to challenge because the
customary explanation of the Bureau of Immigration, as regards allegations of it being violative
of the constitutional right to travel, stresses the inherent limitation provided by the Constitution
itself.30 Additionally, once a government policy is issued and implementing rules are published in
conjunction with it, such policy – contrary to the claim of the Bureau of Immigration31 – acquires
the force of law.32
Presidential issuances are those which the President issues in the exercise of his
ordinance power. They include executive orders, administrative orders, proclamations,
memorandum orders and circulars, and general or special orders. These issuances have
the force and effect of laws.33
Therefore, challenge or refusal to follow a memorandum ordered by the executive
department results in a violation of the law.
A. History of the Legal Right to Travel
This constitutional right has been the subject of countless controversies. Early account
of travel control is found to be enforced in common law England.34 The Writ of Ne Exeat Regno
29  Office of the President, Letter to Implement Part XXI on Administration of Justice and Other Pertinent Provisions
of the Integrated Reorganization Plan Prepared by the Commission on Reorganization Series of 1972 [Letter of
Implementation No. 20, s. 1972], § 15.2 (December 31, 1972).
30  Bureau of Immigration, Exclusion/Offloading, available at https://immigration.gov.ph/faqs/exclusion-offloading (last
accessed Feb. 14, 2022) (in answering the question as to whether the power to defer departure is a curtailment of the
Filipino guaranteed constitutional right to travel).
31  Bureau of Immigration, BI: There is No Such Thinng As “Offloading Policy”, available at https://immigration.
gov.ph/news/press-release/69-march-2014-press-releases/510-bi-there-is-no-such-thing-as-offloading-
policy#:~:text=%E2%80%9COffloading%20is%20not%20a%20policy,based%20on%20their%20respective%20
purposes (last accessed Feb. 15, 2022) (explaining that offloading is a mere consequence of implementation of departure
formalities).
32  See RUBEN E. AGPALO, STATUTORY CONSTRUCTION 34 (2009) (citing Pesigan v. Angeles, G.R. No. 64279,
April 30, 1984).
33  Id.
34  Leonard B. Boudin, The Constitutional Right to Travel, 56 COLUM. L. REV. 47 (1956).
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“prohibits from leaving the realm, without leave of Crown, since to do so would deprive the king
of the subject’s military or other feudal services.”35 In the United States, appeals against travel
control laws gained prominence during the early 20th century when passport started to become
a requirement for travel and eventually evolved to be a form of travel control.36 The outbreak of
World War 2 prompted the requirement of passports in order to regulate travel outside the United
States. It was the Secretary of the State who was granted the authority to issue and deny passports
pursuant to the Basic Passport Law passed in 1856.37 The same situation is shared by the United
States and the Philippines.38
B. Appeal to Travel Control Laws
The Inter-Agency Council Against Trafficking (IACAT) is the primary agency responsible
for the implementation of departure formalities for international-bound passengers.39 Specifically,
the authority to administer departure and arrival formalities is granted to the Bureau of
Immigration.40 According to the implementing rules and regulations published by the IACAT,
the enforcement of departure and arrival policies are mandatory and must be applied strictly to an
extent which would not violate a person’s right to travel.41 Substantive law warrants the authority
of these government agencies as well as the scope up to which they can enforce the said guidelines.
However, consequences arising from the implementation of the Guideline on Departure Formalities
appear to violate not only the guaranteed right to travel but other fundamental constitutional
rights. Inquiry as to the nature of the right to travel is necessary in this regard.
C. Right to Travel
C.1. Completeness Test
The court enumerates in the case of Genuino v. Delima42 the three considerations which
may permit a restriction in the right to travel: 1) national security; 2) public safety; or 3) public
health.43 As a further requirement, the same case emphasizes that a legislative enactment or the
Rules of Court expressly providing for such impairment must exist. This is necessary to “prevent
inordinate restraints on the person’s right to travel by administrative officials who may be tempted
to wield authority under the guise of national security, public safety or public health.”44 It should
be noted that administrative agencies like the Bureau of Immigration are equipped with quasi-
legislative powers. However, before an administrative issuance can be considered valid, there must
first be showing that the delegation of legislative power is valid. Such validity is determined by the
completeness test, to wit: 1) it is complete in itself, setting forth therein the policy to be executed,
carried out, or implemented by the delegate; and 2) fixes a standard – the limits of which are
sufficiently determinate and determinable to which the delegate must conform in the performance
35  Id. (citing Diplock, Passports and Protection in International Law, 32 THE GROTIUS SOC’Y 42, 44 (1947).
36  Pacifico Agabin, The Paper Curtain: the Right to Travel and Its Restrictions, 34 PHIL. L.J. 500, 502 (1959) (explaining
that passports were initially issued merely for the purpose of identification).
37  Id.
38 Catindig, supra note 8, at 544 (citing the Cooper Act of July 1, 1902 which vested the power to conduct foreign
relations, including matters about travel and issuance of passports, in the United States).
39  Inter-Agency Council Against Trafficking Revised Rules and Regulations Implementing The Expanded Anti-Trafficking
in Persons Act of 2012, Republic Act No. 10364, rule VI, § 121 (2018).
40  Supra note at 20
41  Id. rule II, § 25.
42  Supra note at 11.
43  Genuino v. Delima (citing ISAGANI A. CRUZ, CONSTITUTIONAL LAW 172 (2nd ed. 2000).
44  Supra note at 9.
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of his functions.45
The legislative enactment delegating the power to conduct measures necessary for the
enforcement of laws against human trafficking to the Bureau of Immigration is the Anti-Trafficking
in Persons Act. The provision limited the delegation to measure for the apprehension of suspected
traffickers. However, the grant of authority to administer and enforce immigration laws is rather
vague and is prone to digression. Moreover, nowhere in the law is it expressly provided that the right
to travel can be impaired to prioritize security from human trafficking. In conclusion, the grant of
authority to the Bureau of Immigration may not be sufficient.
Conclusion
Encounter with immigration officers has brought fear to first-time and solo travelers,
especially women.46 Moreover, embarrassment and injury which may result from proceeding to a
second inspection wherein travelers are interrogated as regards their money, educational attainment,
and other private information47 is a consequence which demands careful implementation on the part
of government authorities. At present, the guideline has never been questioned in a legal proceeding.
In finding that discrimination experienced by travelers, including the fact that wrongful deferrals
are committed by Immigration Officers,48 preventive steps or legal action must be the response.
First, failed or wrongful offloading may be prevented if documents are reviewed prior to departure.
In this case, potential victims of human trafficking can be easily filtered. Continuous training of
immigration officers must also be conducted. Secondly, the modernization of the Immigration Law
must be prioritized. It has been more than a decade since the organic law creating the Bureau of
Immigration has been passed. Since then, no modification was enacted. To amend the Immigration
Law would allow departure guidelines to be refined through legislation. Moreover, this will prevent
an attack to the constitutionality of the acts performed by Immigration Officers.
45  William C. Dagan v. Philippine Racing Commission, 598 Phil. 406, 417 (2009).
46  Maria Cecilia Hwang, Exit Denied: Women Losing the Right to Leave in the Philippines, OPEN DEMOCRACY,
November 2021, available at https://www.opendemocracy.net/en/beyond-trafficking-and-slavery/exit-denied-women-
losing-the-right-to-leave-in-the-philippines/ (last accessed February 14, 2022).
47  INQUIRER.net, Financial Capacity Not a Requirement to Travel, INQUIRER.NET, March 2014, available at https://
globalnation.inquirer.net/100423/financial-capacity-not-a-requirement-to-travel-immigration-chief (last accessed, Feb.
14, 2022).
48  William B. Depasupil, New Zealand Defends 8 Offloaded Filipino Nurses, MANILA TIMES, February 8, 2021,
available at https://www.manilatimes.net/2021/02/08/news/top-stories/new-zealand-defends-8-offloaded-filipino-
nurses/838006 (last accessed, Feb. 14, 2022).
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The Bangsamoro Organic Law: A Glimpse of National Identity, Unity,
and Security Under the Philippine Political System
Rhaymund Lorenz M. Gratela
Introduction
The island of Mindanao in the southern part of the Philippines is home to the largest
concentration of ethnic minorities in the country, collectively known as Moros.1 The distinct
character of the Moros was caused by the introduction of Islam which split the ethnic communities
of Mindanao into two categories: Moros and Lumads. Moros refer to those who adopted Islam and
those who did not become the Lumads, a Visayan term which means “born of the earth.”2
The dawn of Spanish conquest brought violent incursions upon the Moros due to the latter’s
belief in Islam, yet, they withstood efforts to be subjugated while the rest of the colonial Philippines
was brought under Spanish rule.3 Unfortunately, the same cannot be said for the subsequent arrival
of the United States of America as the Moros were overwhelmed by the American forces.4
American rule reshaped the Moro economy, especially in terms of property ownership.
Colonial policies resulted in the concentration of economic resources in favor of Christian Filipino
settlers and large American corporations. Philippine independence which followed the cessation
of the United States’ colonial rule, unfortunately, did not restore to the Moro people what was
rightfully their own due to the fact that Christian Filipino settlers remained in control of Mindanao’s
economic resources. 5
As early as 1954, economic disparities between Muslims and Christians generated by
Christian migration to Mindanao were already becoming conspicuous thus prompting the
Philippine Congress to initiate efforts to integrate Muslim Filipinos through scholarship programs.6
This program, however, backfired and resulted in the awakening of separatist movements. One of
the scholars under the program was Nur Misuari, the founder of the Moro National Liberation
Front (MNLF). The rise of these separatist movements was followed by several negotiations between
the Philippine government and the MNLF. Despite such efforts, however, the struggle for secession
remains until this day.7
On July 23, 2018, the Philippine Congress passed Republic Act No. 11054, hereinafter
referred to as the Bangsamoro Organic Law (BOL). It was thereafter signed by President Rodrigo
Duterte on July 27, 2018. The BOL serves as the organic act establishing the Bangsamoro
1  Britannica, Mindanao, available at https://www.britannica.com/place/Mindanao (last accessed November 2, 2021).
2  Raymundo D. Rovillos & Daisy N. Morales, Indigenous Peoples/Ethnic Minorities And Poverty Reduction
Philippines 4 (2002).
3  See Filipinas Heritage Library, The Moro to the Spanish colonizers, available at https://www.filipinaslibrary.org.ph/
articles/the-moro-to-the-spanish-colonizers/ (last accessed November 2, 2021).
4  See Hannbal Bara, The History of the Muslim in the Philippines, available at https://ncca.gov.ph/about-ncca-3/
subcommissions/subcommission-on-cultural-communities-and-traditional-arts-sccta/central-cultural-communities/
the-history-of-the-muslim-in-the-philippines/ (last accessed December 28, 2021).
5  See Jamail A. Kamlian, Ethnic and Religious Conflict in Southern Philippines: A Discourse on Self-Determination, Political
Autonomy, and Conflict Resolution, Global & Strategis, Th. 5, No.1, 4; See also Rovillos & Morales, supra note 2 at
9-10; Cristina Jayme Montiel, et. al., Political Positioning in Asymmetric Intergroup Conflicts: Three Cases from War-torn
Mindanao, in Words Of Conflict, Words Of War 174-178 (Fathali Moghaddam & Rom Harré, 2010).
6  Thomas M. McKenna, The Origins of the Muslim Separatist Movement in the Philippines, available at https://
asiasociety.org/origins-muslim-separatist-movement-philippines (last accessed November 2, 2021).
7  Id. See also Ray Maynard J. Bacus, Autonomy or Secession: Analysis of the Constitutionality of the Bangsamoro Basic Law,
59 Ateneo L.J. 1433, 1438-1442 (2015).
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Autonomous Region in Muslim Mindanao (BARMM), the administrative authority for the region.
The law likewise lays down the fundamental principles governing the Bangsamoro (the statutory
denomination of the Moro people) and defines the powers of the BARMM.
The objective of this work is to examine the provisions of the BOL and discuss how it
incorporates the basic doctrines of the Philippine political system to establish national unity, build
the Moro identity, and maintain peace and security in Muslim Mindanao. In the course of the
discussion, this article will refer to judicial precedents and the expositions of scholars and academics
in the fields of history, politics, law, and security.
Local Autonomy
The existence of the BARMM finds basis in the 1987 Constitution which expressly
states: “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.”8 However, as explained by the late Fr. Joaquin G. Bernas,
S.J., a member of the 1986 Constitutional Commission which drafted the 1987 Constitution,
the language of the quoted provision and the context of Philippine legal history evince that the
Constitution does not create these political subdivisions as operative institutions.9 Thus comes the
need for organic laws such as R.A. No. 11054, or the Bangsamoro Organic Law, to give life to the
constitutional mandate providing for an autonomous region in Muslim Mindanao.
A fundamental principle upon which the BARMM is established is local autonomy. Local
autonomy signifies “a more responsive and accountable local government structure instituted
through a system of decentralization.”10 The grant of autonomy is intended to break up the
monopoly of the national government over the affairs of local governments, not to end the relation
of partnership and interdependence between the central administration and local government units.
Paradoxically, local governments are still subject to regulation, however, limited for the purpose of
enhancing self-government.11
Under the Philippine concept of local autonomy, the national government has not
completely relinquished all its powers over local governments, including autonomous regions. Only
administrative powers over local affairs are delegated to political subdivisions. The purpose of the
delegation is to make governance more directly responsive and effective at the local levels. In turn,
economic, political, and social development at the smaller political units is expected to propel
social and economic growth and development. But to enable the country to develop as a whole,
the programs and policies effected locally must be integrated and coordinated towards a common
national goal. Thus, policy-setting for the entire country still lies in the President and Congress.
Municipal governments are still agents of the national government.12
The 1987 Constitution further sets in clear terms that:
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
8  Phil. Const. art. X, § 1 (emphasis supplied).
9  Joaquin G. Bernas, S.J., The 1987 Constitution Of The Republic Of The Philippines: A Commentary 1111
(2009).
10  Pimentel, Jr. v. Aguirre, G.R. No. 132988, 391 Phil. 84-121 (2000).
11  Id.
12  Id.
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other relevant characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.13
Moreover, as expressly reflected in Section 17, Article X of the Constitution, “all powers
and functions not granted by this Constitution or by law to the autonomous regions shall be vested in the
National Government.”14
The principle of local autonomy under the 1987 Constitution simply means
“decentralization”15 It does not make local governments sovereign within the state or an “imperium
in imperio.” Local government has been described as a political subdivision of a nation or state which
is constituted by law and has substantial control of local affairs. In a unitary system of government,
such as the government under the Philippine Constitution, local governments can only be an intra
sovereign subdivision of one sovereign nation. Local government in such a system can only mean a
measure of decentralization of the function of government.16
The rationale for the adoption of local autonomy is based upon the Jeffersonian view that
“municipal corporations are the small republics from which the great one derives its strength.”17
Cruz & Cruz elucidate on this matter in this wise:
The belief is shared in this country that vitalization of the local government
unit will enable its inhabitants to develop their resources and thereby contribute to the
progress of the whole nation. More importantly, they will acquire a deepened sense of
involvement that will encourage them to participate more actively in the direction of
public affairs as members of the body politic.18
A Part of the Republic
Sovereignty is the supreme and uncontrollable power inherent in a state by which that
state is governed.19 This element of state existence connotes the capacity to enter into relations
with other states.20 An examination of the provisions of the BOL, as well as jurisprudence on local
autonomy, supports the conclusion that the BARMM is not an independent state. As stated earlier,
local autonomy is not equal to political independence. On the contrary, the principle of local
autonomy under the Philippine political system establishes a relationship between the national
government and the local governments similar to that of a principal and an agent.21
Indeed, the rationale of the 1987 Constitution in providing for local autonomy is to
empower the various subdivisions of the government to the end that they can achieve development
at the local level.22 The constitutional provisions on autonomy — specifically, Sections 15 to 21 of
Article X of the Constitution — constitute express limitations on legislative power as they define
autonomy, its requirements, and its parameters, thus limiting what is otherwise the unlimited
power of Congress to legislate on the governance of the autonomous region.23
13  Phil. Const. art. X, § 15 (emphasis supplied).
14  Abas Kida v. Senate of the Philippines, G.R. Nos. 196271, 196305, 197221, 197280, 197282, 197392 & 197454,
675 Phil. 316-442 (2011).
15  Basco v. Philippine Amusements and Gaming Corp., G.R. No. 91649, 274 Phil. 323-346 (1991).
16  Id.
17  Isagani A. Cruz & Carlo L. Cruz, Philippine Political Law 119 (2014).
18  Id.
19  Id at 43, citing Garner, Political Science And Government, 238, 170.
20  See Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain,
G.R. Nos. 183591, 183752, 183893, 183951 & 183962, 589 Phil. 387-732 (2008).
21  See Pimentel, Jr., 391 Phil. 84-121, citing Magtajas v. Pryce Properties Corp., Inc.
22  See Cruz & Cruz, supra note 17.
23  Abas Kida, 675 Phil. 316-442.
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Nevertheless, the Constitution’s grant of autonomy does not mean that it abdicates
sovereignty over the autonomous regions. As expressly reflected in Section 17, Article X of the 1987
Constitution, “all powers and functions not granted by this Constitution or by law to the autonomous
regions shall be vested in the National Government.” The Philippine Supreme Court explained in Abas
Kida v. Senate of the Philippines that:
The totality of Sections 15 to 21 of Article X should likewise serve as a standard
that Congress must observe in dealing with legislation touching on the affairs of the
autonomous regions. The terms of these sections leave no doubt on what the Constitution
intends — the idea of self-rule or self-government, in particular, the power to legislate
on a wide array of social, economic, and administrative matters. But equally clear under
these provisions are the permeating principles of national sovereignty and the territorial
integrity of the Republic, as expressed in the above-quoted Section 17 and Section 15.
In other words, the Constitution and the supporting jurisprudence, as they now stand,
reject the notion of imperium et imperio in the relationship between the national and the
regional governments.24
Meanwhile, the BOL ordains in express terms that the BARMM is an “integral, indivisible,
and inseparable part of the territory of the Republic of the Philippines.”25 Moreover, the Bangsamoro
are bound to uphold the Constitution as the fundamental law of the land and unequivocally owe
allegiance and fidelity to the Republic of the Philippines.26
Another testament to the BARMM’s lack of independence is that it is bereft of any
authority to engage in foreign relations independent of the national government. Under the BOL,
the BARMM is mandated to respect and adhere to all international treaties and agreements binding
upon the national government.27 The law, however, allows the BARMM to establish linkages for
cultural exchange, economic, and technical cooperation with countries having diplomatic relations
with the Philippines but such act is subject to review and approval by the national government.
28
On this score, the BOL avoided the constitutional error of the Memorandum of Agreement on
the Ancestral Domain (MOA-AD) Aspect of the Government of the Republic of the Philippines-
Moro Islamic Liberation Front Tripoli Agreement on Peace of 2001. The controversy over the
MOA-AD’s validity was the subject matter of the Philippine Supreme Court’s decision in Province
of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain.29
The MOA-AD was the supposed charter for the Bangsamoro Juridical Entity (BJE), a precursor
of the BARMM. The same was struck down by the Supreme Court as unconstitutional on various
grounds, one of which is that it allowed the BJE to enter into any economic cooperation and trade
relations with foreign countries thereby encroaching upon the powers of the national government
under the Constitution. Under the Philippine constitutional system, it is only the President who
has that power.30
The BOL also vests upon the national government all powers, functions, and responsibilities
not granted by the Constitution or by national law to the Bangsamoro government.31 This expression
of the residual powers of the national government is a reflection of the 1987 Constitution’s
24  Id.
25  An Act Providing for the Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao, Repealing
for the Purpose Republic Act No. 6734, Entitled “An Act Providing for an Organic Act for the Autonomous Region in
Muslim Mindanao,” As Amended By Republic Act No. 9054, Entitled “An Act to Strengthen and Expand the Organic
Act for the Autonomous Region in Muslim Mindanao” [Organic Law for the Bangsamoro Autonomous Region in
Muslim Mindanao], Republic Act No. 11054, art. IV, § 1 (2018).
26  Id.
27  Id. art. IV, § 8.
28  Id. art. XII, § 28.
29  Province of North Cotabato, 589 Phil. 387-732.
30  Id.
31  Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao, art. V, § 1.
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provision in Section 17, Article X. This likewise evinces the intent to withhold independence from
the BARMM.
The preceding discussions lead us to the inevitable conclusion that the BOL does not
accord independence upon the Moro people. What the BOL provides is merely a great degree
of administrative autonomy in line with the idea of self-determination. Despite its autonomous
character, the BARMM remains to be an integral part of the Republic of the Philippines thus
negating the notion that it is sovereign by itself. We find certainty in this conclusion by alluding
to the criteria laid down by the Montevideo Convention which was used by the Supreme Court
in determining the status of the BJE in the Province of North Cotabato Case. These criteria are: 1) a
permanent population, 2) a defined territory, 3) a government, and 4) a capacity to enter into
relations with other states.32 The BOL’s provisions clearly show the absence of the fourth element.
The Bangsamoro government does not hold the capacity to enter into relations with other states.
Maintaining sovereignty over the BARMM is vital in preserving security in Mindanao.
Security academics have identified territorial integrity and sovereignty as one of the widely recognized
ideal conditions of national security.33 This means that the territory is intact and the government
exercises effective control over it.34 With the integration of the BARMM into the governmental
framework of the Republic, the national government can effectively supervise the development and
progress of the Moro people.
The formation of the BARMM can be considered as a mechanism to retain territorial
integrity while recognizing the need for autonomy and self-government. This is a process called
asymmetrical autonomy. Asymmetrical autonomy refers to statutory arrangements whereby
in decentralized, unitary, and federal systems special powers and functions are decentralized to
a specific region as a result of the region's unique historic, ethnic, or geographical status. The
autonomy of such a recipient region includes additional powers and functions that would ordinarily
not form part of the powers of other regions within the same country hence the concept is called
“asymmetric”.35 According to scholars, asymmetry means that certain sub-national jurisdictions
are awarded a greater degree of flexibility, discretion, and autonomy than their counterparts in
the range of matters over which it can make and implement decisions, greater freedom to design
institutions that are applicable to the specific jurisdiction, special powers to develop and utilize
economic resources or special representation of the sub-national entity within national power-
sharing institutions.36
In the context of the Bangsamoro, the process approximates the grant of independence
which has been the subject of secessionist movements in Mindanao. The BOL provides the BARMM
with powers which are distinct to it as compared to other political units in the Philippines. To
illustrate, the BOL contains provisions on a unique justice system, local economy and patrimony,
and foreign linkages, among others. By comparison, Executive Order No. 220, s. 1987, the charter
for the Cordillera Administrative Region (CAR), is devoid of such special provisions thus limiting
the administrative capabilities of the CAR. Moreover, the BARMM wields prerogatives far superior
than those of provinces, cities, municipalities, and barangays under the Philippine local government
system.37
32  Province of North Cotabato, 589 Phil. 387-732.
33  See Gabriel Ma. J. Lopez, Integrating National Security into Philippine Regional Development Planning, 6 Natl. Sec.
Rev 40, 42 (2013).
34  Id.
35  Bertus de Villiers, Special Regional Autonomy in a Unitary System – Preliminary Observations on the Case of the Bangsomoro
Homeland in the Philippines, 48 VRÜ 205, 208 (2015).
36  Id at 210.
37  See generally An Act Providing for a Local Government Code of 1991 [Local Gov’t Code], Republic Act No. 7160
81

Asymmetry, however, may give rise to complications due to the constitutional limitations
on local autonomy. It is an established principle that the Constitution is the highest law of the land.
It is the basic and paramount law to which all persons, including the highest officials of the land,
must defer. No act shall be valid, however noble its intentions if it conflicts with the Constitution.38
The grant of autonomy must therefore be consistent with the terms of the Constitution and
its established supporting jurisprudence.39 As early as the legislative deliberation stage of the
Bangsamoro Organic Law (then referred to as the Bangsamoro Basic Law), legal scholars have
already pointed out the constitutional infirmity in adopting an asymmetric relationship between
the national government and the BARMM.40 Some even equate this asymmetry to the “associative
relationship” under the MOA-AD which was declared unconstitutional by the Supreme Court.41
It must be noted that the BOL as it stands in the statute books was purged of any reference to
“asymmetry”. Nevertheless, it is the examination of its provisions in its entirety which will determine
whether such a relationship remains under the law. This may perhaps be the subject of a Supreme
Court decision in the near future.
Building the Moro identity
People, as an element of a state, refer to its inhabitants.42 They may develop and share
certain characteristics and interests, such as common language, religion, customs, and traditions.
These similarities bind them into what is known as a nation.43
The territory over which the BARMM exercises its administrative authority is home to the
Moros. They comprise the 13 Islamized ethnolinguistic groups of Mindanao, Sulu, and Palawan.44
The major groups are Tausug, Maguindanao and Maranao who are primarily in Mindanao.45
Majority of the Moros are peasants, subsisting mainly by farming and fishing.46
The term Moro originated as a derogatory term used by Spanish colonizers to refer to the
groups following the Islamic faith who resisted colonization and Christianization.47 The term later
evolved to represent their continued defiance to colonization, institutionalized discrimination, and
state oppression.48
A major development is the statutory recognition of the Moro nation as declared in the
BOL, to wit:
Those who, at the advent of the Spanish colonization, were considered as
natives or original inhabitants of Mindanao and the Sulu archipelago and its adjacent
(1991).
38  Tawang Multi-purpose Cooperative v. La Trinidad Water District, G.R. No. 166471, 661 Phil. 390-426 (2011).
39  See Abas Kida, 675 Phil. 316-442.
40  See Soliman M. Santos, Jr., The Bangsamoro Basic Law: Step Forward on a Longer Road to Peace, 59 Ateneo L.J. 1065,
1086-1087 (2015).
41 Bacus, supra note 7 at 1456. See also Sedfrey Candelaria & Sang Mee A. Lee, The Proposed Bangsamoro Basic Law and
the Primacy of the Sovereign Power of the State, 62 Ateneo L.J. 162, 185 (2018)
42  See Cruz & Cruz, supra note 17 at 21.
43  See Id at 22.
44 Kamlian, supra note 5 at 2.
45  Moro-Christian Peoples Alliance, The Human Rights Situation of the Moro People in the Philippines (Submission to
the Office of the High Commissioner on Human Rights), at 1, available at https://www.upr-info.org/sites/default/files/
document/philippines/session_13_-_may_2012/mcpauprphls13themorochristianpeoplesalliancee.pdf (last accessed
October 9, 2021).
46  Id.
47  Id.
48  Id.
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islands, whether of mixed or of full blood, shall have the right to identify themselves, their
spouses and descendants, as Bangsamoro.49
The BOL further upholds the rights of the Moros by expressly affirming their freedom
of choice to “retain their distinct indigenous and ethnic identity in addition to their Bangsamoro
political identity” and prohibiting discrimination on the basis of identity, religion, and ethnicity.50
In contrast, an examination of Republic Act No. 6734, the predecessor of the BOL, would show
that it did not deal with the recognition of the Moro national identity. The organic law of the
former Autonomous Region in Muslim Mindanao merely provided for its political structure and
administrative functions.
It is worth noting, however, that the historic background of the Bangsamoro in the context
of Philippine politics presents a clear manifestation of their refusal to be identified as Filipinos. For
instance, on March 18, 1935, 120 Bangsamoro datus, or local rulers, of Lanao came up with the
historical document popularly known as the Dansalan Declaration. The document, which was
directed to the U.S. colonial government then in power, expressed their desire to be excluded
from the “independence” to be granted to the Filipinos in the North of the archipelago. The
Declaration reasoned that there would be trouble between the Moros and Filipinos because “from
time immemorial these two peoples have not lived harmoniously together.”51 Another example is
the introduction of a bill in 1961 by Congressman Ombra Amilbangsa of Sulu proposing the grant
and recognition of political independence for the province of Sulu.52 The following years saw the
emergence of the Muslim Independence Movement (MIM) and the Moro National Liberation
Front (MNLF). The MIM, organized in 1968, aspired for the outright secession of Mindanao,
Sulu and Palawan regions from the Philippine control and even called for a jihad, or holy war,
to defend the Bangsamoro homeland.53 On the other hand, the MNLF surfaced in the 1970s
with attacks against Philippine military detachments. It aimed for the complete liberation of the
Bangsamoro people and the independence of Mindanao, primarily through armed struggle. The
MNLF bannered the Bangsamoro national identity and desired the establishment of no less than a
Bangsamoro Republic.54
The BOL vitalizes the BARMM’s capability to promote and develop the Bangsamoro by
ensuring that it has the means for self-governance. By this principle, the BARMM is free to pursue
its political, economic, social, and cultural development.55 This enables the BARMM to formulate
and implement the necessary policies and programs for the advancement of the welfare of the
Moros. The policy allows them to achieve the much sought-after capacity for self-determination. In
this regard, the law presents an attempt to approximate independence.
Noteworthy is the grant to the indigenous people and communities of “an equitable share
of revenues generated from the exploration, development, and utilization of natural resources that are
found within the territories covered by a native, traditional, or customary title in their favor.”56 This
grant, however, requires the Bangsamoro Parliament to enact implementing legislation. Pertinently,
the BOL mandates the Bangsamoro government to enact a law recognizing the rights of indigenous
peoples in the BARMM to natural resources covered by a native title, including the share in revenues
and priority rights in the exploration, development, and utilization of such natural resources
49  Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao, art. II, § 1.
50  Id. art. IV, § 10.
51 Kamlian, supra note 5 at 3-4.
52  Id at 5.
53  Id.
54  Id at 6.
55  Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao, art. IV, § 2.
56  Id. art. XII, §36.
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within their area.57 The BOL also embodies the principle of “free, prior and informed consent” by the
indigenous peoples in relation to development initiatives and the exploration, development, and
utilization of the natural resources within ancestral domains.58
Economic reforms geared toward the development of the Bangsamoro are in great need.
Colonization, particularly by the United States, severely affected the local economy of the Moros.
Jamail A. Kamlian, a history professor and author of the book Bangsamoro Society and Culture,
detailed that the U.S. colonial government systematized and regulated the whole process of land
ownership, land registration, cadastral survey, homesteading and agricultural investments.59 The
ancestral lands and economic resources of the Moros and Lumad gradually drifted into the hands of
Christian Filipino settlers and large U.S. corporations through class legislation and discriminatory
processes.60 For instance, the Public Land Act, or Commonwealth Act No. 141, provided for
dispositions of public lands in Mindanao which favored Christian Filipinos over non-Christians.61
Author and anthropology professor Thomas M. McKenna noted that the Muslim
separatist rebellions, which emerged in the 1970s and persist until the present time, were remotely
caused by the policies and practices of the Philippine colonial and national states. He added that
early American rule in the region followed a pattern quite similar to American governance of the
rest of the colony – “pious paternalism punctuated by brutal pacification operations.”62 Moreover,
a study involving several organizations in Mindanao found that intergroup conflict in the region is
based primarily on land ownership.63
Promoting the ethnic identity of the Moros and providing them with sufficient economic
resources are adequate means to alleviate the security concerns in their region. One of the widely
recognized ideal conditions of national security is cultural cohesiveness and national harmony. This
means that the people must preserve the cultural traditions which have been passed down by their
ancestors and diverse communities of people must have good relations with each other despite their
differences.64
Another ideal condition is economic stability, which requires a strong economy that can
provide the citizens with a decent standard of living.65 It must be recalled that land ownership in
Mindanao is a prevailing theme in intergroup conflicts. Thus, the security situation in the region is
closely linked to the economic conditions of the Bangsamoro. This is addressed by the BOL through
the economic policies laid down therein which are evidently crafted to accord the Moros with
greater economic advantages and opportunities.
Bridging Democracy and Security under the Bangsamoro Organic Law
The BOL echoes the 1987 Constitution’s adoption of democracy and republicanism under
Section 1, Article II of the latter. Democracy is essentially a government by the people.66 On the
57  Id. art. XII, §12.
58  Id.
59  Jamail A. Kamlian, Who are the Moro people? available at https://opinion.inquirer.net/39098/who-are-the-moro-
people (last accessed December 24, 2021).
60  Id. See also Kamlian, supra note 5 at 4-5; Montiel, et. al., supra note 5.
61  Montiel, et. al., supra note 5 at 176-178.
62 McKenna, supra note 6.
63  Montiel, et. al., supra note 5 at 178-180.
64  See Lopez, supra note 33.
65  Id.
66  Cruz & Cruz, supra note 17 at 87.
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other hand, a republican form of government is understood as “one constructed on this principle,
that the supreme power resides in the body of the people.”67 It is a representative government, run
by and for the people.68 According to scholars, the essence of republicanism is representation and
renovation, which is the selection by the citizenry of a corps of public functionaries who derive their
mandate from the people and act on their behalf, serving for a limited period only, after which they
are replaced or retained at the option of their principal. 69
Section 3, Article IV of the BOL establishes a democratic political system that allows its
people to freely participate in the political processes within its territorial jurisdiction. It further
provides for the adoption of a parliamentary form of government, which is a deviation from the
presidential form of government under our constitutional system but nevertheless allows for a
representative and participative government. According to political and legal analyst Tony La Viña,
a parliamentary government would end decades of political dynasties, warlordism, and patronage.
He stated that “[w]ith political parties in the parliament, no single-family can run the region.” One
family cannot take control unless they form an alliance.70
The BOL also provides for an electoral system which allows democratic participation,
encourages the formation of genuinely principled political parties, and ensures accountability.71
Moreover, the BOL enhances public participation and representation and promotes inclusivity by
allocating seats in the Parliament to various sectors such as members of political parties, district
representatives, sectoral representatives, and even representatives for non-Moro indigenous people.72
Present-day politics has shown the nexus between democracy and security. It must first be
noted that two important concepts in security discussions are national security and human security.
Security academic Cesar P. Pobre defined national security as “a state or condition under which
the things that a state holds most dear are preserved and enhanced.” According to him, these
“dear” things are no less than the essential components of the state itself: people, sovereignty or
independence, territory, and government.73 National security, therefore, encompasses all aspects of
the preservation of the state as well as its development. On the other hand, Large & Sisk explain
that human security emphasizes the protection of people from grave threats to their lives, their
safety from harm and violent conflict, and their empowerment against such social threats as disease
or crime.74 Human security, therefore, touches upon the personal level of security.
Democracy enables the protection of people through the advancement of human rights.75
Democratic practices provide for the empowerment of people for critical developmental outcomes
such as education, health care, and opportunities for livelihood.76 International scholars are in
agreement that “attention to human security is necessary to establish the minimal conditions under
which formal democracy can be meaningfully practiced and domestic and international peace
can be secured.”77 For example, holding an election in the midst of widespread, violent political
67 Bernas, supra note 9 at 56.
68  Cruz & Cruz, supra note 17 at 90.
69  Id.
70  Lian Buan, Governor Tan of Sulu runs to Supreme Court to block Bangsamoro law, Rappler, October 30, 2018 available
at https://www.rappler.com/nation/sulu-abdusakur-tan-ii-supreme-court-petition-block-bangsamoro-organic-law (last
accessed December 22, 2021).
71  Organic Law for the Bangsamoro Autonomous Region in Muslim Mindanao, art. IV, § 4.
72  Id. art. VII, §§ 7-9.
73  Cesar P. Pobre, Trends in Security Thought, 6 Natl. Sec. Rev. 11, 20 (2013).
74  Judith Large & Timothy D. Sisk, Democracy, Conflict And Human Security: Pursuing Peace In The 21st
Century 14 (2006).
75  Id.
76  Id.
77  Id.
85

conflict will inherently produce limited results.78 Simply put, the maintenance of human security is
a condition which must precede the institution of democratic measures.
Policy analysts have also found that a principal feature of weak state environments and
internal violence is often the absence or inadequacies of democratic channels and response.79 Social
conflicts occur when governance processes fail to manage conflict adequately through genuine
political dialogue, mechanisms for legitimate decision making, and the rule of law.80 In fact, socio-
political stability has been identified as one of the widely recognized ideal conditions of national
security.81 This refers to the maintenance of peace and good relations among individuals in the state
and between the people and the government.82
Intimately related to discussions on security is peace. Scholars are, however, divided
as to whether democracy directly results in peace. Democracy is associated with peace because
democracies almost never fight each other although they may be embroiled in conflicts with non-
democracies.83 Scholars point out two classes of explanations as to why democracies have been
observed to be more peaceful in their relationships with each other. First, democratic political
institutions nurture peace between democracies. The reason is that democratic leaders are elected,
thus, they know that pursuing unpopular policies, such as waging a war, will increase their likelihood
of being removed from office.84 Second, democracies adhere to certain norms. Democratic political
culture emphasizes nonviolent means of conflict resolution, using tactics such as law and the courts,
elections, and free speech to resolve disputes.85 Meanwhile, there exist two schools of thought which
reject the notion of democratic peace, namely: 1) the Spuriousness Critique; and 2) the Causal
Arrow Critique. The first critique proposes that the observed peace between democracies is caused
by factors other than democracy, and not by democracy itself.86 On the other hand, the second
suggests peace causes democracy but democracy does not cause peace.87 This must serve as a caveat
to policymakers to the effect that democratic processes do not necessarily entail peace.
With regard to the BOL, persisting opposition from armed insurgents prevents the law
from achieving the aspired degree of peace and security in Mindanao. Malcolm Cook, a Senior
Fellow at the ISEAS – Yusof Ishak Institute, noted that the Bangsamoro Islamic Freedom Fighters
(BIFF), a splinter group of the Moro Islamic Liberation Front (MILF), opposed the negotiations
between the national government and the MILF.88 The BIFF perceives the establishment of the
Bangsamoro Autonomous Region in Muslim Mindanao as an agreement between the government
and the MILF. The Maute Group likewise opposed the MILF negotiations with the government.
The group was responsible for the Marawi siege back in 2017. Cook reported that terrorist attacks by
local groups in the BARMM continue despite the invocation of martial law across all of Mindanao
78  Id.
79  Institute for Democracy and Electoral Assistance, Democracy, Conflict and Human Security (Policy Summary:
Key Findings and Recommendations) at 7, available at https://www.idea.int/sites/default/files/publications/chapters/
democracy-conflict-and-human-security/democracy-conflict-and-human-security-handbook-policy-summary.pdf (last
accessed October 27, 2021).
80  Id.
81  See Lopez, supra note 33.
82  Id.
83  See Dan Reiter, Is Democracy a Cause of Peace? (Oxford Research Encyclopedia of Politics) at 2, available at https://
oxfordre.com/politics/view/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-287 (last accessed
December 28, 2021).
84  Id at 3.
85  Id.
86  Id at 6.
87  Id at 12.
88  Malcolm Cook, Three Challenges Facing the Bangsamoro Organic Law, Perspective, December 26, 2018, Issue No. 82,
at 3.
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and the passage of the BOL. He suggests that such attacks are likely to persist for the foreseeable
future and pose another ongoing challenge for the BOL and the BARMM.89
Aside from opposition from armed groups, the BOL is also assailed on the legal front
through a petition before the Supreme Court filed by Governor Abdusakur Tan II of Sulu. Governor
Tan challenges the constitutionality of the Bangsamoro Organic Law on various grounds but the
main point of contention is that the different provinces in the former Autonomous Region in
Muslim Mindanao (ARMM) should not be treated as “one geographical area” under Section 3(a),
Article XV of the BOL. For the petitioners, the votes of Sulu should be recognized as being separate
from the majority vote of the ARMM, meaning that if majority of the votes from Sulu reject the
BOL, then the province should not be part of the Bangsamoro.90
Conclusion
National unity lies at the core of the Bangsamoro Organic Law. The BOL does not envision
the severance of the Republic’s ties with the Bangsamoro, rather, it augments the latter’s capabilities
to be a self-sustaining and progressive community signifying that despite the ethnic, religious,
and cultural diversity, the people of the Philippines are united under a regime of democracy. The
BOL seeks to provide the Bangsamoro with the means to achieve regional development through
the institutions established under the Philippine political system. This can be observed in its
adoption of democratic principles, incorporation of broad opportunity for public participation and
representation, and strengthening local autonomy by enhancing the capabilities of the Bangsamoro’s
administrative authority. Here, we see the harmonious interplay of local autonomy and democracy,
the former allowing the latter to cascade to the minutest political units thereby ensuring that the
Bangsamoro receives the full benefit thereof.
Modern politics exhibit the relationship between democracy and security. Maintaining
national security and human security necessarily involves the preservation of internal peace and
unity through the adoption of democratic processes and providing means for public participation
in the administration of the government. In this regard, the BOL provides measures to attain
internal peace by incorporating democratic and republican principles, such as the institution of an
electoral process and the representation of diverse sectors in the Parliament.
The BOL is truly a landmark piece of legislation which would set momentous precedents
for the Bangsamoro. However, its capabilities are yet to be tested. Various challenges and tense
opposition have already emerged despite its recent enactment. One of the serious issues which the
BOL could face is whether the security situation in Mindanao will alleviate or worsen. It can be
recalled that armed movements which emerged decades ago continue to resist the state’s efforts to
fully integrate the Bangsamoro as part of the Republic. The enactment of the Bangsamoro Organic
Law may fuel the flames of dissent and embolden the struggle for complete secession. Indeed, the
BOL is – as it was meant to be – an instrument of national unity, however, the uncertainty lies as
to what purpose will the stakeholders be united.
89  Id.
90 Buan, supra note 70.
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Inclusion: Democratic Participation of Persons
with Special Needs and Disabilities
Criszus Niño V. Ibon1
“Imagine all the people / Sharing all the world.” 2
The Only Disability in Life is a Bad Attitude
Democracy is more than a form of government. It is not merely a political system, in
which people get to vote once. It is primarily a mode of associated living—a shared way of life, in
which our relationships encompass all of humanity.
However, becoming a member of a democratic society involves participation. For many,
a contributing member of a democratic society is someone who can think and discuss political and
social issues. So, there is a high value placed upon deliberative reasoning, because it is looked upon
as a requirement for a participatory democracy.
This is where the problem arises. Barriers in the social environment are manifested by the
attitudes of society towards people with disabilities. In many societies, people with disabilities have
been discriminated against, patronized, treated like children, or become objects of charity.3
Blind, Deaf and Mute
Persons with disabilities (PWDs), according to the United Nations Convention on the
Rights of Persons with Disabilities, include those who have long-term physical, mental, intellectual,
or sensory impairments, which in interaction with various barriers may hinder their full and
effective participation in society on an equal basis with others.
Meanwhile, Republic Act No. 7277, otherwise known as Magna Carta for Disabled
Persons, defines impairment as “any loss, diminution or aberration of psychological, physiological,
or anatomical structure or function”; disability as “(1) a physical or mental impairment that
substantially limits one or more psychological, physiological or anatomical function of an individual
or activities of such individual; (2) a record of such an impairment; or (3) being regarded as having
such an impairment”; and handicap as “a disadvantage for a given individual resulting from an
impairment or a disability, that limits or prevents the functions or activity, that is considered normal
given the age and sex of the individual.”4
The Philippine Magna Carta for PWDs even lays down the principles to which the grant
of the rights and privileges for disabled persons shall be guided. These include:
1  This article is dedicated to my mother, Irene V. Ibon, a Special Education (SPED) teacher, and to the students of
Batangas National High School SPED Department, who are close to my heart.
2  John Lenon. Imagine. John Lennon ‘Imagine’, John Lennon, Yoko Ono & Phil Spector, 1971.
3  JOHN PAUL P. CRUZ. Disability-Inclusive Electoral Systems: Analyzing the Philippine Electoral Policy Using the
Disability Convention (DisCo) Policy Framework, Bandung J of the Global South. 2. 23 (2015).
4  An Act Providing For The Rehabilitation, Self-Development And Self-Reliance Of Disabled Person And Their
Integration Into The Mainstream Of Society And For Other Purposes [Magna Carta for Disabled Persons], Republic Act
No. 7277, § 4, para. 3 (1992).
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(a) Disabled persons are part of the Philippine society…
(b)Disabled persons have the same rights as other people to take their proper place in
society. They should be able to live freely and as independently as possible…
(c) The rehabilitation of the disabled persons shall be the concern of the Government in
order to foster their capability to attain a more meaningful, productive, and satisfying
life…
(d) The State also recognizes the role of the private sector in promoting the welfare
of disabled persons and shall encourage partnership in programs that address their needs
and concerns…
(e) To facilitate the integration of disabled persons into the mainstream of society, the
State shall advocate for and encourage respect for disabled persons.
The State shall exert all efforts to remove all social, cultural, economic, environmental,
and attitudinal barriers that are prejudicial to disabled persons (emphasis supplied).5
But, despite the above-mentioned definitions and the passage of RA No. 7277, there are
still significant barriers that keep PWDs from fully participating in society, including the stigma
surrounding the society’s poor understanding of the abilities and aspirations of disabled people.
Often, PWDs face a life that is segregated and debased, and many live in isolation and insecurity. 6
Taken for example, in the study entitled, Rapid Assessment of Disability in the Philippines:
Understanding Prevalence, Well-being, and Access to the Community for People with Disabilities to
Inform the W-DARE Project, PWDs had significantly lower well-being scores and reduced access to
health services, work, rehabilitation, education, government social welfare, and disaster management
than people without disability. The study concluded that having a disability and negative family
attitudes were reported as barriers for people with disabilities participating in work, community
meetings, religious activities, and social activities. Disability was also associated with lower well-
being and reduced participation across a number of domains of community life.7
In order to strengthen and widen its scope, the Magna Carta for PWDs has been amended
in 2007 to include “Other Privileges and Incentives and Prohibitions on Verbal, Non-verbal
Ridicule and Vilification against Persons with Disability”. Further amendments to the law in 2013
and 2016 provided for equal employment opportunity for PWDs, and exemption privilege from
value-added tax, respectively.8
Clearly, one would question how effective the law is in protecting PWDs. Or, is it not the
law, but the Philippine society, in general, which has the disability in recognizing the existence of
a well-established law?
To Turn a Blind Eye: The Numbers
Of the 92.1 million household population in the country, 1.44 million persons or 1.57
percent had a disability, based on the 2010 Census of Population and Housing (CPH). The
5  Id. § 2, paras. 4, 5, 6 & 7.
6  Maria Isabel T. Buenaobra, Overcoming Disability Challenges in the Philippines (October 26, 2010), available at http://
asiafoundation.org/2011/10/26/overcoming-disability-challenges-in-the-philippines/ (last accessed Dec. 22, 2021).
7  Manjula Marella, Alexandra Devine, et al., Rapid Assessment of Disability in the Philippines: Understanding Prevalence,
Well-being, and Access to the Community for People with Disabilities to Inform the W-DARE Project, Popul Health Metrics.
14. 26 (2016).
8  Diana J. Mendoza, Persons with disabilities and the State with disabilities (November 11, 2019), available at http://
www.bworldonline.com/persons-with-disabilities-and-the-state-with-disabilities/ (last accessed Dec. 22, 2021).
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recorded figure of PWDs in the 2000 CPH was 935,551, which was 1.23 percent of the household
population.
Among the 17 regions, Region IV-A had the highest number of PWDs at 193,000. This
was followed by the National Capital Region with 167,000 PWDs. The Cordillera Administrative
Region, on the other hand, had the lowest number of PWDs at 26,000.9
However, attempts to include PWDs in national census surveys have not been successful
for many reasons. There is still a heavy reliance on World Health Organization estimates that 10
percent of the country’s given population have some form of disability. There is also the hesitancy
of families to declare that they have members with disabilities. The absence of reliable data on
disabilities prevents government agencies from knowing the extent to which PWDs are included in
social services such as education and healthcare.
According to the Philippine Association for Citizens with Developmental and Learning
Disabilities, Inc., there are about 4 million children and youth with disabilities, of whom only 2
percent go to school and 1 percent are properly diagnosed. That is, less than 3 percent of children
and youth with disabilities have proper access to education. The lack of teachers trained to handle
students with special needs, as well as the inadequate allocation of resources for educational
materials in alternative formats, are said to be the main reasons.10
With regard to healthcare, about 80 percent of the world’s PWDs live in low-income
countries, wherein the majority are poor and cannot access basic services. With their conditions,
PWDs need greater attention and considerations in terms of health needs, without discrimination.
However, reports show that PWDs have less access to health services and therefore have greater
unmet needs.11
However, the mandate of the Department of Health to come up with a national health
program for PWDs is still anchored to the above-mentioned RA No. 7277. Good thing in 2009,
President Rodrigo R. Duterte signed into law Republic Act No. 11228, amending the Magna
Carta for PWDs, which mandated the Philippines Insurance Corporation (PhilHealth) to develop
exclusive packages that will address PWDs' specific health and developmental needs.12
All PWDs shall now be automatically covered under the National Health Insurance
Program of PhilHealth, in which premium contributions for all PWDs shall be paid by the national
government. This is at least an answer to the dire need of controlling the global health care problems
of over 1 billion persons, or approximately 15 percent of the world’s population with various forms
of disability.
Disability Inclusion
[Inclusiveness] is key to leaving no one behind.13 It captures, in one word, an all-embracing
9  Philippine Statistics Authority, Persons with Disability in the Philippines (Results from the 2010 Census) (Reference
Number: 2013-005, Thursday, January 10, 2013), available at http://psa.gov.ph/content/persons-disability-philippines-
results-2010-census (last accessed Dec. 22, 2021).
10 Buenaobra, supra note 5, at 2.
11  Department of Health, Health and Wellness program for Persons with Disabilities, available at http://doh.gov.ph/
persons-with-disabilities (last accessed Dec. 22, 2021).
12  An Act Providing For The Mandatory Philhealth Coverage For All Persons With Disability (PWDs), Amending For
The Purpose Republic Act No. 7277, As Amended, Otherwise Known As [Magna Carta For Persons With Disability],
Republic Act No. 11228, § 1, para. 1 (2019).
13Special Education Guide, Inclusion: What is it? Theory and Practice, available at http://www.specialeducationguide.com/
pre-k-12/inclusion/ (last accessed Dec. 22, 2021).
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societal ideology, that creates an environment where everyone feels welcomed and valued. At the
basis of every person are the similarities we all share for being human, and that includes people with
disabilities.
It is interesting how we can see a person in one dimension and forget that he is a human
being, intricate with multiple angles. When we see a person outside of their element, we tend to
forget that his life is a culmination of different sides, and not just how we see them in an isolated
environment. Sometimes people forget that a person with disability is first and foremost a human
being with desires, talents, skills, heartache, and loss, just like everyone else.
With these, human rights, peace, security, and sustainable development for all can be
enjoyed only if PWDs in all their diversity are included in society on an equal basis with others.
It is therefore imperative that disability inclusion be mainstreamed systematically into the work
of all governmental entities. Each unit of the society should not only state its intention of and
commitment to pursue the goals of inclusion and empowerment of PWDs. The intention must be
understood and be felt too.
Mainstreaming Inclusion
Mainstreaming is the key strategy for achieving the inclusion and empowerment of PWDs
and their human rights. Mainstreaming a human rights based approach to disability is the process
of ensuring that the rights of PWDs are embedded into an organization’s work, ensuring their
meaningful participation, and assessing the implications for PWDs of any policies or programs. 14
One step forward is by mandating Filipino Sign Language (FSL) as the official language of
legal interpretation for the deaf in all public hearings, proceedings, and transactions of the courts,
quasi-judicial agencies, and other tribunals. The issues surrounding PWDs’ access to justice in the
Philippines can finally be addressed by the enactment of Republic Act No. 11106 or the Filipino
Sign Language Act on October 30, 2018.15 Quasi-judicial agencies and other tribunals shall now
ensure the availability of a qualified sign language interpreter in all judicial proceedings.
The May 9, 2016 election not only set a new record for voter turnout, but it also marked
the first time that Republic Act No. 10366, which mandated that polling stations be fully accessible
for PWDs, was fully implemented.16 Beyond addressing the physical barriers to accessibility on
Election Day, what was more important was that the attitudinal and behavioral barriers were
addressed. Finally, disability sensitivity was incorporated in the training sessions for some 300,000
Board of Election Inspectors and Commission on Elections personnel.
Developing and strengthening personnel capacity and competence with regard to disability
inclusion are indeed solid examples for the successful mainstreaming of a disability perspective into
policies and programs. The coherence and coordination of efforts to implement a law are also
essential, if there are to be meaningful results towards the achievement of disability inclusion.
One step at a time, barriers to inclusivity are being properly identified. There is also
14  United Nations, United Nations Disability Inclusion Strategy (April 2018), available at http://www.un.org/en/content/
disabilitystrategy/assets/documentation/UN_Disability_Inclusion_Strategy_english.pdf (last accessed Dec. 22, 2021).
15  An Act Declaring The Filipino Sign Language As The National Sign Language Of The Filipino Deaf And The Official
Sign Language Of Government In All Transactions Involving The Deaf, And Mandating Its Use In Schools, Broadcast
Media, And Workplaces [Filipino Sign Language Act], Republic Act No. 11106, § 3, para. 1 (2018).
16  Jerryll Reyes, Philippines Marks First Disability-Inclusive Elections (May 25, 2016), available at http://asiafoundation.
org/2016/05/25/philippines-marks-first-disability-inclusive-elections/ (last accessed Dec. 22, 2021).
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progress in addressing the problems too. Hopefully, in the near future, these barriers, which cripple
us all, will finally be removed.
Conclusion: The Dreamer
All human beings are provided with qualifications to develop their fullest potential—a
characteristic of a democratic, inclusive, and equal society. But in order for that to happen, all
must be in a society with other humans, because humans are social beings by nature. The greater
the diversity of the social setting, the more opportunities for people to develop their intellectual
and moral being. Hence, the more social associations a person has, the more opportunities he has
to develop his intellect and humanity.
However, in developing their fullest potential, PWDs are doing the majority of the labor,
when it is equally ours in making a commitment to spread the workload, and to break down
inclusion barriers. It would be better, if all of us can envisage a society where working with PWDs
is seen as an opportunity, and not as a daunting challenge.
“You may say I'm a dreamer / But I'm not the only one /
I hope someday you'll join us / And the world will live as one.”17
17 Lenon, supra note 2, at 1.
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Ut Alii Vivant: So That Others May Live
A Peek into the Lives of Filipino Nurses Amidst the Covid-19 Pandemic:
Are They Heroes or Victims?
Lara Linda Lazo-Ramos
Work of Love or Work Forgotten?
The art and science of nursing have always been considered fundamentally necessary
in maintaining healthy societies. However, this kind of employment, or “work of love”, became
a daunting task shouldered by the registered Filipino nurses during the onset of the Covid-19
pandemic.
This health crisis revealed how our registered nurses (RNs) were treated by lawmakers,
their employers, and even by society. Such treatment resulted in the sudden shift of the nurses’
existence in the healthcare system to the devastating challenges in their daily battle against the
deadly illness. With these, getting burned out became prevalent among healthcare workers caring
for Covid-19 patients.1
There was even a troubling contradiction between the overly sentimental and excessive
celebration of nurses, as heroes, for risking their and their families’ lives during the pandemic,
versus the blatant disregard of the healthcare management. It is true that the overwhelming public
health crises provided society with opportunities to fight for the protection, pay, and dignity that
RNs deserve. But, the fight to transform an entire healthcare system, is far from over.
Waiting in Vain
Republic Act No. 9173, otherwise known as the Philippine Nursing Act of 2002, provides
that, it is the policy of the State to assume responsibility for the protection and improvement of the
nursing profession by instituting measures that will result in relevant nursing education, humane
working conditions, better career prospects, and a dignified existence for our nurses.2 In this case,
public health agencies and employers have failed our healthcare professionals.
Prior to the outbreak of the pandemic, the Department of Health (DOH) stated that it
is the department’s mission to lead the country in creating a productive, resilient, equitable, and
people-centered healthcare system. It emphasized that the department was prioritizing the issue of
delayed benefits of nurses. DOH even reiterated that when delayed benefits come to their attention,
it will conduct thorough investigations, and that concerned officers will be made to answer such
conflicts. However, there are still several policies that the employers and the government could
implement to reduce the risk of nurses’ exposure to Covid-19. These include:
(i) the optimal provision and manufacture of sufficient volumes of Personal Protective
Equipment;
(i) the government’s implementation of occupational safety and health standards on
1  Mohammed Jalili, Mahtab Niroomand, Fahimeh Hadavand, Kataun Zeinali, Akbar Fotouhi, Burnout Among
Healthcare Professionals During COVID-19 Pandemic: A Cross-sectional Study ( April 17, 2021), available at https://
pubmed.ncbi.nlm.nih.gov/33864490/ (last accessed December 27, 2021).
2  An Act Providing for a More Responsive Nursing Profession, Repealing for the Purpose Republic Act No. 7164,
Otherwise Known as “The Philippine Nursing Act of 1991” and For Other Purposes [Philippine Nursing Act of 2002],
Republic Act No. 9173, § 4 (1) (2002).
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Covid-19 to ensure that nurses are effectively protected in the workplace from exposure RNs are Human Too
to the virus and the creation of new guidelines, as needed;
(iii)Covid-19 risk mitigation measures inside healthcare facilities such as workplace The risk factors for moral injury inflicted upon the Filipino nurses would include their
disease monitoring and supervision, testing protocols and screening, as well as employers’ inability to provide them with sufficient personal protective equipment (PPE). The
safe staffing in the hospitals;
(iv) other Covid-19 risk mitigation measures outside healthcare facilities such as
universal masking, contact tracing, and stay-at-home measures, as well as protection for Respirators were crucial in protecting nurses from Covid-19 infection. An N95 respirator
workers who are reporting in an unsafe working environment;
(v) employers and government crisis formation of standards of care in healthcare However, many employers have been withholding respirators they have in stock, and argue that
facilities; and
(vi) guaranteed healthcare for all.
The policies that employers can implement in addressing the impact of the pandemic
on nurses also need to be highlighted because RNs serve as the classic face of “frontline” workers
in the “battle” against Covid-19, along with millions of other workers who have been praised
as heroes. However, even after more than nine months since the first confirmed Covid-19 case,
RNs have been waiting in vain even for the most basic protective gear to arrive. Policies were left
unimplemented too.
Overwhelming Frustrations
Despite having the strictest and longest lockdown in the world, COVID-19 cases in
the Philippines continued to rise.3 The overwhelming frustrations of our RNs could be traced to
their increased exposure to the virus. Although the data are limited due to the lack of available
occupational information, insufficient testing, and the growing number of asymptomatic cases, it
has been evident that nurses and other healthcare workers have higher rates of infection than the
general public here and abroad.
There have also been significant disparities among nurses who contract and perish from
Covid-19. The certitude of serious illnesses and death has been strongly linked with age and
underlying health conditions. Based on their age, a large majority of nurses have been at a higher
risk of hospitalization requiring treatment in the intensive care unit. However, the government has
constantly promised that it shall give the nurses the benefits that they rightfully deserve.
What is more frustrating is that many of these nurses have died, become sick, and have
resigned and opted for early retirement and yet, the remaining ones are still pleading with the
Department of Health to give what is due to them.
As an action, various medical associations have asked for a time-out and sought the
national government to revert the Philippine capital, Metro Manila, back to a stricter enhanced
community quarantine.4 Those with serious illnesses required extensive rehabilitation and some
even never fully recovered. Even those with less serious illnesses confronted a long recuperative
period before regaining their health.
3  Jonaid M. Sadang, The Lived Experience of Filipino Nurses’ Work in Covid-19 Quarantine Facilities: A Descriptive
Phenomenological Study, Vol. 25 No. 1, PRIJNR, 25 (2020).
4  Hazel T. Biana, Jeremiah Joven B. Joaquin, Covid-19: The Need to Heed Distress Calls of Healthcare Workers
(September 3, 2020), available at https://www.ncbi.nlm.nih.gov/pmc/articles, last accessed (December 27, 2021).
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failure of public health and safety agencies to hold employers accountable even made matters worse.
is the minimum acceptable level of protection against airborne transmission of SARS-CoV-2.
respirators may be unavailable in the future because of problems with the supply.
The lack of N95 respirators originated with the employers’ use of a “just-in-time” model that
tightly manages inventory to maximize profits. Under the “just-in-time” model, the manufacturer
has complete control over the whole manufacturing process, which works on a demand-pull basis
wherein they can respond to customers’ needs by immediately increasing the production for an in-
demand product and reducing the production for slow-moving items. This type of inventory system
minimizes inventory and increases efficiency. It cuts inventory costs because the manufacturers
receive materials as needed for production and do not have to pay storage costs.5
As a result, only a few nurses, even those working directly with confirmed Covid-19
patients, have access to respirators on an “as-needed” basis. Those who do have ready access,
unfortunately, had to fight for it. However, rather than admitting their failure or seeking higher
levels of protection, many employers, particularly hospitals, have leveled up their arguments for
denying nurses respirators by claiming that respiratory protection is not necessary except for specific
surgical and aerosolizing procedures. They also claim that either there is no evidence that the virus
is airborne or that the evidence is not conclusive.
Since the pandemic began, studies have strongly suggested that the virus is airborne,
thus, making respirators critical in preventing infections among healthcare workers. Regardless,
employers should follow the “precautionary principle”, which holds that we ought not to wait until
we know for certain that something is harmful before action is taken to protect people’s health.
Not doing so magnifies the obvious failure to recognize nurses’ innate value as human
beings.
Moral Distress
Moral distress occurs when one knows what is ethically correct, but still feels powerless to
take that action.6 Although nurses and other essential workers are being treated in their workplaces
as more dispensable than a disposable mask, the modern appreciation for those who dominate
essential care occupations is one of the potentially transformative opportunities created by the crisis.
Clearly, the Covid-19 pandemic created a “high stakes environment” for nurses.7 This
means that the Filipino nurses and other healthcare workers came to be underestimated by society
and our economic structure. Their collective labor, as a class of workers, has been systematically
dismissed. The current public health crisis has exposed the unequal values ascribed to different
5  Keller, A. and Kazazzi, A.,Just in Time: Manufacturing Systems - A Literature Review, Industrial Management & Data
Systems, Vol. 93, PQSJ, 21 (1993).
6  Elizabeth G. Epstein, Sarah Delgado, Understanding and Addressing Moral Distress, Vol.15, OJIN, 1 (2010).
7  Jonathan Shay, Moral Injury, available at https://psycnet.apa.org/record (last accessed December 27, 2021).
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professions and has highlighted questions about why certain workers are afforded workplace causing, or are likely to cause, death or serious physical harm to the employees”.11
protection while others are not.
It is indeed true that the predicaments of Filipino nurses have been the talk of the town for
The best understanding of the high rates of infection is because of a combination of the past two years. The challenges encountered by Filipino nurses have even shown that they are the
inadequate protection and fatigue from long work hours and multiple shifts.8 Together, all of these underpaid, the overworked, and the vulnerable. Yet, it has been the nurses’ undying commitment
conditions lead to physical and emotional exhaustion that leave nurses caring for Covid-19 patients and love that kept us all alive…so that others may live.
more vulnerable to physical and mental health issues and long-term negative psychological effects.
So, the obvious question now is, “Filipino nurses, here and abroad: Are they heroes, or,
Conditions could be improved dramatically as long as it is with sufficient PPE and are they victims too?”
staffing. However, both employers and public health and safety agencies have abandoned their
responsibility to address these issues, much to the detriment of nurses and other healthcare workers.
Both employers and public agencies are responsible for ensuring our workers’ health and safety.

It is unclear if the recent overwhelming commendation given to nurses will eventually

amount to more than a momentary celebration. But what Filipino nurses and other healthcare
workers need are recognitions reinforced by healthful workplaces, social support, and equal pay for
work.

In Need of Protection

Filipino nurses have faced disparagement and all forms of exploitation for attempting to
beg for donations on social media, speaking with the press, and holding public protests, to expose
their employers’ failure. But the response obtained was: Restricting workers from speaking out and
getting fired for doing so.

In cases where the employers have surrendered to nurses’ collective demands, the latter
continued to assert that they have been providing the best care to nurses to make them feel more
comfortable, and not to prevent exposure to the virus. This behavior by such employers is a form of
gaslighting that, unless disputed, can make nurses doubt their own experiences, competence, and
professional judgment. Sadly, these gaslighting, blame-shifting, and shaming only aggravate our
RN’s initial moral injury.9

Conclusion

Working under the crisis standards of patient care, nurses face profound moral distress
and injury, while others suffer from adverse mental health effects.10 These conditions that the nurses
are facing, when they care for Covid-19 patients, are only eased or eliminated prematurely, because
the infections and hospitalizations are rapidly increasing.

Burdened by heavy patient load, RNs exhaustingly witness the suffering and needless
death of Covid-19 patients. Miserably, RNs also fall ill, and sometimes, die too. It is therefore
imperative that the employers provide “a place of employment that is free from hazards that are

8  Aravinthan Varatharah et al., Neurological and Neuropsychiatric Complications of COVID-19 in 153 Patients: A UK-
Wide Surveillance Study, Vol. 7, TLP, 1 (2020).
9  Victoria Williamson, et al., Covid-19 and Experiences of Moral Injury in Front Line Key Workers, available at https://
www.ncbi.nlm.nih.gov/ (last accessed December 27, 2021).
10  Grainne M. McAlonan, et al., Immediate and Sustained Psychological Impact of an Emerging Infectious Disease
Outbreak on Health Care Workers, available at https://pubmed.ncbi.nlm.nih.gov/ (last accessed December 27, 2021). 11  Sandra M. Andre, et al., Covid-19 Emergency Rule Changes, available at https://millerjohnson.com/ (last accessed
December 27, 2021).

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Politics and Press: What Politics Wants Media to Cover
Aily Liezel M. Mabanglo
Introduction
Since the beginning, freedom has always been that one thing that people fight for. During
the 16th century, it was about freedom from our oppressors—colonizers that dared to take our
land. Hundreds of years later, it was freedom from government dictatorships and political nepotism
that threatened the public’s security. Certainly, one cannot turn a blind eye to the never-ending
fight for freedom from poverty—one that people unceasingly try to resolve. The constant want for
freedom is not only founded on the literal and physical sense of living, but it also stretches out to
the constructive sense such as freedom from the notions of society regarding political authority and
dominant cultural expectations, and of course, the controversial affair of the freedom of expression.
Freedom is a word one hears so often that people are made to subconsciously believe that
they understand what it means. But to what extent does one really comprehend the very essence of
the word one lives by. In layman’s terms, the definition of freedom simply means the state of being
free; liberty; self-determination; absence of restraint; the opposite of slavery.1 But in the course of law,
the word is given much weight as it is equivalent to life. For one, the Constitution under Section 3
Article III provides that:
“No person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws.”2
Considering that freedom is a right and not just a mere privilege, one must take into
account that along with freedom comes the right to express oneself. Expression is defined as “the
act of making your thoughts, feelings, etc., known by speech, writing, or some other method: the act
of expressing something.3 Bringing the two ideas together, there is now the term “the freedom of
expression.”
The justifications for freedom of expression are specifically identified by Justice McLachlin
of the Canadian Supreme Court in Her Majesty The Queen v. Keegstra,4 to wit:
(1) Freedom of expression promotes the free flow of ideas essential to political
democracy and democratic institutions, and limits the ability of the State to subvert
other rights and freedoms; (2) it promotes a marketplace of ideas, which includes, but
is not limited to, the search for truth; (3) it is intrinsically valuable as part of the self-
actualization of speakers and listeners; and (4) it is justified by the dangers for good
government of allowing its suppression.
The manifestation of freedom of expression is a way of communicating our own opinions,
views, and feelings, but it may also be expressed in the form of printed published materials and
electronic or digital materials which we also refer to as media. Thus, this act of liberty does not
only cover personal reservations, but it extends as well to public interest—the freedom of the press.
The freedom of the press is also embedded in our Constitution as a right to be exercised. Section 4
Article III provides that:
1  BLACK’S LAW DICTIONARY 792
2  PHIL. CONST. art. III § 1
3  Merriam-Webster Dictionary, Definition of Expression, available at https://www.merriam-webster.com/dictionary/
expression (last accessed on February 6, 2022)
4  R. v. Keegstra, [1990] 3 S.C.R. 697
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“No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for redress
of grievances.” 5
The Power of Press
To expound a little on the history of the Philippine press—which dates back to the time
of renowned heroes such as Jose Rizal, Mariano Ponce, Antonio Luna, etc. Their writings took
place amidst the political reform—the Filipinos’ battle to attain freedom and independence from
the hands of Spanish colonization. Their passionate writings in expressing and disseminating
information regarding the people’s rights as citizens of their own country inspired the Philippine
revolution which resulted in our state’s independence and democracy. Their journalism awakened
the Filipinos to the oppressive conditions rampantly transpiring toward them. The subsequent
nationalistic newspapers that were published during the Spanish era carry with it the policy “to
work peacefully for social and economic reforms, to expose the real plight of the Philippines, and
to champion liberalism and democracy.”6
The same with today, the publishing of newspapers and the development of mass media
materialized the reformation of the country through the power of written words and these words
carry with them the power and force of an army and the wisdom of wise men. It is the duty of the
Philippine press to function as a watchdog of the government, to be an institution that is sensitive
to national issues and critical of government mistakes and abuses.7 Its duty is to serve the people by
providing them with information. Section 7 Article III of the 1987 Philippine Constitution states:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.8
The concept of law on the right to information was further supported in the case of
Legaspi v. Civil Service Commission, which stated that the right to information relates to matters
of public concern.9 Although there is no exact definition nor any rigid test to determine whether
or not a particular issue is of public concern, it covers a wide range of issues that the public may
want to be familiar with either because the issues have a direct effect on them or because the issues
"naturally arouse the interest of an ordinary citizen.”10
In present times, the media has immensely amplified its role in information dissemination
as it offers ever-growing resources from domestic and international current events to the latest
entertainment pop culture. The new media environment is always evolving and remains dynamic,
altering the way political leaders engage with the public, greatly affecting democratic governance
and politics. The progression of the new media further highlighted the constitutional provision
under Section 24, Article II which states that:
“The State recognizes the vital role of communication and information in nation-
5  PHIL. CONST. art. III § 4
6  Ramon R. Tuazon, The Print Media: A Tradition of Freedom, National Commission for Culture and the Arts available
at https://ncca.gov.ph/about-ncca-3/subcommissions/subcommission-on-cultural-disseminationscd/communication/
the-print-media-a-tradition-of-freedom/ (last accessed on December 22, 2021)
7 Id.
8  PHIL. CONST. art. III § 7
9  Legaspi v. Civil Service Commission, G.R. No. L-72119, 150 SCRA 530, 541 (1987)
10 at 541
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building.”11
In the same way, the new media environment has also created opportunities for the public
to voice out their individual sentiments resulting in diverse content and contradicting points of
view. This allowed and encouraged the public to take part in nation-building as it informed more
people of particular issues such as new policies or laws that could possibly take place and even
motivated them in participating in upcoming elections.
Considering that the media tremendously affects democracy as it has the most significant
influence on the public by portraying the government in different ways—from highlighting its best
parts, down to its obscene nature, we cannot deny the motive of the political leaders to go to great
lengths in order to keep their records and reputations clean.
Politics and Press
The government has a great interest in regulating press freedom by the use of police power
and the scrupulous consideration of the rights of an individual. It is of great impulse to bring to
light the current issues our country is facing today. To quote The Manila Times in their September
26, 2019 column, “Today, the Philippine press is once again being challenged. Journalists and
media organizations have been bullied through lawsuits, silenced through violence, and harassed
through Red-tagging, death threats and cyberattacks.”12
In 2020, amidst the pandemic prevailing worldwide, the ABS-CBN, known as the
largest media and broadcasting network in the Philippines, was decidedly shut down. However,
as the esteemed Justice Leonen said in his separate concurring opinion in the case of ABS-CBN
Corporation v National Telecommunications Commission,13 there was never a clear reason why the
franchise bill hearings got stalled in Congress.
“Therefore, the delay in the franchise renewal deliberations for no technical reason at all
effectively silenced petitioner, which amounts to a prima facie censorship,”... “Indeed, such exercise
of censorship is an assault on the right to free speech that is engraved in our fundamental law”
One cannot deny that the media plays a large role in providing not only entertainment,
but also information that is factual and true—that which is governed by the code of journalistic
ethics, and which belies the irresponsible posts and rumors on social media.
Hence, to silence a network of such huge scale, one that has provided vital news to
the country amid the pandemic is not only prima facie censorship but is an outright denial of
information from the Filipino people who need it most.14
Considering that the dismissal of the ABS-CBN case was due to mootness,15 it leaves
nothing but an impression that the mere silencing of the network is a way for the government
to control what the media circulates. All the bullying and silencing of the press not only impede
11  PHIL. CONST. art. II § 24
12  The Manila Times, Press Freedom During and After Martial Law, John Renz Antoni, The Manila Times, (September
26,2019) available at https://www.manilatimes.net/2019/09/26/campus-press/press-freedom-during-and-after-martial-
law/621731
13  ABS-CBN Corporation v National Telecommunications Commission, G.R. No 252119, (August 25, 2020), (Leonen,
J., separate concurring opinion) available at https://sc.judiciary.gov.ph/15988/ (last accessed on February 25, 2022)
14  Id.
15  ABS-CBN Corporation, G.R. No 252119.
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the rights of every Filipino to access information but also threaten the very essence of freedom of
expression and of the press.
The Universal Declaration of Human Rights under Article 19 states that:
Everyone has the right to freedom of opinion and expression; this right includes
freedom to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.16
This justifies why censorship is abhorrent to freedom of expression. Censorship is that
officious functionary of the repressive government who tells the citizen that he may speak only if
allowed to do so, and no more and no less than what he is permitted to say on pain of punishment
should he be so rash as to disobey.17 Censorship may come in two forms: 1) prior restraint, and
2) subsequent punishment. Prior restraint means official governmental restrictions on the press or
other forms of expression in advance of actual publication or dissemination. Its most blatant form
is a system of licensing administered by an executive officer.18 Any system of prior restraint carries a
presumption of unconstitutionality except when the nation is at war and when regulating obscene
speech.19
Subsequent punishment on the other hand is the imposition of liability to the individual
exercising his freedom. It may be in any form, such as penal, civil, or administrative penalty.20
Subsequent punishment makes a mockery of the freedom of expression by initially allowing
free speech and then sanctioning it afterward.21 There is no question on the limit of freedom of
expression as it is well-established in Gonzales v. COMELEC,22 that freedom is not absolute— it
has its limitations and restraints.
It “does not comprehend the right to speak whenever, however, and wherever
one pleases. The manner, and place or time of public discussion can be constitutionally
controlled…[E]very right of freedom carries with it the correlative duty to exercise it
responsibly and with due regard for the rights and freedoms of others… [F]reedom from
responsibility but with responsibility.”23
Rather, what seeks to be resolved is the frail confidence of the public in the system and
their certitude that the government will protect and uphold their rights as a people.
Conclusion
The media is the voice of the people; was formed by the people, for the people. It is
established that freedom of the press is crucial and so inextricably woven into the right to free speech
16  Universal Declaration of Human Rights, G.A. Res. 217 (III) A. art. 19, http://undocs.org/A/RES/217%20(III)
(December 10, 1948).
17  Kapisanan ng mga Brodkasters sa Pilipinas, G.R. No. 102983, (March 5, 1992), (Chief Justice Hilario G. Davide Jr.,
separate opinion) available at https://lawphil.net/judjuris/juri1992/mar1992/gr_102653_1992.html (last accessed on
February 25, 2022)
18  Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961)
19  Near v Minnesota, 283 U.S. 697, 716 (1931)
20  Chavez v. Gonzales, G.R. No. 168338, (February 15, 2008), (Sandoval-Gutierrez, J., concurring opinion) available
at https://www.officialgazette.gov.ph/2008/02/15/chavez-v-gonzales-g-r-no-168338-february-15-2008/ (last accessed
February 6, 2022)
21  Sara Jane A. Suguitan, Observations on Philippine Media Law: Newsgathering and the Right to Information, 51
Ateneo L.J. 131 (2006)
22  Gonzales v. COMELEC, 137 Phil. 471, 494 (1969) available at https://lawphil.net/judjuris/juri1969/apr1969/gr_l-
27833_1969.html (last accessed on February 25, 2022)
23  National Press Club v. COMELEC, G.R. No. 102653, (March 5, 1992) (Davide, J. concurring opinion) available at
https://lawphil.net/judjuris/juri1992/mar1992/gr_102653_1992.html (last accessed on February 25, 2022)
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and free expression, that any attempt to restrict it must be met with an examination so critical that
only a danger that is clear and present would be allowed to curtail it.24 However, the government
cannot be dissociated from the press or the press from the government. The politics and press have
a symbiotic relationship where one cannot thrive without the other—one thrives, so should the
other. The law is never in question, but rather, the application of such by the administration in
charge is the crucial part of such dynamic.
The press may be silenced at times, maybe controlled and manipulated. But as it is imbued
with public interest and is in fact embedded in the Constitution, so it shall always prevail. The
government is also formed for the people, by the people. The only thing that makes it different is
the political leaders in power—they should be building the trust and confidence of the people in
the system and not threatening the public with force.
The media is a non-violent channel for the people to take part in the reformation
of the state. To silence the media is to silence the Filipino people. If citizens passively allow the
media to be bullied, harassed, and silenced, who then would be left to unveil the lawlessness in our
democracy; who then will be left to assert our human rights. To be aware means to be able to freely
act upon significant political, social, and economic issues. The media is where the people express
their sentiments. It is where the people are made known of the truth regarding the state of the
country.
To echo Justice Leonen, in his concurring opinion, “but it is for what history may teach
a future generation that can inspire more and continue to speak, to inform, and to shape public
opinion so that it is more in accordance with the truth. The sovereign Filipino people––deserves
no less,”.25
24  Chavez v. Gonzales, G.R. No. 168338, February 15, 2008, O.G. available at https://www.officialgazette.gov.
ph/2008/02/15/chavez-v-gonzales-g-r-no-168338-february-15-2008/ (last accessed on February 6, 2022)
25  ABS-CBN Corporation, G.R. No 252119.
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Basic Income in the Philippines: Social Justice Amid
the COVID-19 Pandemic and Beyond
Aaron Jan M. Madarang
Introduction
The concept of basic income has been growing in popularity in recent years. The shared
view of analysts and politicians alike is that the rise of basic income can be attributed primarily
to frustrations borne out of the intrinsic flaws in existing conditional minimum income schemes
and welfare programs. In addition, the COVID-19 pandemic, as well as the threat of mass
unemployment due to automation in the labor industry, has invigorated interest in basic income
as a better alternative.
Basic income has gained traction in the United States due to advances made by 2020
Democrat presidential candidate Andrew Yang, and tech giants Jeff Bezos and Elon Musk. Basic
income, however, is not a novel idea. Fragments of basic income can be traced back to antiquity,
but most proponents point to 18th century political activist Thomas Pain as the progenitor of basic
income.1 While it may seem extreme or radical on its face, advocates for basic income and similar
schemes historically came from both sides of the political spectrum.2 Basic income champion
Philippe Van Parijs pushes for its institutionalization on the basis of the attainment of individual
freedom. He espouses the idea that income security that can be attained through basic income is a
necessary condition for granting real freedom to the people.3
In the Philippines, social justice has been part of the State’s fundamental policies since
the ratification of the 1935 Constitution of the Philippines. But it was during the late President
Corazon Aquino’s administration, during which the 1987 Constitution was ratified, that social
justice was made a cornerstone of the country’s national policy. The Constitutional Commission
of 1986 sought to make social justice its centerpiece; hence, it devoted an entire article in the
constitution towards this end.4 In Commissioner Ma. Teresa Nieva’s sponsorship speech, she
articulated that the 1986 EDSA People Power “was not merely a revolt against the Marcos Regime
nor was it merely a fight for the restoration of human rights; rather, this popular revolution was also
a clamor for a more equitable share of the nation’s resource and power.”5
After more than three decades, however, the government is far from addressing the social
and economic inequalities in the Philippines. As such, there is a manifest need to review the welfare
laws and policies in the country. While basic income is not or does not purport to be the be-all-
and-end-all solution to the socio-economic woes of the country, it could be a step in the right
direction insofar as providing for the people their means of subsistence. Moreover, the prospect of
1  Thomas Paine, Agrarian Justice, at 9-10 available at http://piketty.pse.ens.fr/files/Paine1795.pdf (last accessed Dec. 20,
2021).
2  While most proponents of basic income belong to the left, conservative Milton Friedman introduced the idea of negative
income tax during the 1960’s, which has been consistently likened to basic income. (Capitalism and Freedom) Also,
the Alaska Permanent Fund, considered to be a genuine form of basic income, was established through constitutional
amendment in Alaska in 1976. This Alaska dividend was the brainchild of Republican Governor Jay Hammond.
Alaska Permanent Fund Corporation, What is the Alaska Permanent Fund? available at https://web.archive.org/
web/20120728225046/http://www.apfc.org/home/Content/aboutFund/aboutPermFund.cfm (last accessed December
22, 2021).
3  PHILIPPE VAN PARIJS & YANNICK VANDERBORGHT, BASIC INCOME: A RADICAL PROPOSAL FOR A
FREE SOCIETY AND A SANE ECONOMY 21 (2017).
4  Commissioner Nieva, II Record 606.
5  Id.
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basic income seeks to address not only the underlying problems in conventional minimum income
schemes, but also far-ranging contemporary issues such as gender equality, power dynamics in labor
relations, poverty, mental health, and education, among others. In this article, the author shall seek
to cast light on the viability of institutionalizing basic income in the Philippines that is consistent
with state policy and national interest.
Basic Income: Its Features and Normative Justification
Basic income is most commonly understood to be a regular cash income paid to all, on
an individual basis, independent of a means test or work requirement. While there are various
conceptions and implementations of basic income, this article shall conform with Van Parijs’
identification of the same. Basic income, according to him, possesses the following characteristics:
1. It is paid in cash, rather than in kind;
2. It is an individual entitlement, rather than a household-based benefit;
3. It is universal, rather than having an income or means test; and
4. It is obligation free, rather than being compelled to work or prove willingness to work.6
These peculiar features distinguish basic income from traditional minimum-income
schemes inasmuch as they eliminate the conditionalities present in the latter. To elaborate, basic
income is paid in cash, rather than a provision for food, shelter, or other similar benefits. A direct
cash transfer is advantageous to the beneficiary inasmuch as he or she has the discretion to choose
where to spend the money with his or her best interest in mind, whether it be for basic necessities,
investment opportunities, educational expenses, etc. This would also increase an individual’s
purchasing power and, in turn, strengthen local economies.7
Also, basic income is an individual grant as opposed to a household benefit. Conditional
minimum income schemes enforce patriarchal relations within the family insofar as the benefit
is given to the breadwinner, which is typically the father.8 In contrast, an individual entitlement
benefits vulnerable individuals within the family unit, especially the women and dependents, by
ensuring them their economic independence from the household through income security.9
Another facet of basic income is universality in the sense that it removes any means test.
Minimum-income schemes have traditionally included some sort of a means test that essentially
determines entitlement to the benefit on the basis of the recipient’s wealth or income. The problem
with means-tested benefits, however, is its high susceptibility to welfare or unemployment trap.10
Another issue in means-testing is that it contributes to the stigmatization of public assistance,
mainly due to the negative public perception in taking up benefits.11 Basic income solves these
welfare conundrums by doing away with means-testing altogether. This removal also leads to the
substantial reduction of the costs and burden in the administration of conditional minimum
6  PHILIPPE VAN PARIJS & YANNICK VANDERBORGHT, BASIC INCOME: A RADICAL PROPOSAL FOR A
FREE SOCIETY AND A SANE ECONOMY 8 (2017).
7  PHILIPPE VAN PARIJS & YANNICK VANDERBORGHT, supra note 3, at 13.
8  Carole Pateman. Democratizing Citizenship: Some Advantages of Basic Income. Politics & Society. Vol. 32, No. 1.
March 24 2004. 89-105. p. 99. doi 10.1177/0032329203261100
9  Juliana Uhuru Bidadanure, The Political Theory of Universal Basic Income, 22 ANNU. REV. POLITICAL SCI. 481–
501 (2019).
10  By reason of the underlying threshold present in means-tested benefits, beneficiaries are incentivized to refrain from
finding work opportunities in order to stay within such threshold.
11 Bidadanure, supra note 9, at 481 (citing Jennifer Stuber and Mark Schlesinger, Sources of Stigma for Means-Tested
Government Programs, SOC. SCI. MED, 2006, Volume No. 63, Issue No. 4, at 933-945.).
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income schemes. 12
Lastly, basic income is obligation free. In this set-up, recipients are not forced, directly
or indirectly, to work or to make themselves available for work.13 Van Parijs holds that while the
character of universality is the solution to the unemployment trap, basic income “with no strings
attached” operates to eliminate the employment trap.14 As such, an unconditional cash endowment
would empower individuals to act as he or she sees fit, independent of external income source
considerations, i.e., an employee may opt to look for better working opportunities or pursue higher
education, or parents may focus on their familial obligations such as rearing their children, which
would all be better in the long run.
Aside from a characterization of basic income, Van Parijs arrived at a theoretical justification
for the same. In order to understand this, an examination of his notion of freedom is necessary.
Van Parijs posits that freedom in a democratic society must be attained in the real, and not formal,
sense.15 “The ideal of a free society must therefore be expressed as a society whose members are
maximally free…rather than simply free,” he argues.16 Real freedom in a democratic society not
only calls for the protection of the fundamental rights of an individual — freedom in the formal
sense — but also the guarantee of maximization of an individual’s opportunities.17 Particularly,
this freedom must consist of the following conditions: security, self-ownership, and opportunity.18
The first two conditions pertain to the libertarian concept of freedom (or more precisely,
negative freedom) which in general terms provides that individuals must be able to act freely as
regards his or her own person or property without interference from external sources, such as the
will of other individuals or government. As to the third condition, Van Parijs argues that institutions
must ensure that each person, including those who are worst off, has the greatest opportunity to do
whatever he or she might want to do.19 In his own words:
“This third condition is to be understood more precisely as follows: in a free
society, the person with least opportunities has opportunities that are no smaller than those
enjoyed by the person with least opportunities under any other feasible arrangement; in
case there exists another feasible arrangement that is just as good for the person with least
opportunities, then the next person up the scale in a free society must have opportunities
no smaller than the second person up the scale of opportunities under this arrangement;
and so on.”20
This “leximin” opportunity, Van Parijs asserts, grants to all individuals “not only the sheer
right but also the genuine capacity to do whatever one might wish to do.”21 In consideration of
the above propositions, the three-fold aspect of freedom necessitates the institutionalization of
basic income. The elimination of conditionalities in basic income would give an individual the
opportunity to live as he or she pleases, and not merely the increase of one’s purchasing power.22 In
this regard, income is inextricably associated with freedom insofar as the former is the very means
or resource to maximize the latter in a market economy.
12  PHILIPPE VAN PARIJS & YANNICK VANDERBORGHT, supra note 4, at 18.
13  PHILIPPE VAN PARIJS & YANNICK VANDERBORGHT, supra note 7, at 21.
14  Id.
15  Id at 22.
16  Id at 23.
17  Mark Hunyadi and Marcus Manz, Does “Real-Freedom-for-All” Really Justify Basic Income? 4 SWISS POLITICAL
SCIENCE REVIEW 2 (1998).
18  PHILIPPE VAN PARIJS, REAL FREEDOM FOR ALL: WHAT (IF ANYTHING) CAN JUSTIFY CAPITALISM
23 (1997).
19  Id.
20  Id at 25.
21  PHILIPPE VAN PARIJS & YANNICK VANDERBORGHT, supra note 11, at 104.
22  PHILIPPE VAN PARIJS, supra note 15, at 30.
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Implications of Institutionalizing Basic Income in the Philippines
An analysis of the 1987 Constitution of the Philippines would show that a policy of basic
income conforms with the country’s declaration of principles. Like in existing welfare programs,
the State’s mandate to promote general welfare serves as a constitutional foundation for the
establishment of basic income in the country. Section 5, Article II of the Constitution provides that
the maintenance of peace and order, the protection of life, liberty, and property, and the promotion
of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.23
In the case of Philippine Virginia Tobacco Administration vs. Commission of Industrial Relations, the
Supreme Court, citing President Woodrow Wilson, explained that in abandoning the traditional
dichotomy between constituent and ministrant functions, the government must now play an active
role when it comes to public welfare:
"The growing complexities of modern society, however, have rendered this
traditional classification of the functions of government quite unrealistic, not to say
obsolete. The areas which used to be left to private enterprise and initiative and which
the government was called upon to enter optionally, and only 'because it was better
equipped to administer for the public welfare than is any private individual or group of
individuals,' continue to lose their well-defined boundaries and to be absorbed within
activities that the government must undertake in its sovereign capacity if it is to meet
the increasing social challenges of the times. Here as almost everywhere else the tendency
is undoubtedly towards a greater socialization of economic forces. Here of course this
development was envisioned, indeed adopted as a national policy, by the Constitution
itself in its declaration of principle concerning the promotion of social justice."24
Corollary, basic income is also in accordance with the Philippines’ policy of social justice
as its very own organic law is replete with provisions revolving around the concept of social justice.
Section 8 of the Declaration of Principles and State Policies of the 1987 Constitution upholds social
justice as a national policy in all phases of national development.25 In relation to this, Section 1,
Article XIII thereof states:
“The Congress shall give highest priority to the enactment of measures that
protect and enhance the right of all the people to human dignity, reduce social, economic,
and political inequalities, and remove cultural inequities by equitably diffusing wealth
and political power for the common good.”26
Pursuant to this policy, the country has enacted various social assistance programs, among
which are the Pantawid Pamilyang Pilipino Program (4Ps), the Social Amelioration Program
(SAP), and the Unconditional Cash Transfer (UCT) Program. The 4Ps is the first conditional
cash transfer system in the Philippines which aims to give assistance to poverty-stricken Filipino
families by investing in the health, nutrition, and education of eligible households, particularly
children aged 0-18 years.27 In 2017, on top of the education and health grant, a rice subsidy was
added to the grant in order to improve the food security of household beneficiaries.28 Section 6 of
Republic Act (RA) No. 11310, or the 4Ps Act, provides that qualified beneficiaries include farmers,
fisherfolks, homeless families, indigenous peoples, those in the informal settler sector, and those in
geographically isolated and disadvantaged areas.29
23  PHIL. CONSTI. art. II, §5.
24  Philippine Virginia Tobacco Administration vs. Court of Industrial Relations, G.R. No. L-32052 (July 25, 1975).
25  PHIL. CONSTI. art. II, §8.
26  PHIL. CONSTI. art. XIII, §1.
27  An Act Institutionalizing the Pantawid Pamilyang Pilipino Program [4Ps], Republic Act No. 11310, § 4 (2018).
28  Department of Social Welfare and Development, Guidelines on the Provision of Rice Subsidy to Pantawid Pamilyang
Pilipino Program Households, Memorandum Circular No. 06, Series of 2017 [DSWD Circ. No. 6, s. 2017].
29  4Ps, § 6.
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SAP was implemented by the Department of Social Welfare and Development (DSWD) in
2020 during the height of the COVID-19 pandemic pursuant to RA No. 11469, or the Bayanihan
to Heal as One Act, to adopt social amelioration measures for the recovery and rehabilitation
of affected communities.30 This includes the Emergency Subsidy Program (ESP), under which a
subsidy or “ayuda” is distributed both in cash and in-kind by local government units to provide for
the recipients’ basic necessities, in the amount of P5,000 to P8,000 based on the current prevailing
regional wage rates.31
Finally, the UCT Program is a social mitigation program under the RA No. 10963,
or the Tax Reform for Acceleration and Inclusion Act (TRAIN), which provides UCTs to aid
households who do not benefit from the tax cuts provided by such law, but are adversely affected
by the economic impact of said law, i.e., rising prices of products and services.32 The recipients
of unconditional cash transfers under the program are composed of the active households in the
4Ps, beneficiaries of the Social Pension Program, as well as other poor households in the database
of the National Household Targeting System for Poverty Reduction (NHTS-PR), or Listahanan
households.33
Notwithstanding these programs, the government’s efforts have not been proven to be
adequate to alleviate poverty in the country as millions of Filipinos still live below the poverty
line during and even prior to the COVID-19 pandemic. As per the Philippine Statistics Authority
(PSA), the poverty incidence rate among the country’s populace was estimated at 23.7 percent,
which amounts to 26.14 million Filipinos in 2021.34 The poverty gap in the country is likewise
alarming, more so when factoring in the income disparity between those people living in urban
areas and those in rural areas.35
An assessment of the pertinent features of these programs exposes the conditionalities
imposed in these conventional welfare programs. To cite a few, the aforementioned programs
evidently do not benefit every citizen, but specifically, target vulnerable parts of the community.
Incidentally, this entails means-testing as a requirement for ascertaining eligibility. Section 5 of
RA No. 11310 in particular provides for a nationwide targeting system for the determination
of qualified beneficiaries, which shall be revalidated every three years.36 These welfare programs
likewise share the characteristic of being a household benefit, rather than an individual entitlement.
While the 4Ps do not have any work requirement whatsoever, recipient families are not entirely
scot-free as they are obligated to comply with the set of conditions required by the program.37 On
the other hand, the emergency subsidy under the SAP is given both in cash and in-kind.
To be clear, the country’s welfare programs, in general, certainly help the poor. However,
30  Department of Social Welfare and Development, Special Guidelines on the Provision of Social Amelioration Measures
to the Most Affected Residents of the Areas Under Community Quarantine and Continuation of Implementation of the
Social Pension for Indigent Senior Citizens and the Supplementary Feeding Programs, Memorandum Circular No. 4,
Series of 2020 2017 [DSWD Circ. No. 4, s. 2020].
4Ps, § 6.
31  Id.
32  GENERAL GUIDELINES FOR THE IMPLEMENTATION OF THE SOCIAL WELFARE AND BENEFITS
PROGRAMS UNDER RA 10963; Joint Memorandum Circular (JMC) 2018-001
33  https://www.dswd.gov.ph/issuances/MCs/MC_2018-003.pdf DSWD MC 03 Series of 2018
34  Proportion of Poor Filipinos Registered at 23.7 Percent in the First Semester of 2021 https://psa.gov.ph/sites/default/
files/Press%20Release_2021%201st%20sem%20%2C%2015Dec2021.pdf
35  Philip Gerson. A Working Paper of the International Monetary Fund. Poverty, Income Distribution, and Economic
Policy in the Philippines. pages 5 and 10. https://www.imf.org/external/pubs/ft/wp/wp9820.pdf
36  Sec. 5, RA 11310
37  Sec. 7, RA No. 11310.
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the problem is that conditionalities, for reasons stated above, limit their capacity to break the cycle submitted that it is not impossible. The health and economic crisis after all have already forced
of impoverishment among millions of Filipinos. In relation to this, basic income could become the the hand of governments around the globe to work on a drastic solution. In this context, setting
next necessary step in the country’s progress and evolution in order to better the lives and situation in motion basic income in the Philippines is not a far-fetched idea. Still, the government will
of the general populace. undoubtedly have to realign its priorities, and a redistribution of the nation’s wealth and resources
is required in order to achieve this progressive policy. This does not mean, however, that all welfare
At any rate, despite their nature as conditional welfare schemes, these programs possess schemes and social legislations in the country would have to be superseded by basic income,
certain similarities to basic income and indications which signify that basic income is within reach but possibly only those that are necessary to streamline the administration of, and minimize the
in the country. For one, the 4Ps, SAP, and UCT Program already cover a significant portion of bureaucracy present in the country’s welfare programs.
the population. Another similarity is that, in relation to the cost of basic income, these programs
necessitated a massive reallocation of the government’s budget. The Department of Budget and
Management (DBM) has released a total of P199.975-billion for DSWD’s social amelioration
measures in 202038, whereas the government has already distributed PHP60.36-billion in favor
of UCT beneficiaries as of the same year.39 In addition, the UCT Program provides for an
unconditional cash transfer, as opposed to an in-kind benefit, which does not require recipients to
work or make themselves available for work.

Conclusion

As mentioned earlier, the conventional welfare scheme is simply not sufficient in terms
of lifting the Filipino people from poverty. The conditionalities established in the country’s welfare
programs do not ease the burden for poor households — they rather add to it; they are associated
with bureaucracy and red tape, as well as the unemployment (and inversely, employment) trap, and
contribute to the stigmatization of public assistance. Moreover, the onslaught of the COVID-19
pandemic was not merely to the detriment of the low-income class, but virtually every Filipino
household. The unemployment rate in the country is still swelling despite the relatively significant
growth in the economy, and many local businesses have shut down as a result of government-
imposed lockdowns.40

As such, these conditions must be eliminated in order to fully realize the mandate of the
1987 Constitution. Social justice can be achieved in the country by incorporating a welfare scheme
that consists of a regular cash income paid to all, on an individual basis, without a means-test or
working requirement, and is obligation-free. Considering that freedom is a central concept to a
democratic state like the Philippines, whose policies give utmost importance to social justice, basic
income is surely an interesting, if not compelling, idea to tackle on the part of policymakers and
economists, if a just and free society is to be attained.

During the pandemic, social amelioration measures have given the government the
opportunity to analyze, albeit in a limited manner, the possibility of institutionalizing basic income
in the country. However, unlike emergency subsidies, basic income shall work not only as a short-
term solution, but a permanent one. A guaranteed income shall operate as an institutional device
that will facilitate the recovery and rehabilitation of the national economy, and give the chance and
opportunity for every Filipino to live meaningful lives amid the pandemic and beyond.

While implementing basic income is beyond question ambitious and expensive, it is

38  Department of Budget and Management, DBM Releases P199.975-Billion for DSWD Social Amelioration Program,
available at https://www.dbm.gov.ph/index.php/secretary-s-corner/press-releases/list-of-press-releases/1647-dbm-
releases-p199-975-billion-for-dswd-social-amelioration-program (last accessed Feb. 8, 2022).
39  Department of Finance, LANDBANK Releases P40.6-B to UCT Beneficiaries available at https://www.dof.gov.ph/
landbank-releases-p40-6-b-to-uct-beneficiaries (last accessed Feb. 8, 2022).
40  Philippine News Agency, Unemployment Rate Shows Rough Patch to Economic Recovery: DTI, available at https://
www.pna.gov.ph/articles/1155211 (last accessed Feb. 8, 2022).

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Friend or Foe?
Utilizing Social Media in Pursuit of Democracy in the Digital Age
Ma. Clarissa S. Malig-on
Democracy and its Transformation
The modern-day democracy was greatly shaped in the eighteenth century, but the original
form of democracy goes back to the Greeks’ portrayal of democracy in the fifth century BC. During
this time, the Greek city was governed by a People’s Assembly composed of Greek citizens. Every
citizen, regardless of social stature, had the right and opportunity to be heard in discussions of
public matters.1 The Athenian notion of democracy then evolved. Now it is framed as deliberative
or participatory democracy and these values create a culture where protection of personal freedom
is paramount. This protection is manifested in the constitution, rules, and regulations.2
Freedom of expression is said to be the core of democracy. Its broad scope covers freedom
of speech and free press, freedom of assembly, freedom of petition, right to form an association, and
right to religious freedom. In Valmonte v. Belmonte, the Supreme Court held:
“The right to information is an essential premise of a meaningful right to speech
and expression. But this is not to say that the right to information is merely an adjunct of and
therefore restricted in application by the exercise of the freedoms of speech and of the press. Far
from it. The right to information goes hand-in-hand with the constitutional policies of full
public disclosure.”
In this case, the Court recognizes that having the power to control the flow of information
is tantamount to having the power to control public opinion. Consequently, the right to information
is not absolute since it is constrained to “matters of public concern.”3
Access to information is one of the basic components of democratic participation. The
United Nations has recognized the right to information since its inception.4 Article 19 of the
Universal Declaration of Human Rights (UDHR) states, "Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and regardless of frontiers."5
Another aspect of democratic participation is press freedom which facilitates the circulation
of information and news. Press freedom allows the citizens to exercise their right to information
by providing different platforms, printed or electronic, where free-flow of ideas and exchange of
communication happen. How we transmit information in the modern era is heavily influenced by
technological advances.
Be that as it may, it is recognized that freedom of expression, specifically free speech, can
pose a serious threat to democracy. Bayamlıoğlu (2017) in his chapter in Digital Democracy in a
Globalized World states that atomization of free speech can cage individuals in their own “cognitive
cubicles” which suppresses the channels where collective freedom of speech is realized. The peril
now is the toppling down of solidarity essential to unified political action. Since free speech is now
1  CORIEN PRINS, ET AL., DIGITAL DEMOCRACY IN A GLOBALIZED WORLD, 8 (2017).
2  Id. at 9.
3  Valmonte v. Belmonte Jr., G.R. No. 74930, 170 SCRA 256, (1989).
4  Rajeev Kumar Singh, Right to Information: The Basic Need of Democracy, 1 JOURNAL OF EDUCATION & SOCIAL
POLICY, 86, 65 (2014).
5  Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 19, U.N. Doc. A/RES/217 (III) (Dec. 10, 1948).
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commonly exercised through social media, there is the idea that political discussions in social media
disintegrate the organizational texture of our society because such discussions target piece-meal
issues which encourage reactive actions or comments instead of a healthy discussion, and debate.6
What happens when communication becomes the end itself? It now creates a pool of
polarized views, resulting in the disruption of structured criticisms.7 Zhao, as cited in the same
book, warns the readers of the violence that can emerge from engaging in democracy digitalization.
Another author, Cuijpers, suggests that online tools can be used to highlight biased and prejudicial
views. There is room for manipulation. With that, there will be lessening of control and regulation
which is supposed to be implemented by legitimate institutions. Governments must strive not to
lose control over those who have perverse purposes for the usage of online tools.8
E-Democracy and Digitalization of Democracy
“E-Democracy” is defined as "the use of electronic communications technologies, such
as the Internet, in enhancing democratic processes within a democratic republic or representative
democracy.”9 The concept of “Digitalization of Democracy,” on the other hand, is defined as “the
increasing use of digital technologies in, as well as their effects on, democratic processes,” and it
revolutionizes the way elections are held and regulated.10 In general, these two concepts ultimately
submit that the adoption of digital technologies is transforming the political landscape. At the
center of these closely-related concepts is the black swan event of the rise of the internet.
According to Rosina, Moncau, and Lazzari (2017), the internet has become an important
mechanism for a robust public sphere because it enables people to make their voices heard thereby
applying pressure to institutions. Internet helps with the effective claims of rights and changes
people seek. Their study of Brazil ends with the conclusion that along with information and
communication technologies (ICTs), traditional media are also sought.11
The usage of new technological tools by the government carries both the benefit of
improving democratic deployment and the responsibility of protecting the citizens against
infringement of privacy. Cuijpers suggests that digitalization increases democratic possibilities but
may create avenues for trampling human rights through the usage of ICTs12. In connection with
this, there are three prevailing positions of the role of digitalization according to Adams and Prins,
to wit:
(1) Instrumentalism, where technology is regarded as a neutral tool.
Technological applications are regarded as neutral bearers of ideas and aims of designers
and/or users. An example of this is using online tools to strengthen the legitimacy of
policy-makers and politicians. Instrumentalism, however, has lost its popularity.
(2) Technological determinism, on the other hand, presupposes that technology and
digitalization are irresistible forces that have their “own” logic which results in having a
major impact on work, economy, and society. There is the presence of both optimistic and
pessimistic view of technology;13
(3) The middle ground of the two is the dense multidisciplinary field which allows
dynamism. Here, technology is regarded as both a cause and effect of societal change.
6  CORIEN PRINS, ET AL., supra note 1, at 13.
7  Id. at 13.
8  Id. at 13.
9  IGI Global, What is E-Democracy, available at https://www.igi-global.com/dictionary/social-media-integration-in-
educational-administration-as-information-and-smart-systems/8674 (last accessed Dec. 22, 2021).
10  FRITZ NGANJE, DIGITALISING DEMOCRACY IN SADC: INSIGHTS FROM 2019 ELECTIONS, SOUTH
AFRICAN INSTITUTE OF INTERNATIONAL AFFAIRS 1, 2 (2020).
11  CORIEN PRINS, ET AL., supra note 1, at 19.
12  Id. at 7.
13  Id. at 6.
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The form of an application is the result of existing “societal, economic, and technological
relationships.” Here, digital tools are part of a dynamic interplay among different
processes, actors, and interests.14
The true impact of the amalgamation of democracy and digitalization is difficult to
quantify. Even if we have the means to do so, positive and negative effects will depend on the
stakeholders utilizing it, as mentioned in the third position of the role of digitalization of democracy.
The function of stakeholders—considered as actors in the third position—is of key importance.
Admittedly, the means digital tools are maneuvered depends on the impact on views, knowledge,
expertise, standards, and values of such actors. An example is the role of Facebook and its feature
called “voter megaphone” during the US presidential elections in 2016. Facebook’s intelligent
algorithms are highlighted wherein it categorized citizens and allegedly manipulated their voting
behavior implicitly. There was an easy way to share through social media the fact that individuals
have voted. In effect, it increased the voter turnout.15 Aside from this, Facebook algorithm arranges
posts that are accessible in an individual’s news feed based on his or her interests and other criteria,16
thereby harnessing echo chambers17 and amplifying the confirmation bias18 that people are already
susceptible to. Hence, the point of Bayamlıoğlu in his research, as earlier mentioned, regarding
“cognitive cubicles” which disrupt the cohesiveness of collective ideals and will.
Social Media for Political Campaign Strategies
Online tools like Facebook, Twitter, Youtube, etc., are thought to be beneficial for
democracy. It opens up more opportunities for mobilization and faster information dissemination.19
There is a recognition that traditional institutions and processes are unresponsive to the political
needs of citizens, especially the youth. This is the reason why the advent of digital technologies such
as social media conjures extensive impact on “electoral processes and democracy.” There is, in fact,
a broad consensus that technologies are bound to restructure democratic processes. At first glance,
these digital technologies have provided cheaper avenues for political discourse.20 In addition, phone
applications and social media platforms have brought accountability in the comfort of the homes of
each citizen. The convenience brought about by digital technology can level the playing field among
candidates during elections because of opportunities to be informed in voting choices.21
Nevertheless, the pros also have cons. As pointed out earlier, customized content generated
through the usage of said tools can divide society in an unhealthy way. These divisions “shape [the
people’s] personality, limits [sic] the sources of information they are exposed to” thereby narrowing
their tunnel vision even further, creating a rabbit hole of negativism and biasness.22 Also, digital
technologies are highly susceptible to abuse.23
Social media can be an opportunity for corruption and accountability failures to easily seep
through our lives. An example would be the event in 2018 where Cambridge Analytica, a British
14 Id. at 7.
15  Id. at 21.
16  Paige Cooper, Blog, How the Facebook Algorithm Works in 2021 and How to Make it Work for You, HOOTSUITE, Feb.
10, 2021, available at https://blog.hootsuite.com/facebook-algorithm/ (last accessed Dec. 21, 2021).
17  GCF Global, What is an echo chamber?, available at https://edu.gcfglobal.org/en/digital-media-literacy/what-is-an-
echo-chamber/1/
18  Scott Bixby, Article, ‘The End of Trump’: How Facebook Deepens Millenials’ Confirmation Bias, THE GUARDIAN,
Oct. 1, 2006, available at https://www.theguardian.com/us-news/2016/oct/01/millennials-facebook-politics-bias-social-
media?CMP=fb_gu&fbclid=IwAR2soAe8cIUmdd3ln5ASeReW_AjT6MSEIxCXB_43Cukl48odulPI4qRMxxM.
19  CORIEN PRINS, ET AL., supra note 1, at 3.
20  FRITZ NGANJE, supra note 10, at 4.
21  Id. at 5.
22  CORIEN PRINS, ET AL., supra note 1, at 14.
23  FRITZ NGANJE, supra note 8, at 5.
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relations firm, became infamous for harvesting private data of Facebook users without consent for
political advertising.24 In connection with this, there is the concept of “big data”, defined as “smart
deployment of data analysis techniques.”25 There are different facets which this big data targets: (1)
hindsight which delves into pattern analytics; (2) insight for real-time analytics; and (3) foresight
involving predictive analytics.26 In other words, big data is a collection of personal data of voters
utilized, processed, then used to influence behavior.27 Big data can certainly be a powerful tool and
means to achieve the ends of the holder.
There are two main forces involved in the usage of social media in campaign strategies:
(1) The advancement of the politician’s interest which is to win the elections or to upset the crowd
sentiments towards the opposition no matter the cause; and (2) Effective information dissemination
in campaigns to advance the true essence of democracy.
Are they directly or inversely proportional in this country?
A “social media troll” is defined as “someone who creates conflict on sites like Twitter,
Facebook, and Reddit by posting messages that are particularly controversial or inflammatory
with the sole intent of provoking an emotional response from other users.” These messages
from trolls distract and divert attention from the real problems and issues, directing a supposed
rational discussion down to ad hominem and offensive remarks.28 Most trolls also post “misleading
statements or outright lies [on] the internet to manipulate public perception of issues or persons.”29
Trolls set up fake social media accounts in order to retain their anonymity and escape prosecution.30
Accordingly, there is the question of “What kind of regulatory measurement should
facilitate digital technologies for democratic purposes?”31 Further discussions will revolve around
social media, the emergence of fake news through troll farms, and the prevalence of manipulation
strategies of the Philippine electorate.
Regulation of Fake News
There are existing regulatory frameworks from different parts of the world regarding
the usage of social media. In the United States, the government amended the Communications
Decency Act and enacted the Digital Millenium Copyright Act to protect companies from the
responsibility of the contents published on their respective platforms.32 In Europe, the European
Union issued an E-Commerce Directive where they referred to social media as service providers at
the intermediary level. This classification removes liability from social media companies for harmful
content in its platform provided said companies only serve as a medium that stores such contents;
24  Id. at 2.
25  CORIEN PRINS, ET AL., supra note 1, at 3.
26  Id. at 4.
27  Id. at 8.
28  Andre Bourque, Blog, Answering A Social Troll – What You Need to Know, HUFFPOST NEWS, Dec. 6, 2017, available
at https://www.huffpost.com/entry/answering-a-social-troll_b_6625654 (last accessed Dec. 17, 2021).
29  Nestor Corrales, Probe Troll Farms, Lawmakers Urge, PHILIPPINE DAILY INQUIRER, June 21, 2021, available at
https://newsinfo.inquirer.net/1448598/probe-troll-farms-lawmakers-urge (last accessed Dec. 18, 2021).
30  Disini & Disini Law Office, Article, Internet Trolls in the Philippines, DATA PRIVACY PHILIPPINES, available at
https://www.privacy.com.ph/internet-trolls-in-the-philippines/ (last accessed Dec. 20, 2021).
31 Id. at 4.
32  Jomari James De Leon, Keir Cedric Enriquez, & Jose Angelo Tiglao, Rise of the Troll: Exploring the Constitutional
Challenges to Social Media and Fake News Regulation in the Philippines, ATENEO L.J., Volume No. 64, Issue No. 150,
at 188.
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provided further, that they must not have the knowledge of the nature of the content. Nonetheless,
when the content is patently illegal i.e. child pornography, the said content must be immediately
taken down upon knowledge of its existence. Under the directive, the member-State has the duty
to notify the social media platform about the harmful content.33
The foregoing begs the question: Can fake news be considered harmful content? The
answer varies in different parts of the world. Anas Modamani is a 19-year-old Syrian refugee who
has been a subject of fake news as she has been linked to different terrorist attacks. Her photo
with German Chancellor Angela Merkel was posted on social media where the rumors spread like
wildfire. To solve this problem, Modamani asked the Würzburg court to issue an order to prevent
Facebook from allowing the fake news with the photo to be reposted. However, it was denied
since there is no existing law that can be applied to the incident even though the fake news can be
considered as “harmful contents” at a surface level. Another fake news incident happened in Austria
where the Green Party leader filed a complaint about the removal of fake news on Facebook. The
Vienna court ordered the removal of the post worldwide.34
The landmark case of Google Spain SL and Google, Inc. v. AEPD and Mario Costeja
Gonzales is worth noting. Here, Costeja Gonzales, a Spanish National, brought a complaint against
a newspaper, Google Inc., and Google Spain. She sought the removal and concealment of the
information about the confiscation order against her house from internet search engines. The case
has long been resolved at that point. The Court ruled that a search engine is deemed as a “controller”
of the personal data and in order to protect the right to privacy of each individual, operators of
search engines may be validly mandated to remove the pertinent information. However, there must
be a balance between the general public’s interest to access said information and the right of the data
subject.35 In this case, it was clarified that people have the “right to be forgotten”36
Another case is Hegglin v. Google where Hegglin sued Google for the searchable defamatory
and abusive information against the former. Hegglin demands that Google reveal the identity
of the source of the defamatory statements and that Google remove the searchable defamatory
statements against him.37 The important part of the case is that Hegglin filed his judicial relief in
English courts because the United Kingdom is the place where the writer and Google published
the fake news. It was ruled that Hegglin had indeed personal ties and business to the place and that
there is jurisdiction.38
In the Philippines, regulations of online information are existent. The right to be forgotten
is under Republic Act 10173, also known as the Data Privacy Act of 2012, in the form of the “right
of erasure or blocking.”39 Under Section 16, one of the rights of the data subject mentioned in
paragraph E provides that the data subject is entitled to seek the suspension, withdrawal, blocking,
removal, or destruction of personal information upon certain conditions, to wit:
“..upon discovery and substantial proof that the personal information is incomplete,
outdated, false, unlawfully obtained, used for unauthorized purposes, or are no longer necessary
for the purposes for which they were collected. In this case, the personal information controller
33  Id. at 189.
34  Id. at 189.
35  Google Spain SL and Google, Inc. v. AEPD and Mario Costeja Gonzales, Case C-131/12 (2014).
36  Hegglin v. Google, [2014] EWHC 2808 (2014).
37  De Leon et. al, supra note 32, at 191
38  Hegglin, [2014] EWHC 2808.
39  Divina Law, Article, The Right to be Forgotten and Other Rights Under the Data Privacy Act, THE DAILY TRIBUNE,
May 10, 2019, available at https://www.divinalaw.com/dose-of-law/right-to-be-forgotten/#:~:text=The%20right%20
to%20be%20forgotten%20is%20recognized%20in%20the%20form,system%20upon%20discovery%20and%20
substantial (last accessed Feb. 11, 2022).
114
may notify third parties who have previously received such processed personal information;”40
The National Privacy Commission (NPC) was formed to enforce the Data Privacy
Act and to primarily regulate the country’s compliance with the international standards for data
protection.41 Recently, NPC issued a notice to COMELEC about a data breach concerning the
2022 election polls.42
As to jurisprudence, two cases are relevant. In the case of Chavez vs. Gonzales, the
Supreme Court recognized that the internet and broad media share similarities, and being so, the
purposes attached to the regulation of broadcast media must apply to the regulation of the internet
as well.43 Freedom of expression subsists even in cyberspace. Consequently, social media regulation
is possible, because freedom of expression is subject to limitation as provided under Article 29(1)
of the UDHR.44 In connection with this, the Supreme Court in Disini Jr. vs. The Secretary of Justice
opined:
“..libel is not a constitutionally protected speech and that the government has an
obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not
a new crime since Article 353, in relation to Article 355 of the penal code, already punishes
it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar
means" for committing libel.”45
Also in the same case, social media was viewed by the court as one of the modes of
committing Libel. Corollary to this, it can be interpreted that crimes committed using social media
can be prosecuted under Article 154 of the Revised Penal Code (RPC), to wit:
“Art. 154. Unlawful use of means of publication and unlawful utterances. - The
penalty of arresto mayor and a fine ranging from 1200 to 1,000 pesos shall be imposed upon:
Any person who by means of printing, lithography, or any other means of publication
shall publish or cause to be published as news any false news which may endanger the public
order, or cause damage to the interest or credit of the State.”46
However, there is no jurisprudence under Article 154 to further expound the concept.
Another recourse of an injured party is to file an action for damages under Article 2176 of
the New Civil Code.47 An additional basis for damages brought upon by publication of fake news
may be sought citing Article 26 of the New Civil Code.48 Note that it was also recognized that
the cybercrime law only penalizes the author of the libelous statement when in fact Cyberlibel has
many intricacies.49
40  An Act Protecting Individual Personal Information in Information and Communications Systems in the Government
and the Private Sector, Creating for this Purpose a National Privacy Commission, and for Other Purposes [Data Privacy
Act] Republic Act No. 10173, § 16 (e) (2012).
41  National Privacy Commission, NPC Pushes Adoption of International Data Protection Standard son Security
Techniques, available at https://www.privacy.gov.ph/2021/08/npc-pushes-adoption-of-international-data-protection-
standards-on-security-techniques/#:~:text=The%20National%20Privacy%20Commission%20(NPC,guidelines%20
for%20privacy%20impact%20assessment (last accessed Feb. 11, 2022).
42  Kristine Joy Patag, Privacy Commission Sets Meeting to Clarify Details on Alleged COMELEC Hack, PHILSTAR, Jan.
12, 2022, available at https://www.philstar.com/headlines/2022/01/12/2153429/privacy-commission-sets-meeting-
clarify-details-alleged-comelec-hack (last accessed Feb. 11, 2022).
43  Chavez v. Gonzales, G.R. No. 168338, 32 SCRA 547, (2008).
44 UDHR, supra note 5.
45  Chavez, 32 SCRA 547.
46  An Act to Ordain and Institute a New Criminal Code of the Philippines, Repealing for That Purpose Act No. 3815,
Otherwise Known as the Revised Penal Code, and Other Related Laws, and for Other Purposes, S.B. No. 1227, § 25,
17th Cong., 1st Reg. Sess. (2016).
47  An Act to Ordain and Institute the Civil Code of the Philippines [CIVIL CODE], Republic Act No. 386, art. 2176
(1949).
48  Id. art. 26.
49  De Leon et. al, supra note 32, at 192.
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That being said, is there a need for further legislation? An event happened in 2017 when
the issue on the #NasaanAngPangulo trend following the 2015 Mamasapano tragedy was revived.
In trying to curb the fake news problem in the Philippines, the Senate Committee on Public
Information and Mass Media headed by Senator Grace Poe conducted an inquiry. Present in
the inquiry were journalists, lawyers, representatives of certain platforms, bloggers, and several
members of the Malacañang’s Communications Team.50 Numerous resource persons who partook
in this inquiry answered in the negative. The Presidential Communications Operations Office
(PCOO) pointed out that there must be media literacy instead of social media regulation through
legislation because it might infringe on freedom of the press.51 Professor Florin Hilbay commented
that expectations of accountability from public officers are naturally higher compared to other
people.52 The reason is that whenever a public officer publishes content, there is an underlying badge
of truth with the content.53 To add, in Ayer v. Capulong the Supreme Court ruled that public figures
such as public officers, have lost their right to privacy to some extent.54 Professor Hilbay’s suggestion
is to have a government agency where people can complain about the fake news propagated by
public officials and where these public officials may be held liable.55
De Leon, Enriquez, and Tiglao (2019) posits that apart from the government, social media
companies—being the platform—play active roles in answering the problem. There are several
existing measures adopted where users can report fake news circulating online,56 investigations
on certain exchanges may be done, and users may be banned from accessing their accounts upon
proper investigation. In general, De Leon, et. al. present three good approaches for solving the fake
news phenomenon. First is to punish the user/author. However, the right to freedom of expression
must be unbridled in punishing the guilty person. To do this, the assessment must first undergo
certain tests, one of which is the clear and present danger rule.57 Second, liability on the part of
online intermediary58 particularly the social media platform involved. Third is the use of Notice and
Correct and/or Notice and Take Down.59 Here, the internet platforms have a parallel obligation
with traditional media in regulating content by correcting or taking down false information upon
knowledge of the falsity.60 This will help the Court in solving cases because the Court will not be
burdened with numerous facets of information posted online.61
Philippine Troll Farms
In the 2020 annual report of the advertising firms, We Are Social and Hootsuite, they
found that Filipinos topped the world ranking for the sixth straight year in spending a lot of time
on social media, with an average of four (4) hours and fifteen (15) minutes every day. The same
article revealed that the Philippines is also the highest in the world in internet usage with an average
50  Ian Nicolas Cigaral, Hits, Misses of First Senate Probe Into Fake News, PHILSTAR, Oct. 5, 2017, available at https://
www.philstar.com/headlines/2017/10/05/1745802/hits-misses-first-senate-probe-fake-news (last accessed Feb. 7, 2022).
51  Regine Cabato, PCOO, Vera Files agree: No to social media regulation, yes to media literacy, CNN PHILIPPINES, Feb.
1, 2018, available at https://cnnphilippines.com/news/2018/02/01/PCOO-Vera-Files-no-social-media-regulation-yes-
media-literacy.html (last accessed Feb 10, 2022).
52  De Leon et. al, supra note 32, at 194.
53  Id. at 195.
54  Ayer Productions v. Hon. Capulong, G.R. No. 82380, 160 SCRA 861, (1988).
55  Id. at 195.
56  Id. at 196.
57  Id. at 237.
58  Id. at 230.
59  Id. at 235.
60  Id. at 236.
61  Id. at 196.
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of ten (10) hours and fifty-six (56) minutes.62 Filipino affinity of social media and the internet is a
major inducement for social media troll and troll farm operators. This is the reason why troll farms
thrive in our country. In view of this and rightly so, 57.2% of Filipinos say that they are concerned
about misinformation and fake news.63
In the recent Philippine political climate, the use of troll farms is not just prevalent during
elections but even during the governance of the Duterte administration. An attempt to curb troll
farms led to the proposal of Senate Resolution No. 768. This Resolution, filed by 12 Senators who
was led by Senate President Vicente Sotto III and Senate President Pro Tempore Ralph Recto,64
has the aim “to direct the appropriate senate committee to conduct an inquiry in aid of legislation
into reports of public funds being spent on troll farms that spread misinformation and fake news
in social media sites.”65
Congress wants to investigate the government funds used to operate state-backed troll
farm operations affecting millions of Filipinos. Senator Francis “Kiko” Pangilinan, quoting the
Senate Resolution, stated that Congress wants to know why rather than spending public funds for
COVID-19 assistance, the government instead spends on operators cloaked as “public relations
practitioners” and “social media consultants.”66 As a result, 12 senators filed Senate Resolution No.
768. Co-author Senator Panfilo Lacson alleged that administration candidates have the advantage
since a certain undersecretary has started to assemble troll farms for the 2022 elections. They have
all the resources to maintain or create troll farms.67
There are several notable instances of troll farm proliferation and misinformation in the
country. Allegedly, there are two troll farms in every province aiming to discredit the critics of
President Rodrigo Duterte’s administration and prospect opponents for the 2022 elections. Senator
Panfilo “Ping” Lacson revealed that he had been a victim of troll farm bombardment due to his
statements against the administration. The Senator narrates that he blocked a troll account and after
blocking, many accounts started asking the Senator why he blocked the said account. Senator Lacson
then became suspicious because on Facebook, when one blocks another, it is with confidentiality
so that only the blocker will know about the incident. There will be no other indications for other
accounts to see.68 Presidential Spokesperson Harry Roque denied the allegation, stating that even if
it were correct, “the official in question must be doing it in his personal capacity.”69
The focal point of creating the Senate Resolution is the P909,122.40 worth public relations
contract to which Gabunada became the Department of Finance’s (DOF) communications strategy
consultant. His tasks, according to DOF, are the following:
(1) To come up with research information for the purpose of effective dispensing of
fiscal policies to the public;
62  Kyle Chua, PH Remains Top In Social Media, Internet Usage Worldwide – Report, RAPPLER, Jan. 28, 2021, available
at https://www.rappler.com/technology/internet-culture/hootsuite-we-are-social-2021-philippines-top-social-media-
internet-usage/ (last accessed Dec. 17, 2021).
63  Id.
64  Press Release by Senate of the Philippines, Villanueva: Troll Farms Peddle 'Fatal' Misinformation (July 12, 2021) (on file
with the Senate of the Philippines).
65  S. Res. No. 768, whereas cl. Para 1, 18th Cong., 3d Reg. Sess. (2021).
66  Andreo Calonzo, Article, Philippine Senators Seek Probe of Whether State Is Funding ‘Troll Farms,’ BLOOMBERG, July
12, 2021, available at https://www.bloomberg.com/news/articles/2021-07-12/philippine-senators-seek-probe-if-state-
is-funding-troll-farms (last accessed Dec. 21, 2021).
67  Christia Marie Ramos, Lacson: Ability to ‘Maintain, Create Troll Farms’ Advantage of Admin Candidates in 2022,
PHILIPPINE DAILY INQUIRER, June 14, 2021, available at https://newsinfo.inquirer.net/1445762/ability-to-
maintain-create-troll-farms-advantage-of-admin-candidates-in-2022-lacson (last accessed Dec. 18, 2021).
68  Id.
69  Id.
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(2) To come up with a multimedia communications plan that DOF can use for public to involve celebrities. Facebook recently banned this agency for “coordinated fake behavior.”77
engagement;
(3) To produce a monthly evaluation of public responses on multimedia releases by the Another issue happened in 2020 when Facebook discovered false identities connected to the
DOF; and
(4) To coordinate with DOF in expanding its media presence by producing materials in
different forms of media such as TV, radio, print, and digital channels.70
DOF defended Gabunada, saying that the latter’s contract is “legal and aboveboard.” The
head of DOF’s Bids and Awards Committee, Finance Undersecretary Gil Beltran, said that he was
hired to aid in “developing brand and communications strategy for the DOF to aid in the swift
passage of the remaining packages of the Comprehensive Tax Reform Program plus other priority
government measures,” and his work would not involve setting up fake accounts. Beltran adds that
the amount of Php 909,122.40 for his consultancy service of six months is reasonable because of
the highly technical service he will render.71
One might ask: who is Nicanor Gabunada Jr.? He spearheaded the social media campaign
that boosted President Duterte’s 2016 candidacy and he was tagged by Facebook in 2019 as an
operator of 200 pages, accounts, and groups linked to spreading online falsehood.72 According
to Facebook Cybersecurity Policy Head Nathaniel Gleicher, since his acts violated the Facebook
community standards, Facebook shut down said accounts. According to Facebook’s investigation,
Gabunada and his team, through concealed identities, spent almost $59,000 for ads. There were 67
pages, 68 Facebook accounts, 40 groups, and 25 Instagram accounts linked to Gabunada’s network.
These accounts attacked the opposition of the administration and promoted the administration
candidates.73
Another focal point related to this discussion is the 2017 Senate Inquiry aforementioned.
Presidential Communications Operations Office Assistant Secretary Mocha Uson and Department
of Foreign Affairs (DFA) consultant and pro-administration Thinking Pinoy blogger Rey Joseph
Nieto were notably present.74 Nieto tagged Publicist Joyce Ramirez during a Senate inquiry as the
influencer hired by Interior Secretary Manuel “Mar” Roxas to propagate the trend. Ramirez denied
the claim, saying that she never provided services to the Liberal Party. She replied that her name was
dragged without proper verification of the information.75
Striking down the opposition has seemingly become methodical and strategic. If the
rumors are true, the people allegedly involved in propaganda and troll armies are fortified by giving
them government positions such as the abovementioned incidents.76 Further, several celebrities,
knowingly or unknowingly, have allegedly lent legitimacy to the fake news by spreading propaganda
through their verified pages. Twinmark Media Enterprises, the digital marketing group responsible
for the fake news being spread by verified celebrity profiles, paid hundreds of thousands to millions
70  Elijah Felice Rosales, DOF Hires ‘Fake’ Facebook Account Operator, PHILIPPINE DAILY INQUIRER, June 21, 2021,
available at https://www.philstar.com/headlines/2021/06/21/2106968/dof-hires-fake-facebook-account-operator (last
accessed Dec. 18, 2021).
71  Ralf Rivas, DOF Defends Hiring Ex-Duterte Social Media Operator Nic Gabunada, RAPPLER, June 22, 2021, available
at https://www.rappler.com/business/dof-statement-hiring-ex-duterte-social-media-operator-nic-gabunada/ (last
accessed Dec. 18, 2021).
72 Rosales, supra note 70.
73  Nathaniel Gleicher, Article, Removing Coordinated Inauthentic Behavior From the Philippines, FACEBOOK, March 18,
2019, available at https://about.fb.com/news/2019/03/cib-from-the-philippines/ (last accessed December 20, 2021).
74 Cigaral, supra note 50.
75 Interaksyon, Publicist Named by Blogger Nieto in ‘Fake News’ Hearing Hits Back, Calls Him ‘Famewhore’, PHILSTAR,
Oct. 5, 2017, available at https://interaksyon.philstar.com/breaking-news/2017/10/05/101797/publicist-named-by-
blogger-nieto-in-fake-news-hearing-hits-back-calls-him-famewhore/?fbclid=IwAR1qDZviTaaILK2xtYlmnOAO3IAsbp
C8ogApXCYpkxrSEz5FhZeEDtTrgEw (last accessed Feb. 11, 2022).
76  Gaby Baizas, Investigating Troll Farms: What to Look Out For, RAPPLER, July 17, 2021, available at https://www.
rappler.com/newsbreak/iq/investigating-troll-farms-what-to-look-out-for/ (last accessed Dec. 19, 2021).
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Philippine military or police, spreading falsities and hate against the Anti-Terror Law.78 Another
one is spreading false claims about the coronavirus—the Oxford’s Reuters Institute for the study of
journalism found that:
“..while politicians, celebrities and other prominent public figures were
responsible for producing or spreading 20% of false claims about coronavirus, their posts
accounted for 69% of total social media engagement.”79
Those involved in trolling can bring more leads to the people behind them.80 This can
result in the erosion of trust towards legitimate institutions. Domination of one political view in
social media amplifies political polarization which damages the weaves of democracies. All the three
departments of a government are affected—the independence of the judiciary is reduced since the
courts are susceptible to attacks, the legislature is more prone to gridlock or to a “rubberstamp
function,” the leaders in the executive department have more avenues to abuse the power granted
to them and may represent only his or her supporters resulting to a monopoly of power instead
of a representation of the whole nation. Studies suggest that although there are different forms of
democracy, there is an unsettling patterned effect of polarization and that is to exasperate tension
among the citizens. As stated by Carothers and O’Donohue, “Partisan conflict takes a heavy toll
on civil society as well, often leading to the demonization of activists and human rights defenders.
More seriously still, divisions can contribute to a spike in hate crimes and political violence[.]” Note
that when a nation reaches a deep division among opposing parties, it is difficult to be remedied.
Polarization can escalate very quickly and when people are isolated in an echo chamber, it can lessen
our ability to detect and solve the problem.81
Conclusion
There is no one-size-fits-all notion of democracy. Democracy is not a specific ideal but a
combination of norms and ideals under a broad spectrum of conditions.82 But different democratic
regimes face almost the same issues and there are universal solutions to address the problems. But
these solutions have different ways of enforcement, depending on the resources and gravity of
issues at hand. Therefore, in addressing the problem there must be the effort of properly educating
ourselves to fully know the factors involved and the right action to employ. Studies in the future
should examine Filipino behavior. A historical-comparative analysis might also be helpful.
A question is presented as to the ingredients of rule of law: To what extent can democratic
values be guaranteed in the realm of digital democracy? Some phenomena such as spamming,
cyber-attacks, and—as discussed extensively in this paper in the Philippine context—troll farming
have increased as we go on our journey of digital development. Pagallo (2017) thus provides a
77  Camille Elemia, Stars, Influencers Get Paid to Boost Duterte Propaganda, Fake News, RAPPLER, Feb. 27, 2021, available
at https://www.rappler.com/newsbreak/investigative/celebrities-influencers-get-paid-to-boost-duterte-propaganda-fake-
news/ (last accessed Dec. 20, 2021).
78 Baizas, supra note 76.
79  Jim Waterson, Influencers Among ‘Key Distributors’ of Coronavirus Misinformation, THE GUARDIAN, April 8, 2020,
available at https://www.theguardian.com/media/2020/apr/08/influencers-being-key-distributors-of-coronavirus-fake-
news (last accessed Dec. 20, 2021).
80 Baizas, supra note 76.
81  Thomas Carothers and Andrew O’Donohue, Article, How to Understand the Global Spread of Political Polarization,
CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE, Oct. 01, 2019, available at https://
carnegieendowment.org/2019/10/01/how-to-understand-global-spread-of-political-polarization-pub-79893 (last
accessed Dec. 20, 2021).
82 CORIEN PRINS, ET AL., supra note 1, at 5.
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threefold proposal called “digital ethics” which are: “(1) any kind of impoverishment of being in
the info-sphere ought not to be caused; (2) informational entropy ought also to be prevented or
removed and (3) old and new challenges of digital democracy should be tackled with a margin of
tolerance.83
Our country faces an added challenge, as stated by Luyt (2007):
“There are no censorship laws in the Philippines, and the government does not
involve itself in the operation of the papers. A free press is one of the guarantees enshrined in
the constitution. The result is that the Philippine press is one of the most open in Asia. However,
like mass media everywhere, it is owned by a handful of powerful individuals and corporations
who use their media assets directly to advance their own interests.”84
Weill notes that utilizing digital means in elections may be a risky venture for democratic
regimes. Incentives are accessible for saboteurs to sway electoral results. She recommends that there
must be a strong presence of a media “watchdog” to facilitate healthy competition among the
candidates during elections. There must be someone who is willing to invest in resources in order
to “hone participatory literacy skills.” This purpose, however, can only come to fruition if those
responsible for operating participation tools make “thoughtful choices” that level technological
utilities with the “nature of the democratic process involved.”85 Lightman, on the other hand,
proposes that social media executives and the government must work hand in hand to prevent the
abuse of digital tools. As an initial step, the policymakers must educate themselves of the issue86
as there are many players involved, and different facets needed to be addressed. The suggestion
that there is no need for further legislation may be given greater weight than otherwise, but as
mentioned, e-literacy must be given importance and stronger implementation of existing laws must
be done. To add, the effort must not only come from the government; the responsibility of vigilance
on the part of the consumers must also be present, and vigilance is a natural reaction to public
awareness. Hence, information dissemination really is the key. The social media platforms must
also have active roles, not just passive ones. The main challenge now is to develop regulations and
institutional settings for the internet with unbiased proponents and administrators to effectively
implement the safeguards. In order to achieve the ideal effect of technology in politics, there must
be a conscious commitment to align the rules of the political game. Then this must be followed
through by the information consumers with sound judgment.
There is no denying that our online ecosystem is advantageous in almost all aspects of our
lives but there are existing dangers with immersing ourselves in it. Along with the positives, it also
has negatives such as the nuisance of internet trolls. With the growing usage of digital tools and the
existence of the internet being future-proof, it is high time that digital literacy be given importance
in classrooms. Overall, to save our democracy from digital disruption, it is obvious that there must
be digital structure through rules and regulations.
Social media can be a trusted friend, but it can also be a devious foe. On our part as
citizens, it is our responsibility to be aware of cognitive biases around us available for consumption,
be watchful of the information we adopt as our own, and be active in fact-checking, especially on
matters of public interest. As we scroll through our social media accounts, let us bear in mind that
what we see and the sentiments presented to us do not necessarily mirror the real situation and the
collective national disposition.
83  CORIEN PRINS, ET AL., supra note 1, at 20
84  Brendan Luyt, The Hegemonic Work Of Automated Election Technology In The Philippines, 37 JOURNAL OF
CONTEMPORARY ASIA 139, 148 – 49 (2007).
85  CORIEN PRINS, ET AL., supra note 1, at 15.
86  Scottie Barsotti, Article, Weaponizing Media: Heinz Experts on Troll Farms and Fake News, CARNEGIE MELLON
UNIVERSITY HEINZ COLLEGE, available at https://www.heinz.cmu.edu/media/2018/October/troll-farms-and-
fake-news-social-media-weaponization (last accessed Dec. 22, 2021)
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Who's watching?
Addressing the Challenges of Taxing the Digital Economy in the Philippines
Kaye Alexandhra M. Mercado
Introduction
The COVID-19 pandemic has accelerated the growth of the digital economy and
e-commerce in the Philippines and the whole world. The Philippines continues to rely on the
digital economy and e-commerce to boost its economic recovery at the height of the pandemic.
COVID-19 has strongly affected the lives of the Filipinos and the country's economy, generating
numerous challenges for various business entities – private and public. Quarantines, lockdowns, and
restrictions have been implemented globally to stop or minimize the spread of this disease. Digital
solutions have been critical in continuing some economic and social activities, albeit remotely.
According to the Philippine Department of Trade and Industry (DTI), e-commerce
contributed 3.4%, or US$12 billion (Php 599 billion), to the country’s GDP in 2020. The
countries’ current goal is to increase e-commerce revenue to US$17 billion (Php 850 billion), or
4.3% of GDP, by 2021, and to US$24 billion (Php 1.2 trillion), or 5.5% of GDP, by 2022.1
The rise of the digital economy has been marked by big and influential companies such
as Facebook, Google, Lazada, Shopee, Amazon, Netflix, Apple, and Spotify. But what is the digital
economy? How is it related to wider social changes marked by the rise of the internet and computer
technology?
The digital economy refers to both the digital access of goods and services and the use
of digital technology to help businesses. The rapid expansion of the digital economy and the
growth in the use of computer technology, the Internet, and increased flexibility in the use of
smartphones and tablets have changed the nature of commerce itself. This rapid development of
the digital economy raises new challenges for the taxing authorities. The digital economy makes
the assignment of economic transactions to specific jurisdictions complex by blurring geographical
boundaries, raising issues of Value Added Tax (VAT) collection for electronic transactions across
national boundaries, and relies on intangibles that are too complex to monetize.2
While the digital economy has brought convenience and is efficient in many sectors, it is
also a largely untaxed segment of the economy. As the Philippine economy moves towards more
digitization, so too must the tax regime, which, for the moment, is better suited to traditional brick-
and-mortar methods of doing business than it is to digital transactions.3
House Bill No. 7425 (previously H.B. No. 6765), or the Digital Economy Taxation Act
of 2020 (DETA 2020 Bill), filed on May 19, 2020, aims to subject the value created in the digital
economy to withholding or income tax and VAT. This bill is made as a response to the increased
urgency of finding new sources of revenue to fund the country's efforts to recover from the adverse
1  Kris Crismundo, DTI Eyes E-Commerce's Share of PH Economy At 5.5% in 2022, Philippine News Agency, January 29,
2021, available at https://www.pna.gov.ph/articles/1129015 (last accessed December 08, 2021).
2  Maya Bacache-Beauvallet & Francis Bloch, Special Issue on Taxation in the Digital Economy, 20 J. PUB. ECON. 5
(2018).
3  An Act Establishing a Fiscal Regime for the Digital Economy, Amending for the Purpose Sections 57, 105, 108, and
114 of the National Internal Revenue Code, and for Other Purposes, H.B. No. 6765, explan. n., 18th Cong., 1st Reg.
Sess. (2020).
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impacts of COVID-19 and anticipates the increasing digitization of the country's economy.
The Digital Economy and the Taxing Policy in the Age of Electronic Commerce
Before delving into the issues and challenges of taxing the digital economy and the
ramifications of the proposed DETA 2020 Bill, we must first review some fundamental tax
principles. Taxation is a process inherent in every state to exercise the power to exact enforced
proportional contributions imposed upon persons, properties, or rights to raise revenue in order
to defray the necessary and legitimate expenses of the government.4 Taxes are the lifeblood of the
government. Without revenue raised from taxation, the government will not survive, resulting
in detriment to society. Without taxes, the government would be paralyzed for lack of motive
power to activate and operate it.5 This principle has been immortalized as the Lifeblood Doctrine,
the foundation of the exercise of the power to tax. The exercise of the power to tax emanates
from necessity because, without taxes, the government cannot fulfill its mandate of promoting the
general welfare and well-being of the people.6 This, on the other hand, is the Necessity Theory.
These are the underlying bases of Taxation.
In determining whether the taxing arm of the government will reach a subject matter, the
rules regarding situs of taxation must be taken into account. In the imposition of the tax on rights,
the State may justify such imposition through any of these principles:
1. Source Principle – The State may impose the tax if the source of
such imposition is within the State.
2. Residence Principle – The State of residence may impose the tax.
3. Citizenship Principle – The State where the taxpayer is a citizen otherwise are taxable as income sourced from the Philippines. Simply put, the
may impose the tax.7
In the imposition of the tax on property, the principle of lex rae sitae shall apply, which
means that the tax shall be imposed by the State having jurisdiction of the place where the property
is located.8
Income Taxation
Income is defined as an amount of money coming to an individual or corporation within
a specified time, whether as payment for services, interest, or profit from investment. Unless
otherwise specified, it means cash or its equivalent. Income can also be thought of as the flow of
the fruits of one’s labor.9
Income, as contrasted with capital or property, is to be the test. The essential difference
between capital and income is that capital is a fund, income is a flow. A fund of property existing
at an instant of time is called capital. A flow of services rendered by that capital by the payment of
money from it or any other benefit rendered by a fund of capital in relation to such fund through
4  Josephrally L. Chavez Jr., Income Taxation Law Illustrated and Simplified (A Guide to Passing the Bar
Volume I) 1 (2019).
5  CIR v. Algue, Inc., G.R. No. L-28896, 158 SCRA 9 (1988).
6  CIR v. Bank of the Philippine Islands, G.R. No. 134062, 521 SCRA 373 (2007).
7  christine angelica b. Elveña, understanding income taxation 47 (2020).
8  Id.
9  Conwi v. Court of Tax Appeals, G.R. No. 48532-33, 213 SCRA 83 (1992).
122
a period of time is called income.10 It bears importance then to distinguish income and capital
because capital is not subject to income tax. It is a well-enshrined principle in our jurisdiction
that the State cannot impose a tax on capital as it constitutes an unconstitutional confiscation of
property.11 Case law provides that in order to constitute “income,” there must be a “realized gain”12;
for a tax on income is not a tax on property.
For income to be taxable, the following requisites must exist:
1. There must be gain;
2. The gain must be realized or received; and
3. The gain must not be excluded by law or treaty from taxation.
For purposes of income taxation, it is well to bear in mind that the “source of income”
relates not to the physical sourcing of a flow of money or the physical situs of payment but rather
to the “property, activity, or service which produced the income”.13
It is clear, therefore, that the source of an income is the property, activity, or service that
produced the income. For the source of income to be considered as coming from the Philippines,
it is sufficient that the income is derived from activity within the Philippines.14
The source rules to determine whether income shall be treated as income from within or
outside the Philippines can be found in Section 42 of the National Internal Revenue Code. The
following incomes are considered as income from sources within the Philippines:15
1. Interests – Interests derived from sources within the Philippines, and interests
on bonds, notes, or other interest-bearing obligations of residents, corporate or
situs of interest income is the place of residence of the debtor.16
2. Dividends – The amount received as dividends:
(a) From a domestic corporation shall be considered as income
sourced from within the Philippines;17
(b) From a resident foreign corporation, unless less than fifty percent
(50%) of the gross income of such foreign corporation for the three-year
period ending with the close of its taxable year preceding the declaration of
such dividends or for such part of such period as the corporation has been in
existence was derived from sources within the Philippines as determined under
the provisions of this Section, shall be considered as income derived from sources
within the Philippines, but only to the extent which bears the same ration to
such dividends; that is, the gross income of the corporation for such period
derived from sources within the Philippines which bears to its gross income from
all sources;18 and
(c) From a non-resident foreign corporation, as the corporation has
10 ELVEÑA, supra note 7, at 154.
11  Association of Non-profit Clubs, Inc. v. BIR, G.R. No. 228539, 906 SCRA 331 (2019).
12  Chamber of Real Estate and Builders’ Associations, Inc. v. Romulo, G.R. No. 160756, 614 SCRA 605 (2010).
13  CIR v. British Overseas Airways Corporation, G.R. No. L-65773-74, 149 SCRA 395 (1987).
14  Id.
15 ELVEÑA, supra note 7, at 276.
16  An Act Amending The National Internal Revenue Code, As Amended, And For Other Purposes [Tax Reform Act],
Republic Act No. 8424, § 42 (A) (1) (1997).
17  Id. § 42 (A) (2) (a).
18  Id. § 42 (A) (2) (b).
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no operation in the Philippines because it is not engaged in business in the
Philippines, its income shall be considered as income sourced from without.19
From these rules, it is clear that the classification of the issuer corporation determines the
source of the income. Hence, the following summary of the rule:
Domestic Corporation Resident Foreign Non-Resident Foreign
Corporation Corporation
Dividend Income Sourced Within If 50% or more earned in Sourced WIthout
the Philippine pro-rata; or
If less than 50% is earned
in the Philippines; source
without20
3. Services – If the service is performed in the Philippines, the income is treated
as from sources within the Philippines.21 Compensation for labor or personal
services performed in the Philippines shall be considered as income sourced
from within the Philippines. Simply put, the situs of the income derived from
services shall be the place where the service is rendered.22
The important factor, therefore, which determines the source of income for personal
service is not the residence of the payor, or the place where the contract for service is entered into,
or the place of payment, but the place where the services are actually rendered.23
Withholding Taxes
Withholding tax is a method of collecting income tax in advance from the taxable income
of the recipient of income. Thus, if the income of the recipient is exempt from income tax, no
withholding of tax is required to be made by the payor of such income, which is constituted as a
withholding agent.24
In the operation of the withholding tax system, the payee is the taxpayer, the person on
whom the tax is imposed, while the payor, a separate entity, acts as no more than an agent of the
government for the collection of the tax in order to ensure its payment. Obviously, the amount
thereby used to settle the tax liability is deemed sourced from the proceeds constitutive of the
tax base. In an ad valorem tax, the tax paid or withheld is not deducted from the tax base, except
when the law clearly spells out in defining the tax base.25 The following are the three major types
of withholding taxes:
1. Creditable Withholding Tax on Compensation (WTC) – Creditable Withholding Tax
is imposed on compensation. It is in the nature of advance payments. Therefore, the same
income is subject to normal tax using the graduated tax rates at the end of the taxable
year.26
2. Expanded Withholding Tax (EWT) – Expanded Withholding Tax is imposed on
income earned from business, trade, or profession. It is in the nature of advance payment.
19 ELVEÑA, supra note 7, at 279.
20 ELVEÑA, supra note 7, at 279-80.
21  VICTORIANO C. MAMALATEO & MARY JOY V. MAMALATEO-JUSAY, REVIEWER ON TAXATION 152
(4th ed. 2019).
22 ELVEÑA, supra note 7, at 281.
23  CIR v. Juliane Baier-Nickel, G.R. No. 153793, 500 SCRA 87 (2006).
24  MAMALATEO & MAMALATEO-JUSAY, supra note 21, at 407.
25  Bank of America and SA v. Court of Appeals and CIR, G.R. No. 103092, 234 SCRA 302 (1994).
26  MAMALATEO & MAMALATEO-JUSAY, supra note 21, at 673.
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Therefore, the same income is subject to normal tax using the graduated tax rates at the
end of the taxable year. The amount withheld is not the entire tax to be paid for the
particular source of income. However, the amount withheld shall be treated as tax credit,
which will be deducted from the total amount due in order to arrive at the amount of
tax payable.27
3. Final Withholding Tax (FWT) – Final Withholding Tax already constitutes the entire
tax to be paid for the particular source of income. The act of withholding and remittance
of this tax will extinguish the taxpayer’s liability.28
Value Added Tax
Value Added Tax (VAT) is a tax on the value added by every seller to the purchase price or
cost in the sale or lease of goods, property, or services in the ordinary course of trade or business as
well as on the importation of goods into the Philippines, whether for personal or business use. As a
rule, the sale of goods or services made in the normal course of trade or business are subject to VAT
“unless exempt”. Nonetheless, if the sale is exempt from VAT, it may be subject to other percentage
taxes except those transactions exempt from business taxes such as those made for subsistence or
livelihood.29
The Digital Economy and the Cyberspace
The digital economy has been able to capitalize on relatively recent changes in the
global economy over the last several years. Commerce is no longer dominated, as it once was,
by interactions between customers and merchants on the traditional "high street" within central
cities or in the more recent "shopping malls" that provide ample parking for motorized customers
with access to large commercial facilities on the outskirts of metropolitan areas. Today, commerce
transacted via the Internet has eliminated the need for physical space done away with physical space
based on the presence of stores within or outside of cities. To make a purchase, one does not need to
be physically present in a store to peruse the products or services on sale, pick and pay for them, and
finally exit with the product in a bag or container or with a tangible voucher validating the purchase
of a service. All of these steps in the purchasing process can now be completed online, and where a
physical product is involved, it is delivered via courier service, or in the event of a service, a voucher
or a receipt is printed following the transaction.30
Along with eliminating physical space as a basis for purchasing goods and services, the
digital economy has eliminated time constraints; purchasing and selling products and services can
take place at any time of day or night. In other words, the shop is constantly open online. It is
unaffected by employee contracts, working circumstances, the weather, or holiday leave provisions
made by its employees.31
Digital Economy Taxation Act of 2020 (DETA 2020 Bill)
The spread of the digital economy poses challenges for international taxation. The digital
economy is characterized by an unparalleled reliance on intangible assets and the massive use of
27  MAMALATEO & MAMALATEO-JUSAY, supra note 21, at 674.
28  Id.
29  ENRICO D. TABAG & EARL JIMSON R. GARCIA, TRANSFER & BUSINESS TAXATION 239 (2020).
30  Robert Leonardi, Conclusions: Taxation and the Future of the Digital Economy 112-13 (2016).
31  Id. at 113.
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data. Issues and challenges in taxing the digital economy include the following:
1. A company's ability to have a significant digital presence in another country's economy
without being taxed due to a lack of nexus under current international rules;
2. Attribution of value derived from the generation of marketable location-relevant data
via the use of digital products and services;
3. Income derived from new business models is classified.
4. The application of related source rules, and how to ensure the effective collection of
VAT with respect to the cross-border supply of digital goods and services.32
Digital or electronic goods, electronic services, digital advertising services, internet-based
subscription services, and transactions made on electronic commerce (e-commerce) platforms will
all be subject to a 12 percent (12%) VAT under the DETA 2020 Bill. For income tax and/or VAT
purposes, network orchestrators and e-commerce platforms will be identified as withholding agents.
Non-residents who provide digital services will be required to establish representative
offices or appoint resident agents in order to conduct business in the Philippines.
The bill proposes to regulate not only digital services but also the sale of goods through
marketplaces. Marketplaces have been considered as potential VAT collectors on behalf of sellers. As
the regulations around the taxation of low-value goods evolve, this proposed approach mirrors those
in other jurisdictions. This trend began in Australia in 2018 and has since been replicated in New
Zealand (2019), Norway (2020), the United Kingdom (from January 2021), and the European
Union (from July 2021). If the proposed DETA 2020 Bill is passed, the country will be the first to
impose a requirement for both digital and physical goods at the same time.33
Under the current tax laws, applying the source rules, if the service is performed in the
Philippines, the income is treated as coming from sources within the Philippines. Therefore, such
income is subject to tax. Services which include digital advertising by Google and Facebook and
subscription-based services such as those of Apple, Netflix, and Spotify are made outside the
Philippines and, currently, they are not liable to tax. The essential factor determining the source
of income for personal services is therefore not the payor's residence, the place where the contract
for service is entered into, or the place of payment, but the place where the services were actually
rendered.
House Bill No. 7425 aims to impose VAT on digital transactions in the Philippines,
amending for this purpose sections 105, 108, 109, 110, 113, 114, and 236 and adding a new
section 105-a of the National Internal Revenue Code of 1997, as amended. Section 1 of the DETA
2020 Bill reads as follows:
SEC. 105. Persons Liable. – Any person who, in the course of trade or business, sells,
barters, exchanges, leases goods or properties, INCLUDING THOSE DIGITAL OR
ELECTRONIC IN NATURE, renders services, INCLUDING THOSE RENDERED
ELECTRONICALLY, and any person who imports goods shall be subject to the value-
added tax (VAT) imposed in Sections 106 to 108 of this Code.34
In his explanatory note, Representative Joey Sarte Salceda enumerated five (5) key changes
to the way the digital economy is currently taxed:
32  Organisation for Economic Cooperation and Development, Addressing the Tax Challenges of the Digital Economy
(OECD/G20 Base Erosion and Profit Shifting Project, Sept, 16, 2014), at 24-25, available at https://www.oecd-ilibrary.
org/docserver/9789264218789-en.pdf (last accessed Dec. 22, 2021).
33 Vertex, VAT on foreign digital service supplies moves a step closer to becoming law, September 27, 2021, available at
https://www.vertexinc.com/resources/resource-library/philippines-bill-proposing-vat-foreign-digital-service-supplies-
moves (last accessed Dec. 22, 2021).
34  An Act Imposing Value-Added Tax on Digital Transactions in the Philippines, Amending for the Purpose Sections 105,
108, 109, 110, 113, 114, And 236 and Adding a New Section 105-A of The National Internal Revenue Code Of 1997,
As Amended, H.B. No. 7425, § 1, 18th Cong., 3rd Reg. Sess. (2020).
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1. It will make "network orchestrators" like Grab, Angkas, and other similar services that
link customers and providers withholding agents for income taxes, to ease their partners
of the burden of having to pay their own taxes, while also encouraging tax compliance.
2. The bill will clarify that services rendered electronically in the course of trade or
business are liable to Value-Added-Tax (VAT). This will, once and for all, set a statutory
clarification of a long-standing question of whether services rendered electronically can
be subject to VAT.
3. The bill clarifies that such services as digital advertising by internet giants such as
Google and Facebook and subscription-based services such as those of Netflix and
Spotify, are subject to VAT.
4. The bill will make network orchestrators for lease services such as AirBnB, and
electronic commerce platforms such as Lazada and Shopee withholding agents for VAT,
easing their partners of regulatory and tax compliance burden while improving overall
tax compliance.
5. The bill requires that those who render digital services must do so through a resident
agent or a representative office in the Philippines. This addresses the issue of businesses
having a significant presence in a country without having a physical establishment here
that could be held liable for tax and regulatory purposes, improving our revenue intake
while being better able to protect consumers from unfair trade practices.35
Sale or exchange of services means the performance of all kinds of services in the
Philippines, whether it is rendered electronically or otherwise, including:
1.Supply by resident or non-resident of digital services such as online advertisement
services;
2. Supply by resident or non-resident of subscription-based services; and
3. Supply of electronic and online services delivered through IT infrastructure.36
Digital services include online licensing of software, updates, and add-ons; website filters
and firewalls; mobile applications, video games, and online games; webcast and webinars; and the
provision of digital content such as music, files, images, text, and information. In addition, online
advertising space; electronic marketplaces; search engine services; social networks; internet-based
telecommunication, database, and hosting; online training, publication subscriptions, and even
payment processing services are also on the list.37 The bill provides for an exemption from VAT
books and other printed material that are sold electronically or online.38 However, payments to
nonresidents for digital services rendered in the Philippines are subject to 12% withholding tax at
the time of payment.39
Small-time online sellers with gross receipts or sales of less than Php 3 million will remain
exempt from VAT; thus, the cost of VAT will not be passed on to buyers.40 However, online buyers
from large digital businesses with sales or receipts of more than Php 3 million will be required to
bear the passed-on VAT from digital services and subscriptions purchased.41
The Department of Finance (DOF) and the Bureau of Internal Revenue (BIR) are currently
drafting regulations and a mechanism to collect VAT on local and cross-border digital transactions.
Meanwhile, the DOF is keeping an eye on developments in countries where digital services taxes
on internet platforms have been applied for income tax purposes. The DOF has declared that once
an international agreement on the taxation of the digital economy has been obtained, it will study
35  An Act Establishing a Fiscal Regime for the Digital Economy, Amending for the Purpose Sections 57, 105, 108, and
114 of the National Internal Revenue Code, and for Other Purposes, H.B. No. 6765, explan. n., 18th Cong., 1st Reg.
Sess. (2020).
36  H.B. No. 7425, § 3.
37  Id. § 2 (E).
38  Id. §§ 4 (H) (R).
39  Id. § 7 (C).
40  Id. § 8 (3) (B).
41  Id. § 8 (3) (A).
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and propose tax reforms to impose income tax on cross-border digital transactions.42
Challenges of Taxing the Digital Economy
The Digital Economy poses significant challenges to existing tax rules. Even before
the advent of e-commerce, it was not always easy to determine where income arose. States have
consistently differed over whether the presence of a facility, the location of customers, the passage
of title, or a number of other factors determine where the income arises.43
The Revenue Memorandum Circular (RMC) No. 055-13 of the Bureau of Internal
Revenue (BIR) presently serves as the guideline for the taxation of online firms. Only online
shopping and retail, online intermediary services, online advertisements, and online auctions are
covered under RMC No. 055-13. RMC No. 055-13 does not levy extra taxes on online enterprises;
rather, it outlines and clarifies their tax obligations under present tax laws and regulations. Current
regulations also do not impose a tax on foreign people and organizations who provide remote
services.44
The evolution of business models in general, and the expansion of the digital economy
in particular, have resulted in non-resident corporations operating in a market jurisdiction in
fundamentally different ways than when international tax regulations were devised. While it has
always been possible for a non-resident corporation to sell into a jurisdiction without having a
physical presence there, improvements in information and communication technology (ICT) have
substantially increased the scale at which such activity is now possible.45
Furthermore, in order for a company to extend its potential in a market jurisdiction, a
local physical presence in the form of manufacturing, marketing, and distribution was frequently
required. These in-country operations would have been involved in potentially high-value activities
such as procurement, inventory management, local marketing, branding, and other activities that
yielded a local return liable to tax in the market country.46
The fact that present taxation thresholds rely on physical presence is due in part to the
need for a local physical presence in many traditional enterprises in order to conduct considerable
sales of goods and services into a market jurisdiction created. It is also related to the necessity to
ensure that the source country has the administrative capacity to enforce its taxes rights over a
non-resident enterprise. Because less physical presence is required in market economies in normal
corporate structures today – an effect that can be accentuated in certain types of enterprises in the
ICT industry – international taxation faces new issues.47
Other aspects of the digital economy have also presented significant issues to policymakers.
42  Beatrice M. Laforga, DOF awaiting international consensus on digital services tax, BUSINESSWORLD, June 3, 2020,
available at https://www.bworldonline.com/dof-awaiting-international-consensus-on-digital-services-tax/ (last accessed
December 22, 2021).
43  Subhajit Basu, Direct Taxation and E-Commerce: Possibility and Desirability, 1 INT'L J. INNOV. DIGITAL ECON.
37 (2010).
44  Ronald Bernas, Kristine Anne Mercado-Tamayo & Selynn Co, Philippines—Taxation of Digital Transactions,
BLOOMBERG Tax, October 12, 2020, available at https://news.bloombergtax.com/daily-tax-report-international/
philippines-taxation-of-digital-transactions (last accessed Dec. 22, 2021).
45  Organisation for Economic Cooperation and Development, Addressing the Tax Challenges of the Digital Economy
(OECD/G20 Base Erosion and Profit Shifting Project, Sept, 16, 2014), at 124, available at https://www.oecd-ilibrary.
org/docserver/9789264218789-en.pdf (last accessed Dec. 22, 2021).
46  Id.
47  Id. at 125.
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Digital technologies facilitate cross-jurisdictional corporate transactions while also allowing
consumers to access products and services from anywhere in the world, posing issues in terms of
collecting the proper amounts of consumption tax.48
The absence of an international standard for charging, collecting, and remitting taxes to
a potentially large number of tax authorities generates challenges and high compliance costs for
economic players, particularly small and medium-sized businesses. From the standpoint of the
government, there is a danger of revenue loss and trade distortion, as well as the issue of managing
tax liabilities caused by a high volume of low-value transactions, which can result in a significant
administrative burden but marginal revenues.49
Cross-border trade in goods, services, and intangibles (including digital downloads for
VAT purposes) raises issues for VAT systems, particularly when such products are purchased by
private consumers from suppliers abroad. The digital economy exacerbates these difficulties since
technological advancements have substantially enhanced the capacity of private consumers to
purchase online and the ability of firms to sell to consumers worldwide without the requirement to
be physically or otherwise present in the consumer's nation. This frequently leads to no VAT being
charged on these movements, which has a negative impact on countries' VAT revenues as well as
the level playing field between resident and non-resident sellers.50
The main VAT challenges in the digital economy are (i) low-value parcel imports from
online sales, which are VAT-exempt in many jurisdictions, and (ii) strong growth in the trade of
services and intangibles, particularly sales to private consumers, on which no or an inappropriately
low amount of VAT is often levied due to the complexity of enforcing VAT-payment on such
supplies.51
Also, considering that, since VAT is an indirect tax that can be shifted or passed on to
the buyer, the additional cost imposed on digital goods and services will be borne by end-users,
who are largely ordinary consumers who purchase goods and services for personal consumption
primarily. While it is true that H.B. No. 7425 has the potential to generate additional income for
the government, we cannot ignore the reality that it will be generated at the expense of people in
the middle or lower economic classes. This result will, in some ways, contradict the bill's objective
of assisting Filipinos in recovering from the pandemic.
Conclusion
The digital economy is constantly evolving, and potential future changes must be observed
in order to assess their impact on tax laws and regulations. The digital economy's rapid technological
improvements have resulted in a number of emerging trends and possible developments.
The rise of the digital economy produces numerous benefits, including increased growth,
employment, and overall well-being. At the same time, it presents a number of issues for legislators.
Our state tax policies and regulations must be updated to incorporate changing and evolving realities
in the interactions between customers and manufacturers of products and services. However, the
government must devise efficient methods of collecting money from these emerging technologies
48  Id.
49  Id. at 126
50  Id. at 133.
51  Id.
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for purchasing and selling commodities and providing services.
Businesses engaged in digital transactions, including residents and non-residents, should
evaluate their current business models and operations in order to prepare for the possible imposition
of VAT on electronic products and services, as well as additional registration requirements.
Businesses must also remain informed on legislative changes in order to fully understand how this
new law may affect not only their VAT liabilities but also other Philippine taxes such as income tax
and withholding tax.
The COVID-19 pandemic accelerated the expansion of the digital economy; community
quarantines compelled us to stay at home and urged us to purchase our essential needs through
online shopping sites or platforms. Several businesses have resorted to using the internet as a
means of doing business during this time period. Due to the constraints of physical travel and
the convenience of using various electronic platforms to buy products and services, the number
of online and digital transactions has substantially expanded. For education, work, and leisure,
many people continue to rely extensively on the internet and digital services. There is no doubt that
internet purchases have become an essential part of our daily lives.
While these conveniences benefit us as consumers, they also allow foreign online sellers to
enter the Philippine market without having to invest in or hire Filipinos. Legislators have to react
quickly to propose tax policies on these digital enterprises in order to promote fair competition
between traditional and digital businesses and to raise more funds for the pandemic recovery effort.
As a result, they deemed it necessary to pass a bill implementing a tax on the digital economy.
The COVID-19 pandemic is exacerbating the benefits and disadvantages of the digital
economy. In recent years, taxing the digital economy has become more difficult and fast-moving,
a scenario amplified by the COVID-19 pandemic. This just goes to illustrate that tax laws and
policies must continue to adapt in order to keep up with the quick pace of the modern world's
expanding complexities.
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Beyond the Rainbow:
Obliterating Gender Discrimination and Stereotypes in Sports
Clara Angela R. Murallos1
A Brief History
Homosexuality and transvestism are not new to the Philippine setting. It has already
prevailed even before the islands were colonized. Local men dressed up in women’s apparel and
acting like women were called, among other things, bayoguin, bayok, agi-ngin, asog, bido, and
binabae. While the word babaylan is said to connote a woman, there were also male babaylans – for
example the asog of the Bisayan society during the 17th century – who not only put on women’s
clothing but also pretended to be women so that the spirits listened to their prayers. These men,
however, did not only wear the customary clothes of women and assumed the demeanor of women,
but were also granted social and symbolic recognition as “somewhat-women”. Some were even
married to men, with whom they had sexual relations. The babaylan was influential both as socio-
political and religious leaders.2 This means that ancient Philippine culture adopted a supernumerary
gender system and not just a binary one.3 Their culture precisely granted them social and symbolic
recognition as binabae. This has been considered a manifestation of freedom as they had liberty over
their choice of wear, behavior, beliefs, and way of living.4
The disappearance of our babaylans was due to Spanish colonialism. From then, the history
of the Philippines went largely quiet about the Filipinos who do not conform to conventional
sexual orientation or gender identity.5 Thus, the veneration was cut short at the expense of our
cultural cognitive dissonance.
Don’t Ask, Don’t Tell
In sports, homonegative climates are openly prejudiced and people who are Lesbian,
Gay, Bisexual, and Transgender (LGBT) face negative stereotypes, bigotry, and discrimination.
The institution of sports has been one of the social and cultural spaces that have constructed and
maintained binary categories of sex, gender, and sexual orientation. This means that these constructs
are defined as opposites; to be male is the opposite of being female. It negates the possibility that
there is a middle ground.6
Sports have always been linked to masculinity. It is often dominated by the male
population as it constantly adheres to the traditional masculine aspects of human beings: strength,
determination, and pain. And when someone seems to contradict the grounds of athleticism, this
person is considered feminine – weaker, easily dominated, to which is given less privilege or none at
all. However, in more “feminine sports”, so to speak, masculinity is not something that is applauded
1  This is a love letter to friends whose real identities were forced to be hidden due to the prejudice of society. May you
finally find your voice in your authenticity so you may constantly wear your pride on your sleeve. I love you.
2  UNITED NATIONS DEVELOPMENT PROGRAM, BEING LGBT IN ASIA: THE PHILIPPINES COUNTRY
REPORT 15 (2014).
3  Fontanos, N. (22 July 2008) TRANSGENDERISM: THE PHILIPPINE EXPERIENCE. available at: Transgender
Filipina Online. http://pinaytg.blogspot.com/2008/08/transgenderism-philippines-experience.html (last accessed Nov
28, 2021).
4  Falcis III vs. Civil Registrar General, G.R. No. 217910, (2019).
5  Id. 3
6  KERRIE J. KAUER, & VIKKI KRANE, Sexual Identity and Sport, Vol. 1, (2013).
131

as more “feminine” sports should embrace grace, eloquence, and beauty. The preference for clear
binaries is all the more salient in sports, where teams, championships, record books, and events are
demarcated by sex.
In many youth sporting leagues, children as young as 5 years compete exclusively against
same-sex athletes—boys against boys and girls against girls. This pattern continues to be deeply
ingrained as athletes mature and progress through the sports system. There is little tolerance for or
acceptance of athletes who do not fit into the rigid gendered system. Concerns about fairness and
undue advantage only serve to augment these negative reactions.7
The problem now lies with the social identity perspective of the athlete. Our male athletes
strive to become more masculine, and those who fail to meet such expectations succumb to threats
of derogatory words such as “gay” or “faggot”, having them question their sexuality. Female athletes,
however, fight to be given the same recognition in sports that are considered male-dominated.
With this, these female athletes become equated to being masculine, stereotyping them as lesbians.
Accordingly, these stereotypes suggest that either gay men or lesbians did not fit the bill – that they weren’t
good enough for sports or that they will never find a place where they would be enough. Sports denied
their existence simply because there were only two categories: it is either you are a boy or you are a girl.
This created an overly hostile, or homonegative environment for LGBT people in sports as they
both emphasize distancing from, or even hostility towards, homosexuality.8
Obviously, heterosexuality is considered the norm. There is a hierarchical privileging
because of the assumption that all sportspeople are heterosexual and that the culture of sports
often neglects people who are LGBT. Heteronormative environments often are described using
the analogy of the former US military policy of “don’t ask, don’t tell” wherein LGBT athletes and
coaches are accepted in these sports settings as long as they don’t talk about their sexual identity or
openly reveal it.
The foundation for heteronormativity is heterosexism, an ideology that stigmatizes, denies,
and denigrates identities, behaviors, and relationships that are not heterosexual.9 Both heterosexism
and heteronormativity often operate at the institutional level and are reflected in the policies and
attitudes that do not include LGBT people. What has become more painful is that LGBT people
were never seen – they were never considered part of these categories as they are always neither –
they were never allowed to be who they are and their gender expression is constantly manifested as
invisible. Worse, it was constantly masked to prevent anything that would topple their skill with the
judgment due to the gender identity and expression they would want to adhere to.
This bias often is subtle, yet pervasive.10
So, while heterosexism is often grounded on the lack of attention or assumed absence of
LGBT athletes, some sports climates are outright hostile towards LGBT people. In other words,
discrimination becomes an accepted action. Thus, when LGBT athletes perceive sports climates
as intolerant, they are likely to attempt to conceal their sexual identity and in doing so, can become
highly stressful and interfere with sports performance.11
7  GEORGE B. CUNNINGHAM, Understanding the Experiences of LGBT Athletes in Sport: A Multilevel Model, Vol.
1, APA Handbook of Sport and Exercise Psychology, (2019).
8  KAUER, supra note 37.
9  HEREK, G.M. (2000). The psychology of sexual prejudice. Current Directions in Psychological Science. (As cited in
Sexual Identity and Sport, Kauer & Krane).
10 Id.
11 ANDERSON, E. (2005). In the game: Gay athletes and the cult of masculinity. (As cited in Sexual Identity and Sport,
Kauer & Krane).
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Younger athletes are more susceptible to threats as they are still discovering themselves.
Attacking them would not only leave them with more questions unanswered, but it will make them
feel that there are no safe spaces for them. In other words, once individuals have come out, they can
seek out support from friends, family, and sports personnel. However, the questioning youth are
still working through their identity development and have not yet created these support networks.12
Coaches, administrators, and teammates can all contribute to positive experiences, and they can do
so by openly advocating for and modeling inclusive behaviors, shaping and reinforcing respectful,
inclusive cultures, engaging in development activities by serving as allies.13
In the Philippine setting, the new millennium saw the expansion of LGBT organizations
through the emergence of gay literature and academic studies. This proliferated demonstrations of
political activism with the participation of LGBT communities and organizations in both LGBT-
specific marches and mainstream demonstrations, the formation of an LGBT lobby group, and
the filing of an anti-discrimination bill.14 But, even with the seemingly bigger table opened to
the Filipino LGBT community, there were still fewer chairs allocated for their representation.
They are continuously silenced through internalized homophobic laws which do not allow same-
sex marriage or, at least, unions that would permit them to legalize adoption or having conjugal
property; and laws that would allow transgender people to legally change their names,15 as opposed
to intersex people who may be allowed to.16 Furthermore, the LGBT political party Ang Ladlad has
been unsuccessful, to date, in winning a seat in Congress and was even threatened to be disqualified
by the Commission on Elections (COMELEC) on the ground of “immorality”.17 Because of this,
the representation of LGBT issues is often made by heterosexual allies.18
Even with these “improvements”, LGBT athletes are still often overlooked. This is
problematic not only because there are fewer allies in the sporting community, but more so, the
sporting community itself discriminates against its LGBT athletes. The reluctance it established
bore a toxic atmosphere for LGBT athletes as there is only a mere tolerance put into play.
In 2009, sporting associations such as the Women’s National Collegiate Athletic
Association (WNCAA) have been criticized for creating a memorandum that women basketball
players were not allowed to have shorter hairstyles as it may mistake them for leaning towards
the more masculine identity; a very unsafe practice which recurred in 2016 when the boy-cut
hairdo memo for the now-defunct Philippine Basketball Association (PBA) Women’s 3x3 was
implemented.19 This was lambasted in social media, but the PBA Commissioner reiterated that
it was for the “betterment” and the “promotion” of women’s basketball in the Philippines. He
pointed out that “there should be a haircut to follow [sic] to show they are girls”, and that since
the PBA is a private-run institution, it is allowed to create its own rules and regulations, upon
which its participants should adhere.20 Furthermore, Atty. Clara Rita A. Padilla21 recalled receiving
12  Id. 39
13  CUNNINGHAM, supra note 38.
14  UNITED NATIONS DEVELOPMENT PROGRAM, supra note 7.
15  Silverio vs. Republic, G.R. No. 174689, 537 SCRA 373 (2007).
16  Republic vs. Cagandahan, G.R. No. 166676, 586 Phil. 637 (2008).
17  Ang Ladlad LGBT Party vs. Commission on Elections, G.R. No. 190582, 618 SCRA 32 (2010).
18  Id.
19  Rappler.com, Narvasa explains ‘boy-cut hairdos’ memo for PBA women’s 3×3, RAPPLER, June 11, 2016, available
at https://www.rappler.com/sports/136105-commissioner-narvasa-explains-boy-cut-memo-women-3x3/ (last accessed
Dec 4, 2021).
20  Id.
21  Lawyer, founder, and executive director of EnGendeRights. Padilla drafted the EnGendeRights submission to the UN
Human Rights Council First Universal Periodic Review (UPR) and made an oral intervention during the UPR in June
2008 in Geneva, spearheaded the drafting of the collaborative Shadow Report submitted to the CEDAW Committee
during its 36th Session in 2006 and orally presented the highlights of the Shadow Report during CEDAW-NGO
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reports of certain schools doing “femininity tests” for members of their women’s basketball teams
who expressed masculine gender expression. School administrations called the student-athletes’
attention to “be more feminine”, which clearly discriminates against one’s sexual orientation,
gender identity, and expression.22
In contrast, the recently held Olympics showcased several openly gay athletes. Much of
our own are Nesthy Petecio and Margielyn Didal who both proudly raised the LGBT flag and,
even, further dedicated their wins to the LGBT community. This was considered to be a strong call
for the fight for diversity and inclusion as their win and representation, respectively, were just the
beginning of endless possibilities for young girls and boys.23 Additionally, male volleyball players
also expressed that the sport allowed them to freely express themselves as it was their safe space.24
Professional volleyball players such as Ish Polvorosa, Louis Gamban, and Hero Austria recounted
that LGBT mentor figures helped them learn the sport when they were still starting out. Their
exposure to other athletes from the LGBT community allowed them to feel safe as the presence of
LGBT players on a community level has helped create an environment for other aspiring athletes
to learn and participate in the sport.25
On the societal level, institutionalized activities and practices that influence the
opportunities and experiences serve privileged heterosexuals and cisgender individuals while
marginalizing “the others”. Institutions serve to place heterosexuality and cisgender status as the
norm, and as a result, those who vary from the standard are subsequently marginalized. Systems
privileging dominant groups are reinforced through prevailing laws, rules, and customs. All serve to
promulgate a state where LGBT persons are presumed to be abnormal and unnatural and, therefore,
regarded as inferior and as appropriate targets for hostility, differential treatment, discrimination,
and even aggression.
In the current context, institutionalization occurs when activities, mindsets, or ideals
surrounding LGBT athletes become taken for granted, in which case people come to accept the
practices without question. People and organizations within a given setting will subsequently
reinforce these beliefs because there is legitimacy associated with doing so. State and federal laws,
governing structures and policies, and institutionalized norms and practices have the potential to
shape the stigma, or lack thereof, around LGBT status. LGBT inclusion meant that they no longer
needed to hide their identity and could instead focus on performing to the best of their ability.
Thus, sexual stigma is not simply conceptual; rather, it has real effects on real people, influencing
their physical and mental well-being.
Silenced Butterflies
The laws protecting LGBT rights have the potential to influence all LGBT individuals.
Unfortunately, many states in the United States lack basic protections for LGBT persons because
when it comes to LGBT-related laws, one might question the degree to which such mandate
may influence the well-being of LGBT athletes. But empirical evidence shows that state and
dialogue in New York and actively lobbied with the CEDAW experts leading to the successful adoption of strong
sexual and reproductive health and rights language in the CEDAW Committee’s Concluding Comments (http://
clararitapadilla.blogspot.com/)
22  Michelle Abad, Passion has no gender: Filipino Olympians break gender stereotypes, RAPPLER, August 4, 2021,
available at https://www.rappler.com/sports/filipino-olympians-break-gender-stereotypes/ (last accessed Dec 7, 2021).
23  Abad, supra note 53.
24  Bea Micaller, LGBTQ athletes Ish Polvorosa, Louis Gamban, Hero Austria: Volleyball is our safe space, GMA NEWS,
June 30, 2021, available at https://www.gmanetwork.com/news/sports/volleyball/793586/lgbtq-athletes-ish-polvorosa-
louis-gamban-hero-austria-volleyball-is-our-safe-space/story/ (last accessed December 10, 2021).
25  Id.
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federal mandates do affect people’s psychological and physical health. Trans individuals who face
structural forms of discrimination are more likely to attempt suicide later in life, relative to trans
individuals who do not face such biases. This collective evidence shows that LGBT-related laws
create institutionalized stigma. So, when laws are passed that support them, positive health-related
outcomes emerge.26
How sports are governed also influences LGBT athletes’ experiences and opportunities.
Opportunities for trans athletes to participate provide an illustrative example. For years, the
International Olympic Committee (IOC) policy27 was considered most restrictive, as trans athletes
could only participate if:
(a) they had transitioned via sex reassignment surgery;
(b) they had at least 2 years of hormone treatment; and
(c) they could provide legal documentation concerning their transition.
These conditions were onerous to the athletes and lacked medical evidence supporting
their necessity. In essence, the rules served to exclude, rather than include, trans athletes. Also,
the National College Athletic Association (NCAA), which governs intercollegiate athletics in the
United States, has policies governing trans-inclusion.
Similar to the revised IOC policy, there is no need for sex reassignment surgery or legal
documentation. Both the revised IOC and the NCAA policies take needed steps to inclusion,
as they eschew past mandates that lacked medical evidence and placed an undue burden on the
athletes. Some scholars have argued that mandating hormone treatment is also unnecessary and
serves an exclusionary purpose, especially for NCAA athletes whose participation is time-bound.
The NCAA outwardly acknowledges these contradictions, too: “A male-to-female transgender
woman may be small and slight, even if she is not on hormone blockers or taking estrogen... The
assumption that all male-bodied people are taller, stronger, and more highly skilled in a sport than
all female-bodied people is not accurate.”28 These policies allow trans women to compete so long as
they have undergone at least 1 year of hormone treatment. In this way, potential added effects of
testosterone in the body are nullified. Similarly, these will allow trans men to participate in women’s
teams until hormone treatments commence.
In the Philippine setting, however, there is not only a lack of laws protecting the rights
of LGBT athletes, there are no laws at all.
Discussions regarding the inclusion of transgender athletes are often silenced. Statements
such as what former Philippine Sports Commission (PSC) official Tisha Abundo stated in a previous
interview29 that “she really hopes they (POC officials) will not allow it [transgender athletes] by
controverting it as a means of undermining the struggle for greater equality for women in sports.”
The former official stated that “there are physiological differences between men and women that is
why we have separate categories for them in sports.” This is contrary to the US NCAA guidelines
provided for with regard to transgender athletes and the step made by the International Olympic
Committee in 2004—almost two decades ago—wherein they openly allowed transgender athletes
to participate in the Olympics.30
26  Id. 54.
27  IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism (2015).
28  NCAA Policy on Transgender Student-Athlete Participation (2011).
29  Usapang Sports on Air, Episode 115, (Tabloids Organization in Philippine Sports, August 19, 2021).
30  The Associated Press, First openly transgender Olympians are competing in Tokyo, BBC NEWS, July 26, 2021,
available at https://www.nbcnews.com/nbc-out/out-news/first-openly-transgender-olympians-are-competing-tokyo-
rcna1507 (last accessed Dec 10, 2021).
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Despite being connotated as the “most gay-friendly country in the world,”31 the
Philippines is still walking on eggshells when it comes to issues concerning support for our
Filipino athletes, and the inclusivity of not only those athletes who are openly gay, but also those
who cannot seem to leave the closet due to fear of rejection.
It can be pointed out that the closest thing the Philippines has come to being inclusive is
through the denial of the Sexual Orientation, Gender Identity, and Gender Expression (SOGIE)
Bill.32 This bill was sponsored by Congresswomen Emmeline Y. Aglipay-Villar, Kaka J. Bag-ao, and
the first trans woman legislator in the Philippines Geraldine B. Roman, and was, then, introduced
in the Senate by Senator Francis N. Pangilinan. Although, a deeper examination of this bill certifies
that it is still lacking when it comes to covering all aspects of discrimination towards the LGBT
community as it has forgotten, albeit unintentionally, that there are also LGBT athletes who wish
to no longer be legally invisible.
At the outset, Republic Act No. 11313 or more commonly known as the Safe Spaces Act33
is arguably the closest thing to which the LGBT community could anchor onto when it comes
to an “anti-discrimination bill”. The Safe Spaces Act elucidated that there would be no tolerance
when it comes to gender-based harassment whether it may be in public or private places, or online
forums as it would be outrightly penalized. However, although the law is coming from a good
place – a place of concern and respect towards not only to heterosexual citizens of the Philippines
but also the LGBT community – the law lacks the teeth when it comes to deeper issues with regard
to discrimination and harassment towards the gender-orientation or gender-expression of athletes.
Currently, there are 20 Local Government Units (LGUs) that have anti-discrimination
ordinances to protect and encourage respect for the LGBT community.34 Although these local
ordinances are not outrightly defending the rights of our LGBT athletes, it is important to know
that despite not being a national law just yet, there are government units that give high regard to the
LGBT community, giving them a safe space in their respective localities.
Although the SOGIE Bill and the Safe Spaces Act still overlook the rights of our LGBT
athletes, it does not end there. Sporting associations and commissions also do not tread water when
it comes to our transgender athletes as they remain on the negative. They stand their ground that
a transitioning person still reflects their biological gender regardless of their hormone treatments.
Therefore, although LGBT rights are constantly progressing, albeit only through local ordinances,
rights in the Philippines with regard to sports are often regrettably overlooked.
to adapt to more choices. Humans tend to focus on what is given to them not because those are
the only choices they can have, but it is what are perceived to be “normal”, and institutions thrive
in these compartmentalized ideals.
Humans are all stationed to choose only between two categories: being feminine or
being masculine, forgetting that there is a wide array of possibilities that would allow us to
further become ourselves. The only reason why people tend to always hide their authenticity
is that they try to balance their truth with the truth of other people. This balancing act makes
them spar with themselves not because they do not know what they are, but because of the fear
of rejection once they finally verbalize it.
Embracing who you are is a process that could never happen overnight. In sports, coming
out entails a lot of irrationalized invalidation which constantly evades the idea of acceptance.
Cultural hegemony36 invites people to conform to its impositions on their identities. Yet, some
courageously choose to be authentic to themselves despite societal pressure.37
The Philippines has been and still is treading a thin line between tolerance and apathy.
This country needs to start accepting that equality is not a privilege, but a right that applies to
every human being regardless of their gender identity or expression.
Sports as a major societal institution is an important part of many people’s lives. Sports
is a powerful platform for social change and social justice. All people who participate in sports
should be able to do so in an environment that is safe, inclusive, and accepting. As we explore the
intersections of gender and sexuality in sports, the dialogue must continue and these important
aspects of people must gain acceptance. We should look forward to when coming out as an athlete
or a coach is no longer newsworthy as they can simply be themselves throughout their sporting
careers.38
Never forget that the most political thing one can ever do is follow their heart.39

Beyond the Rainbow

Sports know no gender.35 One’s femininity is not defined by how society sees who is
feminine and who is not. The same goes for masculinity. This constant struggle to equalize these
two categories only becomes a problem simply because this heteronormative world is too scared

31  Philip C. Tubeza, PH ranks among most gay-friendly in the world, THE PHILIPPINE DAILY INQUIRER, June
8, 2013, available at https://globalnation.inquirer.net/76977/ph-ranks-among-most-gay-friendly-in-the-world (last
accessed November 25, 2021).
32  H.B. No. 4982
33  R.A. No. 11313
34  Shiela Crisostomo, LGUs lauded for measures on LGBT rights, PHILIPPINE STAR, June 25, 2019, available at 36  In Marxist philosophy, cultural hegemony is the dominance of a culturally diverse society by the ruling class who
https://www.philstar.com/headlines/2019/06/25/1929308/lgus-lauded-measures-lgbt-rights (last accessed at February manipulate the culture of that society—the beliefs and explanations, perceptions, values, and mores—so that the
2, 2022). worldview of the ruling class becomes the accepted cultural norm.
35 Clara Angela R. Murallos, ‘Atleta rin kami’: A Closer Look on Gender-based Discrimination and Harassment in Sports, 37  Falcis III vs. Civil Registrar General, G.R. No. 217910, (2019).
Vol. 9, The Bedan Law Review, (2020). 38  KAUER, supra note 43.
39  Rupaul’s Drag Race Season 8, Episode 7: Shady Politics, (World of Wonder, April 18, 2016).

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The Strictest of Scrutinies: Reevaluating the Restrictiveness of Quo Warranto
on the Liberty of the Press
Ferdinand Elbert D. Jomilla Jr.1*
In an unprecedented case, the Republic targeted one of the country’s
longest-operating broadcasting networks through a quo warranto petition for
allegedly violating multiple conditions of its legislative franchise. While the
case was eventually dismissed for mootness, the petition raised procedural
questions that remain unanswered. The jurisprudential basis for the petition’s
appropriateness claimed that quo warranto is proper for being the least restrictive
means to enforce franchise conditions. However, it fails to analyze quo warranto’s
restrictiveness compared to other remedies. This Note thus challenges the ruling
of the Supreme Court that quo warranto is the least restrictive means to address
contraventions of franchise conditions. In particular, this Note employs a cross-
jurisdictional approach to analyze how other jurisdictions enforce franchise
conditions against telecommunications corporations, makes the case for their
existence in our legal framework, and compares the restrictiveness of these
methods. Through this comparison, this Note comprehensively analyzes the
criterion of “restrictiveness” with regard to the right of the people to a free press, a
right which the Supreme Court has consistently afforded the highest protection.
“Freedom of the press, if it means anything at all, means the
freedom to criticize and oppose.”2
—George Orwell
Introduction
“I will see to it that you’re out.”3
Two months following President Rodrigo Duterte’s December speech at Malacañang
where he threatened to block the franchise renewal of the country’s leading broadcast network ABS-
CBN,4 the Republic, through the Office of the Solicitor-General, petitioned the Supreme Court
to cancel the company’s franchise, alleging violations of franchise conditions.5 The petition was for
quo warranto and it acknowledged the nature of the case as unprecedented and of first impression.6
Although the Supreme Court eventually dismissed the petition for mootness owing to the
expiry of ABS-CBN’s franchise,7 the petition raised questions that remain unanswered, particularly
on the procedural validity of a quo warranto petition against a telecommunications company.
1  Juris Doctor, San Sebastian College Recoletos – College of Law (2022); AB – Legal Management, University of Santo
Tomas (2015). Team Captain, Foreign Direct Investment International Arbitration Moot (2018); Team Member,
National Moot Court Competition on International Humanitarian Law (2017).
The positions taken in this Note are the Author’s and do not necessarily represent those of the College or of the Review.
The Author would like to express his heartfelt gratitude to Prof. Ryan Hartzell Balisacan and Dean Ed Vincent S.
Albano† for their invaluable preliminary support in the formulation of this Note’s topic.
2  George Orwell, The Prevention of Literature, in Polemic (1946).
3  Rodrigo Duterte, President, Republic of the Philippines, Speech before New Government Officials at Malacañang
Palace (Dec. 3, 2019).
4  Darryl Esguerra, Duterte to ABS-CBN: ‘I will see to it that you are out,’ Phil. Daily Inq., Dec. 3, 2019, available at https://
newsinfo.inquirer.net/1197664/duterte-to-abs-cbn-i-will-see-to-it-that-you-are-out (last accessed Mar. 11, 2020).
5  Jason Gutierrez, Philippines Moves to Shut ABS-CBN Its Leading Broadcast Network, N.Y. Times, Feb. 10, 2020,
available at https://www.nytimes.com/2020/02/10/world/asia/philippines-abs-cbn-franchise.html (last accessed Mar.
11, 2020).
6  Petition for Quo Warranto, Feb. 10, 2020, at 2, ¶ 6, in Republic of the Philippines v. ABS-CBN Corporation, G.R. No.
251358 (SC, filed Feb. 10, 2020).
7  Tetch Torres-Tupas, SC dismisses quo warranto ccase vs. ABS-CBN, June 23, 2020, available at https://newsinfo.
inquirer.net/1296108/sc-dismisses-quo-warranto-case-vs-abs-cbn (last accessed Sep. 22, 2020).
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Further, the dismissal does not put to rest any fears of future uses of quo warranto as a means of
persecuting and silencing people and institutions critical to the administration.
In justifying quo warranto as the proper remedy, the Republic primarily relied on
Divinagracia v. Consolidated Broadcasting System, a 2009 case featuring similar facts — a petition
to end a broadcasting company’s right to broadcast for violation of franchise conditions — where
the Supreme Court applied the jurisprudential test of strict scrutiny, noting that the case involves
the right to freedom of expression, and ultimately recommended a petition for quo warranto as
a “more appropriate, more narrowly-tailored and least restrictive remedy” to assail the company’s
franchise. 8
In justifying its recommendation, the Court first ruled that the law does not grant the
National Telecommunications Commission (NTC) the power to cancel a license it has issued.9
However, the Court’s subsequent comparison of a petition for quo warranto and the petitioner’s
favored remedy of a petition with the NTC to cancel the license did not at all discuss the
restrictiveness of any of the means involved. Ultimately, Divinagracia lacks a comprehensive analysis
on the restrictiveness of quo warranto.
Applying the strict scrutiny test places the focus on the absence of less restrictive means,10
which necessarily requires a comparison of viable alternatives to ensure that the chosen course of
action is the sole effective means.11 Given the absence of such an analysis in Divinagracia, this Note
attempts to supply the missing link by laying out numerous viable alternatives to a petition for
quo warranto that achieve the same governmental interest of ensuring compliance with franchise
conditions. In particular, this Note employs a cross-jurisdictional approach to analyze the methods
used by other jurisdictions that also utilize quo warranto in their legal framework to enforce
franchise conditions against telecommunications corporations. By comparing other remedies to
quo warranto, this Note proposes a conclusion divergent from the ruling in Divinagracia: that
a petition for quo warranto is not the means that is least restrictive on press freedom to address
violations of a telecommunications company’s franchise.
In Part I, this Note discusses the right to a free press, in theory and as laid out by the
Constitution and jurisprudence. This discussion will lay the foundation for the rest of the Note,
establishing why the right has been consistently treated as having a high position in the so-called
“hierarchy of rights”12 and why restrictions on it must be treated with a high level of scrutiny. Part
II of this Note expounds upon quo warranto as used throughout history. Since quo warranto is a
historical remedy rooted in medieval royalty, this Part will briefly discuss its roots and outline its use
in the Philippines throughout the century.
In Part III, this Note discusses foreign and local approaches to State regulation of
telecommunications corporations and briefly tackles how these countries are ranked according to
press freedom, acknowledging that Philippine jurisprudence on the use of quo warranto against
franchise holders is sparse compared to foreign jurisdictions. Through such an examination,
this Note seeks to add to the Philippines’ existing body of knowledge on the legal framework
surrounding quo warranto and the telecommunications industry. Part IV follows up this discussion
by reviewing the administrative actions the NTC may take against telecommunications companies
and makes the case for their viability and less restrictive effects, as required when applying the “least
restrictive means” criterion of the strict scrutiny test.
8  Divinagracia v. Consolidated Broadcasting System, 602 Phil. 625 (2009). The petitioner argued that a petition before
the National Telecommunications Commission for the cancellation of the respondent’s franchise was more proper than
a quo warranto, and the Supreme Court denied the petition and instead recommended a quo warranto petition as the
more proper remedy.
9  Id.
10 White Light Corporation v. City of Manila, 596 Phil. 444 (2009).
11 Samahan ng mga Progresibong Kabataan [SPARK] v. Quezon City, 815 Phil. 1067 (2017).
12 1-United Transport Koalisyon (1-UTAK) v. Commission on Elections, G.R. No. 206020, April 14, 2015.
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This Note then concludes with an indication of how quo warranto fares as compared
to other remedies in terms of restrictiveness and ultimately proposes an alternative that is long
practiced and more in line with the requirement of least restriction to the freedom of the press.
I. The Concept of the Right to a Free Press
A. Historical Backdrop
The history of the Philippine legal institution is one deeply rooted in American
colonialism,13 and the right of the people to a free press is a legal concept handed down from
American constitutional law.14 Although vaguely existent in the Malolos Constitution,15 the right
was explicitly recognized in the Philippine legal framework in the Philippine Organic Act of 1902,
which provided that “no law shall be passed abridging the freedom of speech or of the press, or the
right of the people peaceably to assemble and petition the Government for redress of grievances.”16
Since then, it has consistently been an integral part of the Philippine Bill of Rights, from the
Jones Law of 1916,17 the 1935 Constitution,18 the 1973 Constitution,19 to the present 1987
Constitution.20
The right to a free press was first mentioned in Philippine jurisprudence in U.S. v. Sedano,
where the Court acknowledged the fundamental nature of the freedom to discuss properly and
openly whatever concerned the public.21 It was not until 1918 when the Court, in the landmark
case of U.S. v. Felipe Bustos, had the chance to expound upon the freedom of the press. Writing
through Justice Malcolm, the Court ruled:
The interest of civilized society and the maintenance of good government demand a full
and free discussion of all affairs of public interest. Complete liberty to comment upon the
administration of government as well as the conduct of public men, is necessary for free
speech and the press. The people are not obliged, under civilized governments, to speak
of the conduct of their officials, of their servants, in whispers or with bated breath. The
freedom of the press consists in the right to publish the truth, with good motives and
for justifiable ends, although said publication may be offensive to the government, to the
courts, or to individuals.22 (emphasis supplied)
The Court noted that the “free press of the state usually affords the best avenue” for
exercising free speech.23 The Court has also consistently upheld the importance of a free press, and
has even cited Bustos on multiple occasions to recognize that press freedom is the best gauge of a
free and democratic society,24 the “sharpest weapon in the fight to keep government responsible and
efficient,”25 and one of the cherished hallmarks in democracy.26 These rulings show that the freedom
of the press is a well-enshrined tenet in Philippine constitutional law, regarded highly as one of the
13  See Renato Constantino & Letizia R. Constantino, A History of the Philippines: From the Spanish
Colonization to the Second World War 293 (2008).
14  U.S. Const. Art. I.
15  1898 Malolos Const. Art. 20 (1) (superseded 1902). “Neither shall any Filipino be denied [ ] Of the right to freely
express his ideas and opinions, be they orally or in writing, through the use of print or any other similar means.”
16  The Philippine Organic Act of 1902, § 5 (superseded 1916).
17  The Jones Law of 1916, § 3 (j) (superseded 1934).
18  1935 Phil. Const. art. III, § 1(8) (superseded 1973).
19  1973 Phil. Const. art. IV, § 9 (superseded 1986).
20  Phil. Const. art. III, § 4.
21  The United States v. Sedano, 14 Phil. 338 (1909).
22  The United States v. Felipe Bustos et al., 37 Phil. 731 (1918).
23  Id.
24  David v. Arroyo, 522 Phil. 705 (2006).
25  Chavez v. Gonzales, 569 Phil. 155 (2008)
26  Tulfo v. People, 587 Phil. 64 (2008).
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pillars of a functioning democratic society.
B. The Scope of Protection Afforded to the Right
Despite the recognition of press freedom as a fundamental right, it is not without its
limitations. Six months after Bustos, the Court in U.S. v. Sotto briefly touched on the limitations
of the right when it proclaimed:
The freedom of the press consists in the right to print and publish any statement whatever
without subjection to the previous censorship of the government. It does not mean
immunity from willful abuses of that freedom, which, if permitted to go unrebuked, would
soon make the license of an unrestrained press even more odious to the people than
would be the interference of government with the expression of opinion.27 (emphasis
supplied)
In Primicias v. Fugoso, the Court also ruled that the freedom of the press may be regulated
under the sovereign police power so as not to injure the equal enjoyment of others having equal
rights, or the rights of the community or society.28 With specific regard to the press’ access to
information, it is also subject to reasonable restrictions based on police power, even though it may
result in a hampered ability to gather news and express views.29
Thus, while the right to a free press indeed forms one of the foundations of Philippine
democracy, the Court has made it clear that press freedom is nevertheless subject to limitations that
allow the functioning of equally important freedoms necessary for the rule of law.
C. The Strict Scrutiny Test
Generally speaking, the strict scrutiny test is one of the means by which a Court examines
classifications that interfere with the exercise of a fundamental right.30 It is a broad test that applies
to a diverse range of constitutional disputes but despite its wide application, there are three central
elements involved in its application: (1) the law or policy must be justified by a compelling state
interest; (2) such law or policy must be narrowly tailored to achieve that interest; and (3) such law
or policy must be the least restrictive means for achieving that interest. 31
Under the first element, the government is burdened to show legitimate state purposes
that are compelling enough to justify overriding fundamental rights.32 The second element requires
the government to show that the means it wishes to pursue do not unnecessarily and broadly stifle
fundamental liberties.33
With specific regard to the third element, that of being the “least restrictive means”
to achieve the governmental interest, the Court has steadfastly ruled that compliance with this
requisite entails a comparison of different means and choosing the one that results in the least
restriction.34 The strict scrutiny test requires that the means employed are actually, not conceptually,
the least restrictive means.35 In this light, the Court has not hesitated to strike down restrictions
27  The United States v. Vicente Sotto, 38 Phil. 666 (1918).
28  Cipriano Primicias v. Valeriano Fugoso, 80 Phil. 71 (1948).
29  Ellen Tordesillas v. Hon. Ronaldo Puno, G.R. No. 210088, Oct. 1, 2018; Los Angeles Free Press, Inc. v. City of Los
Angeles, 88 Cal. Rptr. 605 (1970) (U.S.).
30  SPARK, 815 Phil. 1067 (2017).
31  Id., see also Soriano v. Laguardia, 605 Phil. 43 (2009); Chavez v. Gonzales, 569 Phil. 155 (2008); Osmeña v.
Commission on Elections, 351 Phil. 692 (1998); & Kabataan Party-List v. Commission on Elections, 777 Phil. 523
(2015).
32  See generally Alejandro Estrada v. Soledad Escritor, 525 Phil. 110 (2006).
33  See ABS-CBN Broadcasting Corporation v. Commission on Elections, 380 Phil. 780 (2000).
34  Osmeña, 351 Phil. 692 (1998), see also Soriano v. Laguardia, 605 Phil. 43 (2009) White Light, 596 Phil. 444 (2009),
& SPARK, 815 Phil. 1067 (2017) (J. Leonen, concurring opinion).
35  SPARK, 815 Phil. 1067 (2017) (J. Leonen, concurring opinion).
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where it found other less restrictive means for the pursuit of the same governmental interest.36
Reviewing the imposition of such a high level of scrutiny further reinforces the notion
that press freedom is a fountainhead from which a free and democratic society is formed. The
burden that those who wish to impose restrictions must discharge is high enough, creating an image
that the Philippines is a state where press freedom is enjoyed by the people. Recent developments,
however, may prove to be a challenge to this idea.
II. “By What Right?” Revisiting the Quo Warranto
A. Tracing the Historical Development from English Common Law to Philippine Civil
Law
The quo warranto, literally translated to “by what right?” is an ancient remedy originating
as a writ for the king to inquire against a person claiming an office, right, liberty, or franchise, and
to demand that the person show his authority to support his claim.37 One of the earliest records of
its use shows King Richard I ordering through the Statute of Gloucester a general inquiry into the
usurpation and misuse of franchises.38 In time, the ancient writ of quo warranto was replaced by an
information in the nature of quo warranto which, while having the same ends, converted the nature
of the remedy to a criminal one which punishes the usurper.39
The Philippines first saw quo warranto in the American-rooted 1901 Code of Civil
Procedure which provided that it may be used against:
The usurpation of a franchise. . . and . . . associations of persons who act as a corporation
within the Philippine Islands, without being legally incorporated, or without lawful
authority to do so; and over corporations that have offended against a provision of an Act
of their creation or renewal . . . and when they have forfeited their privileges and franchise
by a nonuser, and when they have committed or omitted an Act which amounts to a
surrender of their corporate rights, privileges, or franchises, or when they have misused a
franchise, privilege, or right conferred upon them by law, or when they have exercised a
franchise, privilege, or right in contravention of law.40(emphasis supplied)
Interestingly, while the 1940 Rules of Court and 1964 Rules of Court retained nonuser
and misuse of a franchise as grounds by which quo warranto may be brought against a corporation,41
these grounds are notably absent in the 1997 Rules of Civil Procedure.42 Instead, the 1997 Rules
seem to have opted for a broader phrasing: “An action for the usurpation of a … franchise may be
commenced by a verified petition … against … an association which acts as a corporation within
the Philippines without being legally incorporated or without lawful authority to do so.”43
B. Quo Warranto as used today in the Philippines
Under the current Rules of Court, the Government through the Solicitor General, or a
public prosecutor may bring a petition for quo warranto against:
36  See White Light, 596 Phil. 444 (2009); see Antonio Serrano v. Gallant Maritime Services Inc., 601 Phil. 245 (2009);
see SPARK 815 Phil. 1067 (2017).
37  Julio Agcaoili v. Alberto Suguitan, 48 Phil. 676 (1926); James Lambert High, A Treatise on Extraordinary
Legal Remedies: Embracing Mandamus, Quo Warranto, and Prohibition 424 (1896).
38  Helen M. Cam, HISTORICAL REVISISONS: XXVIII. – The Quo Warranto Proceedings under Edward I 143
(1926); see Darley v. The Queen, 12 Cl. & Fin. 520 (1846) (U.K.) (Lord Chief Justice Tindal, opinion). But cf.
Sigfrid H. Steinberg, et al., A New Dictionary of British History 299 (1963).
39  John R. Commons et al., Quo Warranto and Private Corporations, 37 Yale L.J. 226, 237(1927).
40  An Act Providing a Code of Procedure in Civil Actions and Special Proceedings in the Philippine Islands [Code of Civil
Procedure], Act No. 190, § 519 (1901) (repealed 1948).
41  1940 Rules of Court, rule 68, § 2 (b) (d) (superseded 1964); 1964 Rules of Court, rule 66 § 2 (b) (d) (superseded
1997).
42  1997 Rules of Civil Procedure, rule 66, § 1.
43  Id.
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(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office,
position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law, constitutes
a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being
legally incorporated or without lawful authority so to act.44
To say that Philippine jurisprudence on the use of quo warranto against franchises is
sparse would be an understatement. Of more than a hundred cases decided by the Supreme Court
from 1980-2020 involving quo warranto, only four cases have for their central issue the validity of
a corporate franchise.45 Of these four, only Divinagracia and Philippine Long Distance Co. v. NTC
(“PLDT”)46 involve telecommunications companies. In contrast, an overwhelming majority of quo
warranto cases involve the issue of the validity of a party’s holding or exercise of a public office.
When Divinagracia ruled that quo warranto is the “more appropriate, more narrowly-
tailored and least restrictive remedy . . . afforded by the law,” it cited PLDT and the 1995 case
of Kilosbayan v. Morato47 to support its claim. Neither of these cases, however, presented any
comparison on the restrictiveness of a quo warranto petition as against other remedies.
In any case, the scarcity of jurisprudence on the matter makes it ideal to examine how
other jurisdictions that also use quo warranto enforce corporate franchise conditions involving
telecommunications companies.
III. Quo Warranto and Telecommunications Regulatory Frameworks in Other Jurisdictions
The dual franchising/licensing system for broadcast media in the Philippines is not
the same as other countries. In the Philippines, the right to conduct a business as a public
telecommunications entity requires a prior legislative franchise.48 As will be discussed below, a
legislative franchise is not necessarily a prerequisite in other countries. Despite this difference, the
novelty of a petition to revoke a franchise of a telecommunications company in the Philippine
setting and the Court’s pronouncement that allowing administrative authorities to cancel operating
licenses is a “death sentence” for press freedom49 both necessitate looking into other countries in
order to shed light on how to best tackle an unprecedented issue.
This Part uses the 2019 World Press Freedom Index (“WPFI”) by Reporters Without
Borders as an additional data source to aid the review of different jurisdictions’ telecommunications
regulations vis-à-vis the level of freedom enjoyed by the press in each country. After a review of
a country’s regulatory framework, its WPFI ranking is cited. Through this method, this Note
examines the extent to which press freedom is affected — if at all — by the degree of administrative
control over the telecommunications industry.
A. In Other Countries
1. England
44  1997 Rules of Civil Procedure, rule 66, § 1.
45  see PLDT v. National Telecommunications Commission and Cellcom, Inc. [PLDT], 268 Phil. 784 (1990); see
Hon. Alfredo Lim v. Hon. Felipe Pacquing, 310 Phil. 722 (1995); see Del Mar v. Philippine Amusement and Gaming
Corporation, 400 Phil. 307 (2000); see Divinagracia, 602 Phil. 625 (2009).
46  PLDT, 268 Phil. 784 (1990).
47  Kilosbayan, Incorporated v. Manuel L. Morato, 246 SCRA 540 (1995).
48  An Act to Promote and Govern the Development of Philippine Telecommunications and the Delivery of Public
Telecommunications Services [Public Telecommunications Policy Act of the Philippines], Republic Act No. 7925, § 16
(1995).
49 Divinagracia, 602 Phil. 625 (2009).
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As the quo warranto is a remedy rooted in English common law,50 it would be prudent to
first review its use in the United Kingdom along with other existing remedies.
In 1938, England abolished informations in the nature of quo warranto.51 Instead, the
High Court may now grant an injunction restraining a person from acting in an office in cases of
usurpation of office where a quo warranto would have lain.52
England does not require telecommunications companies to first seek a franchise from
Parliament. Regulation over broadcasting and telecommunications industries lies with the Office
of Communications (“Ofcom”), the telecommunications regulatory body of the United Kingdom
which has the power to grant and revoke licenses to provide television services.53 It is in these
licenses where Ofcom may impose operating conditions.54 The contravention of these conditions
may be subject to a financial penalty or revocation of the license as determined by Ofcom, with the
latter option requiring Ofcom to give the offending license holder an opportunity to take steps to
remedy the contravention.55
Decisions by Ofcom are appealable to the Tribunals of the United Kingdom,56 which in turn
are appealable to the Court of Appeal.57 These cases may then be appealed to the United Kingdom
Supreme Court.58 Thus, licensing and dispute adjudication originate from the administrative body
whose decisions may in turn be raised to the courts.
This delegation of regulatory power to administrative bodies seems to have no negative
effect on press freedom in the United Kingdom since the country ranks 33rd out of 180 countries
on the World Press Freedom Index.59
2. The United States of America
Since much of Philippine law — including the civil action of quo warranto — is derived
from American law,60 an insight into American use of quo warranto vis-à-vis its regulation of the
telecommunications industry would be beneficial as well.
In Dianet Communications, LLC v. New York,61 the Supreme Court of New York heard
a petition to annul62 the City of New York’s grant of a telecommunications franchise to NextG
Networks for allegedly being done through a “fundamentally unfair competitive process that had a
predetermined outcome.” While the Court ultimately denied the petition on substantial grounds,
it nevertheless showed that in New York, a petition for annulment exists as an alternative remedy
to assail a corporate franchise.
The ruling in Dianet may be contrasted with Tucson v. US West Communications,63
50  High, supra note 35, at 424.
51  Administration of Justice (Miscellaneous Provisions) Act 1938, § 9 (1) (1938) (U.K.).
52  Administration of Justice (Miscellaneous Provisions) Act 1938, § 9 (1).
53  Communications Act 2003, § 235-238 (2003) (U.K.).
54  Communications Act 2003, § 45.
55  Communications Act 2003, § 238.
56  Communications Act 2003, § 192.
57  Communications Act 2003, § 195.
58  The Supreme Court Rules 2009, 2009 No. 1603 (L. 17), § 10 (2009) (U.K.).
59  Reporters Without Borders, 2019 World Press Freedom Index, available at https://rsf.org/en/ranking_table (last
accessed April 9, 2020).
60 Constantino, supra note 11, at 293.
61  Matter of Dianet Communications LLC v. Franchise & Concession Review Comm. of N.Y., 107805/08, 2008 N.Y.
Misc. LEXIS 7322 at *3 (Sup. Ct. N.Y. Cnty. 2008) (U.S.).
62  New York Civil Practice Law & Rules [N.Y. C.P.L.R.], § 7801 (U.S.).
63  City of Tucson v. United States West Communications, Inc., 284 F.3d 1128 (9th Cir. 2002) (U.S).
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which also involves the assailment of a telecommunications company’s franchise. In that case, the
U.S. Court of Appeals for the Ninth Circuit rejected the claim that a federal court recognized that
Arizona’s Constitution or statutes do not designate any particular state court to review grants or
denials of franchises, nor that there is any statewide franchising scheme, the Court ruled that “quo
warranto . . . is the exclusive remedy when contesting a franchise in Arizona.”
In California, an action for quo warranto may be brought against any person or corporation
which “usurps, intrudes into, or unlawfully holds or exercises any franchise.”64 Quo warranto
cases against California corporate franchises are limited to those where there is a “continuing and
substantial act which constitutes a clear violation of the franchise.”65
In Bard v. Cox Cable, the rule is that quo warranto is the sole remedy to attack the validity
of a franchise, but the Supreme Court of Nebraska recognized very narrow exceptions: (1) illegal
expenditure of public funds; and (2) an increase in the tax burden.66 The Court made no distinction
as to the nature of the company holding the franchise.
From the above, it appears that with the exception of New York, the prevailing rule is that
the sole judicial remedy to contest a franchise is quo warranto. Although Dianet involved a petition
to annul, no express pronouncement was made on quo warranto, while Bard explicitly stated that
quo warranto is the sole remedy subject to specific exceptions.
Certainly, quo warranto is not the sole means to address a telecommunications company’s
violation of its operating conditions. Under the Communications Act of 1934, the Federal
Communications Commission (“FCC”) has regulatory power over radio, television, and cable
across the United States.67 Consequently, it has the power to revoke the license of radio broadcasters
for specific grounds.68 The regulatory system for cable companies plays out differently, in that the
power to grant and revoke operating franchises is delegated to local franchising authorities (“LFA”)
subject to review by the FCC.69 Violations of the Communications Act of 1934 also allows the
FCC to subject the violating companies to fines and forfeitures.70 The decisions of the FCC or the
LFAs may then be raised to the district courts or directly to the Supreme Court, as the case may
be.71
The interplay between the judicial and the administrative spheres is minimal, if any.
The courts address violations of general franchise terms while the FCC addresses violations of
telecommunications operating conditions. In spite of this judicial-administrative framework, the
United States ranks relatively high — 48th to be precise — on the World Press Freedom Index.72
3. Australia
In Australia, the states of Queensland and New South Wales have both abolished
informations in the nature of quo warranto upon passing their Judicial Review Act73 and Supreme
Court Act,74 respectively. The telecommunications industry is regulated by the Australian
64  California Code of Civil Procedure [Code Civ. Proc.], § 803 (U.S.); see generally State of California Department of
Justice, Legal Opinions of the Attorney General - Quo Warranto - Right to Public Office, available at https://oag.ca.gov/
sites/all/files/agweb/pdfs/ag_opinions/quo-warranto-guidelines.pdf (last accessed March 24, 2020).
65  High, supra note 35, at 649.
66  Karen L. Bard v. Cox Cable of Omaha, Inc., 226 Neb. 880 (S. Ct. Neb.1987) (U.S.).
67  An Act to Provide for the Regulation of Interstate and Foreign Communication by Wire or Radio, and for Other
Purposes [Communications Act of 1934], 47 U.S.C. 151, § 1 (1934) (U.S.).
68  Communications Act of 1934, § 312.
69  Communications Act of 1934, §§ 626-627.
70  Communications Act of 1934, § 502.
71  Communications Act of 1934, §§ 402-403, 635.
72  2019 World Press Freedom Index, supra note 58.
73  Judicial Review Act 1991, § 42 (1991) (QLD).
74  Supreme Court Act 1970, § 12 (1970) (N.S.W.).
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Communications and Media Authority (“ACMA”) pursuant to the Telecommunications Act 1997,
which provides that the violation of a condition to which the license is subject gives rise to a
monetary penalty.75 The ACMA, however, may issue a formal warning to a licensee for breach of
conditions.76 This wholesale delegation of regulatory power to the ACMA also does not appear to
have negative effects on press freedom, as Australia ranks 21st on the World Press Freedom Index,
the highest among the five countries reviewed so far.77
B. The Philippines
In the Philippines, the constitutional basis for quo warranto is found in Art. VII, which
provides that the Supreme Court has the power to issue it.78 However, the nature and scope of
the petition is found in the Rules of Court, which provides that it may be brought against “an
association which acts as a corporation within the Philippines without being legally incorporated or
without lawful authority so to act.”79
While Divinagracia involved a petitioner seeking to cancel the certificates of public
convenience and licenses issued by the NTC to respondent Consolidated Broadcasting System, the
Supreme Court ultimately denied the petition and merely recommended the use of quo warranto.
In PLDT the petitioner prayed for the annulment of the NTC’s grant of authority to install a
cellular mobile telephone system, but the petition was ultimately denied with the Supreme Court
pointing to quo warranto as the proper remedy.
Executive Order 546, which created the NTC, enumerated as one of its functions the
issuance of a Certificate of Public Convenience (“CPC”) “for the operation of . . . television
broadcasting systems.”80 While the power to issue is expressly stated, the power to revoke is not. A
cursory glance at the statutory powers of the NTC creates the impression that since it does not have
the power to revoke the CPCs it is empowered to issue, contraventions of franchise conditions may
be addressed only through a petition for quo warranto; this was the ruling of the Supreme Court
in Divinagracia. As it stands, the Philippines fares only slightly better than India in press freedom,
ranking 134th out of 180.81
C. Discussion
As between the five countries mentioned above, only the United States and India have
retained quo warranto within their legal systems. England, Queensland, and New South Wales
have abolished it in favor of more modern civil actions, although their reasons for the abolition may
vary. In the countries where quo warranto does exist, it may be used to directly assail the company’s
franchise if found to be unlawfully issued, misused, or not used at all.
Regarding the regulation of telecommunications companies, the above mentioned
countries have separate administrative bodies empowered under special laws to enforce rules and
regulations relating to the telecommunications industry. With the exception of India where the
power to grant an operating license lies exclusively with its central government, these bodies have
the power to grant licenses and impose various penalties ranging from a formal warning to the
revocation of the licenses for contraventions of imposed conditions.
75  An Act About Telecommunications, and for Related Purposes [Telecommunications Act 1997], No. 47, § 434 (1997)
(AU).
76  Telecommunications Act 1997, § 435.
77  2019 World Press Freedom Index, supra note 58.
78  Phil. Const. art. VIII, § 5 (1).
79  1997 Rules of Civil Procedure, rule 66, § 1.
80  Office of the President, Creating a Ministry of Public Works and a Ministry of Transportation and Communications,
Executive Order No. 546, Series of 1979 [E.O. No. 546, s. 1979], § 14 (July 23, 1979).
81  2019 World Press Freedom Index, supra note 58.
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This study has not found any indication that the strict scrutiny test — particularly the
least restrictive means criterion — has been applied in these jurisdictions with regard to the use
of quo warranto. In fact, reviewing the practice of other jurisdictions with regard to quo warranto
affirms the idea that it is procedurally proper if there are allegations that a company violated the
terms of its franchise.
However, the prevailing practice in these countries is that the administrative bodies can
revoke the operating rights of telecommunications companies. This does not by itself appear to
create negative effects on their press freedom, as three out of the four countries discussed have a
high press freedom ranking despite this administrative power; within the top 50 countries to be
precise. Additionally, a country’s legislative framework is only one factor in the determination of its
press freedom ranking,82 so press freedom in these countries is not wholly dependent on the variety
of legal remedies available to address violations of laws and regulations.
The mere availability of administrative remedies — even the total revocation of an
operating license — against telecommunications companies does not necessarily create restrictions
on press freedom. Thus, the possibility of administrative remedies to enforce franchise conditions
against Philippine telecommunications companies may now be considered and compared.
IV. Applying the “Least Restrictive Means” Criterion
Justice Leonen’s Concurring Opinion in Samahan Ng Mga Progresibong Kabataan
v. Quezon City offers the clearest insight on how to determine the least restrictive means. He
mentioned that determining the least restrictive measure requires not only demonstrating the
inefficacy of all possible alternatives and exploring all possible avenues, but to even “debunk the
viability of chosen alternatives.” 83
However, in this Note, Justice Leonen’s suggested method is applied in reverse, i.e., the
viability of alternatives to quo warranto is proved instead of debunked. This challenges the current
view that since there is no viable alternative to quo warranto, then it is the least restrictive means
for addressing franchise violations of telecommunications companies.
A. Reviewing the Administrative Actions of the NTC
The NTC may issue a cease and desist order if its issuance is in the interest of public
service and/or if “the respondent does not have any authority from the [NTC] to install, operate
and maintain the service/facility.”84 On multiple occasions, the NTC has issued these orders against
companies operating channels for lack of a congressional franchise.85 These orders are not final
decisions, but they are provisional reliefs that the NTC may issue upon the filing of a complaint or
at any subsequent stage,86 whether upon motion or motu proprio.87
Likewise, the NTC as the replacement of the Board of Communications and the
Telecommunications Bureau,88 is empowered under the Public Service Act to impose a fine not
82  Reporters Without Borders, Detailed Methodology (The Organization’s Questions and Formulae Used to Rank
Countries According to Press Freedom), available at https://rsf.org/en/detailed-methodology (last accessed April 9,
2020).
83  SPARK, 815 Phil. 1067 (2017) (J. Leonen, concurring opinion).
84  National Telecommunications Commission, The National Telecommunications Commission’s 2006 Rules of Practice
and Procedure, Part III, Rule 10, § 3.
85  Associated Communications & Wireless Services – United Broadcasting Networks v. National Telecommunications
Commission, 445 Phil. 621 (2003); Associated Communications and Wireless Services, LTD., (ACWS) v. Fidelo Q.
Dumlao, 440 Phil. 787 (2002).
86  GMA Network, Inc. v. National Telecommunications Commission, 780 Phil. 244 (2016); National Telecommunications
Commission’s 2006 Rules of Practice and Procedure, Part V, Rule 12, § 3 (July 17, 2006).
87  National Telecommunications Commission’s 2006 Rules of Practice and Procedure, Part III, Rule 10, §§ 4-5.
88  Radio Communications of the Philippines, Inc. v. National Telecommunications Commission, 234 Phil. 443 (1987);
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exceeding two hundred pesos (P200.00) per day of violation against public services that violate
“terms and conditions of any certificate or any orders, decisions or regulations of the [NTC].” 89
The Public Service Act also empowers the NTC to suspend the licenses of companies
that fail to pay the fine imposed within a specified time period, which shall last until payment has
been made.90 This should be seen hand in hand with and as an enforcement of the NTC’s power
to impose fines on erring companies. Additionally, the NTC may also suspend licenses where the
holder refuses to comply “with any order, rule or regulation of the Commission or any provision of
[the Public Service Act].”91
In sum, the actions that the NTC may take against violating companies are: (1) the
provisional issuance of a cease and desist order; (2) the imposition of fines; and (3) the suspension
of licenses. To reiterate, if quo warranto is indeed the least restrictive means to address violations
of a telecommunications company’s legislative franchise, then not only must the inefficacy of the
above enumerated means be demonstrated, their viability must also be debunked92 to show that
quo warranto is the sole effective means.93 It therefore follows that the existence of viable, less
restrictive alternatives disproves this notion.
B. Determining the Viability of NTC Administrative Actions
A cease and desist order provisionally stops a company from continuing certain actions
as ordered by the NTC.94 There is a restriction because broadcasting is stopped but this restriction
is counteracted by the fact that it is subject to a subsequent decision by the NTC. The 2016 case
of GMA Network, Inc. (“GMA”) v. NTC is illustrative, in which the Court acknowledged that a
cease and desist order may be treated as a writ of preliminary injunction because it directs the doing
or undoing of acts that are perceived violative of the law.95 While its issuance does not equate to a
finding by the NTC of violations, it nevertheless serves to address matters that require immediate
action pending hearing and final consideration.
In case a fine is imposed, the amount of the fine is subject to the number of days during
which the violation continues. This action places minimal restriction, if any, on press freedom
because erring companies are not obliged to stop operations by the mere imposition of a fine. The
NTC has imposed this sanction on GMA on multiple instances in 2014 and 2017 when GMA
installed and operated broadcasting stations without authority from the NTC.96 In both cases, there
are no indications that GMA ever stopped its operations because of the fines imposed.
GMA’s legislative franchise prohibited it from using any frequency in the radio/television
spectrum without prior authorization from the NTC,97 so it may be argued that GMA’s operation
of broadcasting stations without the necessary authority already amounted to a violation of its
legislative franchise. Yet in both cases, the Court agreed with the NTC’s imposition of a fine on
Office of the President, Reorganizing the Executive Branch of the Government, Presidential Decree No. 1, Series of 1972
[P.D. No. 1, s. 1972] (Sep. 24, 1972); E.O. No. 546, s. 1979, § 19 (d).
89  An Act to Recognize the Public Service Commission, Prescribe Its Powers and Duties, Define and Regulate Public
Services, Provide and Fix the Rates and Quota of Expenses to be Paid by the Same for Other Purposes [Public Service
Act], Commonwealth Act 146, § 21, para. 1, (1936); see generally GMA Network, Inc. v. National Telecommunications
Commission, 728 Phil. 192 (2014).
90  Public Service Act, § 21, para. 2.
91  Public Service Act, § 16 (n).
92  SPARK, 815 Phil. 1067 (2017) (J. Leonen, concurring opinion).
93  SPARK, 815 Phil. 1067 (2017).
94  See generally Black’s Law Dictionary 253 (9th ed. 2009).
95  GMA Network, Inc. v. National Telecommunications Commission, 780 Phil. 244 (2016)
96  GMA Network, Inc. v. National Telecommunications Commission, 728 Phil. 192 (2014); GMA Network, Inc. v.
National Telecommunications Commission, 818 Phil. 167 (2017).
97 An Act Granting the Republic Broadcasting System, Inc. A Franchise to Construct, Install, Operate and Maintain
Radio and Television Broadcasting Stations in the Philippines, Republic Act No. 7252, § 3 (1992).
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GMA. Other than a mere monetary penalty, this allows the NTC to act on violations committed by
telecommunications companies with the question merely being limited to how much the company
is obliged to pay.
On a different note, Senator Ralph Recto recently stated that if a telecommunications
network should be penalized for alleged violations of operating conditions, a fine would be
appropriate as opposed to closing down the network, which he equated to capital punishment.98
Lastly, a suspension by the NTC effectively stops broadcast companies from exercising
any actions related to their license. Since the suspension is itself the decision of the NTC, it is also
considerably more restrictive than a cease and desist order. While similar to a cease and desist order
in that both actions temporarily stop the company from operating, their difference lies in that
suspension carries with it a finding of fault on the part of the company, whereas a cease and desist
order does not. To reiterate, a cease and desist order is dependent on a subsequent finding by the
NTC of fault on the part of the company.
In all three actions, the complainant may either be any aggrieved person99 or the NTC
itself. These remedies alternative to quo warranto do not result in any permanent restriction on
100
broadcast media; a cease and desist order and a suspension only temporarily restrict, while a fine by
itself does not restrict broadcasting at all. On the other hand, quo warranto results in the revocation
of a company’s operating rights upon an adverse judgement by the court. It is total, permanent, and
conclusively more restrictive than administrative sanctions from the NTC.
All in all, there seems to be no indication that suspensions and fines are completely
unviable when compared to quo warranto. Suspension and fines are just as capable of pursuing the
governmental interest of ensuring compliance with franchise conditions, with the Supreme Court
even agreeing with the NTC’s imposition of fines after finding a violation of franchise conditions.
Thus, applying the rule that determining the “least restrictive means” requires that the viability
of all alternatives to be debunked, this Note has shown that quo warranto fails in this regard.
While quo warranto is an effective means to address the violations of franchise conditions, it is not
exclusive, and it is far from the least restrictive.
Diverging from Divinagracia, this Note proposes that the imposition of a fine should be
considered as the least restrictive means to address franchise violations; along with being able to
penalize erring companies, this action offers the least restriction to the freedom of the press because
a fine alone does not cause stoppage of operations from imposition to payment even if the case is
brought to court, as shown aptly in the two cases cited above.
V. Conclusion
The civil action of quo warranto is a peculiar remedy. It is definitely a tool to address
actions injurious to the public interest, but its effects are so broad and severe that it seems outdated
against the modern corporation when compared to recent legal remedies that are narrower in scope.
While Divinagracia is the factual inspiration for this work, this Note is limited to a
determination of quo warranto being the least restrictive means, thus there are some issues that I did
not include. In particular, I did not revisit Divinagracia’s ruling as to whether the NTC under the
doctrine of necessary implication has the power to revoke a license; thus, the administrative actions
enumerated in Part IV did not include revocation. I also did not discuss whether Divinagracia’s
reference to PLDT and Kilosbayan — cases both decided before the 1997 Rules of Court — should
98  Vanne Terrazola, ‘Death penalty’ should not be imposed on ABS-CBN – senators, Manila Bulletin, February 25, 2020,
available at https://news.mb.com.ph/2020/02/25/death-penalty-should-not-be-imposed-on-abs-cbn-senators/.
99  National Telecommunications Commission’s 2006 Rules of Practice and Procedure, Part I, Rule 2, § 2.
100 National Telecommunications Commission’s 2006 Rules of Practice and Procedure, Part III, Rule 10, § 3.
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be construed as the Court, pursuant to its rule-making power,101 readopting “misuse of franchise” as
a ground for quo warranto. I believe these two issues are also worth reconsidering given the recent
unprecedented events concerning press freedom in the Philippines.
Granting the power to revoke a broadcast company’s operating license is not a death
sentence for the liberty of the press. It should be seen as an emancipation from misguided
persecution, a protection from virulent elements that seek to silence opposition behind a veil of
legality.
Justice cannot be constrained by the law’s appreciation of an antiquated remedy. By
advocating for administrative sanctions not only as viable alternatives, but as less restrictive ones,
this Note has challenged the ruling that quo warranto is the least restrictive means for pursuing
the governmental interest of ensuring compliance with franchise conditions. On the contrary,
international studies show that the mere delegation of revocatory power to administrative bodies
does not necessarily curtail a country’s press freedom. The freedom of the press depends on more
than just the powers of the regulatory authorities. While I agree with the Court’s application of the
strict scrutiny test in analyzing cases involving press freedom, recent contextual developments beg
for a reevaluation of its analysis if we are to uphold the fundamental notion that a free press leads
to a free society.
101  Phil. Const. art. VIII, § 5 (5).
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Free Money:
The Constitutional Aspects of Cryptocurrencies
Rafael Angelo M. Padilla
ABSTRACT: We discuss the various legal and economic aspects
of cryptocurrencies. Because thousands of cryptocurrencies vary in terms of
purpose, utility, and features, the discussions will focus on bitcoin considering
that it is the original, most valuable and most widely used cryptocurrency, as
well as the fact that it was conceptually designed to function as electronic cash.
In particular, this paper will discuss how bitcoin can legally and commercially
function as money, and to what extent can a monetary authority like the Bangko
Sentral ng Pilipinas (BSP) regulates the use of cryptocurrencies as private
money. This paper will also explore a hypothetical scenario where Congress
enacts a statute prohibiting the use of cryptocurrencies as a medium of exchange
for private transactions, and examine whether such a law would suffer from
constitutional infirmities in view of the due process clause and the freedom of
speech.
1. Introduction
Cryptocurrencies, such as bitcoin, are digital assets where ownership is recorded on a
shared public ledger that is updated concurrently by a decentralized and global network of users.
Before the invention of Bitcoin, the first cryptocurrency-based decentralized payment system, any
form of electronic payment would need to be carried out through central intermediaries because
of the risk of double-spending. Bitcoin proved that it is technically possible for parties to engage
in cash-like digital transactions through the internet and even without the intervention of trusted
third parties.
After the 2008 global financial crisis, it has been observed globally how technology
has been converging with financial services. The crisis gave rise to new and innovative ways of
delivering financial services, with new business models and commercial practices that have never
been envisaged by traditional regulatory frameworks. The launch of Bitcoin in 2009 coincided with
this crisis, inspiring many to understand money, economics, and finance from a different paradigm.
Some have imagined how technology can usher in the creation of new kinds of money, rather than
simply employing technology to implement digital versions of conventional money.
In the context of the growing adoption of cryptocurrencies such as bitcoin, the concept
of monetary sovereignty, as the term is conventionally understood by central bankers and those
in charge of monetary policy, is explored in this paper. We reexamine the conventional wisdom
widely held to be true by the central banking community, i.e., central banks are the agents of the
State through which monetary sovereignty is exercised, and assess whether such notion is consistent
with constitutional precepts—such as the principle that sovereignty resides in the people and
government authority emanates from them.
This paper will not argue in favor of the separation of State and money, nor argue against
the Bangko Sentral ng Pilipinas’ (BSP) authority to provide policy direction in the areas of money,
banking, and credit—this is clearly mandated by the 1987 Constitution. Nor do we argue against
the constitutionality of legal tender laws, such as Section 52 of the New Central Bank Act. Instead,
151

we revisit the concept of monetary sovereignty, especially in the light of Republic Act No. 81831—
the law that repealed the Uniform Currency Act (R.A. 529, 1950), which previously prohibited
payment of the obligation in currency other than legal tender.
Finally, this paper will reflect on whether privately-issued cryptocurrencies such as bitcoin
can function as “free money,” and whether they can empower the people to reassert monetary
sovereignty as a construct of freedom. For this purpose, we propose to redefine monetary sovereignty
as the individual’s liberty to choose what he or she may deem as a sound form of money for his or
her private economic transactions, limited only by the State’s legitimate interest to purvey the use
of fiat currency for public transactions (e.g., payment of taxes, public debts, salaries of civil servants,
grant of subsidies and social benefits, etc.) and as an instrument of monetary policy.
2. Scope and limitation of the paper
In terms of scope, we limit our discussion to fungible, convertible,2 and privately-issued
cryptocurrencies. Further narrowing the scope, our discussions will principally focus on bitcoin
considering that it is the first, most adopted, and most valuable cryptocurrency amid tens of
thousands of “altcoins.” It is impractical to write a comprehensive treatment of the legal and
economic aspects of all types of cryptocurrencies vis-à-vis monetary law in view of their inordinate
variations in terms of purpose, design, characteristics, functions, and features.
Furthermore, non-convertible cryptocurrencies that function as an internal currency
within a closed-loop system or platform (e.g., “in-game” or “in-app” tokens) are also excluded
from our scope, along with nonfungible tokens (NFTs) which are unique cryptographic digital
assets whose ownership is likewise recorded on the blockchain but are not designed to function
as currency or medium of exchange (e.g., cryptoart, cryptocollectibles, profile pictures or “PFP,”
etc.). Moreover, this paper will exclude discussions on government-issued cryptocurrencies (e.g.,
Sovereign or SOV issued by Marshall Islands) and central bank digital currencies or CBDCs (e.g.
Bahamas Sand Dollar, People’s Bank of China’s Digital Currency Electronic Payment [DCEP],
etc.).
As a final note on the scope and limitation of our paper, it is conceded that the use of
privately-issued cryptocurrencies can be the subject of regulation as a valid exercise of police
power, such as when the features, functions, and characteristics of a particular cryptocurrency
require their treatment within the scope of an established legal or regulatory framework. For
example, “security tokens” and other digital assets that behave as securities are subject to regulation
in accordance with the Securities Regulation Code;3 crypto-based payment tokens used by payment
service providers can be regulated as a payment instrument per National Payment System Act;4
even the use of cryptocurrencies as a medium of exchange in illegal gambling, sale of controlled
substances or contrabands, or to facilitate money laundering, terrorist financing, sanction evasion,
the proliferation of weapons of mass destruction, and other illicit activities, are outlawed by existing
penal laws. This paper will only review the constitutionality of a carte blanche policy banning
cryptocurrencies due to the fact that they are privately issued, or because they can circulate as
private money, or because they adversely implicate monetary policy.
1  AN ACT REPEALING REPUBLIC ACT NUMBERED FIVE HUNDRED TWENTY-NINE AS AMENDED,
ENTITLED “AN ACT TO ASSURE THE UNIFORM VALUE OF PHILIPPINE COIN AND CURRENCY”
(1996).
2 “Convertible” in this context refer to cryptocurrencies that can be directly exchanged to fiat currencies and other
cryptocurrencies.
3  R.A. No. 11127 (2000).
4  R.A. No. 11127 (2018).
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3. Monetary law and the legal nature of money
“The fact that monetary law is neglected has been responsible for many crises in the past, and
will probably be responsible for such crises in the future.”
- E. Hirschber, Monetary Law and Monetary Crisis (1976)
Monetary law may be regarded as that area of law that treats the rights and obligations
affected by changes in the value of money. Hirschber, an avid writer on the subject, characterized
monetary law thus: “(s)ince monetary problems and crises affect the whole world, the basic
principles and approaches of monetary law are transnational and may be treated as part of the
common law of mankind.”5
“Money” is among the most important and most frequently used terms in legal relations.
It appears in the Constitution, statutes, court decisions, administrative issuances, contracts, and
various legal documents.6 In many cases, laws define rights in monetary terms, such as in the case
of actions “capable of pecuniary estimation.” If only money were perfectly stable in value, monetary
law would be irrelevant. Indeed, in times when the currency is relatively stable, “the law finds
itself unprepared for unexpected and revolutionary changes in the monetary system.”7 But when
the volatility of the value of money is a common phenomenon, monetary law becomes practically
significant.8
Illustrating the prominence of monetary law, it may be observed that one of the articles in
the first volume of the Harvard Law Review addressed the issue of whether the Federal Congress of
the United States has the constitutional authority to endow paper money with legal tender power.9
There was also a time when the U.S. Federal Supreme Court’s decisions on the constitutionality
of government-issued paper money, the Legal Tender Cases,10 were among the most important yet
controversial rulings of the Court. 11
In the Philippines, the Legal Tender Cases were cited for the first time by the Philippine
Supreme Court in the 1905 case of Gaspar v. Molina to support its ruling that a law requiring
judgments rendered by Philippine courts be stated in terms of the new gold-based Philippine
currency does not impair the obligation of contracts made prior to its passage.12 More recently,
the Supreme Court had the occasion to describe the legal nature of money in Federal Express v.
Antonino.13 The ponente, Justice Leonen, defined money as “what is generally acceptable in exchange
for goods.” It can take many forms, most commonly as coins and banknotes. Despite its myriad
forms, its key element is its general acceptability. Laws usually define what can be considered a
generally accepted medium of payment, as in the case of the legal tender clause (Section 52) of the
New Central Bank Act.
5  E. Hirschber, Monetary Law and Monetary Crisis, IX CILSA 1976, p. 226 (1976).
6  Arthur Nussbaum, Money in the Law, p. 19 (1950).
7  Phanor J. Eder, Legal Theories of Money, 20 CORNELL L.Q. 52 (1935).
8  E. Hirschber, Monetary Law and Monetary Crisis, IX CILSA 1976, p. 226 (1976).
9  James B. Thayer, Legal Tender, Harvard Law Review Vol. 1, No. 2. (1887).
10 79 U.S. 457 (1870). 
11 John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p. 110
(2009).
12 G.R. No. 2206 (1905).
13 G.R. No. 199455 (2018).
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The ramifications of monetary phenomena, like inflation, on private rights and obligations,
should be considered in the study of monetary law.14 Considering its close relation to the problems
of currency, it can be said that the purpose and intent of monetary law are to protect the public
interest and the common good. However, throughout history, there were times when laws were
enacted for the benefit of private interests. Observing that currency was the first-ever nationalized
industry, Hirschber clarified that currency was nationalized, “not to serve the interests of the public,
but those of the rulers.” An example of this is the establishment of the nominalistic principle, which
legally mandates that “a pound is always a pound and a dollar always a dollar,” even though the coin
has already been debased.15
Although the theoretical foundations of the principle were developed as early as the
sixteenth century,16 the modern justification of the nominalistic principle was formulated by G.F.
Knapp who argued that money is simply a creature of law, and law fixes what its value is.17 The
nominalistic principle enables a massive transfer of purchasing power from one private party to
another through currency debasement which leads to inflation. Indeed, Morag argued that inflation
is an indirect form of taxation.18 Even Benjamin Franklin regarded currency debasement as some
kind of “imperceptible tax.”19 But one fundamental difference between tax and inflation is that
taxation directly benefits the government, whereas inflation combined with the nominalistic
principle also directly benefits private interests.20 The problems arising from currency debasement
and inflation, as well as the evils of the nominalistic principle, were even described by Adam Smith
in the Wealth of Nations:
“(T)he avarice and injustice of princes and sovereign states, abusing the confidence
of their subjects, have by degrees diminished the real quantity of metal, which
been originally contained in their coins… By means of those operations, the
princes and sovereign states which performed them were enabled, in appearance,
to pay their debts and to fulfill their engagements with a small quantity of silver
than would otherwise have been requisite. It was indeed in appearance only; for
their creditors were really defrauded of a part of what was due to them. All other
debtors in the state were allowed the same privilege, and might pay with the
same nominal sum of the new and debased coin whatever they had borrowed in
the old. Such operations, therefore, have always proved favorable to the debtor,
and ruinous to the creditor, and have sometimes produced a greater and more
14  E. Hirschber, Monetary Law and Monetary Crisis, IX CILSA 1976, p. 228 (1976).
15  “This state prerogative over currency has influenced the thinking of the English courts from the nineteenth century to
the present day. A unit of currency is always equal to itself as defined by its issuer, therefore, the term pound, appearing
in contracts, should be interpreted as having a constant value. The protection of the prestige of currency has also played
a part; courts of law were not willing to admit that the national currency had decreased in value. This traditional attitude
still pervades the whole body of monetary law. However, during the Civil War in the United States (186 1-65), the
courts of law, and even the legislator, adopted a far more liberal attitude which was intended to protect private interests
affected by inflation in the North and the ruin of Southern currency. The same happened in Germany during the Great
Inflation (1902-24), where a judicial revaluation of obligations affected by galloping inflation, was followed by legislative
revaluation.” (Id.)
16  E. Hirschber, Monetary Law and Monetary Crisis, IX CILSA 1976, p. 227 (1976).
17  E. Hirschber, Monetary Law and Monetary Crisis, IX CILSA 1976, p. 227 (1976).
18  Amotz Morag, On Taxes and Inflation (1965).
19  “The only consolation under the evil is, that the public debt is proportionately diminished by the depreciation; and this
by a kind of imperceptible tax, every one having paid a part of it in the fall of value that took place between the receiving
and paying such sums as passed through his hands. ... This effect of paper currency is not understood this side the water.
And indeed, the whole is a mystery even to the politicians, how we have been able to continue a war four years without
money, and how we could pay with paper, that had no previously fixed fund appropriated specially to redeem it. This
currency, as we manage it, is a wonderful machine. It performs its office when we issue it; it pays and clothes troops,
and provides victuals and ammunition.” Benjamin Franklin’s letters from France, quoted in Justice Bradley’s concurring
opinion in Knox v. Lee, 79 U.S. 457 (1870).
20  E. Hirschber, Monetary Law and Monetary Crisis, IX CILSA 1976, p. 228 (1976).
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universal revolution in the fortunes of private persons, than could have been
occasioned by a very great public calamity.”21
On the legal nature of money, Mises explained that the law understands money not as
a common medium of exchange but as a legal medium of payment that discharges obligations.
“The principal, although not exclusive, motive of the law for concerning itself with money is the
problem of payment.”22 The law’s concern with money as a means to cancel an outstanding debt or
to extinguish pecuniary liabilities has broad implications on the legal concept of money.”23
4. A statutory ban on cryptocurrencies, particularly bitcoin, violates substantive due process
In a hypothetical scenario where Congress enacts a statute that would prohibit the
use of privately-issued cryptocurrencies for private economic transactions, the law would be
unconstitutional as it would violate the substantive aspect of the due process clause. Such law
would fail the test of reasonableness as it would irrationally, arbitrarily, and outrageously disregard
fundamental economic principles, centuries of lessons from monetary history, and the technological
innovations and economic advantages offered by cryptocurrencies, especially bitcoin.
Article III, Section 1 of the 1987 Constitution is understood to guarantee not only
the procedure but also the substance of life, liberty, and property. This is why the due process
clause is interpreted both as a procedural and substantive guarantee that restricts the exercise of
unreasonable governmental power even when such power is formally authorized by law and the
established procedure.24 Focusing on its substantive aspect, due process requires that (1) public
interest demands government intervention, and that (2) the means employed are reasonably
necessary to accomplish a public purpose and not unduly oppressive to individual rights.
The clause which states that “(n)o person shall be deprived of life, liberty, or property without
due process of law” is negatively phrased to emphasize how it serves as a strict limitation on the
inherent powers of the State. In the context of substantive due process, this means that police
power, taxation and expropriation cannot be exercised arbitrarily but must be fair, reasonable, and
just.25 Indeed, substantive due process is the “epitome of reasonableness and fair play.”26 Police
power, in particular, must be exercised to achieve a public purpose, employing measures that do
not unreasonably interfere with fundamental natural rights of life, liberty, and property. It is in
deference to these natural rights that the constitutional limits were imposed on the scope of police
power.
a. Economic substantive due process
In relation to due process, the notion of economic substantive due process must be examined
as we grapple with the constitutional issue: “would a statutory policy banning privately-issued
cryptocurrencies pass the test of reasonableness?” To answer this question, economic concepts such
as rational choice theory must also be considered. The rational choice theory suggests that economic
actors employ rational thinking to arrive at informed decisions or choices, leading to outcomes that
align with their best interests. When rational individuals behave according to their self-interest, the
21  Adam Smith, The Wealth of Nations, Chapter IV, Of the Origin and Use of Money, p. 41 (1776).
22  Ludwig Von Mises, The Theory of Money and Credit, p. 36-37 (1912).
23  Ludwig Von Mises, The Theory of Money and Credit, p. 69 (1912).
24  Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p.118 (2009)
25  Corona v. United Harbor Pilots Association of the Philippines, G.R. No. 111953 (1997).
26  Bautista v. Juinio, G.R. No. L-50908 (1984).
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“invisible hand” ultimately creates advantages for the overall economy.
The doctrine of substantive due process examines the intrinsic validity of a law when
it interferes with liberty and property rights.27 There have been cases where courts applied
economic principles in their examination of the legal issues concerning the substantive due process.
In these cases, the rights to liberty and property were interpreted to mean non-interference by
the government in the area of private economic relations. As remarked by Justice Brewer of the
United States Supreme Court in his dissenting opinion in Budd v. New York,28 a case involving the
constitutionality of a New York statute regulating rates charged by grain elevators: “(t)he paternal
theory of government is to me odious. The utmost possible liberty to the individual, and the fullest
possible protection to him and his property, is both the limitation and duty of government.”
In the case of Allgeyer v. Louisiana,29 the U.S. Supreme Court invalidated a Louisiana
law prohibiting out-of-state insurance corporations from conducting business in the state without
maintaining at least one place of business and an authorized agent in the state. According to the
Court, the law violates the due process clause and the liberty to enter into contracts:
“The liberty mentioned in that [Fourteenth] amendment means not only the right of the
citizen to be free from the mere physical restraint of his person, as by incarceration, but
the term is deemed to embrace the right of the citizen to be free in the enjoyment of all
his faculties; to be free to use them in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for
that purpose to enter into all contracts which may be proper, necessary and essential to his
carrying out to a successful conclusion the purposes above mentioned.”
The freedom to contract is an aspect of the right to property, according to the U.S.
Supreme Court in Coppage v. Kansas:30 “(i)ncluded in the right of personal liberty and the right
of private property—partaking of the nature of each—is the right to make contracts for the
acquisition of property. Chief among such contracts is that of personal employment, by which labor
and other services are exchanged for money or other forms of property. If this right be struck down
or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established
constitutional sense.”
In the landmark case of Lochner v. New York,31 the U.S. Supreme Court declared
unconstitutional the Bakeshop Act enacted by the State of New York, which forbids bakers to
work more than 60 hours a week or 10 hours a day. In regarding said law as an “unreasonable,
unnecessary and arbitrary interference with the right and liberty of the individual to contract,” the
Court explained:
“The general right to make a contract in relation to his business is part of the liberty
protected by the Fourteenth Amendment, and this includes the right to purchase and
sell labor, except as controlled by the State in the legitimate exercise of its police power…
There is no reasonable ground, on the score of health, for interfering with the liberty
of the person or the right of free contract, by determining the hours of labor, in the
occupation of a baker. Nor can a law limiting such hours be justified as a health law to
safeguard the public health, or the health of the individuals following that occupation.”
b. Regulation of money as an exercise of police power
It may be said that the regulation of money falls within the scope of police power. Hurst
27  Maynilad Water Services, Inc. v. Secretary of the Department of Environment and Natural Resources, G.R. Nos.
202897, 206823 & 207969 (2019).
28  143 U.S. 517 (1892).
29  165 US 578 (1897).
30  236 U.S. 1, 14 (1915).
31  198 U.S. 45 (1905)
156
explained that because “the functional meaning and workability of the money system both derive
from and materially affect the general context of social relations, legal control of money is established
within that legitimate concern of law with the good order of social relations, which has commonly
been called the police power.”32 However, it must be stressed that the regulation of money must be
fair, reasonable, and just in line with the doctrine of substantive due process. Further, while police
power may be exercised to regulate the use and enjoyment of property, “the power to regulate,
however, does not include the power to prohibit.”33 Bearing these constitutional principles in
mind, the traditional role of government in the regulation of money was summarized by Seldon
thus:
“It has long been a common belief among economists since the classical thinkers of the
18th century that one of the most important functions of government was to create a
monetary mechanism and to issue money. The debates among economists have been
on how far governments have performed this function efficiently and on the means of
increasing or decreasing the power of government over the supply of money. But the
general assumption has been that government had to control monetary policy and that
each country had to have its own structure of monetary units.” 34
On the other hand, some economists—students of the Austrian school—believe, that
money is not so different from other commodities and that it is better supplied by competition
among private issuers rather than by a government that legally enjoys the monopoly to print
money.35 In explaining the evils of State monopoly over money, F.A. Hayek noted how government
intervention was initially justified by the complex attributes of precious metals employed by the
market as money:
“(W)hen the genuineness of metallic money could be ascertained only by a difficult process
of assaying, for which the ordinary person had neither the skill nor the equipment, a
strong case could be made for guaranteeing the fineness of the coins by the stamp of some
generally recognized authority which, outside the great commercial centers, could be only
the government. But today these initial advantages, which might have served as an excuse
for governments to appropriate the exclusive right of issuing metallic money, certainly do
not outweigh the disadvantages of this system. It has the defects of all monopolies; one
must use their product even if it is unsatisfactory, and above all, it prevents the discovery
of better methods of satisfying a need for which a monopolist has no incentive.”36
5. Revisiting the notion of “monetary sovereignty”
“Perhaps the Babel of views on the money question stems from man’s propensity to be “realistic,” i.e., to
study only immediate political and economic problems. If we immerse ourselves wholly in day-to-day affairs, we cease
making fundamental distinctions, or asking the really basic questions.”
- Murray Rothbard, What Has Government Done to Our Money?, p. 1 (1963)
Does the government—including unelected technocrats appointed to steer monetary
policy—have the constitutional authority to regulate or worse prohibit private money? The
regulatory perimeter of the Philippine central bank, BSP, when it comes to private money, such
as privately-issued cryptocurrencies, must be demarcated. Does the New Central Bank Act, as
amended most recently in 2019,37 authorize the BSP to prohibit or regulate the use of privately-issued
32  James Willard Hurst, A Legal History of Money in the United States, 1774-1970 (1973).
33  Office of the Solicitor General v. Ayala Land, Inc., G.R. No. 177056 (2009).
34  Arthur Seldon, Preface to Denationalization of Money, Hayek, p. 3 (1976).
35  Id.
36  Friedrich A. Hayek, Denationalization of Money, p. 21 (1976).
37  R.A. No. 11211, AN ACT AMENDING REPUBLIC ACT NUMBER 7653, OTHERWISE KNOWN AS "THE
NEW CENTRAL BANK ACT," AND FOR OTHER PURPOSES. (2019). “Amended BSP Charter” for brevity.
Despite the relative popularity of cryptocurrencies as of 2019, the Amended BSP Charter is silent on the subject of
cryptocurrency and virtual asset service providers (VASP). That said, by administrative fiat, BSP classifies a VASP as
a money service business. Money service business is within the regulatory ambit of the BSP, and for this reason, BSP
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cryptocurrencies via administrative regulation? Would an outright policy banning cryptocurrencies
be legally justified by invoking BSP’s constitutional mandate to provide policy direction on money,
banking, and credit?
With regard to jurisprudence, it has not yet been judicially settled whether “monetary
sovereignty” authorizes Congress to enact a law that will prohibit the use of private money in purely
private transactions, as seen in other countries38 where the use of cryptocurrencies for payments has
been outlawed. If such a law is enacted by Congress, can it withstand constitutional challenges,
bearing in mind certain inalienable rights such as the individual’s right to due process39 and freedom
of speech, of expression, and of the press?
Economic questions concerning money are among the most complicated, and a wide
range of perspective is usually required to answer them. Adding further to the complexity, money,
according to Rothbard, “is the economic area most encrusted and entangled with centuries of
government meddling.”40 A case in point is the concept of monetary sovereignty. In international
law, the Serbian Loans Case recognized it “as a generally accepted principle that a state is entitled to
regulate its own currency.”41 Based on this decision of the Permanent Court of International Justice
(PCIJ), the State’s sovereignty over its national currency and over the internal and external aspects
of its monetary systems has been recognized by public international law.42
In the domestic sphere, the version of “monetary sovereignty” as espoused by modern
central bankers seems to blur the metes and bounds of monetary law.43 For them, the concept
evokes the idea of a sovereign prerogative that grants the government a permanent, exclusive,
comprehensive, absolute, and inalienable power to create and issue money.44 For example, in some
papers published by the International Monetary Fund, monetary sovereignty has been described
to cover essentially three exclusive rights of the State: (1) the right to issue currency, that is, coins
and banknotes that are legal tender within its territory; (2) the right to determine and change the
value of that currency; and (3) the right to regulate the use of that currency, or any other currency,
within its territory.45
In law and in fact, where does monetary sovereignty actually reside? Could it be implied
regulates cryptocurrency-based financial activities facilitated by VASPs. See BSP Circular No. 1108 or Guidelines for
Virtual Asset Service Providers (2021).
38  See for example the case of Thailand. Suttinee Yuvejwattana and Thomas Kutty Abraham, Thailand Bans Use of
Cryptocurrencies as a Method of Payment, Bloomberg, 23 March 2022, https://www.bloomberg.com/news/
articles/2022-03-23/thailand-bars-use-of-cryptocurrencies-as-a-method-of-payment.
39  In this paper, we will explore this question through the lens of economic substantive due process.
40  Murray N. Rothbard, What Has Government Done to Our Money, p. 2 (1963).
41  Case Concerning the Payment of Various Serbian Loans Issued in France (France v. Serbia) (1929).
42  Claus D. Zimmerman, The Concept of Monetary Sovereignty Revisited, European Journal of International Law Vol.
24 no. 3, p. 798-799 (2013).
43  See for example this statement from the BSP in their publication on Central Bank Digital Currencies (CBDC):
“Another benefit of introducing a CBDC is to help preserve monetary sovereignty. Rather than having an alternative
means of payments that would become widely used but that is not denominated in domestic currency (e.g., foreign
CBDC and cryptocurrencies), introducing a CBDC may be preferred to help preserve central bank monetary sovereignty
and its control on its policy objectives.” (BSP, Central Bank Digital Currency for the BSP: Fundamentals and Strategies,
p. 19 (2021).
44  Richard H. Timberlake, The Government’s License to Create Money, Cato Journal, Vol. 9, No. 2, p. 302 (1989).
45  Francois Gianviti, Current Legal Aspects of Monetary Sovereignty, p. 4 (2004). Describing the nature of monetary
sovereignty vis-à-vis the international monetary system, Gianviti wrote: “By joining the membership of the IMF, the
members have accepted these obligations and, to that extent, limited their monetary sovereignty. In exchange, they
have received certain benefits. One of them is that other members have agreed to limit their sovereignty for the sake of
international cooperation and for the common good of all. Another benefit is that in times of crisis they will have access
to financial assistance from the IMF if they meet the required conditions.” (p. 2).
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from the text of Article XII, Sec. 20 of the 1987 Constitution that the people vested this power
to the government, particularly to the BSP as the independent central monetary authority? Was
monetary sovereignty delegated to Congress, considering its plenary power to write laws, including
the law that created the BSP through the legislative charter?46 Or do the people continue to enjoy
this aspect of sovereignty in its native and original form? In relation to the latter question, can
the money be founded on what Rothbard calls the “freedom principle?”47 Should there be a free
market in money, i.e., free money, based on free-market principles? The answers to these questions
will determine whether the government can legally prohibit (either by statute or administrative
regulation) the use of privately-issued cryptocurrencies in private economic transactions.
The answers are also important to alleviate any fear, uncertainty, and doubt (“FUD”)
on the future of privately-issued cryptocurrencies. FUD can negatively influence the adoption of
cryptocurrencies as private money as well as its related use cases and applications. Any perceived
legal uncertainty can stymie financial innovation and discourage economic opportunities—
especially when the potential role of cryptocurrencies and blockchain is taken into account in the
advent of the fourth industrial revolution.
When Jean Bodin developed his theory of sovereignty, he cited the right of coinage as
one of the most essential parts of sovereign power. By monopolizing the mint, governments soon
discovered that the exclusive authority of coinage was an important instrument of power and a
lucrative source of gain. The coins served largely as the symbol of might, similar to a flag, through
which the ruler invoked his sovereignty.48 This ancient royal tradition may have inspired the notion
that coinage was a sovereign necessity. But today, such royal prerogative no longer exists. Further,
it is a fundamental principle of the Constitution that sovereignty resides in the people—not in the
government. Likewise, all government authority emanates from the sovereign people.49
The concept of monetary sovereignty understood by the central banking community
perpetuates the medieval conception that money, or the value of money, was a creation of the State.
It must be remembered that the role of the government in coinage was not originally understood
to authorize the creation of money, but only to certify the weight and fineness of the precious
metals that universally served as money in economic activities. This role was not so different
from establishing and certifying uniform weights and measures.50 Today, the so-called “monetary
sovereignty” claimed by modern governments as one of their functions serves as legal justification
to issue fiat currency and endow them with legal tender power to artificially incentivize its general
acceptability.
6. Valor impositus and the State theory of money
Sometime in the Middle Ages, people started to believe a superstition that it was the de-
cree of government that conferred the value upon the money.51 The king’s image was stamped on
coins, and the myth was propagated that coinage is an essential royal prerogative of the sovereign
monarch. The monopoly of the mint allowed the government to supply whatever denominations
46  R.A. No. 7653, as amend by R.A. No. 11211 (2019).
47  Murray N. Rothbard, What Has Government Done to Our Money, p. 2-3 (1963).
48  Friedrich A. Hayek, Denationalization of Money, p. 23 (1976).
49  Article II, Section 1, 1987 Constitution. See also Murray N. Rothbard, What Has Government Done to Our Money,
p. 16 (1963)
50  Friedrich A. Hayek, Denationalization of Money, p. 23 (1976). “The pieces of metal were regarded as proper money
only if they carried the stamp of the appropriate authority, whose duty was thought to be to assure that the coins had the
proper weight and purity to give them their value.” (Id.).
51  Friedrich A. Hayek, Denationalization of Money, p. 23 (1976).
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of coin it wanted, although not desired by the public.52 Although experience always proved this
assumption to be false, the doctrine of valor impositus53 became established as a legal tenet that
served as justification of the constant attempts of the rulers to impose the same value on debased
coins.54 Grimaudet argued that “the value of money depends on the State; that is to say, in a monar-
chy, upon the prince, and in an oligarchy, upon the State, which alone has the right to coin money,
or to have it coined and to stamp a valuation upon it.”55 In his book The Natural Law of Money,
Brough wrote a detailed account of this superstitious belief in “king’s money” —
“The next step in coinage was a step backward. The coinage came to be known as “king’s
money;” it bore the effigy of the sovereign; and the pieces were more artistically minted;
but they were given names that had no reference to their weight or fineness. This irrelevant
naming was misleading, and people soon lost sight of money as a commodity, and came
to regard the stamp and denomination as its valuable part. The superstitious awe in which
kings were then held made it but a short step from the belief that a king’s touch would
cure disease, to the belief that his effigy and superscription gave value to the coin. By this
last change in coin which obliterated the meaning of money, the people lost control of
their coinage, —that control had passed into the hands of the kings.”56
Valor impositus was self-servingly propagated by legal writers loyal to the monarch in
an attempt to integrate into a formal legal framework the well-established practice of currency
debasement by absolutist monarchs.57 Centuries later, specifically during the 17th century,
rule of law became an established legal concept which tempered the arbitrariness and greed of
despotic monarchs.58 In the United States, the key development was the ratification of the Federal
Constitution.59 In England, it was the establishment of the Parliament that paved the way for the
regulation of money, which used to be a royal prerogative of the king, to come under the direction
of the people. 60
However, in the early 20th century, valor impositus was revived by G.F. Knapp, whose
state theory of money greatly influenced the contemporary legal theory of money61 that regarded it
as a mere creature of law. Also known as chartalism, Knapp’s doctrine that “money is peculiarly a
creation of the State” serves as one of the foundations of Keynes’ theory of money.62 Knapp argued
that money behaves as a medium of exchange because compulsory payments and contractual
obligations must be satisfied in terms of the legally-sanctioned money. Fiat money, i.e., money
“by decree,” is perceived to have value because it is the legally required medium for the payment
of taxes. By defining what counts as an abstract value capable of discharging tax debts, tax law
encourages individuals to accept fiat money.63 Hayek, in his seminal book Denationalization of
Money, rejected the State theory of money and wrote the following counterargument against valor
52  Murray N. Rothbard, What Has Government Done to Our Money, p. 57 (1963).
53  “Value can be imposed,” which means that the king can fix the value of coin.
54  Friedrich A. Hayek, Denationalization of Money, p. 23 (1976).
55  Francois Grimaudet, The Law of Payment, p. 11 (1579).
56  William Brough, The Natural Law of Money, p. 17 (1896).
57  Claus D. Zimmerman, The Concept of Monetary Sovereignty Revisited, European Journal of International Law Vol.
24 no. 3, p. 802 (2013).
58  Richard H. Timberlake, The Government’s License to Create Money, Cato Journal, Vol. 9, No. 2 (1989).
59  After the United States gained its independence from England, foreign currency was still in wide circulation in the new
country, and the Spanish dollar was generally regarded as a monetary standard.
60 William Brough, The Natural Law of Money, p. 18 (1896).  66  Ludwig Von Mises, The Theory of Money and Credit, p. 73 (1912)
61  Friedrich A. Hayek, Denationalization of Money, p. 24 (1976). Hayek admits that governments “must of course be free
to determine in what currency taxes are to be paid and to make contracts in any currency it chooses (in this way it can
support a currency it issues or wants to favor).” (Id., p. 31).
62  “And the age of chartalist or State money was reached when the State claimed the right to declare what thing should
answer as money to the current money of account.” John Maynard Keynes, A Treatise on Money, Vol. 1, The Pure Theory
of Money, p. 4 (1930).
63  Moritz Hütten and Matthias Thiemann, Moneys at the Margins: From Political Experiment to Cashless Societies, p.
29 (2018).
160
impositus, citing the destruction of the Papiermark when Germany suffered hyperinflation during
the Weimar Republic:
“But the superstition that it is necessary for the government (usually called the ‘state’
to make it sound better) to declare what is to be money as if it had created the money
which could not exist without it, probably originated in the naïve belief that such a tool
as money must have been ‘invented’ and given to us by some original inventor. This
belief has been wholly displaced by our understanding of the spontaneous generation of
such undersigned institutions by a process of social evolution in which money has since
become the prime paradigm (law, language, and morals being the other main instances).
When the medieval doctrine of the valor impositus was in this century revived by the
much-admired German Professor Knapp, it prepared the way for a policy which in 1923
carried the German Markdown to one thousand billionths of its former value!”64
As a social institution, money is almost infinitely adaptable.65 While it is the commercial
practice of individuals that ultimately determines the generally acceptable medium of exchange,
the government has a strong influence on this selection because the government is a very important
economic agent in society and in the market.66 The influence of an economic agent on the choice
of money is “greater in proportion to its share in the dealings of the market.”67 Aside from its
important commercial position in the market, its legal authority to create “money” by fiction
of law, the government’s strong influence in the choosing a commercial medium of exchange or
payment is further amplified by its authority to direct monetary policy. Article XII, Section 20
of the Constitution provides that the BSP shall provide policy direction in the areas of money,
banking, and credit. Very clearly, the government has a powerful—but not omnipotent—function
in the development of money, yet neither ancient money nor modern money was ever regarded as
a mere creature of the State.68
7. Origins of money; how market creates money
Money, according to Adam Smith, is a universal instrument of commerce through
which goods and services are bought, sold, or exchanged.69 Milton Friedman, a Nobel laureate in
economics, similarly regards money as “whatever is generally accepted in exchange for goods and
services—accepted not as an object to be consumed but as an object that represents a temporary
abode of purchasing power to be used for buying still other goods and services.”70 While money
is usually understood as the generally acceptable medium of exchange, Hayek, another Nobel
laureate, observed that it is possible that there can be different kinds of money that are widely
accepted within a community.71
Money organically developed from the marketplace because some commodities possessed
inherent properties that made them fit as a medium of exchange. The medium was adopted by
individuals and it evolved without deliberate or formal action from any collective, circulating
everywhere in the world even before rulers thought of decreeing its regulation.72 The market’s
spontaneous selection of money is consistent with the rational choice theory.73 Such selection also
64  Friedrich A. Hayek, Denationalization of Money, p. 31 (1976).
65  Glyn Davies, History of Money, p. 27 (2002).
67  Ludwig Von Mises, The Theory of Money and Credit, p. 73 (1912).
68  Glyn Davies, History of Money, p. 26, (2002).
69  Adam Smith, The Wealth of Nations, Chapter IV, Of the Origin and Use of Money, p. 41 (1776).
70  Milton Friedman, Money Mischief: Episodes in Monetary History, p. 16 (1992).
71  Friedrich A. Hayek, Denationalization of Money, p. 46 (1976).
72  William Brough, The Natural Law of Money, p. 1 (1896)
73  The rational choice theory posits that economic actors employ rational thinking to arrive at informed decisions or
choices, leading to outcomes that align with their best interests.
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has its basis on natural law, according to Brough:
“When an individual uses money, he is governed in what he does with it purely by his
own interests and he does not concern himself about what becomes of it after it passes
out of his possession; thus, it circulates indefinitely, impelled always by the motives and
interests of individuals acting independently of each other; yet it is found to move and
perform its functions with the regularity of a natural law.”74
The marketability, i.e., saleability, of goods greatly varies. There are goods that are more
demanded than others, some are more divisible into smaller fractions, some are more durable
over extended periods of time, and while, some are more portable over great distances. All of
these advantages enhance greater marketability and it is no coincidence that scarcity, divisibility,
durability, and portability are among the characteristics of sound money. In every society, the most
saleable goods will be eventually selected by the market as its media for exchange.75 Once selected as
a medium of exchange, the demand for the goods will increase thereby creating a positive feedback
loop that further enhances its marketability, which makes it more viable as a medium of exchange.76
This virtuous cycle allows the cumulative development of a medium of exchange on the free market,
and by which money is naturally established. Austrian economists such as Rothbard posited that
money cannot originate in any other way, “neither by everyone suddenly deciding to create money
out of useless material, nor by government calling bits of paper ‘money’.”77
That money is a creature of the market was even acknowledged by some court decisions.
In Bronson v. Rodes, the U.S. Supreme Court recognized “the fact, accepted by all men throughout
the world, that value is inherent in the precious metals;” “that gold and silver are in themselves
values;” and “that form and impress are simply certificates of value, worthy of absolute reliance only
because of the known integrity and good faith of the government which gives them.”78 Gold was
not selected arbitrarily by governments to be the monetary standard. Gold had developed for many
centuries on the free market as sound money, ushering in the gold standard. As a monetary asset
providing the most stable and saleable medium of exchange, the supplied gold was subject only to
market forces, and not to the arbitrary printing press of the government.79
From its earliest form, money was a thing of value in and of itself that people were willing
to accept as a medium exchange, not because the law compelled them to do so, but because it had
intrinsic value. Cattle (pecus),80 animal skins (e.g., buckskins or “bucks”), salt (sal)81, and finally
precious metals such as gold and silver became money because they had intrinsic value and because
they possess most of the characteristics of a sound monetary asset.
8. Conjuring money in the era of the Fiat Standard
After precious metals became the dominant form of money in many countries, people
discovered that transactions became more efficient when pieces of paper representing gold or silver
were exchanged instead of the actual metal (specie). This is how people came to accept paper as the
symbol for gold or silver, and this symbol became money. But the core fact, according to Chung,
74  William Brough, The Natural Law of Money, p. 2 (1896).
75  Murray N. Rothbard, What Has Government Done to Our Money, p. 7-8 (1963).
76  Murray N. Rothbard, What Has Government Done to Our Money, p. 7-8 (1963).
77  Murray N. Rothbard, What Has Government Done to Our Money, p. 9 (1963)
78  74 U.S. 229, 249 (1868).
79  Murray N. Rothbard, What Has Government Done to Our Money, p. 90 (1963).
80  This is the etymology of the adjective “pecuniary”, which describes whether something can be expressed in monetary
terms.
81  “Salary” came from the Latin word “salarium,” which originally referred to a ration of salt.
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was that “the paper signified something of value; it had value only insofar as it served as the symbol
of the underlying thing of value.” It was a basic monetary principle for most parts of the world for
centuries—until 1971 when the U.S. dollar, the centerpiece of the international monetary system,
finally abandoned the gold-exchange standard established by the Bretton Woods Agreement. As
Friedman would put it:
“(W)e can simplify our attempt to demystify money by concentrating on the monetary
arrangement that, while historically a very special case, is currently the general rule: pure
paper money that has practically no value as a commodity in itself. Such an arrangement
has been the general rule only since President Richard M. Nixon ‘closed the gold window’
on August 15, 1971—that is, terminated the obligation that the United States had
assumed at Bretton Woods to convert dollars held by foreign monetary authorities into
gold at the fixed price of $35 an ounce. Before 1971, every major currency from time
immemorial had been linked directly or indirectly to a commodity.”82
For the past fifty years, major currencies such as the U.S. dollar or the pound sterling
which are legally regarded as “money” ceased to be signifiers of a signified thing of value. The symbol
ceased from being a mere representation; the simulacrum itself became money83 by statutory fiat,
ushering in what is hopefully a blip in monetary history—the era of the Fiat Standard. At present,
money has become “a pure abstraction with its own self-referential value and reality,” and it is
conjured without being constrained by any reference to something that has intrinsic value. Fiat
money is no longer a symbol; for Chung, it has become its own hyper-reality. 84
9. Hyper-reality of money
The hyper-reality of money is reminiscent of the remarks made by the great classical
economist Adam Smith, who once said that “money is a matter of belief ” which is also why “credit
derives from Latin, credere, ‘to believe’.”85 The modern fiat money is purely an abstraction backed
only by two other abstractions: law and faith.86 For Friedman, people accept fiat money simply
because they are confident that others will; everybody thinks they have value because in everybody’s
experience they have had value.87 But is it possible for fiat money to lose the power to command
belief especially when it is created by the State so effortlessly88, and when dangerous levels of
inflation are a perennial concern in a fiat-based monetary system?89
A widely accepted medium of exchange is critically important for any functioning complex
society. But money cannot serve this function unless its nominal quantity is limited.90 When money
can be created endlessly and easily by operating the printing press or by double-clicking a mouse,91
82  Milton Friedman, Money Mischief: Episodes in Monetary History, p. 15 (1992).
83  John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p. 146
(2009).
84  John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p. 149
(2009).
85  Adam Smith, Commanding Heights, When Currencies Start to Float, p. 151.
86  John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p. 159
(2009).
87  Milton Friedman, Money Mischief: Episodes in Monetary History, p. 10 (1992).
88  “History has demonstrated the consequences when a government ceases to exercise restraint over its money supply.
Inflation or even hyper-inflation is the certain result because it is a fundamental axiom of economics that growth in
money supply is a necessary condition for inflation.” John J. Chung, Money as Simulacrum: The Legal Nature and
Reality of Money, Hasting Business Law Journal, p. 160 (2009).
89  John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p. 161
(2009).
90  Milton Friedman, Money Mischief: Episodes in Monetary History, p. 42 (1992).
91  Agustino Fontevecchia, Bernanke Admits To Congress: We Are Printing Money, Just 'Not Literally', Forbes, 13 July
2013 (https://www.forbes.com/sites/afontevecchia/2013/07/17/bernanke-to-congress-we-are-printing-money-just-not-
literally/?sh=552a746a109b)
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becomes completely detached from any productive labor or material input.92 This hyper-reality of
money, i.e., money is no longer a symbol of a thing that has intrinsic value and money is its own
reality, has potentially catastrophic consequences that could result in a speculative mania, financial
crises, and hyperinflation, which further lead to massive social turmoil and suffering. Monetary
history reveals that these economic maladies occur as a direct result of unrestrained conjuring of
money.93 Kindleberger remarked that speculative manias either begin or accelerate through the
rapid and unhinged expansion of money and credit.94 Friedman, on the other hand, observed:
“Inflation in the range to which we have become accustomed, let alone in the
hyperinflationary range, became feasible only after paper money came into wide use. The
nominal quantity of paper money can be multiplied indefinitely at a negligible cost; it is
necessary only to print higher numbers on the same pieces of paper.”95
10. Natural limits of fiat money
There is a natural limit to the power of the State to conjure fiat money. The confidence
and the cooperation of economic actors are necessary in order for money to endure. The law can
decree the legal tender status of a currency. An extremely debased currency can discharge a debt
and enforced by a court applying the nominalistic principle. But monetary history proves that the
market itself will ultimately choose its money and the government is powerless to force the market
to accept fiat money as a medium of exchange, as can be seen in the final days of the assignats and
mandats during the French revolutionary period;96 the demise of the Zimbabwean dollar in 2015;
and more recently, the rejection of the bolivar by Venezuelans who prefer any currency other than
the official currency marred by hyperinflation. As explained by Mises:
“The law may declare anything it likes to be a medium of payment, and this ruling will
be binding on all courts and on all those who enforce the decisions of the courts. But
bestowing the property of legal tender on a thing does not suffice to make its money in
the economic sense. Goods can become common media of exchange only through the
practice of those who take part in commercial transactions, and it is the valuations of
these persons alone that determine the exchange ratios of the market. Quite possibly,
commerce may take into use those things to which the State has ascribed the power of
payment; but it need not do so. It may, if it likes, reject them.”97
Social convention, legal fiat, and force of habit may allow the circulation of government
money as long as it is afloat. However, it is doubtful whether the most powerful government can
force its people to accept as money a worthless substance where there is no economic benefit in
doing so.98
Money does not have to be conjured as legal tender by the government. Just like law,
language and morals, money can emerge spontaneously. Such form of market-oriented “private”
money is often preferred to government money, but there have been instances where the government
has suppressed them.99 Indeed, the BSP itself noted that one of the objectives in considering the
issuance of a central bank digital currency (CBDC) is “to help reduce or discourage the adoption
of privately issued currencies, which may threaten monetary sovereignty… introducing a
92  John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p. 150
(2009).
93  John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p. 152
(2009).
94  Charles P. Kindleberger, Mania, Panics, and Crashes: A History of Financial Crises, p. 52 (1978).
95  Milton Friedman, Money Mischief: Episodes in Monetary History, p. 190 (1992).
96  Phanor J. Eder, Legal Theories of Money, 20 CORNELL L.Q. 52, p. 60 (1935).
97  Ludwig Von Mises, The Theory of Money and Credit, p. 70 (1912)
98  W. Stanley Jevons, Money and The Mechanism of Exchange, p. 3-6 (1875)
99  Friedrich A. Hayek, Denationalization of Money (1976).
100 BSP, Central Bank Digital Currency for the BSP: Fundamentals and Strategies, p. 9 (2021).
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CBDC can help preserve monetary sovereignty of the central bank and its control of its policy
objectives.”101 Rothbard gave an account of the government’s propensity to restrain private money
and fail miserably:
“Despite never-ending harassment by governments, making conditions highly
precarious, private coins have flourished many times in history. True to the virtual law
that all innovations come from free individuals and not the state, the first coins were
minted by private individuals and goldsmiths. In fact, when the government first began
to monopolize the coinage, the royal coins bore the guarantees of private bankers, whom
the public trusted far more, apparently, than they did the government.102
11. Gold remains a monetary asset despite the end of Gold Standard
In the Philippines, whereas Act No. 1045103 introduced a new Philippine currency in 1904
based on the gold standard;104 and whereas the Central Bank Act established the gold value of the
Philippine peso in 1948;105 the New Central Bank Act, enacted in 1993, untethered the Philippine
peso from gold by deleting the legal provision on the gold value of the peso and by decreeing
that the peso shall be liabilities of the BSP and may be issued only against, and in amounts not
exceeding, the assets of the central bank.106
Yet despite the decoupling of the Philippine peso from gold, the monetary attributes of
gold persist and continue to be recognized even under the New Central Bank Act. For instance,
the law authorizes the BSP to hold gold as part of its international reserve.107 As of this writing,
gold constitutes almost nine percent (9%) of the BSP’s reserve assets.108 The law also authorizes the
BSP to buy and sell gold in any form109 and to require banks and other financial intermediaries to
report current transactions or operations in gold, in any shape or form.110 With respect to issuance
and negotiation of BSP obligations, the Monetary Board of the BSP determines the interest rates,
maturities, and other characteristics of BSP obligations; it may, if advisable, denominate the
obligations in gold.111 When it renders financial advice on the monetary implications of the credit
operations by the Philippine government abroad, the law requires the Monetary Board to take into
account the country’s gold and foreign exchange resources.112
The conventional wisdom is that owning gold serves as insurance against a harsh economic
101  Id, p. 74.
102  Murray N. Rothbard, What Has Government Done to Our Money, p. 20 (1963).
103  AN ACT FOR THE PURPOSE OF PROVIDING REVENUE AND OF MAINTAINING THE PARITY OF
THE PHILIPPINE CURRENCY IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS ONE AND
SIX OF THE ACT OF CONGRESS APPROVED MARCH SECOND, NINETEEN HUNDRED AND THREE,
BY PROVIDING FOR THE PURCHASE OF MEXICAN DOLLARS AS BULLION, BY IMPOSING A TAX
UPON WRITTEN CONTRACTS PAYABLE IN CERTAIN KINDS OF CURRENCIES, AND BY REQUIRING
THE PAYMENT OF A LICENSE TAX BY ALL PERSONS, FIRMS, OR CORPORATIONS CONDUCTING
THEIR CURRENT BUSINESS, EITHER WHOLLY OR IN PART, IN SAID CURRENCIES, AND FOR OTHER
PURPOSES (1904).
104  Gaspar v. Molina, G.R. No. 2206 (1905).
105  SECTION 48. Par Value. — The gold value of the peso is seven and thirteen-twenty firsts (7-13/21) grains of gold,
nineteenths (0.900) fine, which is equivalent to the United States dollar parity of the peso as provided in Section 6 of
Commonwealth Act No. 699. (R.A. No. 265, [1948]).
106  Sec. 51, R.A. No. 7653 (1993).
107  Sec. 66, R.A. No. 7653 (1993)
108  Bangko Sentral ng Pilipinas, Philippines: International Reserves and Foreign Currency Liquidity, as of 28 February
2022, https://www.bsp.gov.ph/statistics/sdds/latest.aspx
109  Sec. 69, R.A. No. 7653 (1993).
110  Sec. 80, R.A. No. 7653 (1993).
111  Sec. 92, R.A. No. 7653 (1993).
112  Sec. 123, R.A. No. 7653 (1993).
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climate and unstable monetary system.113 A central bank’s reserve portfolio should ideally include
gold because it is one of the rare asset classes that perform well in both inflationary and deflationary
environments. Indeed, historically gold has done well in inflation and deflation because it represents
a real store of value.114 While some would argue that even gold is relatively volatile, especially when
measured in nominal dollars, this is only a consequence of the fluctuating value of the dollar and
not the value of gold.115 Indeed since 2007, central banks have increased gold reserves as a hedge to
the U.S. dollar system’s fragility, demonstrating how gold functions as an insurance on monetary
disorder and disarray as well as the resurgence of its international monetary role.116
The BSP holds gold as part of its international reserves for various reasons. Gold is an
equity asset and it is no one’s liability; this gives its holder a high degree of security because there is
no counterparty risk. It is also ideal to hold gold during times of economic uncertainty, giving rise to
the notion that gold is a safe haven. Further, gold offers diversification in the reserve asset portfolio
because of its low correlation with other assets that the BSP manages. Furthermore, investors hold
gold when inflation or expectations of inflation are high, employing the asset as a hedge against
accelerating prices. Finally, it is important for the BSP to maintain a portion of its reserves in the
form of gold bullion considering that the Philippines is a significant producer of gold.117 True
enough, a law was even enacted in 2019 to strengthen the Philippines’ gross international reserves
through fiscal incentives, i.e., by granting tax exemptions, tax incentives, and other privileges in
favor of small-scale miners and accredited traders with respect to the sale of gold to the BSP.118
12. Chartalist prerogative: is money a legal creature?
Considering that money serves the common good, public interest can justify its
establishment by virtue of law, as any other social institution. But this does not mean that money has
taken its origin as a mere creature of law, exercising the states’ chartalist prerogative.119 Chartalism,
the doctrine that money is created by the State, provoked strong objection from Austrian economists
such as Mises:
“The concept of money as a creature of the Law and the State is clearly untenable. It is
not justified by a single phenomenon of the market. To ascribe to the State the power of
dictating the laws of exchange, is to ignore the fundamental principles of money-using
society.”120
The distinguished legal commentator and English jurist Blackstone regarded money as a
universal medium or common standard by which value may be measured, and that the government’s
role in regulating money is limited by this purpose:
“(E)very particular nation fixes on it its own impression, that the weight and standard
(wherein consists the intrinsic value) may both be known by inspection only. The coining
of money is in all states the act of the sovereign power; for the reason just mentioned, that
its value may be known on inspection.”121
For more than 2,000 years, the State’s exclusive prerogative over money was limited to the
113  James Rickards, The New Case for Gold, p. 57. (2016).
114 Id., p. 87.
115  Id., p. 85.
116  Nikhil Bhatia, Layered Money, Kindle Edition p. 96 (2021).
117  Joni Teves, A Heart of Gold: Gold at the Heart of Bangko Sentral ng Pilipinas Reserve Management, The Alchemist,
Issue 52 p. 6.
118  R.A. No. 11256 (2019).
119  Carl Menger, On the Origins of Money, p. 38 (1892)
120  Ludwig Von Mises, The Theory of Money and Credit, p. 69 (1912).
121  William Blackstone, Commentaries on the Laws of England, p. 266 (1765).
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monopoly of minting coins of gold, silver or copper.122 Since coins initially circulated by weight,
their exchange could be facilitated by standardizing their size and by stamping them with a seal
of weight and fineness.123 It was during this era that the prerogative came to be accepted without
question as an essential attribute of sovereignty—embellished with some mystery inspired by the
ostensible sacred powers of the monarch.124
In its origin, money is a social institution, not a state institution nor a creation of the
law.125 Carl Menger, a lawyer, economist and regarded as the father of the Austrian school, explained
that while government intervention on matters concerning money is an important State function,
such measures did not decree precious metals to formally become money, “but have only perfected
them in their function as money.”126 It is the marketplace, not the government or the law, that
creates money. Rational economic actors attribute monetary value by deciding the most marketable
good that can serve as a medium of exchange. “Man, himself, is the beginning and the end of every
economy,” and so it is when deciding what he should use as money.127 It is not the State, but the
common practice of all those who have dealings in the market, that creates money.128 The great
classical economist, David Ricardo, made a similar observation in his commentaries on the subject
of currency:
“In England, gold was not considered as a legal tender for a long time after it was coined
into money. The proportion between the values of gold and silver money was not fixed
by any public law or proclamation, but was left to be settled by the market. If a debtor
offered payment in gold, the creditor might either reject such payment altogether, or
accept of it at such a valuation of the gold as he and his debtor could agree upon.”129
The legal fiction that there is only one statutorily defined currency that serves as “money”
may have satisfied the professional work of a lawyer and the duty of a judge because of the simplicity
of one medium of payment to extinguish obligations. But for Hayek, this gave rise to substantial
harm as it also paved the way to the misconception purveyed by chartalists that only “money”
issued by the government may be sued, or that there must always be one kind of object which can
be referred to as the “money” of the country.130
13.The Legal Tender
“So much of barbarism ... still remains in the transactions of the most civilized nations, that almost
all independent countries choose to assert their nationality by having, to their own inconvenience and that of
their neighbors, a peculiar currency of their own.”
- John Stuart Mill
The concept of “legal tender” is closely tied to the government’s monopoly in the issue
of money. In ancient times, a common measure adopted by kings to raise money required them to
take advantage of their monopoly of the mint. They would abstract from the coinage portions of
precious metals and substitute them with cheaper metal. When resistance was made to receiving
such debased money, its circulation was enforced by legal fiat, under the guise of legal tender
122  Friedrich A. Hayek, Denationalization of Money, p. 22 (1976).
123  Richard H. Timberlake, The Government’s License to Create Money, Cato Journal, Vol. 9, No. 2, p. 303 (1989).
124  Friedrich A. Hayek, Denationalization of Money, p. 22 (1976).
125  Carl Menger, On the Origins of Money, p. 51 (1892). Menger also wrote: “however, by state recognition and state
regulation, this social institution of money has been perfected and adjusted to the manifold and varying needs of an
evolving commerce, just as customary rights have been perfected and adjusted by statute law.” (Id.)
126  Carl Menger, On the Origins of Money, p. 52 (1892)
127  Carl Menger, On the Origins of Money, p. 52 (1892).
128  William Brough, The Natural Law of Money, p. 6 (1896)
129  David Ricardo, Principles of Political Economy and Taxation, p. 221-222 (1821).
130  Friedrich A. Hayek, Denationalization of Money, p. 49 (1976).
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power.131 The State theory of money imagines legal tender in its modern iteration as a government-
issued currency that is indispensable in the daily conduct of economic transactions.
In a strict legal sense, “legal tender” signifies a kind of money that a creditor cannot refuse
in the discharge of a debt due, tendered in money issued by the government.132 Case law defines
“legal tender” as “that currency which has been made suitable by law for the purposes of a tender
of the payment of debts.”133 This legal tender power is statutorily defined by Section 52 of the New
Central Bank Act: “notes and coins issued by the Bangko Sentral shall be fully guaranteed by the
Government of the Republic of the Philippines and shall be legal tender in the Philippines for all
debts, both public and private.”
In the popular imagination, the term “legal tender” implies vague notions that suggest a
compelling State interest for the government to conjure money. This is a remnant of medieval ideas,
such as valor impositus, that it is the State that confers value on money, not some inherent property
possessed by a commodity.134 In the Philippines, jurisprudence has rejected the doctrine of valor
impositus in the case of Pan American World Airways v. PAA Employees’ Association.135 The Supreme
Court, sitting en banc and voting unanimously, ruled that “the purchasing power or value of money
or currency does not depend upon, cannot come into being, be created or brought about by, a law
enacted by the legislative department of the Government.”
Pursuant to Section 50 of the New Central Bank Act, the BSP exercises the sole power
and authority to issue currency within the territory of the Philippines. The term “currency” as used
in the New Central Bank Act is statutorily defined by Section 49 to mean “all Philippine notes and
coins issued or circulating in accordance with the provisions of this Act.” Section 48 provides that
the unit of monetary value in the Philippines is the “peso,” which is represented by the sign “P.” The
Philippine peso can be issued by the BSP only against, and in amounts not exceeding, the assets of
the central bank. Such notes and coins are liabilities of the BSP, which shall be a first and paramount
lien on all assets of the BSP, and are fully guaranteed by the Government of the Republic of the
Philippines.136
Incidental to the BSPs sole power to issue the Philippine peso, the law prohibits any person
or entity, public or private, to put into circulation notes, coins, or any other object or document
that in the opinion of the Monetary Board, might circulate as Philippine currency, nor reproduce
or imitate the facsimiles of Bangko Sentral notes without prior authority from the central bank.137
Moreover, the Monetary Board was authorized by Section 50 to issue such regulations as it may
deem advisable in order to regulate the circulation of a foreign currency or of currency substitutes as
well as to prevent the reproduction of facsimiles of Bangko Sentral notes. Foreign currency refers to
any currency issued by a sovereign authority other than the local currency, the Philippine peso. On
the other hand, a currency substitute is an instrument that represents a specific currency by which
the holder can eventually receive money in the currency bearing on their face.138
To complement the legal tender clause under the Central Bank Act,139 The Uniform
131  William Brough, The Natural Law of Money, p. 18 (1896).
132  Friedrich A. Hayek, Denationalization of Money, p. 30 (1976).
133  Peralta v. Serrano, G.R. No. L-16523 (1960).
134  Friedrich A. Hayek, Denationalization of Money, p. 30 (1976).
135  G.R. No. L-18345 (1964).
136  Sec, 51, Sec. 53, R.A. No. 7653 (1993).
137  Sec. 50, R.A. No. 7653 (1993).
138  Bastida v. Commissioner of Customs, G.R. No. L-24011 (1970).
139  Sec. 54, R.A. No. 265 (1948)
168
Currency Act140 was enacted in 1950 to prohibit the payment of the obligation in gold or in
currency other than the Philippine peso. The law declared any contractual term that gives the
creditor the right to demand payment in gold or any currency other than the Philippine peso as
contrary to public policy, null, void, and of no effect.141
Recognizing the individual’s freedom to contract, as well as to spur economic developments
and address the challenges presented by globalization, Congress enacted R.A. No. 8183 in 1996
to expressly and totally repeal the Uniform Currency Act.142 Section 1 of the law recognized that
parties may agree that their obligation or transaction may be settled in any other currency at the
time of payment. The law even mandated the Bangko Sentral ng Pilipinas and the Department
of Finance to conduct an intensive information campaign on the repeal of the Uniform Currency
Act.143
With the repeal of the Uniform Currency Ac, the law now recognizes the parties’ autonomy
to agree and choose private money, including bitcoin or any other cryptocurrency, as a medium of
payment or for the settlement of contractual obligations.
14. Bitcoin: cryptocurrency, digital asset, and hard money
“Bitcoin represents a new technological solution to the money problem, born out of the digital
age, utilizing several technological innovations that were developed over the past few decades and building on
many attempts at producing digital money to deliver something which was almost unimaginable before it was
invented… Bitcoin was the first engineering solution that allowed for digital payments without having to rely
on a trusted third-party intermediary. By being the first digital object that is verifiably scarce, Bitcoin is the
first example of digital cash.”144
- Saifedean Ammous, The Bitcoin Standard (2018)
a. Decentralized money: purpose, nature and features of Bitcoin
The intended purpose of Bitcoin,145 the first cryptocurrency, and how it technically
operates as electronic cash was described by its inventor, Satoshi Nakamoto, in the abstract of the
Bitcoin white paper:
“A purely peer-to-peer version of electronic cash would allow online payments to be sent
directly from one party to another without going through a financial institution. Digital
signatures provide part of the solution, but the main benefits are lost if a trusted third
party is still required to prevent double-spending.
We propose a solution to the double-spending problem using a peer-to-peer network. The
network timestamps transactions by hashing them into an ongoing chain of hash-based
proof-of-work, forming a record that cannot be changed without redoing the proof-of-
work. The longest chain not only serves as proof of the sequence of events witnessed,
but proof that it came from the largest pool of CPU power. As long as a majority of
CPU power is controlled by nodes that are not cooperating to attack the network, they'll
generate the longest chain and outpace attackers. The network itself requires minimal
structure. Messages are broadcast on a best effort basis, and nodes can leave and rejoin
the network at will, accepting the longest proof-of-work chain as proof of what happened
while they were gone.”146
140  R.A. No. 529 (1950).
141  Sec. 1, R.A. No. 529 (1950).
142  Sec. 2, R.A. No. 8183 (1996).
143  Sec. 3, R.A. No. 8183 (1996).
144  Saifedean Ammous, The Bitcoin Standard, p. 168,170 (2018).
145  “Bitcoin” refers to the decentralized payment network. On the other hand, “bitcoin” refers to the digital asset that
serves as native unit of account within the network. In other words, “Bitcoin” refers to the blockchain, while “bitcoin”
refers to the cryptocurrency.
146  Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System (https://bitcoin.org/bitcoin.pdf ) (2008).
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While technical in nature, the abstract reflects valuable insights regarding the psychology
of money and community, and the economic incentives required to effect rules that compel its
participants to behave in the greater interest of the community.147 Casey and Vigna simplified the
concept by also referring to the artifact that is blockchain:
“Bitcoin’s blockchain ledger is a long chain of blocks, or groupings, of transactions
occurring around the same time. The chain will continue to grow indefinitely so long
as the system keeps operating. This chronological structure is crucial because it confers
legitimacy on the oldest transactions, the idea being that later-dated attempts by a user to
re-spend the same bitcoin balance are treated as illegitimate. By creating a time-stamped
sequence of expenditures and receipts among every participant in the bitcoin economy,
the system keeps track of where everybody’s balances are at any given moment, as well as
the identifying information attached to every bitcoin—and a fraction of bitcoin—ever
created, spent or received.”148
One of the key operational features of Bitcoin is decentralized verification, which allows
Bitcoin to eliminate the need for trusted intermediaries. Such verification is accomplished by
requiring transactions to be recorded by every node within the network so that they all share one
common ledger of all balances and transactions.149 Professor Ammous explained how transaction
verification works in bitcoin’s peer-to-peer network:
“In order for a node to commit a block of transactions to the ledger, it has to expend
processing power on solving complicated mathematical problems that are hard to solve
but whose correct solution is easy to verify. This is the proof-of-work (PoW) system,
and only with a correct solution can a block be committed and verified by all network
members.”150
Burniske and Tatar noted the purpose of decentralized verification that employs military-
grade encryption, and what this feature means to the technology:
“Every transaction recorded in Bitcoin’s blockchain must be cryptographically verified
to ensure that people trying to send bitcoin actually own the bitcoin they’re trying to
send. Cryptography also applies to how groups of transactions are added to Bitcoin’s
blockchain. Transactions are not added one at a time, but instead in ‘blocks’ that are
‘chained’ together, hence the term blockchain… cryptography allows the computers
building Bitcoin’s blockchain to collaborate in an automated system of mathematical
trust. There is no subjectivity as to whether a transaction is confirmed in Bitcoin’s
blockchain: it’s just math.”
b. Bitcoin as hard money
The present macroeconomic environment makes the case for a scarce, digital, decentralized,
non-fiat form of money that could store value and serve as a hedge against unrestrained quantitative
easing by some of the most influential monetary authorities. Quantitative easing (QE) refers to what
used to be an unorthodox151 monetary policy that involves a central bank or monetary authority
purchasing financial instruments from financial institutions usually as a last-resort measure to inject
money and credit into the economy and hopefully stimulate productive activities. Interestingly, the
QE programs by many central banks—from the 2008 global financial crisis up to the COVID-19
pandemic—also coincided with the rise of bitcoin and other cryptocurrencies. With respect to
the COVID-19 pandemic, the move to reignite the money printing machines came immediately
147  Michael Casey & Paul Vigna, The Age of Cryptocurrency, p. 120 (2016 Ed.).
148  Id., p. 123.
149  Saifedean Ammous, The Bitcoin Standard, p. 171 (2018).
150  Id., p. 172.
151  But today it seems to have become the new norm in the monetary policy of the United States, Japan and other
developed countries.
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after the U.S. stock market crashed in March 2020 at the onset of the lockdowns, community
quarantines, and business and work suspensions.152
The epic scale of money printing by many central banks, particularly by the U.S. Federal
Reserve, should be contrasted with Bitcoin and its unique attributes that enable its protocol to enforce
an immutable monetary policy. While central banks unleash enormous level of QE, quantitative
hardening takes place in Bitcoin protocol where new supply of bitcoin is programmatically reduced
every four years in an event known as “the halving,” a native feature that is a core aspect of Bitcoin’s
monetary policy.153 The latest quadrennial halving event occurred in May 2020, coinciding with
the COVID-19 pandemic. During a halving, the amount of newly minted bitcoins, issued as a
reward to miners when a block is confirmed, gets cut in half. Miners are natural sellers of bitcoins
and because of the halving, they would have less quantity to sell. There is therefore a tendency that
the imbalance between the surging demand and the diminishing supply could result in a parabolic
appreciation in the value of bitcoin,154 as what happened between November 2020 to October
2021.
Increasingly, bitcoin is being considered by individuals and institutional investors (e.g.,
investment banks,155 hedge funds,156 and large enterprises157) as an inflationary hedge against a
depreciating U.S. dollar.158 Notably, bitcoin is also a decentralized asset just like gold as long as it is
self-custodied by its owner.159
The rapid adoption of bitcoin seems to suggest that communities around the world are
seeking alternatives to the U.S. dollar and fiat currencies as money that can effectively store value.160
Bitcoin represents a decentralized network and system that enable undistorted economic activity,
and it does this by embedding a fixed monetary supply that is distributed through market consensus
mechanism. It is also through this consensus mechanism that Bitcoin abolishes the need for active
control, administration, intermediation and governance, while creating a voluntary alternative
financial system161 that features a monetary unit programmed and engineered to execute its protocol.
152  Id. Will Heasman, Bitcoin as a Hedge Against Coronavirus-Led Economic Chaos, The Bitcoin Reserve Journal, 26
April 2020 https://journal.bitcoinreserve.com/bitcoin-as-a-hedge-against-coronavirus-led-economic-chaos/
153  Phil Bonello, Bitcoin’s Quantitative Tightening vs. Central Banks’ Quantitative Easing, Grayscale Insights, p. 2
(2020).
154  Phil Bonello, Bitcoin’s Quantitative Tightening vs. Central Banks’ Quantitative Easing, Grayscale Insights, p. 7
(2020).
155  Ben Winck, Guggenheim Says it Could Invest up to $530 million in a Bitcoin Trust as the Cryptocurrency Leaps to
Record Highs, Markets Insider, 30 November 2020 (https://markets.businessinsider.com/currencies/news/guggenheim-
fund-bitcoin-investment-cryptocurrency-market-rally-grayscale-trust-btc-2020-11-1029849060).
156  Will Hadfield and Emily Nicolle, Hedge Funds, Not Hipsters, May be Powering Bitcoin’s Second Big Rally, Financial
News, 20 November 2020 (https://www.fnlondon.com/articles/hedge-funds-not-hipsters-may-be-powering-bitcoins-
second-big-rally-20201120).
157  Joana Ossinger, MicroStrategy Buys More Bitcoin at Average Price Above $19,400, Bloomberg, 04 December
2020(https://www.bloomberg.com/news/articles/2020-12-05/microstrategy-buys-more-bitcoin-at-average-price-
above-19-400).
158  According to Michael Saylor, Chairman, President and Chief Executive Officer of MicroStrategy (MSTR), a U.S.
publicly traded business intelligence company: “the global acceptance, brand recognition, ecosystem vitality, network
dominance, architectural resilience, technical utility, and community ethos of Bitcoin (are) persuasive evidence of its
superiority as an asset class for those seeking a long-term store of value.”
159  Will Heasman, Bitcoin as a Hedge Against Coronavirus-Led Economic Chaos, The Bitcoin Reserve Journal, 26 April
2020 https://journal.bitcoinreserve.com/bitcoin-as-a-hedge-against-coronavirus-led-economic-chaos/
160  James Rickards, The Death of Money: The Coming Collapse of the International Monetary System, p. 254 (2014).
161  Parker Lewis, Bitcoin Fixes This, 30 August 2019, https://unchained-capital.com/blog/bitcoin-fixes-this/
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c. Utility value of Bitcoin
Bitcoin’s value is fundamentally driven by what the technology can offer the users of
the network. Bitcoin’s utility value refers to what the underlying blockchain is utilized for, which
triggers demand both for (1) its use as a decentralized payment system and (2) its native unit of
account (numéraire), bitcoin.
The Bitcoin network is used to transact bitcoins and therefore much of the value is driven
by demand to use bitcoin as a medium of exchange. Bitcoin can also be employed as a savings
technology because of its capacity to store value, hence a significant percentage of mined bitcoins
is also demanded for this use case.162
Bitcoin’s digital nature gives it an inherent advantage in terms of value transfer, liquidity
and exchange. As a digital asset, bitcoin has no physical form which allows it to be moved
seamlessly—resembling how the internet can move the 1s and 0s to convey electronic messages
and information.163
d. Economic fundamentals of Bitcoin
Bitcoin incorporates game theory and economic incentives that make “double-spending”
or fraud way more expensive than obtaining rewards when helping secure the network.164 The digital
and distributed nature of Bitcoin also allows it to benefit from a network effect with each additional
user enhancing its value. As more users trust the system, more trust accrues to the system.165
The network validators in Bitcoin, known as miners, gather blocks of transactions together
and compete to verify them by expending processing power to solve mathematical problems through
a proof-of-work system. To encourage miners to participate in the network, these miners receive a
fresh supply of bitcoins along with transaction fees.166 This incentivizes existing mining operators to
maintain the security of the network; it also attracts more miners to participate thus making Bitcoin
more robust. However, the amplified hash power supporting the network has no bearing on the
output of bitcoins that can be mined. Instead, such increase in hash power only triggers the Bitcoin
protocol’s difficulty adjustment.167
The “hardcoded” difficulty adjustment in mining makes it a trustworthy technology that
would restrict bitcoin’s supply schedule from unpredictably rising. This makes bitcoin fundamentally
different from other asset classes. Whereas typically the rise in the value of a commodity—such as
gold—incentivizes more resources to be dedicated to its production thereby increasing its supply,
in the case of bitcoin, allocating more resources (in terms of energy and equipment) to mine
bitcoins will never result in the production of more bitcoins; Bitcoin’s design makes this technically
impossible. Adding more miners will only increase the processing power required to commit valid
transactions to the Bitcoin network, which makes it more secure and harder to attack.168 Ammous
aptly describes this economic feature while comparing gold to bitcoin:
162  Chris Burniske & Jack Tatar, Cryptoassets, p. 117 (2018).
163  Chris Burniske & Jack Tatar, Cryptoassets, p. 122 (2018).
164  Id., p. 205.
165  Jeff Booth. The Price of Tomorrow: Why Deflation is the Key to an Abundant Future (p. 206), Stanley Press (2020).
166  Winston Moore and Jeremy Stephen, Should Cryptocurrencies be Included in the Portfolio of International Reserves
Held by Central Banks? Cogent Economics & Finance, p. 2 (2016).
167  Ria Bhutoria, Bitcoin Investment Thesis: An Aspirational Store of Value, Fidelity Digital Assets, p. 7 (2020).
168  Saifedean Ammous, The Bitcoin Standard, p. 173 (2018).
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“Gold became the prime money of every civilized society precisely because it was the
hardest to produce, but Bitcoin’s difficulty adjustment makes it even harder to produce.
A massive increase in the price of gold will, in the long run, lead to larger quantities being
produced, but no matter how high the price of bitcoin rises, the supply stays the same
while the safety of the network only increases.169
xxx xxx xxx
Because new coins are only produced with the issuance of a new block, and each new
block requires the solving of the proof-of-work (PoW) problems, there is a real cost to
the production of new bitcoins. As the price of bitcoins rise in the market, more nodes
enter to compete for the solution of the PoW to obtain the block reward, which raises the
difficulty of the PoW problems, making it more costly to obtain the reward. The cost of
producing a bitcoin will thus generally rise along the market price.170
xxx xxx xxx
No matter how many people use the network, how much its value rises, and how
advanced the equipment used to produce it, there can only ever be 21 million bitcoins
in existence. There is no technical possibility for increasing the supply to match the
increased demand. Should more people demand to hold Bitcoin, the only way to meet
the demand is through appreciation of existing supply. Because each bitcoin is divisible
into 100 million satoshis, there is plenty of room for the growth of Bitcoin through the
type of asset well-suited for playing the role of store of value.”171
Bitcoin’s monetary policy fixed a supply schedule that is “perfectly inelastic” and it
effectively makes bitcoin resistant to supply shocks. This is because supply will always be unaffected
by any changes in production capacity (i.e., increase in hash power) even in response to surging
demand that drives the price of bitcoin higher. In contrast, even gold has never been immune to
supply shocks despite the fact that it has been used as a store of value for millennia.172
e. Bitcoin is antifragile; systemic hedge
The antifragile nature of Bitcoin is another advantage that makes it a suitable monetary
asset. Bitcoin epitomizes Nassim Taleb’s idea of antifragility because of bitcoin’s ability to gain
strength from adversity and disorder. The Bitcoin network is not only secure and therefore
practically impossible to hack, it is antifragile both in technical and economic terms. Technically
speaking, while attempts to kill Bitcoin have so far failed, many of them simply made the network
more robust by allowing coders to identify weaknesses and patch them up. Every thwarted attack
on the network is a notch on its belt, another testament to participants and outsiders of the security
of Bitcoin’s blockchain.173
From an economic perspective, the invention of Bitcoin created a novel independent
alternative framework for international settlement that does not rely on any central intermediary.
By independence, it means that the Bitcoin network operates separately from the existing
financial infrastructure.174 Bitcoin features an independent monetary policy that is safeguarded
by a decentralized network of computers that maintain the Bitcoin blockchain through proof-of-
work.175 Bhutoria explained the importance of proof-of-work in fortifying bitcoin’s property as a
store of value:
“Proof-of-work is an important design element that enforces bitcoin’s fixed supply by
making transactions irreversible. Proof-of-work provides evidence that a significant
169  Saifedean Ammous, The Bitcoin Standard, p. 173 (2018).
170  Id., 179.
171  Id., p. 198.
172  Ria Bhutoria, Bitcoin Investment Thesis: An Aspirational Store of Value, Fidelity Digital Assets, p. 7 (2020).
173  Saifedean Ammous, The Bitcoin Standard, p. 230 (2018). “The rise of quantum computers could eventually pose an
actual security threat to Bitcoin’s encryption, where private keys could be determined from public keys, but there are
already known methods that the Bitcoin protocol can adopt when necessary in order to become more quantum resilient,
since the blockchain can be updated when there is broad consensus among participants.” (Lyn Alden, 2020)
174  Saifedean Ammous, The Bitcoin Standard, p. 205 (2018).
175  Ria Bhutoria, Bitcoin Investment Thesis: An Aspirational Store of Value, Fidelity Digital Assets, p. 3 (2020).
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amount of computational work has taken place, though verifying that work took place is
quick and easy relative to the effort and time it took to conduct the work.”176
The independent nature of Bitcoin also makes it an effective systemic hedge against the
fragility of the U.S. dollar-centric international monetary system. As observed by Neuman: “bitcoin
held in self-custody runs on an entirely separate financial system than the traditional one, making
it a systemic hedge. In other words, Bitcoin is not only a hedge against inflation, it’s a hedge against
failure of modern financial infrastructure such as banks, clearing and settlement networks, foreign
exchange markets and payment rails.”177
f. “Bitcoin is the supply schedule”
Bitcoin has been regarded as a new store of value and investment asset that is akin to gold
due to its low correlation with traditional asset classes. But because of bitcoin’s digital attribute, it
also features a mathematically-guaranteed scarcity and optimal mobility, which gives bitcoin some
advantages compared to gold.
The supply schedule of Bitcoin is defined mathematically and set in code at the genesis of
the protocol. Bitcoin provides for a maximum of twenty-one (21) million units by 2140, and it gets
there by cutting the rate of supply inflation every four (4) years. As of 2020, the supply schedule
is at two percent (2%) annually, and in 2024 it will decrease to one percent (1%) annually.178 This
inflation schedule is practically immutable179 and is essential to Bitcoin’s monetary policy, or in the
words of Carter: “Bitcoin’s supply schedule cannot change, because Bitcoin is the supply schedule.
Any alteration produces something that is decidedly non-Bitcoin.”180 Nineteen (19) million bitcoins
have been mined as of April 2022.
The predefined supply restrictions of Bitcoin are a key factor that makes the digital asset
an optimal store of value. Indeed, as fiat currencies perpetually expand in supply while contracting
in terms of purchasing power, bitcoin has so far experienced a large increase in real purchasing
power despite limited growth in overall supply.181
While Bitcoin has existed for less than two decades, the digital asset is also quickly
becoming more liquid as the adoption of cryptocurrencies as a new asset class become more
mainstream and as the trading volume of cryptocurrencies continues to increase.182 Indeed during
the 2007-2008 global financial crisis, Bitcoin has not yet launched and investors flooded into the
age-old safe haven asset, gold, which almost tripled in price in two years.183 But now bitcoin offers
an alternative safe haven that is even optimized for use in today’s digital world.184 Coupled with the
growing correlationship between gold and bitcoin, bitcoin may exhibit a similar pattern to that of
176  Id., p. 10.
177  Nick Neuman, Bitcoin: More Than An Inflation Hedge, Bitcoin Magazine, 14 July 2020 (https://bitcoinmagazine.
com/articles/bitcoin-more-than-an-inflation-hedge).
178  Chris Burniske & Jack Tatar, Cryptoassets, p. 115 (2018).
179  Saifedean Ammous, The Bitcoin Standard, p. 178 (2018).
180  Nic Carter, Don’t Fear the Reaper, Medium, 24 August 2020 (https://medium.com/@nic__carter/dont-fear-the-
reaper-8bbb42358efb)
181  Saifedean Ammous, The Bitcoin Standard, p. 181 (2018).
182  Winston Moore and Jeremy Stephen, should cryptocurrencies be included in the portfolio of international reserves
held by central banks? Cogent Economics & Finance, p. 8 (2016).
183  The price of gold initially fell in response to crash of asset prices and the financial meltdown, but gold’s value eventually
increased from $682 in October 2008 to $1,912 in September 2011.
184  Paul Vigna and Michael Casey, The Age of Cryptocurrency, p. 297 (2015).
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gold following the 2008 financial meltdown—but in greater magnitude.185
Technological developments such as Lightning Network enhances bitcoin’s property as an
alternative currency because it makes the asset “more alive” or useful as a medium of exchange for
payment transactions. Bitcoin can be transacted globally and domestically without being hampered
by slow and cumbersome confirmation process.186 Gold and bitcoin are both scarce assets yet the
Bitcoin network’s ability to allow finality of settlement in a natively electronic execution gives it a
massive advantage over gold amid a rapidly developing digital economy.187
In this era, bitcoin and other cryptocurrencies will naturally become attractive for digital
natives, offering a peer-to-peer alternative or “opt-out” to the prevailing monetary system.188 Fiat
currencies have been in circulation since the collapse of Bretton Woods in 1971; sooner or later
many of them would be inflated down to triviality by governments faced by constrained public
finances. Bitcoin offers a recourse that can overcome the challenges of both the gold standard and
the fiat standard due to its limited supply that is hardcoded in the software.189 As stated by its
inventor, Satoshi Nakamoto: “(t)he nature of Bitcoin is such that once version 0.1 was released, the
core design was set in stone for the rest of its lifetime.”190
The supply schedule is enforced automatically by code without any intervention from
the government or any central intermediary. The supply schedule is well known to the public
at large, and the quantities, as well as the growth rates of bitcoins, can be verified with certainty
on the network’s publicly shared ledger, and therefore this alternative system cannot be impacted
by monetary policies conjured by the Federal Reserve and other influential central banks or
international monetary agencies.191 Just like gold serves as a safe asset, holding bitcoin serves as
an effective hedge against macroeconomic risks arising from the vulnerabilities of the prevailing
monetary system.
15. Cryptocurrency software, specifically Bitcoin, is free speech
Article III, Section 4 of the 1987 Constitution guarantees the freedom of speech and
of expression: “(n)o law shall be passed abridging the freedom of speech, of expression, or the
press…” The economic concept of productive information can offer some guidance in assessing
whether a statutory ban on cryptocurrencies might be constitutionally offensive to the freedom
of speech or expression. Productive information allows existing resources to be moved to more
productive uses or to discover new methods of organizing resources for more productive uses.192
In a modern monetary economy, almost all exchanges of commodities among distinct economic
agents are traded against money, instead of labor or commodities (via barter), and almost all loans
are denominated in monetary term and not in commodities. This means that almost all market
transactions in a monetary economy involve money as a medium of exchange or payment, as a unit
185  Id.
186  Nik Bhatia, The Bitcoin Second Layer, Medium, 08 August 2018, https://medium.com/@timevalueofbtc/the-
bitcoin-second-layer-d503949d0a06
187  Nik Bhatia, The Triumvirate of Liquidity, Medium, 25 June 2020, https://medium.com/@timevalueofbtc/various-
writings-for-tantra-labs-b0b7ddae52d8
188  Nomi Prins, Collusion: How Central Bankers Rigged the World, p. 250 (2018).
189  A. Seetharaman, A.S. Saravanan, Nitin Patwa3 & Jigar Mehta, Impact of Bitcoin as a World Currency, Accounting
and Finance Research https://doi.org/10.5430/afr.v6n2p230 (2017).
190  Re: Transactions and Scripts: DUP HASH160 ... EQUALVERIFY CHECKSIG https://satoshi.nakamotoinstitute.
org/posts/bitcointalk/126/ (2010).
191  A. Seetharaman, A.S. Saravanan, Nitin Patwa3 & Jigar Mehta, Impact of Bitcoin as a World Currency, Accounting
and Finance Research https://doi.org/10.5430/afr.v6n2p230 (2017).
192  Robert Cooter & Thomas Ulen, Law & Economics, Sixth Edition, p. 357 (2016).
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of account and as standard for deferred payment.193 In view of the importance of money in the
economy, it must be considered whether a ban on privately-issued cryptocurrencies would restrict
access to productive information on the soundest money that can efficiently lubricate economic
activities as well as maximize the creation or conservation of wealth.
One of the key operational features of Bitcoin is decentralized verification, which allows
Bitcoin to eliminate the need for trust trusted intermediaries. Such verification is accomplished by
requiring transactions to be recorded by every node within the network so that they all share one
common ledger of all balances and transactions.194 Such recording involves the transmission of
messages that are text among the nodes in the network, where cryptographic protocols are executed
in text to verify the authenticity and identity of the sender and recipient of the message. The
messages sent between nodes in the bitcoin network are readable and printable. There is indeed no
point in any bitcoin transaction that Bitcoin ceases to be a text.
Article III, Section 4 guarantees freedom of the press without prior restraint. Prior restraint
refers to any official governmental restrictions on the press or other forms of expression in advance
of actual publication or dissemination.195 Bitcoin is a piece of software that can be printed as a text
on paper, generating blocks of human readable text and therefore covered by the constitutional right
to free speech, of expression, or of the press. As software, mathematics, and speech, Bitcoin and the
publication of certain information196 through its decentralized network should be considered as a
constitutionally-protected right.197
Bitcoin enables decentralized verification of the identity of the owner of a cryptographic
key—a block of text—which can unlock a ledger entry in the Bitcoin network. This software
is essentially a messaging system that is protected by the constitutional right to free speech, of
expression, or of the press, from the source code that generates the software clients that enable
message-signing to the text generated, sent, received or processed by the compiled clients.
In some respects, Bitcoin’s operation is not so different from what email, text messaging and
internet-based software does, that is to relay messages. In Bernstein v. US Department of Justice,198 the
United States Federal Court of Appeals ruled that software code is a type of speech that is protected
by the First Amendment and the government’s regulation preventing the code’s publication was
unconstitutional. While not a binding precedent, Bernstein is regarded as a landmark case in the
United States. The decision supports the view that any law or regulation that will prohibit or ban
or require the licensing of cryptocurrency software such as Bitcoin would be repugnant to the
constitutional protection for free speech, of expression, or the press.199 The particular medium
through which ideas are expressed is generally immaterial to the protection, and even if it is a
gibberish or visual chaos.200 To deny statements made in coding languages the same protections
granted to statements made in English would make no more sense than to deny novels protection
when they are written in French, symphonies because they are written in musical notation, or
193  Jagdish Handa, Monetary Economics, 2nd Edition, p. 3-4 (2009).
194  Saifedean Ammous, The Bitcoin Standard, p. 171 (2018).
195  Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 233 (2009)
196  Note for example: “The solution we propose begins with a timestamp server. A timestamp server works by taking
a hash of a block of items to be timestamped and widely publishing the hash, such as in a newspaper or Usenet post
[2-5]. The timestamp proves that the data must have existed at the time, obviously, in order to get into the hash. Each
timestamp includes the previous timestamp in its hash, forming a chain, with each additional timestamp reinforcing the
ones before it.” Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, p. 2 (2008).
197  Nikhil Bhatia, Layered Money, Kindle Edition p. 95 (2021).
198  922 F. Supp. 1426 (1996).
199  Peter Van Valkenburgh, Electronic Cash, Decentralized Exchange, and the Constitution, https://coincenter.org/
entry/e-cash-dex-constitution (2019)
200  Id., p. 33.
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scientific papers because they tend to be filled with arcane graphs and formulae.201 Computer code
is literally a written series of symbols themselves, i.e., letters and numbers or, once compiled, 0s and
1s. While it is true that people will use computer source code to perform actions, the act of writing
and sharing the code is an entirely separate act from the act of executing the code.202
In Brown v. Entertainment Merchants Association,203 the U.S. Supreme court ruled that
that video games were protected speech and even violent ones could not be banned from sale: “Like
the protected books, plays, and movies that preceded them, video games communicate ideas—and
even social messages—through many familiar literary devices (such as characters, dialogue, plot,
and music) and through features distinctive to the medium (such as the player’s interaction with
the virtual world).”204
However, it must be clarified that just because the code is protected expression does not
mean that it cannot be regulated. This would depend on the nature of the speech and the level of
scrutiny that the regulation concerning the speech or expression will face.205 While cryptocurrencies
such as bitcoin are published to express facts that advance human knowledge and the conduct of
human affairs, such publication is entirely separate from the execution of the code by users when
they conduct electronic cash transactions. Nevertheless, the publication of the code is protected
as plain speech and therefore laws regulating such publication must be subject to strict scrutiny
review.206
Under strict scrutiny review, a law or regulation will be deemed unconstitutional unless
it is “narrowly tailored to serve a compelling state interest.”207 A narrowly tailored policy should
advance the stated interest as a matter of fact, and it should not restrain a substantial amount of
speech that is not connected to the stated interest. There should also be no less restrictive means
to achieve the interest. The government fails to demonstrate a compelling state interest if the law
or regulation appears incapable of achieving that interest. Lastly, the government’s interest cannot
be an interest that would benefit a particular scientific and political ideas over others, regardless
of whether it is sincerely compelling for the government.208 Applying these lessons in resolving
the constitutional issue of banning cryptocurrency software, Valkenburgh argued why a statutory
ban will discourage any debate or discussion on a technology that could offer a safety valve for the
protection of human rights :
“Electronic cash and decentralized exchange software includes a broad class of published
research and innovations with far-reaching potential to alter the way we organize society.
Its developers and advocates genuinely believe that these scientific and engineering
advances will, on net, improve the human condition and better guarantee human dignity
and individual autonomy than alternative centralized and surveillance-accommodating
tools for payments and exchange.
A primary motivation behind the development of this technology is the global decline of
cash transactions (which are inherently private and lacking in intermediaries). This decline
has been matched with the rise of powerful, private financial technology intermediaries
that can systematically surveil their users and arbitrarily exclude them from economic
life simply by closing their account. Such private surveillance and arbitrary power, argue
electronic cash advocates, contravenes the rule of law. In nation states with weaker human
201  Id., p. 35.
202  Id., p. 36.
203  564 U.S. 786 (2011).
204  Id
205  Peter Van Valkenburgh, Electronic Cash, Decentralized Exchange, and the Constitution, p. 39 https://coincenter.org/
entry/e-cash-dex-constitution (2019)
206  Id., p. 45.
207  Austin v. Michigan Chamber of Commerce,​494 U.S. 652 (1990).
208  Peter Van Valkenburgh, Electronic Cash, Decentralized Exchange, and the Constitution, p. 47, citing Eugene
Volokh’s article ““Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny,” 144 U. Pennsylvania L.
Rev. 2417 (1997) https://coincenter.org/entry/e-cash-dex-constitution (2019).
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rights guarantees, governments can and are actively partnering with these intermediaries
to obtain greater control over their populations. If cash disappears, advocates claim, only
electronic cash and decentralized exchange technologies can serve as a safety valve against
imminent payments-technology-enforced totalitarianism.
One does not need to personally subscribe to these views in order to grasp the gravity
of the constitutional law at hand. It is sufficient to believe that electronic cash and
decentralized exchange software developers earnestly believe these views and publish their
software to express them (rather than for some other cynical purpose). If this much is
true, then bans on software publication wade dangerously into the territory of stifling a
vibrant and consequential debate”209
Cryptocurrencies are radically new and this is why existing laws did not envisage it,
let alone prohibit or regulate it. In the absence of any law that prohibits cryptocurrencies such
as bitcoin, it is therefore legally allowed.210 As of this writing, no lawmaker in the Philippines has
yet proposed a ban on the public of cryptocurrency software. However, should a law or regulation
be enacted to achieve this purpose, it would give rise to constitutional issues in view of Article III,
Section 4 of the Philippine Constitution.
Cryptocurrency software is constitutionally protected speech just like any computer
code. Such law banning the publication of cryptocurrency software constitutes prior restraints on
speech because the government will restrict publication or distribution of speech in advance of
such publication or distribution.211 Laws and regulations imposing prior restraint are most likely
unconstitutional and therefore face strict scrutiny. As observed by the U.S. Supreme Court in the
case of Bantam Books v. Sullivan, “any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity.”212
The government may argue that the prevention of crime, terrorism, or money laundering
presents a compelling interest that will justify the banning of cryptocurrency software. But such ban
would not prevent money launderers, terrorists, or criminals from using previously published or
international versions of cryptocurrencies or peer-to-peer software. The narrow approach to address
crime, terrorism, and money laundering is to intensify investigation, pursuit, and apprehension of
money launderers, terrorists, and criminals, not to ban dissemination of tools that criminals may
use in their crimes. For Valkenburgh, “a ban on electronic cash would self-evidently be an attempt
to stifle the development of these tools and the beliefs that motivate that development. Such a ban
thus privileges certain scientific and political ideas over others, and that cannot be an acceptable
government interest.”213 Applying the overbreadth doctrine, a governmental purpose may not be
achieved by means which sweep unnecessarily broadly and thereby invade the areas of protected
freedoms.214
16. Relationship between productive information and freedom of expression
Freedom of expression is essential for the search of truth. This is consistent with the
marketplace idea which posits that the power of thought can be tested by its acceptability in
209  Peter Van Valkenburgh, Electronic Cash, Decentralized Exchange, and the Constitution, p. 47-48 https://coincenter.
org/entry/e-cash-dex-constitution (2019).
210  Peter Van Valkenburgh, Electronic Cash, Decentralized Exchange, and the Constitution, p. 46 https://coincenter.org/
entry/e-cash-dex-constitution (2019).
211  Id., p. 47.
212  372 U.S. 58 (1963).
213  Peter Van Valkenburgh, Electronic Cash, Decentralized Exchange, and the Constitution, p. 48 https://coincenter.org/
entry/e-cash-dex-constitution (2019).
214  Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 306 (2009)
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the competition of the market.215 Productive information is information that allows existing
resources to be moved to more productive uses or discovers new methods of organizing
resources for more productive uses.216
In relation to productive information, society also has a strong interest in the free flow of
commercial information.217 As observed in the case of Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, “(s)o long as we preserve a predominantly free enterprise economy,
the allocation of our resources in large measure will be made through numerous private economic
decisions. It is a matter of public information that those decisions, in the aggregate, be intelligent
and well informed. To this end, the free flow of commercial information is indispensable.”218 Indeed
in the case of Pharmaceutical and Healthcare Association of the Philippines v. Duque,219 the Supreme
Court found that an absolute ban on advertising breast milk substitute is unduly restrictive and more
than necessary to promote the government’s interest of ensuring the health of infants and young
children. In his separate opinion, Chief Justice Puno explained the development of commercial
speech, i.e., speech that proposes an economic transaction, as constitutionally-protected speech:
“The advertising and promotion of breastmilk substitutes properly falls within the ambit
of the term commercial speech — that is, speech that proposes an economic transaction.
This is a separate category of speech which is not accorded the same level of protection
as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.
A look at the development of jurisprudence on the subject would show us that initially
and for many years, the United States Supreme Court took the view that commercial
speech is not protected by the First Amendment. It fastened itself to the view that the
broad powers of government to regulate commerce reasonably includes the power to
regulate speech concerning articles of commerce.
This view started to melt down in the 1970s. In Virginia Pharmacy Board v. Virginia
Citizens Consumer Council, the U.S. Supreme Court struck down a law prohibiting the
advertising of prices for prescription drugs. It held that price information was important
to consumers, and that the First Amendment protects the “right to receive information” as
well as the right to speak. It ruled that consumers have a strong First Amendment interest
in the free flow of information about goods and services available in the marketplace and
that any state regulation must support a substantial interest.
Central Hudson Gas & Electric v. Public Service Commission, is the watershed case
that established the primary test for evaluating the constitutionality of commercial
speech regulations. In this landmark decision, the U.S. Supreme Court held that the
regulation issued by the Public Service Commission of the State of New York, which
reaches all promotional advertising regardless of the impact of the touted service on
overall energy use, is more extensive than necessary to further the state’s interest in
energy conservation. In addition, it ruled that there must be a showing that a more
limited restriction on the content of promotional advertising would not adequately serve
the interest of the State. In applying the First Amendment, the U.S. Court rejected the
highly paternalistic view that the government has complete power to suppress or
regulate commercial speech.
A statutory ban on cryptocurrency would be unconstitutional because it would curtail
the freedom of an individual to express, enjoy and receive productive information. Freedom of
expression protects the right to receive information with the same intensity as the right to speak, as
ruled in the Virginia Pharmacy Board case.220 To illustrate, individuals realize that the risk involved
in holding money, especially sound money, will be remote as compared to the risk they run in
holding any other good on which they do not possess any special information.221 Their inability to
access cryptocurrencies in view of the statutory ban could hamper their ability to convey productive
215  Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 231 (2009)
216  Robert Cooter & Thomas Ulen, Law & Economics, Sixth Edition, p. 357 (2016)
217  Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council 425 U.S. 748 (1976).
218  Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council 425 U.S. 748 (1976).
219  G.R. No. 173034 (2007).
220  425 U.S. 748 (1976).
221  Friedrich A. Hayek, Denationalization of Money, p. 85 (1976).
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information on their choice of a sound money, as well as the expression and communication of that
choice to a larger community, society and market.
According to Cooter and Ulen, productive information can be employed to produce
wealth. Efficiency “demands giving people strong incentives to discover productive facts.”222
The State should therefore take special measures to reward individuals who purvey productive
information, and not suppress such information.223 Money has no substantial meaning unless
people use it; usage can be facilitated if money is available for communication.224 However, Hayek
observed that the government usually has a strong incentive to suppress the use of foreign currency
or private money that competes with the legal tender, urging him to propose the denationalization
of money which could be a “crucial reform that may decide the fate of free civilization:”225
“If the public understood what price in period inflation and instability it pays for the
convenience of having to deal with only one kind of money in ordinary transactions, and
not occasionally to have to contemplate the advantage of using other money than the
familiar kind, it would probably find it very excessive. For this convenience is much less
important than the opportunity to use a reliable money that will not periodically upset the
smooth flow of the economy—an opportunity of which the public has been deprived by
the government monopoly. But the people have never been given the occasion to discover
this opportunity. Governments have at all times had a strong interest in persuading the
public that the right to issue money belong exclusively to them.”226
For Posner and Weyl, because the individual’s valuation is a private information, “the
genius of the market is its capacity for disseminating this information from consumers to producers
through the price system.”227 The success of an economic activity hinges on the actor’s ability to
estimate correct future prices. Estimation needs to factor in current prices and appreciation of
market trends. Of course, future prices will be uncertain to some extent because the factors that will
finally determine them will be largely unknown to most economic actors. Nevertheless, the prices
function precisely to swiftly express or communicate signals or changes that the individual does not
know but to which his plans must be adjusted. This price system works because current prices are
fair indications of what future prices might be, subject only to accidental deviations.
Money should be part of an organic self-steering mechanism by which individuals are
constantly incentivized to self-determine their activities based on abstract signals of prices. When
it comes to money, currency prices also fluctuate based on supply and demand, just like any other
commodity.228 To allow the price system to work, freedom of prices “necessarily implies freedom of
movement for the purchasing power of money.229
Freedom of expression, according to Bernas, promotes individual self-realization and
self-determination.230 The spontaneous evolution of human actions creates institutions where
individuals discover patterns of behavior that help them attain their goals more efficiently. Central
to this evolution is the development of money, which made the division of labor possible and
satisfaction of human wants attainable.231 Exchange is the lifeblood, not only of the economy but
222  Robert Cooter & Thomas Ulen, Law & Economics, Sixth Edition, p. 357 (2016).
223  Id.
224  James Willard Hurst, A Legal History of Money in the United States, 34-35 (1973)
225  Friedrich A. Hayek, Denationalization of Money, p. 22 (1976).
226  Friedrich A. Hayek, Denationalization of Money, p. 22 (1976).
227  Eric A. Posner and E. Glen Weyl, Radical Markets: Uprooting Capitalism and Democracy for a Just Society, p. 25
(2018)
228  William Brough, The Natural Law of Money, p. 6 (1896).
229  Murray N. Rothbard, What Has Government Done to Our Money, p. 33(1963).
230  Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 231 (2009).
231  Douglas E. French, Foreword, On the Origins of Money, 2009 edition (2009).
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of human civilization itself.232 The establishment of money prices on the market allows a civilized
economy to develop because they allow merchants to calculate the consequences of their exchange
transactions. As discussed by Rothbard:
“Businessmen can now judge how well they are satisfying consumer demands by seeing
how the selling prices of their products compare with the prices they have to pay
productive factors (their “costs”). Since all these prices are expressed in terms of money, the
businessmen can determine whether they are making profits or losses. Such calculations
guide businessmen, laborers, and landowners in their search for monetary income on the
market. Only such calculations can allocate resources to their most productive uses—to
those uses that will most satisfy the demands of consumers.”233
Bitcoin embodies the concept of free money because it gives individuals the ability to
denominate value independent and away from a government-sanctioned standard measure of value.
A person might opt in for bitcoin because of political ideals, or as a nonviolent protest against
the incumbent financial system, or a conviction that technology will usher a new form of money.
Whatever the reason, an individuals is naturally endowed with the freedom to choose how the fruits
of their labor or enterprise are measured or valued.234
17. Conclusions
In a hypothetical scenario where Congress enacts a statute that bans privately-issued
cryptocurrencies, the law will suffer from constitutional infirmity as it would violate the substantive
aspect of the due process clause. Such law would fail the test of reasonableness as it would irrationally,
arbitrarily, and outrageously disregard fundamental economic principles and centuries of lessons
from monetary history, and the technological innovations and economic advantages offered by
cryptocurrencies, especially bitcoin.
The rational choice theory posits that economic actors employ rational thinking
to arrive at informed decisions or choices, leading to outcomes that align with their best
interests. The market’s spontaneous selection of money is consistent with this theory. When a
person uses money, he or she is driven purely by his or her own interests and he or she is not
concerned with what becomes of it after it passes out of his or her possession. Money circulates
indefinitely as long as the market chooses it as the most saleable medium of exchange, impelled
always by the motives and self-interests of individuals acting independently of each other.
In the era of the Fiat Standard, the conventional wisdom is that money must be formally
managed and centrally planned; money cannot be entrusted to the spontaneous market forces. This
view flies in the face of money’s origins. Money arose organically as a product of human interaction
in economic markets, “not only without an assist from political authorities but often in spite of
them.”235 The natural emergence of money suggests not only the possibility of a market-determined
monetary system but also its desirability and soundness.236 Even by declaring that an artificial
monetary unit can be tendered for the liquidation of pecuniary obligations, the State’s influence on
the choice of money is limited, which choice ultimately belongs to the market.237
The concept of legal tender demonstrates the unique role of law in monetary matters.
232  Murray N. Rothbard, What Has Government Done to Our Money, p. 5 (1963).
233  Murray N. Rothbard, What Has Government Done to Our Money, p. 11 (1963).
234  Nikhil Bhatia, Layered Money, Kindle Edition p. 95 (2021).
235  Richard H. Timberlake, The Government’s License to Create Money, Cato Journal, Vol. 9, No. 2, p. 319 (1989).
236  Richard H. Timberlake, The Government’s License to Create Money, Cato Journal, Vol. 9, No. 2, p. 319 (1989).
237  Ludwig Von Mises, The Theory of Money and Credit, p. 74 (1912).
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A piece of paper or even a database entry can become money simply because the law says so.
Something becomes a medium of exchange because people are obliged by law to accept it as
payment, regardless of the inherent soundness of the thing, and not because anyone wants it
as money.238
The chartalist prerogative of the State to monopolize the monetary system based on
purported “monetary sovereignty” is a mere legal fiction detached from the market and economic
realities. A disturbing aspect of the legal tender power concerns what it symbolizes, which is the
assertion that the legal process must prevail over the market process in determining what should be
money.239 Sovereignty resides in the people, and this sovereignty is seen in free, private, competitive
markets for money.240 As Rothbard would put it “(u)nder freedom, the commodities were chosen as
money, their shape and form, are left to the voluntary decisions of free individuals. Private coinage,
therefore, is just as legitimate and worthwhile as any business activity.”241 Free individuals are in the
best position to smoothly supply their economic wants. In money as in any other human activities,
“liberty is the mother, not the daughter, of order.”242
The monetary system based on Fiat Standard is a product of the analog age. Fiat currencies
managed by central banks—without the backing of gold or other precious metals—proliferated
after the Bretton Woods system collapsed in 1971 following the Nixon shock.243 This Fiat Standard
has allowed central banks to resort to unrestrained money printing as a monetary policy tool to
resolve economic and financial crises. The U.S. Federal Reserve’s unprecedented levels of quantitative
easing have resulted in the greatest expansion in the supply of the U.S. dollar. On the other hand,
the extraordinary monetary and fiscal stimulus in the time of COVID-19 has accelerated interest in
bitcoin, making it easier for the new asset class to be regarded as a safe haven.244 Truly, financial and
economic crises are compelling advertisements for the notion of digital money.245 The continuous
debasement of many fiat currencies, specifically the U.S. dollar, highlights the mischief that the
invention of Bitcoin sought to remedy.246 Unlike fiat currencies, Bitcoin’s supply schedule cannot
be artificially increased.247
The fear of uncontrolled inflation following the unprecedented dilution of the U.S.
dollar—the centerpiece of the present international monetary system, is one of significant factors
forcing investors into safe-haven assets. There is now a rapidly growing number of individuals
and institutions that regard bitcoin as an “insurance policy” that would assure cover against the
unknown consequences arising from the economic crisis sparked by the pandemic and the havoc
wreaked by the unconstrained money printing.248
Bitcoin creates a peer-to-peer system that is decentralized in nature and cannot be
238  John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p.
114 (2009).
239  James Willard Hurst, A Legal History of Money in the United States, p. 184 (1973).
240  Richard H. Timberlake, The Government’s License to Create Money, Cato Journal, Vol. 9, No. 2, p. 320 (1989)
241  Murray N. Rothbard, What Has Government Done to Our Money, p. 47 (1963).
242  Murray N. Rothbard, What Has Government Done to Our Money, p. 48 (1963).
243  Niall Ferguson, The Ascent of Money. 2nd Ed., p. 401 (2018).
244  Will Heasman, Bitcoin as a Hedge Against Coronavirus-Led Economic Chaos, The Bitcoin Reserve Journal, 26 April
2020 https://journal.bitcoinreserve.com/bitcoin-as-a-hedge-against-coronavirus-led-economic-chaos/
245  Niall Ferguson, The Ascent of Money. 2nd Ed., p. 401 (2018).
246  The “genesis block” of Bitcoin carried the following text, which might suggest the impetus behind the invention of
Bitcoin: “The Times 03/Jan/2009 Chancellor on brink of second bailout for banks.”
247  Will Heasman, Bitcoin as a Hedge Against Coronavirus-Led Economic Chaos, The Bitcoin Reserve Journal, 26 April
2020 https://journal.bitcoinreserve.com/bitcoin-as-a-hedge-against-coronavirus-led-economic-chaos/
248  Ria Bhutoria, Bitcoin Investment Thesis: An Aspirational Store of Value, Fidelity Digital Assets, p. 17 (2020).
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manipulated by anyone. Bitcoin permanently fixes the supply of its native currency at twenty 21
million bitcoins; as of April 2022, 19 million bitcoins have been mined. As an open, distributed
ledger, it offers security and trust by verifying transactions through consensus instead of validation
by a central intermediary.249 The immutable and programmed scarcity of bitcoin provides assurance
that the value exchanged to hold bitcoin will be preserved into the foreseeable future. As more
individuals and institutions collectively recognize bitcoin as a monetary good that is scarce relative
to supply and demand, price stability will eventually become an emergent property of bitcoin.250
The Bitcoin ecosystem is expanding and maturing in many areas of its economy, such
as in banking, trading, remittance, payments, lending, and derivatives. As it grows, Bitcoin could
eventually evolve as a widely-accepted global settlement system that could compete with the current
international monetary system.251 Indeed as pointed out by Bhatia, bitcoin “gives people around the
world the first genuine alternative to their national currencies, a trend which is impossible to reverse
now that over 100 million people own it globally.”252
Article III, Section 4 guarantees freedom of the press without prior restraint. Prior restraint
refers to any official governmental restrictions on the press or other forms of expression in advance
of actual publication or dissemination.253 Bitcoin is a piece of software that can be printed as a text
on paper, generating blocks of human-readable text and therefore covered by the constitutional
right to free speech, of expression, or of the press. A statutory ban on cryptocurrency will also be
unconstitutional because it would curtail the freedom of an individual to express, enjoy or receive
product information. The people’s inability to access cryptocurrencies in view of the statutory ban
could hamper their ability to convey productive information on their choice of sound money, as
well as the expression and communication of that choice to a larger community, society, and market.
Whatever standard free money will provide, it is quintessentially important that the standard is not
enforced by government fiat.254 Fortunately, R.A. No. 8183 recognizes the freedom of the parties to
agree that their obligation or transaction may be settled in any currency other than the legal tender
at the time of payment. The law, therefore, opens the door for parties to opt out of fiat money, and
instead opt in for sound and free money. Whether that sound and free money is bitcoin or any
other cryptocurrency, it is the market that should determine this important economic choice.
Today’s fiat money bears little resemblance in form and substance to money from
100 years ago, and it would be wrong to assume that today’s fiat money will continue to be
our money in the future.255 Nevertheless, there are fundamental properties or characteristics
that will make one form of money “harder” and more acceptable than the other. Even without
government intervention, the market on its own can determine which sound money will best
perform as a medium of exchange, store of value, and unit of account. Whatever the market
chooses as the money of the future, whether that should be bitcoin or something else, the
market's choice is important because the future of money will have a bearing on the future of
liberty.
249  Jeff Booth, The Price of Tomorrow: Why Deflation is the Key to an Abundant Future (p. 200-201). Stanley Press.
(2020)
250  Parker Lewis, Bitcoin Obsoletes All Other Money, 24 January 2020 https://unchained-capital.com/blog/bitcoin-
obsoletes-all-other-money/
251  Tur Demeester, The Bitcoin Reformation, Adamant Research, p. 13 (2019).
252  Nikhil Bhatia, Layered Money, Kindle Edition p. 95 (2021).
253  Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 233 (2009).
254  Murray N. Rothbard, What Has Government Done to Our Money, p. 35 (1963).
255  John J. Chung, Money as Simulacrum: The Legal Nature and Reality of Money, Hasting Business Law Journal, p.
121 (2009).
183

The Price To Pay For Free Speech
Dean Rico Paolo R. Quicho1
The “private lives” of certain individuals, specifically that of public officials, celebrity
influencers, and public figures, are now much easier to access because of advanced technology. Most
people have upgraded their digital gadgets, such as computers and smartphones, to such an extent
that internet access is the norm rather than an exceptional occurrence. In fact, telecommunication
companies offer cellular data promos, which allow people to have mobile internet access wherever
they are and whenever they want. Traditional media, such as print, television, and radio news
outlets now also have corresponding online platforms that make the flow of information even
faster and easier. By simply tapping the screens of our smartphones, a deluge of information can
be accessed.
Free from the usual physical activities of commuting to school or work, or simply spending
time outside with friends and colleagues, people now have considerable time to spend scrolling
through different social media platforms and are immediately exposed to different information
almost certainly at every turn. Even in these trying times, there are people who take advantage of
the situation by spreading fake news to manipulate people and information.
Seventy-one percent (71%) of the Philippines’ population are active social media users,
which makes Filipinos the world’s number one in this area.2 The Philippines is now widely
considered the social media capital of the world.3 Moreover, almost all age groups are active in
different social media. In a recent survey conducted in the Philippines, approximately eighty-six
percent (86%) of the respondents aged between eighteen (18) to twenty-four (24) years old were
internet users. While only fourteen percent (14%) of the respondents aged fifty-five (55) years and
above used the internet.4
As public discourse now shifts from the physical realm to the digital and cyberspace, the
persistent question focuses on the pivot of traditional privacy into the digital expanse. Privacy
interests are as old as civilization5 and are more commonly related to the protection of an individual’s
physical space.6 However, with the advent of a more complex but also more accessible technology,
the concept of privacy, and its scope and limitations, are necessarily evolving. Contemporarily,
privacy is appreciated in two (2) aspects: (1) as the right to be left alone against personal intrusion;
and (2) informational privacy or the right to control and manage personal information.7
As succinctly mentioned in the book of Solove and Schwartz, “We live in a world shaped
by technology and fueled by information. Technological devices – such as mobile phones, video,
and audio recording devices, computers, and the Internet – have revolutionized our ability to
capture information about the world and to communicate with each other. Information is the
lifeblood of today’s society.8 Simply put, information is the currency of the 21st century. As such
1  Presently the Dean of the Universidad de Manila-College of Law and Founding Partner of the Quicho Law Offices.
2 https://www.talkwalker.com/blog/social-media-statistics-philippines.
3 https://www.statista.com/statistics/489180/number-of-social-network-users-in-philippines/.
4 https://www.statista.com/statistics/998362/share-internet-users-philippines-age-group/.
5  W. T. DeVries, ‘Protecting Privacy in the Digital Age’, 18 Berkeley Tech. L.J. 283, 284 (2003) < https://doi.org/10.15779/
Z38T97M>.
6  Ibid.
7  Ibid.
8  Solove, Daniel J., and Schwartz, Paul M., Information Privacy Law, Fourth Edition, page 1 (2011).
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the technological advancements that we enjoy now pose a new challenge for the protection of our
privacy.
Privacy is also considered a vital human right that is protected under international
covenants. Article 17 of the International Covenant on Civil and Political Rights (“ICCPR”)
provides:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home, or correspondence, nor to unlawful attacks on his honor and reputation; and
2. Everyone has the right to the protection of the law against such interference or attacks.
Other international human rights instruments contain similar provisions and even regional
and national laws show that there is universal recognition of the protection for and fundamental
importance of the right to privacy. However, far from its origins, present-day privacy is not absolute
and may be subjected to necessary, legitimate, and proportional interference.
In the discussion of personal privacy, jurists and authors argue that the importance of
privacy lies in its democratic function in fostering the exercise of freedom of expression.9 Although
free speech does not seem to imply the intent to be let alone, expression is only exercised within
a zone of interaction with chosen recipients falling within the purview of decisional privacy, and
“we may readily conclude that fundamental rights claim to privacy and a fundamental right to free
expression are deeply interwoven; creating a safe sphere of sovereign decision which aspects of one’s
personality to disclose, what to communicate, whom to speak to, whom to avoid.”10
It is crucial to note that the most immediate form of technology used by individuals
necessarily affects the determination of privacy and its limits. According to Gross, the discussion of
privacy interests is important more than ever given the “sheer amount of information that is stored
on cell phones.”11 Especially with the popularity of social media, online publications, blogs, and
other social communication tools on the Internet, private corporations offering such services online
are likewise implicated in the whole affair of individual data management. It is reasonable to argue,
therefore, that at this level, there is a growing concern on how to protect individual citizens from
possible intrusions into their informational privacy.
In the Philippines, the concept of privacy was first considered in the landmark case of Morfe
vs. Mutuc12, decided by the Supreme Court in 1968. In Morfe, the first domestic jurisprudence
tackling the issue of privacy, the Supreme Court identified the right to privacy to be a distinction
between a democratic and a totalitarian society. It characterized further the basic distinctions
between absolute and limited government, and concluded privacy to be the ultimate and pervasive
control of the individual over all aspects of his life as the hallmark of the absolute state.
The Supreme Court in People vs. Marti13 clarified that the rights provided under
Article III of the Constitution govern the relationship between individuals and the State, and not
relationships between individuals. Nevertheless, here also exists the right of privacy in privacy laws
governing the relationship of individuals with each other and other non-state actors. For example,
9  Lever, Annabelle, Privacy, Democracy, and Freedom of Expression. In Beate Roessler & Dorota Mokrosinska (Eds.),
Social Dimensions of Privacy: Interdisciplinary Perspectives (pp. 162-180). Cambridge: Cambridge University Press.
doi:10.1017/CBO9781107280557.010.
10  Bezemek, Cristoph, ‘Behind a Veil of Obscurity – Anonymity, Encryption, Free Speech and Privacy’, Social Science
Research Network, 7 (2016).
11  Gross, Shannon, ‘A Mystery Wrapped in an Encryption: Surveillance and Privacy in the Encrypted Era’, 15 Northwestern
Journ. of Technology and Intellectual Property, 73, 78 (2017) <https://scholarlycommons.law.northwestern.edu/njtip/
vol15/iss1/4/>.
12  G.R. No. L-20387, 31 January 1968.
13  G.R. No. 81561, 18 January 1991.
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the Law on Secrecy of Bank Deposits, as amended, mandates the absolute confidentiality of bank
deposits subject only to six exceptions.14 Zones of privacy are, more importantly, recognized and
protected under the Civil Code, Article 26 of which provides that:
“Every person shall respect the dignity, personality, privacy, and peace of mind of his
neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention,
and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends; and
(4) Vexing or humiliating another on account of his religious beliefs, lowly station
in life, place of birth, physical defect, or other personal condition.”
In addition, the primary jurisprudence cited for privacy arguments in the digital context
is the case of Vivares vs. St. Theresa's College.15 Here, the Supreme Court settled the issue of the
right to informational privacy on social media platforms. It discussed the right to informational
privacy as such:
“The concept of privacy has, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly recounted in
former Chief Justice Reynato S. Puno’s speech, The Common Right to Privacy, where
he explained the three strands of the right to privacy, viz: (1) locational or situational
privacy; (2) informational privacy; and (3) decisional privacy. Of the three, what is
relevant to the case at bar is the right to informational privacy––usually defined as the
right of individuals to control information about themselves.”
The Supreme Court went on to hold that in social media websites, the existence of
privacy settings establishes no reasonable expectation of privacy. This case sets the groundwork for
characterizing privacy in the digital space in the Philippine privacy framework.
For reference, Article III, Sections 2 and 3 of the Bill of Rights of the 1987 Constitution
provides the following in relation to privacy:
“Sec. 2.
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Sec. 3.
(1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise as prescribed
by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible
for any purpose in any proceeding.”
Degrees of The Expectation of Privacy of Public Officials
Quite recently, we have been exposed to social media posts of government officials
and public figures that become the subject of snide comments and criticisms from the public.
In one case, the wedding photos of an elected government official were posted on social media,
depicting a lavish wedding at an exclusive venue. The post also featured the very expensive wedding
14  Republic Act No. 1405 (1955), Section 2. See also Union Bank of the Philippines vs. Court of Appeals, G.R. No.
135882, 27 June 2001.
15  G.R. No. 202666, 29 September 2014.
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gown of the bride, together with photos of top government officials and captains of industries
as the principal sponsors. The post might have gotten cursory attention from the public were
it not for the circumstance that the event apparently happened right smack in the middle of the
COVID19 pandemic. The timing of the post, and the fact that the government official involved
was supposedly a representative of a marginalized sector of the community, prompted adverse
comments and reactions from the public against the government official. The public viewed the
post as being insensitive to the times. Joining the public outrage, an actor/celebrity, with a good
number of followers, commented on his own social media space that the government official used
public money for the event. The government official filed a libel case against the actor/celebrity.
Due to their peculiar circumstances, public officers and government officials, and other
public figures have positioned themselves to be within the realm of public discourse (most of the
time coursed through public relations specialists). As such, they are prone to the usual comments,
sharing, and bashing on social media platforms. The question that comes to fore is whether
government officials and/or public figures can have legal recourse against commentaries made on
their day-to-day lives and more appropriately in the posts or “tweets” that they make on their social
media platforms. Or whether the public or their constituency has the right to critique, comment,
and even bash government officials and public officers as part of redress of their grievances and
corresponding freedom of speech.
A review of the provisions of the laws and jurisprudence on the matter would reveal
that the privacy rights and actions of public officers are already curtailed to a certain extent by
the Constitution and present laws to ensure accountability and transparency to the public. Thus,
the exemption of public officers from the usual right to privacy enjoyed by a private citizen is not
unusual or new to the system of laws in place.
Our present laws view public office as an office vulnerable to abuse due to the opportunities
that it opens and the resources which holding the office entails - resources which are from the
coffers of the public through taxes collected or from dealings and contracts through which cannot
be attained without the position or platform. In the question of whether the right to privacy should
prevail over public officers’ accountability to the public, the question shall be resolved in favor of
the time-honored principle of “Public Office is a Public Trust”, which ensures the accountability of
public office to the public and prevents the evils of its abuse.
Public personalities, public officers included, are expected to walk on a glass floor and
treat criticisms as part of the office’s mandate. The Supreme Court stated that public officials,
more especially elected ones, should not be onion-skinned. Strict personal discipline is expected of
an occupant of a public office because a public official is the property of the public. He is looked
upon to set the example of how public officials should correctly conduct themselves even in the
face of extreme provocation. He is always expected to act and serve with the highest degree of
responsibility, integrity, loyalty, and efficiency and shall remain accountable for his conduct to the
people.16
In Ayer Productions Pty. Ltd. vs. Capulong,17 the Supreme Court set aside a lower
court's injunction restraining the filming of “Four Day Revolution”, a documentary film depicting,
among other things, the role of, then Minister of National Defense, Juan Ponce Enrile in the 1986
EDSA people power. The Supreme Court held, “A limited intrusion into a person's privacy has
long been regarded as permissible where that person is a public figure and the information
sought to be elicited from him or to be published about him constitute matters of a public
16  G.R No. 111304, June 17, 1994, 233 SCRA 310.
17  160 SCRA 861 (1988).
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character.” (Emphasis supplied.)
Apart from the standard that “no one is above the law”, public figures, by nature of their
notoriety, have their rights to privacy limited. A public figure has been defined as a person who,
by his accomplishments, fame, or mode of living, or by adopting a profession or calling which
gives the public a legitimate interest in his doings, his affairs, and his character, has become a
‘public personage’.18 And because of the inherent public interest in their character, they have the
natural obligation to maintain a positive image in most of their ordinary doings. This leads to
the conclusion that the right of privacy of a “public figure” is necessarily narrower than that of an
ordinary citizen.19
This narrower right to privacy of public figures leads to the conclusion that they are subject
to more public scrutiny. Their actions are recorded, reported, and brought to the public’s attention
in more accessible ways. It is therefore only natural that these public figures will be subject to public
commentaries and criticisms even for actions done in a “private” capacity especially if the public
perceives these actions to have been brought about by the public figure’s influence and power. It
would be difficult to establish actual malice based on criticisms posted on social media alone; not
even if the statements are boldly accusatory in nature; not even if the statements blatantly declare
them a crook. A construction of the Constitutional guarantee of freedom of speech declares that it
draws true meaning only if it allows and even encourages the articulation of the unorthodox view,
though it be hostile to or derided by others; or though such view induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs people to anger. To paraphrase
Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees
with us (Chavez vs. Gonzales, G.R. No. 168338, 15 February 2008).
The Actual Malice Standard Is a Subjective One
Insofar as the filing of libel cases are concerned, there is a different appreciation between
a private individual from a public figure and a public official in connection with the malice or
ill-will that must be duly proven – malice in fact; or may be taken for granted in view of the
grossness of the imputation – malice in law.20 Malice in law is presumed from a defamatory
imputation. Proof of malice is not required, because it is presumed to exist from the defamatory
imputation. “An allegation is considered defamatory if it ascribes to a person the commission of a
crime, the possession of a vice or defect, real or imaginary, or any act, omission, condition, status
or circumstance which tends to dishonor or discredit or put him in contempt, or which tends to
blacken the memory of one who is dead.”21
It is worth noting that generally, under Article 354 of the Revised Penal Code (RPC),
malice is presumed in every defamatory statement. The prosecution need not prove the element of
malice to convict an accused.22 Where the offended party is a private individual, the prosecution
need not prove the presence of malice. The law explicitly presumes its existence (malice in law) from
the defamatory character of the assailed statement. For his defense, the accused must show that he
has a justifiable reason for the defamatory statement even if it was in fact true.23
18  Prosper and Keeton on Torts, 5th ed. at 859-861 (1984).
19  Ibid.
20  People vs. Andrada, CA 37 OG 1783.
21  Philippine Journalists Inc. (People's Journal) vs. Thoenen, 513 Phil. 607, 618 (2005), citing Vasquez vs. Court of
Appeals, G.R. No. 118971, 15 September 1999.
22  Belen vs. People, G.R. No. 211120 (2017).
23  L. Boado, Compact Reviewer in Criminal Law, 403-404 (2d ed. 2007).
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However, under Article 354 of the RPC, there are two (2) privileged communications
wherein malice is not presumed, to wit:
a. A private communication made by any person to another in the performance of any
legal, moral, or social duty; and
b. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative, or other official proceedings which are not of confidential nature,
or of any statement, report of speech delivered in said proceedings, or any other act
performed by public officers in the exercise of their functions.
Moreover, for libel cases involving public figures and public officials, there must be
sufficient evidence to permit the conclusion that the offender in fact entertained serious doubts
as to the truth of the statement he published. Gross or even extreme negligence is not sufficient
to establish actual malice.24 The Supreme Court in the case of Disini vs. Secretary of Justice
concluded, “Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of "malice" to convict
the author of a defamatory statement where the offended party is a public figure. Society’s interest
and the maintenance of good government demand a full discussion of public affairs.”25
In practice, actual malice is very difficult for the offended party to establish. Randall
Bezanson as exemplified in the work of Solove and Schwartz, observed:
“In making actual malice determinations, state courts attempt to determine
the speaker’s subjective state of mind by two primary means. First, courts examine
the speaker’s observable conduct at the time of the speech act, viewing such outward
manifestations as a potential insight into the speaker’s state of mind . . . . The second
means by which courts attempt to determine the speaker’s state of mind is through the
personal testimony of the speaker. State courts grant considerable weight to the speaker’s
own reflective statements concerning his or her belief as to the truth of the speech at the
time the speech judgment was made.”26
There are a number of American justices like Justices Black, Douglas, and Goldberg that
previously opine that public officials could not sue for defamation even if the defamatory statements
were made with actual malice. As Justice Goldberg explained, the right to criticize public officials is
unconditional and “should not depend upon a probing by the jury of the motivation of the citizen
or press”.27
The Unbridled Filing of Public Officials or Public Figures of an Action Against Critics Abridges
the Freedom of Speech guaranteed by the Constitution
The United States Supreme Court in the case of Gertz vs. Robert Welch, Inc.28 eloquently
stated, “Public officials and public figures usually enjoy significantly greater access to the channels of
effective communication and hence have a more realistic opportunity to counteract false statements
than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury,
and the state interest in protecting them is correspondingly greater.”
It is important to consider as well that, “An individual who decides to seek governmental
office must accept certain necessary consequences of that involvement in public affairs. He runs the
risk of closer public scrutiny than might otherwise be the case. And society’s interest in the officers
of government is not strictly limited to the formal discharge of official duties. As the Court pointed
24  Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1151 (Cal. App. 4th Dist. 2004)
25  G.R. No. 203335, 11 February 2014.
26  Berzanson, Randall P., The Developing Law of Editorial Judgment, 78 Neb. L. Rev. 754, 774-75, 763-64 (1999).
27  Solove, Daniel J. and Schwartz, Paul M., Information Privacy Law, Fourth Edition, page 197 (2011).
28  418 U.S. 323 (1974).
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out in Garrison vs. Louisiana, the public’s interest extends to “anything which might touch on
an official’s fitness for office . . . Few personal attributes are more germane to fitness for office than
dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect
the official’s private character.”29
Moreover, the curtailing of a public officer’s right to privacy is not a new phenomenon due
to the generally accepted principles of government accountability and that government authority
emanating from the sovereignty of the Filipino people. The creation of the 1987 Constitution,
which dates back to combat and moves on from an oppressive and corrupt regime is a manifestation
of the choice of “Public Accountability” over strict protection of the “Right to Privacy of Public
Officers”.
Freedom of speech as a facility to demand public accountability must be accorded a higher
degree of protection and it cannot be merely downtrodden by tenuous assertions of malice. In a
society plagued by unabashed impunity, injustice, and excesses, the lowly Filipino is often left with
his voice which he or she must use to speak truth to power. By design, it is not meant to appease
perceived injustice or to render a soft blow against it. On the contrary, it is meant to shock, to
irritate, and to cause severe discomfort.
In libel where the object of the statement is a public official, malice cannot be simply
presumed. There is actual malice or malice in fact when the offender makes the defamatory statement
with knowledge that it is false or with reckless disregard of whether it was false or not. The reckless
disregard standard used here requires a high degree of awareness of probable falsity (Yuchengco vs.
Manila Chronicle Publishing, G.R. No. 184315, 25 November 2009).
The Supreme Court did not exclude the protection of politicians’ reputations, but held
that “in such cases, the requirements of such protection have to be weighed in relation to the
interests of open discussion of political issues”.30
In dealing with wounded feelings of public officials, Justice Malcolm’s eloquence provides
wise counsel; the interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel
in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men
in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience.31
A public official must not be onion-skinned with reference to comments made upon
his or her official and private acts. Only thus can the intelligence and dignity of the individual
be promoted and protected. Of course, criticism does not authorize defamation or slander.
Nevertheless, as the common citizen is less than the State, so must expect criticism to be borne for
the common good of the society. Rising superior to any official or set of officials, from the Chief
Executive, to the Legislature, to the Judiciary — to any or all the agencies of Government — public
opinion should be the constant source of liberty and democracy.
29  Ibid.
30  Siniarska, D. (July 2017). Protecting the Right to Freedom of Expression Under the European Convention on Human
Rights. https://rm.coe.int/handbook-freedom-of-expression-eng/1680732814.
31  United States vs. Bustos, 37 Phil. 731 (1918).
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Mouths Kept Shut: The Human Rights Crisis
of Environmental Defenders in the Philippines
Kristine H. Rasing
“… until governments get serious about protecting defenders and companies
start putting people and the planet before profit, both climate breakdown and killings
will continue.” – Global Witness senior campaigner Chris Madden
Introduction
At the core of a democratic state is the freedom of every citizen to express their advocacies
and dissent. However, nowadays, most people have attached a bad connotation to the exercise of
such an act. Due to ceaseless disinformation, advocates and dissenters are only seen by others to
be enthused to overthrow the government. The Philippines is no exception to this stereotype, and
unfortunately for some, it comes with a price.
That is the number of environmental defenders killed in the Philippines just in the year
2020,1 and horrifically enough, higher numbers were counted every year before that.
In the past few years, environmental activism has been at its peak as projects threatening
to destroy inhabited lands, forests, and natural resources have gone underway, left and right. A
number of Filipino environmental defenders struggled to find their voice as the State brands
them as terrorists due to the fact that they mostly live in the mountains where the rebels also
set camp.2 Global Witness, an investigative non-governmental organization focused on protecting
environmental human rights, has published a report on the killings of environmental defenders in
2020, disclosing that the violent crackdowns by the military occur when there is the presence of
opposition in the area where the damaging industry is planned to be developed.3
Currently ranking 3rd on the list of deadliest places for environmental activists to live
in,4 the Philippines has consistently been at the top for the past six years since Duterte won the
presidency, while correlatively promising to both fight corruption and protect the Filipino people.
The human rights situation of environmental defenders has been deteriorating at a fast rate and has
been more so imperiled since the Anti-Terrorism Act was immediately implemented at the height
of the COVID-19 pandemic.
Notwithstanding the alarming statistics and the international call to uphold environmental
human rights, the current Philippine administration remained silent on the matter and still went
on to warn the “communist rebels” of their fate if they continued to oppose government operations,
which in hindsight, are actually activists.5
1  Global Witness, Last Line of Defence, available at https://www.globalwitness.org/en/campaigns/environmental-
activists/last-line-defence/ (last accessed Nov. 18, 2021).
2  Bernice Beltran, Philippine Environmental Defenders in the Crosshairs of Red-taggers, EARTH JOURNALISM
NETWORK, Apr. 15, 2021, available at https://earthjournalism.net/stories/philippine-environmental-defenders-in-
the-crosshairs-of-red-taggers (last accessed Nov. 22, 2021)
3  Global Witness, supra note 1.
4  Id.
5  Pia Ranada, Duterte ‘Happy’ to Go to Jail for Killing Human Rights Activists, RAPPLER, available at https://www.rappler.
com/nation/duterte-happy-go-jail-killing-human-rights-activists/ (last accessed Nov. 21, 2021)
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Who are Environmental Defenders?
The United Nations defined “Environmental Defenders” as those individuals and groups
who, in their personal or professional capacity and in a peaceful manner, strive to protect and
promote human rights relating to the environment.6
This definition refers to neither a specific person nor a specific profession, but rather to the
action itself. Accordingly, the term “environmental defenders” is not isolated to those who have a
paying profession, because more often than not, these are the people who live in remote places and
do not have the knowledge of their contribution to the promotion of environmental human rights
through the protection of their homes, such as indigenous people.7
Notably, it is the intention of the UN to import a broad and inclusive definition to
the term in order to recognize the rights and limitations of these individuals in their exercise of
the fundamental freedoms, as well as the protection afforded to them by pertinent International
Covenants and the Constitution and legislation of their home-state.
Fundamental Freedoms and Rights of Environmental Defenders in the Philippines
I. The “Green Principle” in the 1987 Constitution
First and foremost, the 1987 Philippine Constitution has obliged the State to promote
the people’s right to a healthful ecology and to advance the exercise of their duty to preserve the
environment. Interestingly, the Philippines is the first country to enshrine such a right into its
Constitution.8 Thus:
“SECTION 16. The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.”9
From this constitutional provision, an abundance of specific life source laws (i.e., Clean
Air Act, Clean Water Act, etc.) were enacted which solidified the adherence of the Philippines and
its citizens to the “green principle”, and strengthened the binding effect of the abovementioned
provision upon the respective governmental agencies leading the advocacy.
Complementary to that provision, the Constitution has expanded the judicial power of
courts in appropriate cases where the right to life is threatened and the executive department is
wanting in political will to enforce said right, and this extends to providing justice for the life
sources on earth – the land, air, and the water.10 Hence:
“SECTION 1. x x x Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.”11
These two previously mentioned provisions allow citizens to seek judicial action in order
6  Special Rapporteur on Human Rights Defenders, Situation of Human Rights Defenders, p. 4, U.N. Doc. A/71/281
(2016) (by Michel Forst)
7 Id.
8  Hilario G. Davide, Jr., The Environment as Life Sources and the Writ of Kalikasan in the Philippines, 29 PACE ENVTL.
L. REV. 592, 594 (2012).
9  PHIL. CONSTI., art. II, § 16.
10  Davide, Jr., supra note 8, at 596.
11  PHIL. CONSTI., art. VIII, § 1.
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to advocate their constitutional rights as in the case of Oposa v. Factoran, Jr.12 where the Secretary
of DENR had granted timber license agreements to various corporations allowing them to cut
down 3.89 million hectares for commercial logging purposes. In this landmark case, the Supreme
Court explained the concept of “intergenerational responsibility” as the basis for the requisite of
personality to sue, which affirmed the minors’ assertion that they can represent their generation,
and the succeeding ones insofar as the right to a balanced and healthful ecology is concerned.
Furthermore, the Supreme Court ratiocinated that said right is nothing less than the right to life
itself. Therefore, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology.13
The Oposa case has vastly contributed to the development and refinement of environmental
legislation as the concept of intergenerational responsibility in environmental cases has intensified
the movement against environmental destruction. One of the most notable environmental
advancements in the Philippines is the Rules of Procedure for Environmental Cases, specifically the
Writ of Kalikasan, which is made available when environmental damage is of such magnitude that
it prejudices life, health, or property of inhabitants in 2 or more cities.14
In most cases, however, judicial action is insufficient to carry out the “green principle”
embodied in the Constitution. In order for the advocacy to gain traction and the State to take
notice thereof, collective action must be conducted.
II. The Freedom of Expression and Peaceful Assembly vis-à-vis the Right to Life
Mainly because of the constant misinformation, most people have found activism to be
futile and violent in order to effect the ouster of the incumbent administration. In effect, the
bad connotation extends to environmental defenders by reason of their exercise of the freedom
of expression, association, and peaceful assembly, which is especially common in environmental
action. That being the case, there is all the more reason for each person to understand the primacy
of these constitutional freedoms together with the inherent human rights attached therein.
Activism has become part and parcel of the ongoing fight against environmental
degradation. To boot, such an act is conferred to Filipino citizens as a matter of right under the
1987 Constitution. Hence:
“SECTION 4. No law shall be passed abridging the freedom of speech, of expression, or
of the press, or the right of the people peaceably to assemble and petition the government
for redress of grievances.”15
The provision vests in Filipino citizens the political freedoms for the betterment of their
societal affairs, living conditions, and civic interactions. These vested rights play a key role in
opening up spaces for genuine and effective engagement by individuals in the State’s decision-
making processes which are fundamental in a functioning democracy.16 Moreover, it is a preferable
course of action in order to facilitate constructive dialogue between the government and its citizens
so that emphasis can be put on their shared interests, and priorities regarding the use of natural
resources are placed at the forefront of discussion.17
12  Oposa v. Factoran, Jr., G.R. No. 101083, 224 SCRA 792 (1993).
13  Id.
14  RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, A.M. No. 09-6-8-SC, Rule 7, § 1 (Apr. 29, 2010).
15  PHIL. CONSTI., art. III, § 4.
16  Special Rapporteur on Rights to Freedom of Peaceful Assembly and of Association, Rights to Freedom of Peaceful
Assembly and of Association, p. 10, Human Rights Council, U.N. Doc. A/HRC/38/34 (Jul. 26, 2018)
17  Id.
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Bear in mind that the conduct of peaceful collective action and dissent against
environmental degradation always concurs with the inherent right to life accorded to all human
beings. It is essential to safeguard the human rights of environmental defenders, because they
play a crucial role in ensuring that development is sustainable, inclusive, non-discriminatory, and
beneficial for all, and also does not cause harm to the environment.18 Ultimately, the protection
of the environmental defenders has become an important element in the overall protection of
the environment. Unfortunately, the Philippine trends with respect to human rights do not look
favorable to environmental defenders and activists in general.
III. A Novel Piece of Legislation for the Indigenous People
Having an inclusive definition, the term “environmental defenders” also covers indigenous
cultural communities/indigenous people (ICCs/IPs). Conserving unique biodiversity relies on
the knowledge, innovations, and practices of ICCs/IPs who live in direct contact with nature.
In the Philippines, 85% of the biodiversity areas are within the ancestral domains.19 Therefore,
it is significant to protect the rights of these people in order to fully personify the environmental
and human rights principles under the Constitution, especially when they are among the most
vulnerable sectors of society.
In the past Philippine constitutions, the rights of these ICCs/IPs to their ancestral lands
had always been overtaken by the Regalian Doctrine20 – the concept of State ownership of lands
and natural resources of public domain. Although there are provisions in the present Constitution
that encapsulate the deprived rights of the true owners of the ancestral lands, further legislation is
still needed in order to execute the principles expressed within. To wit:
“SECTION 5. The State, subject to the provisions of this Constitution and national
development policies and programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their economic, social, and cultural well-
being.
The Congress may provide for the applicability of customary laws governing property
rights or relations in determining the ownership and extent of ancestral domain.”21
Finally, in 1997, one of the most radical pieces of legislation was enacted to embody the
constitutional rights of the ICCs/IPs: the Indigenous Peoples’ Rights Act of 1997 or IPRA Law.
The statute compels the State to establish all the necessary mechanisms and measures to enforce
and guarantee the realization of the rights of the indigenous peoples taking into consideration their
customs and traditions.22
The most significant section in the IPRA Law is the provision on their rights to ancestral
domains and lands. Ancestral domains and ancestral lands are all areas belonging to ICCs/IPs under
a claim of ownership. Fundamentally, the indigenous concept of ownership sustains the view that
lands and resources found in their territory serve as the material basis of their cultural integrity,
which is different from the civil law concept of ownership.23 In addition to that, the law explicitly
states that unauthorized and unlawful intrusions in violation of their rights shall be punishable.24
18  Special Rapporteur on Human Rights Defenders, supra note 6.
19  Global Environment Facility, Indigenous Peoples in the Philippines Leading Conservation Efforts, available at https://
www.thegef.org/news/indigenous-peoples-philippines-leading-conservation-efforts (last accessed Dec. 5, 2021)
20  PHIL. CONSTI., art. XII, § 2.
21  PHIL. CONSTI., art. XII, § 5.
22  An Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples,
Creating A National Commission on Indigenous Peoples, Establishing Implementing Mechanisms, Appropriating
Funds Therefor, and for Other Purposes [Indigenous Peoples’ Rights Act], Republic Act No. 8371, § 2 (1997).
23  Id., § 5.
24  Id., § 10.
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Also, the Free Prior Informed Consent (FPIC) is a crucial provision that maintains the need for the
IPs’ consent in order to facilitate construction or any other economic improvements within their
ancestral land.25
With the advent of this landmark legislation, one would initially think that the IPRA
Law would be a swift remedy for the injustice to the indigenous people. Sadly, however, despite its
enactment and the subsequent Supreme Court ruling in favor of its constitutionality,26 the ICCs/
IPs cannot fully and peacefully enjoy ownership of the land because the Native Commission on
Indigenous Peoples (NCIP) and the Department of Environment and Natural Resources (DENR)
seem to promote commercial interests through the approval of mining contracts,27 the notorious
issuance of permits to enter ancestral lands in favor of non-indigenous individuals or entities,28
and the controversial grant of environmental certificates to business giants for the erection of
infrastructure within ancestral lands.29
The Grim Reality
I. Dangers of Red-tagging or Red-Baiting and the Chilling Effect30 of Anti-Terrorism Law
to Environmental Defenders
Red-tagging or red-baiting is the strategy used by State agents, particularly law enforcement
agencies and the military, against those perceived to be “threats” or “enemies of the State” labelling,
branding, naming, and accusing the latter of being left-leaning, subversives, communists or
terrorists.31
The phenomenon of red-tagging in the Philippines resulted in a new era of terror for the
Filipino environmental and human rights defenders. Today, it has been evident that the practice
of the incumbent Philippine administration is to label dissenters as terrorists and shape the public
opinion against the latter’s favor, with the power of social media being greatly utilized in order to
heighten this campaign.
Justice Leonen, expressing his dissenting opinion in the case of Zarate v. Aquino III,32
discussed the chilling effect of red-tagging on the freedom of expression and speech. Thus:
“To make it easy for military and paramilitary units to silence or cause untold
human rights abuses on vocal dissenters, government agents usually resort to stereotyping
or caricaturing individuals. This is accomplished by providing witnesses who, under
coercive and intimidating conditions, identify the leaders of organizations critical of the
administration as masterminds of ordinary criminal acts. Not only does this make these
leaders' lives and liberties vulnerable, but a chilling effect on dissent is also generated
among similar-minded individuals.”33
25  Id., § 59.
26  Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385 (Resolution), 400 PHIL 904, 940 (2000).
27  Walden Bello, The Subversion of the Philippines’ Indigenous Peoples’ Rights Act, FOCUS ON THE GLOBAL
SOUTH, Oct. 7, 2020, available at https://focusweb.org/the-subversion-of-the-philippines-indigenous-peoples-rights-
act/ (last accessed Dec. 14, 2021).
28  Joji Cariño, The Environmental Crisis in the Philippines, CULTURAL SURVIVAL, Sept. 2001, available at https://
www.culturalsurvival.org/publications/cultural-survival-quarterly/environmental-crisis-philippines (last accessed Dec. 5,
2021)
29  Leilani Chavez, A Philippine Tribe that Defeated a Dam Prepares to Fight its Reincarnation, MONGABAY, Nov. 5,
2019, available at https://news.mongabay.com/2019/11/a-philippine-tribe-that-defeated-a-dam-prepares-to-fight-its-
reincarnation/ (last accessed Dec. 14, 2021).
30  Disini v. Secretary of Justice, G.R. No. 203335, 727 Phil. 28, 34, (SC 2014) (“The fear of possible prosecution that
hangs on the heads of citizens who are minded to step beyond the boundaries of what is proper.”).
31  Dr. Nymia Pimentel Simbulan, Red-Baiting: A Tool of Repression, Then and Now, 3 OBSERVER 12, 12 (2011).
32  Zarate v. Aquino III, G.R. No. 220028 (Notice) (2015) (J. Leonen, dissenting opinion).
33 Id.
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In 2020, the propaganda in social media increased as everyone was isolated in their homes
and can only gather news from the internet. In a Facebook post, the National Task Force to End
the Local Communist Armed Conflict (NTF-ELCAC) alleged that a member of Kalikasan People’s
Network for Environment (Kalikasan PNE), a network of environmental organizations in the
Philippines, was formerly part of the New People’s Army with his picture subsequently published
therein.34 Prior to that, its office space in Quezon City was also subjected to harassment as various
postings were stamped on its property which exhibited red-tagging against progressive groups the
former has worked with, along with the constant surveillance of their members and the attempted
raid of their office.35
Even before, the incumbent administration is brazen when it comes to red-tagging
activists.
Back in 2018, more than 600 people were listed by the Department of Justice as
communist terrorists. Apparently, some of the named individuals on the list were actually human
rights defenders, investigators, researchers, and indigenous people. UN special rapporteur on IP
rights, Victoria Tauli-Corpuz, one of the labeled “communist terrorists” who were vocal against
the stigmatization and displacement of IPs due to the rise of commercial projects, denounced such
petition, calling the complaint baseless, malicious, and irresponsible.36
Also, as terrible as it is, the right to education of the IPs was not dispensed with by the
government. As the onslaught against Filipino environmental defenders intensified in 2019, the
Department of Education ordered the closure of indigenous schools, which teach children about
their culture and the ecology of their ancestral land, alleging that they have links with rebels.37
These are only a few of the reported instances of red-tagging in today’s repressive Philippine
society, which accounts for less than half of what’s actually happening in the country every year.
Worse than the concept, however, is the fact that during the COVID-19 pandemic, the
legislature fast-tracked the enactment of a draconian legislation: Anti-Terrorism Act of 2020 – which
aims to suppress terrorism in the country. Human rights groups and critics opposed the said law,
stating that its implementation would grant excessive and unchecked powers to the government.38
Controversial provisions, especially the definition of the term “terrorism”39, have pointed
to ambiguity regarding its meaning and the context by which the security forces will base their
authority upon. A particularly problematic provision for environmental defenders, aside from the
definition of terrorism, is the one concerning “inciting to terrorism” which states that speeches,
34  Center for Environmental Concerns, Environmental Defenders Red-tagged, Holiday Crackdown Feared, Dec. 23,
2020, available at https://www.cecphils.org/environmental-defenders-red-tagged-holiday-crackdown-feared-2/ (last
accessed Dec. 21, 2021).
35  Jhesset Enano, Environmental Group Decries Defacing of QC office, INQUIRER.NET, May 19, 2020, available at
https://newsinfo.inquirer.net/1277139/environmental-group-decries-defacing-of-qc-office (last accessed Dec. 21,
2021).
36  Manuel Mogato, Philippines Seeks ‘Terrorist’ Tag for 600 Alleged Communist Guerrillas, REUTERS, Mar. 8, 2018,
available at https://www.reuters.com/article/us-philippines-rebels-idUSKCN1GK0DO (last accessed Dec. 9, 2021).
37  Global Witness, Defending Tomorrow, Jul. 2021, at 29, available at https://www.globalwitness.org/en/campaigns/
environmental-activists/last-line-defence/ (last accessed Dec. 19, 2021).
38  Amnesty International, Philippines: Dangerous Anti-Terror Law Yet Another Setback for Human Rights, Jul. 3,
2020, available at https://www.amnesty.org/en/latest/news/2020/07/philippines-dangerous-antiterror-law-yet-another-
setback-for-human-rights/ (last accessed Dec. 9, 2021).
39  An Act to Prevent, Prohibit, and Penalize Terrorism, Thereby Repealing Republic Act No. 9372, Otherwise Known as
the “Human Security Act of 2007”, [Anti-Terrorism Act of 2020], Republic Act No. 11479, § 4 (2020)
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writings, etc., tending to the same could carry a punishment of imprisonment.40 Human rights
defenders have said that the law chills freedom of expression, free speech, freedom of the press,
and freedom of association, which is dangerous in a democratic society.41 The good news is that
the Supreme Court struck a dangerous proviso of Section 442 down as unconstitutional for being
overbroad and violative of freedom of expression. However, it upheld the constitutionality of the
rest of the legislation.43
The fears regarding the Anti-Terrorism Law had been manifested when two IPs were
arrested for allegedly being members of the New Peoples’ Army. According to them, they were just
doing their daily routine when military personnel red-tagged and arrested them. After a careful
examination of the case, the court acquitted the detained Aetas because of inconsistencies in the
testimony of the soldiers who made the arrest.44 Aside from the acquittal, the whole scenario
shows that the provisions of the Anti-Terrorism Law have made it possible for law enforcers to
easily go after environmental defenders, label them as terrorists, and arrest them without sufficient
proof. Actually, what’s more concerning is the fact that these soldiers were not and cannot be
held accountable for the wrongful detention of the two IPs since the legislators have removed the
compensation clause.45 Joan Carling, a UN “Champions of the Earth” awardee, has commented
that red-tagging IPs obscures the fact that their traditional governance and sustainable lifestyle have
helped conserve the rich biodiversity of the land.46
Red-tagging has been established as a prelude to more atrocious human rights abuses.47
To put it briefly, it takes away the people’s freedom of speech and endangers their right to
life and liberty. The enactment of the Anti-Terrorism Law further authorized the government and
its forces to treat the opposition, dissenters, environmental and human rights defenders, and even
civilians as communist terrorists as long as the latter fits the criteria that the former had created.
As Atty. Neri Colmenares has said, “For the Duterte Administration, terrorism is any form of
dissent.”48 Evidently, the designation of a person as a terrorist exposes him/her to violence which
contravenes the very essence of the Bill of Rights. In an increasingly volatile public sphere, those
who point out flaws in the system and policies of the government end up choosing to be silent.49
Ultimately, this results in the decline of the needed progress in what should be a democratic society.
For environmental defenders, it hinders their efforts to protect the biodiversity which is prejudicial
to our generation and the succeeding ones.
40  Id., § 9.
41  Julie Mccarthy, Why Rights Groups Worry About the Philippines’ New Anti-Terrorism Law, NPR, Jul. 21, 2020, available
at https://www.npr.org/2020/07/21/893019057/why-rights-groups-worry-about-the-philippines-new-anti-terrorism-
law (last accessed Dec. 9, 2021).
42  Anti-Terrorism Act of 2020, § 4. (“x x x which are not intended to cause death or serious physical harm to a person …
or to create a serious risk to public safety.”).
43  Tetch Torres-Tupas, Anti-Terror Law Constitutional Except for Two Parts, Says SC, INQUIRER.NET, Dec. 9, 2021,
available at https://newsinfo.inquirer.net/1525096/anti-terror-law-constitutional-except-for-two-parts-says-sc (last
accessed (Dec. 9, 2021).
44  Lian Buan, Mistaken Identity: Aetas Acquitted in First Known Anti-Terror Law Case, RAPPLER, Jul. 19, 2021, available
at https://www.rappler.com/nation/olongapo-trial-court-decision-aetas-charged-anti-terror-law-case/ (last accessed Dec.
9, 2021).
45  Lian Buan, Distraught Aetas Caught in a War, RAPPLER, Feb. 11, 2021, available at https://www.rappler.com/
newsbreak/in-depth/distraught-aetas-caught-war-anti-terrorism-law/ (last accessed Dec. 9, 2021).
46 Beltran, supra note 2.
47  Center for Environmental Concerns, supra note 33.
48 Mccarthy, supra note 41.
49  COMMONER, How Red-Tagging Endangers People and Society’s Progress as a Whole, Dec. 10, 2020, available
at https://mediacommoner.medium.com/how-red-tagging-endangers-people-and-societys-progress-as-a-whole-
9c7acffb0003 (last accessed Dec 9, 2021).
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II. The struggle of IPs as environmental defenders
Recently, the construction of dams and the proliferation of mining companies has
increased as the Philippine government has been welcoming loan deals and business proposals from
other States and companies with economic improvement in mind. Although this may be good
news for the country’s dying economy due to the pandemic, the same is not true for environmental
defenders and the environment itself. This only adds to the fact that Duterte has allowed violence
and impunity to rule over the country which puts dissenting defenders at risk.
In spite of the Constitutionally-provided rights and the enactment of the IPRA Law, the
ICCs/IPs continue to suffer from injustice as business enterprises and members of the military
encroach over their ancestral lands. As a result, thousands of them have either been displaced or
threatened with displacement.
Just recently, the Kaliwa Dam controversy has sparked a decade-old fight within the IPs
as they consistently oppose the construction of the dam, which is expected to provide redundancy
of water sources in the Philippines. The consent of the IPs for its construction was bypassed when
environmental clearance was granted despite lapses in the voting process for the FPIC agreement
and EIA reports showing substantial environmental destruction in the area, much to the dismay of
environmental defenders. What is worse was that pending the consent of the IPs, members of the
military have been deployed to watch over the construction machinery, and consequently, a culture
of impunity has washed over the area.50
Again, these are only one of the many instances which display the struggle of these
individuals, and sadly, these circumstances are still happening nationwide at the moment.
Echoing what was stated earlier, IPs’ knowledge of the environment has continuously nurtured
the Philippine biodiversity for years, maybe centuries. But evidently, the link between the industry
and militarization has resulted in the loss of the homes of these ICCs/IPs, the biodiversity they’ve
cultivated, and the valuable natural resources some of which are unique to the Philippines.
III. The Gruesome Killings
From 2016 until the end of 2020, a total of 166 environmental and land defenders were
killed under the Duterte administration – an already shocking increase in the statistics for a country
that was already a dangerous place to stand up for the environment.51 To picture how grave the
situation is, the records have tallied 119 killings of environmental defenders in the first three years
of Duterte’s presidency – almost double the figure compared to the three years prior to his election.52
Through the years, the situation continues to worsen due to the “business at all costs
approach” by the government. For instance, in 2017, 1.6 million hectares of land in Mindanao
was planned to be converted to industrial plantations. Coincidentally, the region became a hotspot
for murders of environmental defenders accounting for 67% of the total defenders killed in the
Philippines in that same year.53 The circumstance is even further evidenced by the protection given
by the military to the enterprises in the contested areas, especially within the IP’s ancestral lands.
Global Witness, the leading investigative organization for environmental killings, has kept
a long list of the killed champions of the environment. The following accounts are only a glimpse
50 Chavez, supra note 29.
51  Global Witness, supra note 1.
52  Global Witness, supra note 37, at 28.
53  Global Witness, Enemies of the State?, available at https://www.globalwitness.org/en/campaigns/environmental-
activists/enemies-state/ (last accessed Dec. 22, 2021).
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of the gruesome killings of environmental defenders in the country:
“In 2011, a well-known environmental activist-journalist, Dr. Gerardo Ortega, was
gunned down by hired men during his trip to a local ukay-ukay shop after a morning
broadcast of his radio show. Apparently, Doc Gerry was vocal against the extractivist
governance mandate and allegations of corruption concerning the missing Malampaya oil
field royalties. The assassins who killed him were allegedly hired by Joel and Mario Reyes,
former Governor and Mayor in Palawan respectively. The latter fled the country, and was
later arrested in Thailand.”54
“Dec. 30, 2020 was a horrific day for the Tumandok Tribe in Panay Island. 9 of their
leaders had been killed which earned it a title – “Tumandok massacre”. Because of the
Tumandoks’ resistance against the construction of the Jalaur Dam, they have been victims
of red-tagging, and now extrajudicial killings.55 The police responsible for the incident,
in their defense, have insisted that the violent encounter occurred because the IPs did
not agree to be served a search warrant. However, this allegation has been consistently
slammed by human rights groups saying that the service of the search warrants was a
common tactic, and was nothing more than an excuse to carry out an operation intended
to kill and arrest the Tumandok leaders who have been actively advocating the rights and
interests of farmers and other IPs.”56
“Philippine environmental officials who championed against resource exploitation were
not spared from the attacks. The killings arose when DENR carried out a crackdown
on illegal logging activities in the country. One of the victims is Ronaldo Corpuz, a
community environment and natural resources officer in Nueva Ecija, who was shot by
unknown assailants days after participating in a raid on illegal loggers.”57
Clearly, the violent conflict between the country’s security forces and business enterprises,
and environmental defenders have continuously escalated over the past few years. The more
environmental defenders manifested their dissent and resistance, the more apparent the red-tagging
is, as well as the extrajudicial killings. On top of that, CIVICUS Asia Pacific researcher Josef
Benedictus adduced that these attacks go beyond individual killings; they reinforce an environment
where people are afraid to question and dissent, further perpetuating this cycle of impunity. 58
Essentially, it is these killings that push most activists into silence and into hiding which jeopardize
the harmonious future that these individuals fight so hard for.
Recommendations
Recognition of the gruesome situation of environmental defenders is not sufficient to
safeguard their rights. Accordingly, actual measures must be taken in order to ensure such protection.
Below are some recommendations:
I. Passage of Senate Bill No. 2121 or Act to Criminalize Red-tagging, and the Repeal or
Abolition of the Anti-Terrorism Law
The rapid escalation of red-tagging during the pandemic, being one of the main problems
of activists, in general, has alarmed Senate Minority Leader Franklin M. Drilon. Hence, his proposal
54  Jose Leon Dulce, Clemente Bautista, Jr., Gianina Glarino, & Karl Begnotea, A War of Plunder Against Environmental
Defenders in the Philippines, IUCN, Sept. 2021, at 23.
55  Krixia Subingsubing, Nestor Corrales & Nestor Burgos Jr., Justice Sought for 9 Slain in Panay Raids, INQUIRER.NET,
Jan. 1, 2021, available at https://newsinfo.inquirer.net/1378106/justice-sought-for-9-slain-in-panay-raids (last accessed
Dec. 20, 2021).
56 Rappler, Groups Seek Justice for Red-Tagged Tumandok IPs Killed in Police Operation, RAPPLER, Dec. 31, 2020,
available at https://www.rappler.com/moveph/groups-cry-justice-slain-tumandok-indigenous-people-panay-island/ (last
accessed Dec. 8, 2021).
57 Mongabay, Philippine Officials Not Spared as Attacks on Environmental Defenders Persist, MONGABAY, Nov. 8,
2019, available at https://news.mongabay.com/2019/11/philippine-officials-not-spared-as-attacks-on-environmental-
defenders-persist/ (last accessed Dec. 21, 2021).
58  CIVICUS, Philippines: Government Should be Held Accountable for the Killings of Activists, available at https://
www.civicus.org/index.php/media-resources/news/4983-philippines-government-should-be-held-accountable-for-the-
killings-of-activists (last accessed Nov. 23, 2021)
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of Senate Bill 2121 or the “Act to Criminalize Red-tagging” has immediately gone underway. It
seeks to criminalize red-tagging and provide for penalties as deterrence in order to fix the legal gaps,
address impunity and institutionalize a system of accountability.59
The passage of the Anti-Terrorism Law has shown a glimpse of its dangers as evidenced
by the arrest of the IPs, being the first victims of the law. The State forces are given a wide latitude
of discretion to label a person as a terrorist according to the very language of the law. It further
perpetuates the practice of red-tagging which endangers environmental defenders.
the unrefined processes recommended by the “reviewers” and the apparent lack of coordination due
to the overlapping functions, making the EIA process ineffective.62
Therefore, the government must look into a refinement of the processes and the
establishment of clear mechanisms within governmental agencies tasked with upholding the
environmental principles and enforcing the law as this is crucial to protecting the areas that are
endangered by economic projects, i.e. mining, construction of dams, etc.

The adoption of Senator Drilon’s proposed bill is a clear solution to the rising problem of Conclusion
red-tagging as it aims to hold accountable the state actors, such as law enforcers, paramilitary and
military personnel, who commit red-tagging and gives environmental defenders the assurance that To care for the environment is to protect its defenders.
they will be able to freely exercise their constitutional freedoms without a worry of persecution and
violence. The mission may seem plain and simple, but reality has shown otherwise.

In terms of the repeal or abolition of the Anti-Terrorism Law, the Supreme Court struck
down as unconstitutional only a few provisions of the law60 which may not be adequate to fully
ensure the exception of the environmental defenders from the definition of a terrorist under the
law. Therefore, legislators should consider amending the language of the law in order to include
provisions emphasizing the protection of human rights.
II. Enactment of a Human Rights Defenders Law
Senate and House Bills for the protection of Human Rights Defenders have been passed
with the aim of creating a committee within the Commission on Human Rights to safeguard
human rights defenders from intimidation and the conduct of investigations into them. The
bills define who may be a human rights defender without specifying a profession, much like the
definition the UN has given to environmental defenders. Experts have argued that the main duty-
bearers are actually the government and its security forces due to their constitutional mandate to
protect, promote, and implement human rights.61
Although this law may appear redundant, obvious, and unimportant, its enactment
would guarantee the safety and security of environmental defenders as they exercise their inherent
responsibility over the environment, because it would create mechanisms to ensure such. This
will also further execute the green principle under the Constitution, in relation to the provisions
contained in the Bill of Rights.
Evidence shows that environmental defenders are being persecuted in the Philippines.
The freedoms given to them, together with their correlative rights under the Constitution,
have continuously been placed in a dangerous position, worsened by the fact that the Duterte
administration raises the platform for the armed forces to terminate government opposition and
approves projects by business enterprises that facilitate violence against the inhabitants of the area,
as well as the destruction of the biodiversity therein. For that reason, one can say that the State is
remiss of its duty to protect its people and the environment in contravention of key constitutional
principles.
It is obvious that the environmental defenders are the heart of humanity’s future and
the future of our planet. Hence, upholding human rights for these individuals is essential to the
protection of the environment as well as the rights emanating therefrom.63
Violence, fear, and intimidation shall not continue as a hindrance to environmental
action. If this cycle of impunity and brutality against our environmental defenders were to continue
and the environment was to finally be led to its ruin, what else would be left for us?

III. Refined implementation of existing laws that govern and protect the rights of the
people over the environment

It is no question that the Philippines is home to a number of laws that, at their face value,
are noble and just for the Filipino people. The only issue is their implementation.

An example of an implementation issue is the system governing the Environmental Impact

Statement, which aids the government in its planning and management of economic projects with
the aim of balancing economic development and environmental protection. The problem is that
this is hampered by the inadequate institutional capacity of the implementing agency, as shown by

59  An Act Defining and Penalizing Red-Tagging, S.B. No. 2121, 18th Cong., 2nd Reg. Sess. (2021).
60 Torres-Tupaz, supra note 43.
62  Maya Gabriela Villaluz, Advancing the EIA System in the Philippines, at 258-59, available at https://www.iaia.org/
61  Jonathan de Santos, Task force: Bill to Protect Human Rights Defenders Unnecessary, Contrary to Law, PHILSTAR, Nov. pdf/EIA/EIA/CaseStudies/PhillipinesStudy.pdf (last accessed Feb. 5, 2022).
10, 2021, available at https://www.philstar.com/headlines/2021/11/10/2140404/task-force-bill-protect-human-rights-
63  Special Rapporteur on Human Rights Defenders,, supra note 6.
defenders-unnecessary-contrary-law (last accessed Dec. 22, 2021).

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Lack of Financial Rigor as a Ground for Declaring Nuisance Candidacies:
A Jurisprudential Examination
Rica Joy C. Rodriguez
Introduction
Senator Ronald “Bato” dela Rosa filed his certificate of candidacy (COC) for President
at around 4:30 pm or 30 minutes before the deadline of filing for COCs on October 8, 2021.1 In
interviews, he said that he had no idea that he would be running as a standard-bearer of PDP Laban
until he received a call from the party leader, Alfonso Cusi, just two hours before the said deadline.
Dela Rosa related that Cusi informed him that the party had finally decided to make him run for
the said position.2 The clock was ticking and time was of the essence. Dela Rosa had to either agree
then and there to the wish of the party or to refuse it and live with the painful knowledge that his
party would completely lose the chance of fielding a presidential candidate. He chose to do the
noblest thing that a party member can do and agreed to run.
Despite filing his COC, dela Rosa made statements that are in contradiction to his
intention to run. He said that should presidential daughter, Sara Duterte-Carpio, decide to run
and substitute him, he will willingly step aside and withdraw his candidacy.3 Notwithstanding
the lack of intention to run on the basis of circumstances leading to his filing of COC and his
declaration of willingness to withdraw candidacy, the public does not perceive him to be a nuisance
candidate. Neither was dela Rosa expected to be declared as one by the Commission on Elections
(COMELEC) after it deliberated whose names are going to be included in the ballots and whose
names will be removed from the list.
Unfortunately, not everyone who filed their COC – with nothing but platforms of change
– would receive the same level of regard given to candidates who are celebrities, from reputable and
well-known families, with strong political backing, or with the money and connections to mount
a nationwide campaign. Dela Rosa, being an incumbent senator and the first appointed Philippine
National Police (PNP) chief by President Rodrigo Duterte known for his key role in the Oplan
Tokhang, is a public figure. Should he not withdraw his candidacy for president, he would most
likely be part of the COMELEC’s final list of candidates for the said position.
In contrast, Phil Delos Reyes, a security guard, also filed his COC for senator.4 He will
most probably be declared as a nuisance candidate because he clearly lacks the social and economic
privileges enjoyed by the likes of Dela Rosa. Delos Reyes neither has the financial capacity nor a
strong political party backing to wage a nationwide campaign. The public would be quick to label
him as a nuisance candidate for the same reason. The problem in the disparity of perception and
regard between popular and unknown candidates makes Philippine elections elitist at its core. It
would be difficult for an ordinary Filipino to have a shot at public service despite possessing all
1  Bea Cupin, Dela Rosa Learned He is a Presidential Bet Only 2 Hours Before Deadline, RAPPLER, Oct. 11, 2021, available
at https://www.rappler.com/nation/elections/bato-dela-rosa-presidency-coc-filing-two-hours-before-deadline (last
accessed Nov. 18, 2021).
2  Id.
3  CNN Philippines Staff, Bato Dela Rosa to run for president in 2022, CNN PHILIPPINES, Oct. 8, 2021, available
at https://www.cnnphilippines.com/news/2021/10/8/Bato-Dela-Rosa-COC-president-2022-PDP-Laban.html (last
accessed Nov. 18, 2021).
4  David Tristan Yumol, Climate Change Defenders, Pandemic Mitigator, Animal Lover, Security Guard Give Color to First
Day of COC filing, CNN PHILIPPINES, Oct. 1, 2021, available at https://www.cnnphilippines.com/news/2021/10/1/
colorful-candidates-first-day-COC-filing.html (last accessed Nov. 18, 2021).
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of the qualifications and none of the disqualifications needed for a particular public position. The
electorate will keep on choosing leaders from the same (but different) set of candidates who luckily
but unsurprisingly made it to the ballots.
Philippine laws are not replete with statutes that safeguard the constitutional policy which
provides that “the State shall guarantee equal access to opportunities for public service”.5 One
of which is Batas Pambansa Bilang 881, otherwise known as the Omnibus Election Code, that
specifically lays down the grounds to declare one a nuisance candidate, to wit:
1. To put the election process in mockery or disrepute;
2. To cause confusion among the voters by the similarity of the names of the registered
candidates; or
3. By other circumstances or acts which clearly demonstrate that the candidate has no
bona fide intention to run for the office for which the certificate of candidacy has been
filed and thus prevent a faithful determination of the true will of the electorate.6
Although the above-quoted provision of the Omnibus Election Code is generally
considered as a limitation on the privilege of seeking a public position, it can be argued that it
likewise serves as a protection from any arbitrary or ambiguous determination by the COMELEC
of who should be declared as a nuisance candidate. The provision thus ensures that everyone who
filed their COCs will be equally held with the same standard. This means that the COMELEC is
guided by specific grounds in its determination of nuisance candidates.
This paper will examine how COMELEC uses these grounds in determining whose names
should and should not be on the ballots. It will also analyze what constitutes bona fide intention
to run, or lack thereof. Furthermore, this paper shall have an extensive case review of how lack
of financial capacity should not be a ground to declare one as a nuisance candidate. Lastly, it will
provide a critique of the two pending bills in Congress, namely House Bill No. 9557 and Senate
Bill No. 726 that aim to amend the Omnibus Election Code through the imposition of a monetary
penalty to those who would be declared nuisance candidates by the COMELEC.
Is there a constitutional right to run for public office?
Just like the rest of the state policies enumerated under Article II of the 1987 Constitution,
Section 26 thereof does not vest any judicially enforceable constitutional right. It merely specifies a
guideline for legislative and executive action.
The said constitutional provision was originally written as: “The State shall broaden
opportunities to public office.”7 According to Commissioner Hilario Davide, Jr., such original
phrasing of broadening opportunities to public service would “necessarily mean that the government
would be mandated to create as many offices as are possible to accommodate as many people as are
also possible.”8 Therefore, to avoid confusion as to the real intent of the framers of the Constitution
in this particular provision, that is, “to limit offices only to what may be necessary and expedient yet
offering equal opportunities to access it”, Commissioner Davide proposed to change the phrasing
into: “The State shall guarantee equal access to opportunities for public service.”9
5  PHIL. CONST. art. II, § 26.
6  Omnibus Election Code of the Philippines [OMNIBUS ELECTION CODE], Batas Pambansa Bilang 881, § 69
(1985).
7  JOAQUIN BERNAS, THE INTENT OF THE 1986 CONSTITUTION WRITERS 148 (1995).
8  4 RECORDS OF PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL COMMISSION, at 945
(1986).
9  Id.
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A privilege subject to the limitations imposed by law
While Section 26, Article II of the 1987 Constitution provides that “the State shall
guarantee equal access to opportunities for public service,”10 it was emphasized by the Supreme
Court in Pamatong v. COMELEC11 that what is recognized in Section 26, Article II of the
Constitution is merely a privilege subject to the limitations imposed by law.
It is the Omnibus Election Code which sets these limitations by providing the grounds
to be used by the COMELEC in determining whether one is a nuisance candidate or not, to wit:
“Section 69. Defines a nuisance candidate as one who files a certificate of candidacy:
1. To put the election process in mockery or disrepute;
2. To cause confusion among the voters by the similarity of the names of the registered
candidates; or
3. By other circumstances or acts which clearly demonstrate that the candidate has no
bona fide intention to run for the office for which the certificate of candidacy has been
filed and thus prevent a faithful determination of the true will of the electorate.”12
Hence, seeking an elective position has the accompanying responsibility of upholding the
integrity of the election process and never intending to put it in mockery or disrepute. A candidate
should possess a genuine desire to hold the office for which he filed his COC. It is important to
note that those who filed their COCs are presumed to have a bona fide intention to run and it is
the responsibility of the COMELEC to prove otherwise. The Supreme Court held in Timbol v.
COMELEC that an alleged nuisance candidate’s COC cannot be arbitrarily cancelled without
first giving the candidate the opportunity to be heard, that is, to be afforded fair and reasonable
opportunity to counter any allegation made against him.13
What then constitutes lack of “bona fide” intention to run?
There are several manifestations of a person’s lack of bona fide intention to run and among
the most obvious ones are the use of ridiculous titles or nicknames to put the elections in mockery.
A then 51-year-old missionary, Robert John Ygonia, who went by the moniker Archangel Lucifer
filed his certificate of candidacy for President for the 2016 elections.14 In interviews, he referred to
himself as the “chosen one” to lead the country15. In the same presidential elections, Allan Carreon
filed his COC and publicized himself as the intergalactic space ambassador.16 He claimed to be in
contact with aliens from whom he receives political advice. Another manifestation of an intention
to make a mockery of the election is the forwarding of an absurd platform of government. A retired
school teacher, Marita Arilla, filed his COC for president as an independent candidate and claimed
to turn the Republic of the Philippines into an absolute monarchy for God.17
Another easily discernible instance of lack of bona fide intention to run is the filing of
10  PHIL. CONST. art. II, § 26.
11  Pamatong v. Commission on Elections, G.R. No. 161872, 427 SCRA 96 (2004).
12  OMN. ELECTION CODE, § 69.
13  Timbol v. Commission on Elections, G.R. No. 206004, 751 SCRA 456 (2015).
14  Agence France-Presse, Space Ambassador, Lucifer Among Philippines’ Presidential Hopefuls, INQUIRER, Oct. 15, 2015,
available at https://newsinfo.inquirer.net/731273/space-ambassador-lucifer-among-philippines-presidential-hopefuls
(last accessed Dec. 19, 2021).
15  Id.
16  Id.
17  Id.
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COC by one who has a similar name with that of another candidate to cause confusion among the
voters. In Bautista v. COMELEC, the Supreme Court upheld the decision of the COMELEC to
declare Edwin Bautista as a nuisance candidate because he was running under the name of Edwin
“Efren” Bautista for a mayoralty position in the 1998 elections against Cipriano “Efren” Bautista
even though the former is really known as “Boboy” or “Boboy Tarugo”.18
In Martinez III v. House of Representatives Electoral Tribunal, one Edilito C. Martinez, a
“habal-habal” driver, filed his COC for Representative in the Fourth Legislative District of Cebu
Province against Celestino Martinez III.19 As a result of the similarity of their names, there were
a total of 5,401 votes that were considered as stray because it was impossible to determine whose
candidate those votes were for. In the end, the Supreme Court allowed those stray votes to be
credited to Celestino Martinez III because it declared Edilito C. Martinez as a nuisance candidate
for his failure to file an answer after a petition to declare him as a nuisance was filed.20 The Supreme
Court said that Edilito’s disappearance after filing his COC clearly shows a lack of bona fide
intention to run for the office for which he filed his COC.21
Lack of Financial Capacity is Not Lack of bona fide Intention to Run
The COMELEC has long been equating lack of financial rigor of waging a nationwide
campaign to lack of bona fide intention to run. In October 2015, there was a record-high number
of 130 Filipinos who filed certificates of candidacy for president in the 2016 Presidential elections.22
Among the eight (8) presidential candidates who made it to the COMELEC’s initial list was
Dante “Don Dan” Valencia, an independent candidate who is a civil engineer and networker by
profession. He was, later on, dropped from the list after the COMELEC en banc issued a resolution
declaring him as a nuisance candidate for failure to show sufficient proof that he could mount a
nationwide campaign.23 Moreover, the COMELEC en banc noted that his vie for the presidency
as an independent candidate further decreases his capability to launch a nationwide campaign with
even more limited resources at his disposal.24
In the same election period, Rizalito David, a broadcaster, filed his COC for president but
was declared as a nuisance candidate for failure to show clear proof that he can wage a nationwide
campaign.25 David argued that neither the Constitution nor the Omnibus Election Code provides
for a minimum amount needed to launch a presidential campaign.26 He further argued that such
additional requirement is discriminatory to people like him who do not have the money and power
from running although they really have a bona fide intention to do so.27
In Pamatong v. COMELEC, the certificates of candidacy for President of petitioner
18  Bautista v. Commission on Elections, G.R. No. 133840, 298 SCRA 480 (1998).
19  Celestino A. Martinez III v. House of Representatives Electoral Tribunal, G.R. No. 189034, Jan. 11, 2010, available
at https://www.chanrobles.com/scdecisions/jurisprudence2010/january2010/189034.php (last accessed Dec. 19, 2021).
20  Celestino A. Martinez III v. House of Representatives Electoral Tribunal, G.R. No. 189034, Jan. 11, 2010, available
at https://www.chanrobles.com/scdecisions/jurisprudence2010/january2010/189034.php (last accessed Dec. 19, 2021).
21  Id.
22  Paterno Esmaquel II, Presidential Bets Mendoza, Valencia in Draft Ballot, RAPPLER, Jan. 21, 2016, available at
https://www.rappler.com/nation/elections/comelec-list-presidential-candidates-ballot (last accessed Nov. 21, 2021).
23  Id.
24  Rose-an Jessica Dioquino, COMELEC en banc Upholds Nuisance Tag on Dante Valencia, GMA NEWS, Jan. 28,
2016, available at https://www.gmanetwork.com/news/news/nation/553112/comelec-en-banc-upholds-nuisance-tag-
on-dante-valencia/story/ (Accessed Nov. 21, 2021).
25 
26 
27 
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Elly Pamatong, along with 35 others, for the 2004 national elections were denied due course by
the COMELEC.28 They were declared as nuisance candidates because they could neither wage
a nationwide campaign nor were they backed by a registered political party with a national
constituency. Pamatong disputed this decision arguing that “he possesses all the constitutional and
legal qualifications for the office of the president, he is capable of waging a national campaign since
he has numerous national organizations under his leadership, (and) he has the capacity to wage an
international campaign since he has practiced law in other countries.”29 However, his seemingly
legitimate intention to run for public office is not enough for the Supreme Court to reverse the
decision of the COMELEC declaring him a nuisance candidate.
The Supreme Court upheld the constitutionality of the two additional grounds for
the imposition of disqualification set forth by the COMELEC in this case, namely: 1) lack of
financial rigor to run a nationwide campaign; and 2) lack of support from a political party.30 The
constitutionality of the said grounds rests on the argument that they do not violate the equal
protection clause because they apply to everybody equally without discrimination.31 All those
who filed their COC for president were assessed using the subject standards and Pamatong was,
according to the determination of the COMELEC, one of those who failed to meet them and
hence, a nuisance candidate. However, the requirement of financial capabilities is akin to a financial
requirement that was already declared by the Supreme Court in an earlier case as unconstitutional
for being a property requirement.32
While it is true that the State has a compelling interest to ensure that its electoral exercises
are rational, objective, and orderly by declaring as nuisance candidates those who lack capabilities
to run a viable campaign, such objectives should not be achieved by arbitrary means.33 In Bullock
v. Carter, the U.S. Supreme Court held that the Texas statute requiring the payment of a filing fee
as high as $8,900 is an arbitrary means to achieve the legitimate interest of the State to limit the
number of candidates.34 To be constitutional, the means adopted must be germane to or must bear
some relevance to the purpose of the legislation, to wit:
“To say that the filing fee requirement tends to limit the ballot to the more serious
candidates is not enough. There may be well some rational relationship between a
candidate’s willingness to pay a filing fee and the seriousness with which he takes his
candidacy, but the candidates in this case affirmatively alleged that they were unable, not
simply unwilling, to pay the assessed fees.”35
In Maquera v. Borra, the Supreme Court declared as unconstitutional Republic Act 4421
which requires all candidates for national, provincial, city, and municipal offices to “post a surety
bond equivalent to the one-year salary or emoluments of the position to which he is a candidate.”36
Such was declared unconstitutional on two grounds: first, the said law prevents qualified candidates
from running on the sole basis that they cannot pay the premium; and second, it imposes an
additional requirement (property qualification) in order that a person could run for public office
and that the people could validly vote for him.37 Hence, the privilege to be voted for a public office
shall not be made to depend on the wealth of a candidate, or on his ability to meet the required
28  Pamatong, 427 SCRA 96.
29  Id.
30  Pamatong, 427 SCRA 96.
31  Id.
32  Maquera v. Borra, G.R. No. L-24761, 15 SCRA 7 (1965).
33  Bullock v. Carter, 405 U.S. 134 (1972).
34  Id.
35  Id.
36  Maquera, 15 SCRA 7.
37  Id.
206
surety bond as in this case, because such is a property requirement that is contrary to the country’s
democratic and republican character, to wit:
“That said property qualifications are inconsistent with the nature and essence of the
Republican system ordained in our Constitution and the principle of social justice
underlying the same, for the said political system is premised upon the tenet that
sovereignty resides in the people and all government authority emanates from them,
and this, in turn, implies necessarily that the right to vote and to be voted for shall
not be dependent upon the wealth of the individual concerned, whereas social justice
presupposes equal opportunity for all, rich and poor alike, and that, accordingly, no
person shall, by reason of poverty, be denied the chance to be elected to public office.”38
Moreover, in Marquez v. COMELEC, the Supreme Court further held that “a candidate’s
financial capacity to sustain the rigors of waging a nationwide campaign does not necessarily equate
to a bona fide intention to run for public office.” In this case, Norman Marquez was among the 70
senatorial candidates who were declared by the COMELEC as nuisance candidates because they
failed to prove financial capacity to sustain the financial rigors of waging a nationwide campaign. 39
Marquez claimed that while he intended to run as an independent, he could still wage a nationwide
campaign through the use of social media that will render unnecessary the need for highly cash-
dependent campaigns that characterize traditional election campaigns. Hence, the true test of the
genuineness of candidacy is not one’s financial capacity.40
The COMELEC, therefore, cannot condition a person’s privilege to seek for elective office
on the candidate’s financial capacity to wage a nationwide campaign because to do so would be an
imposition of a property requirement which is violative of the Constitution. More so, it cannot use
a candidate’s lack of financial capacity to mount a nationwide campaign as a ground to declare one
a nuisance candidate. It is worthy to note that even the Omnibus Election Code does not specify
such requirements.
House Bill No. 9557 and Senate Bill No. 726, a critique
In the goal of further deterring the evil of comic nuisance phenomenon and upholding
the integrity of the elections, two pending bills in Congress propose to adopt a more stringent
measure of penalizing those who will be declared nuisance candidates by the COMELEC with a
fine. On the one hand, Senate Bill No. 726, otherwise known as An Act Amending Sections 69,
261 (CC) and 264 of Batas Pambansa Blg. 881, adds another ground for declaring one a nuisance
candidate and thus expanding the list enumerated under Sec. 69 of the Omnibus Election Code,
to wit:
Section 1. Section 69 of Batas Pambansa Blg. 881, as amended, is hereby
further amended to read as follows:
“Section 69. Nuisance Candidates. – The Commission may, motu
propio or upon a verified petition of an interested party, after due notice and hearing,
refuse to give due course to or cancel a certificate of candidacy, if it is shown that said
certificate has been filed under any of these circumstances:
1. To put the election process in mockery or disrepute;
2. To cause confusion among the voters by the similarity of the names of the
registered candidates;
3. To obtain money, profit, or any other consideration; or
4. By any other circumstance or acts which clearly demonstrate that the
candidate has no bona fide intention to run for the office for which the certificate of
candidacy has been filed and thus prevent a faithful determination of the true will of the
electorate.”41
38  Id.
39  Norman C. Marquez v. Commission on Elections, G.R. No. 244274, Sept. 3, 2019, available at https://sc.judiciary.
gov.ph/8153/ (last accessed Nov. 18, 2021).
40  Lubin v. Panish, 415 U.S. 709 (1974).
41  An Act Amending Sections 69, 261 (CC) and 264 of Batas Pambansa Blg. 881, Otherwise Known as the Omnibus
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Senate Bill No. 726 further amends the Omnibus Election Code by making it an election
offense to be declared as a nuisance candidate and thus imposing a penalty of P50,000.42 This bill
supposedly aims to strengthen the Omnibus Election Code to address the state’s compelling interest
in minimizing, if not eliminating, logistical hardships brought by the growing number of people
who file their certificates of candidacy to make a mockery of the election process. The bill adds
another ground for declaring one a nuisance candidate, namely, one who will file his COC to
obtain “money, profit, or any other consideration”.43 However, such an attempt to expand the
coverage of the Omnibus Election Code does not address the problem of arbitrary determination
by the COMELEC of those who have, and those who lack a bona fide intention to run. There is a
need to operationalize what lack of a bona fide intention to run means. Otherwise, those who lack
social connections and economic capacity will remain at a grave disadvantage.
On the other hand, House Bill No. 9557, also known as An Act Providing an
Efficient Procedure for Declaring a Nuisance Candidate, a counterpart measure in the House of
Representatives, proposes a heavier fine of at least P100,000.44 These bills, when passed into law,
will amend the Omnibus Election Code.
Senator Sherwin Gatchalian, the proponent of Senate Bill No. 726, said that “any effort
which aimed to sow confusion and mock the elections will never be acceptable” and hence, those
candidates who would later be declared a nuisance by the COMELEC “should be held liable
for their act”.45 However, the imposition of the proposed penalty further perpetuates the elitist
character of Philippine elections because it will make impoverished but well-meaning candidates
more hesitant to file their COCs for fear of being deemed nuisance candidates and consequently
being struck with a fine.46 Those at the lowest bracket of the socio-economic ladder like farmers,
security guards, and the like, who best represent the sector which they are part of, will be more
discriminated against when it comes to opportunities for running for public office.
Analysis, Conclusion, and Recommendation
We often hear about nuisance candidates come election time. For many, they are just a
comic phenomenon during election season that serves no purpose other than to make a mockery
of the election process. While it is important to determine and subsequently remove their names
from the ballots so as not to prevent the faithful determination of the true will of the electorate, it is
equally important to ensure that the limitations set forth by the Omnibus Election Code are equally
and unequivocally applied to all aspirants pursuant to the equal protection clause.
The country needs a law that would balance the state’s interest for the proper conduct
Election Code of the Philippines, As Amended, and for Other Purposes, S.B. No. 726, § 1, 18th Cong., 1st Reg. Sess.
(2019).
42  Id. § 3.
43  Id. § 1.
44  An Act Providing An Efficient Procedure For Declaring a Nuisance Candidate and Imposing Stiffer Penalties On the
Nuisance Candidate And Any Person Who Has Caused The Filing of A Nuisance Candidate’s Certificate of Candidacy,
Amending for the Purpose Section 69 of Batas Pambansa Bilang 881, As Amended, Also Known As The Omnibus
Election Code of the Philippines, H.B. No. 9557, § 1, 18th Cong., 2nd Reg. Sess. (2021).
45  Bernadette Tamayo, Gatchalian Pushes Bill vs Nuisance Candidates, MANILA TIMES, Oct. 12, 2021, available at https://
www.manilatimes.net/2021/10/12/news/national/gatchalian-pushes-bill-vs-nuisance-candidates/1818084?utm_
campaign=magnet&utm_source=article_page&utm_medium=related_articles (Last accessed Dec. 7, 2021).
46  Gabriel Pabico Lalu, Undemocratic? Bill Setting Rules against Nuisance Bets Gets House Nod, INQUIRER, Aug. 24,
2021, available at https://newsinfo.inquirer.net/1478041/bill-setting-procedure-for-declaring-nuisance-candidates-gets-
house-nod (last accessed Dec. 7, 2021).
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of the elections and the right of the people to choose among qualified candidates. On the one
hand, nuisance candidates are evils that the government has the power to regulate. It can pass laws
that will ensure the proper and orderly conduct of the elections by limiting the number of official
candidates only to those who would not be declared a nuisance. However, such regulation should
not be at the expense of those impoverished but well-meaning candidates who may be easily and
arbitrarily declared as a nuisance on account of their lack of wealth. On the other hand, pursuant
to the principle of democracy, the Constitution safeguards the right of the electorate to freely
choose from all qualified candidates for public office. The State should not hinder the electorate
from having a set of candidates that truly represents various sectors of the society. It is high time
that the State allows measures that will give the rich and the poor an equal chance to be elected to
public office.
The Omnibus Election Code, specifically the provision on Nuisance Candidates, requires
an amendment that will not only recognize the state’s interest to have electoral exercises that are
rational, objective, and orderly but one that will also accommodate the constitutional right of
the electorate to choose among qualified candidates. The balance between these two important
considerations, however, is sought neither by Senate Bill No. 72647 nor by House Bill No. 9557.48
In fact, they only give weight to the state’s interest because the imposition of fines further bars
qualified but poor political aspirants from entering public life thus concentrating opportunities for
public office to the elites who already dominate the country’s traditional political system.
To achieve genuine reform of the elitist election that the Philippines has, the Legislature
has to revisit the meaning of bona fide intention to run and to adopt new measures that will fairly
and effectively assess such intention. This paper has established that financial capacity to mount
a campaign is not the true test to determine bona fide intention to run. A more effective measure
would be an examination of a candidate’s sectoral representation and the works and campaigns he
has done in the past to further the advocacies of such sector. Moreover, the COMELEC also has to
look into the platforms or agenda of political reforms that candidates seek to pursue.
Indeed, the authenticity of a candidate’s intention to run for public office is best assessed
through a serious, deliberate, and well-crafted program of government that he would implement
when elected. A poor candidate who has a genuine intention to run equipped with a well-thought-
out platform ought to carry more weight than a well-connected and wealthy candidate who files a
COC half an hour before the deadline.
47  S.B. No. 726.
48  H.B. No. 9557.
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Clearing Clogged Court Culture: Decongesting Dangers in the Philippine Democracy
Arjuna Debi Roxas
Double Discrimination
Rarely is the concept of democracy associated with the marginalized sectors of society.
Democracy derived its etymology from the Greek words demos which means “people,” and kratos
which means “rule.”1 Two of the fundamental principles of a democracy and republic is the rule
of the majority and representation.2 This perhaps is one of the reasons vulnerable sectors’ standing
and situation in the society hardly counts, if not at all directly correlated as an indicator of genuine
democracy.
The Economist Intelligence Unit’s (EIU) Democracy Index which measures the state
of democracy in 167 countries and territories—166 of which are sovereign states and 164 are
UN member states—grouped the questions and indices into five categories: electoral process and
pluralism, civil liberties, functioning of government, political participation, and political culture. 3
Aside from the ranking, it classifies each country into the following regime types: full democracies,
flawed democracies, hybrid regimes, and authoritarian regimes.4
To illustrate the assertion of the elusive link between democracy and the marginalized
sector’s footing, this article will focus and take the case of one of the marginalized sectors in
the society, the Persons Deprived of Liberty (PDL), and their perennial plight in the delayed
administration of justice. In examining the questionnaire under the category of civil liberties, and
functioning of government in the Democracy Index, noticeable is the fact that no single question as
to the quality of the administration of justice, and the people’s confidence and trust in such a system
was asked. In a similar manner, no direct indicator was mentioned nor gauged on the station and
condition of PDL with respect to their limited, nonetheless guaranteed civil liberties as members
of the society.
Some of the sample questions and indicators in the Democracy Index which in one way
or another may apparently or indirectly touch on but still digress to the correlation are as follows:
(1) “Do institutions provide citizens with the opportunity to petition the government to
redress grievances?”
(2) “The degree to which the judiciary is independent of government influence.”
(3) “The degree to which citizens are treated equally under the law.”
(4) “Popular perceptions on human rights protection; proportion of the population that
think that basic human rights are well-protected.”
(5) “Extent to which the government invokes new risks and threats as an excuse for
curbing civil liberties.”5
Interestingly, while the independent judicial mechanism as an indicator was measured in
the said index, the specifics as to the effective and efficient dispensation of justice are not inquired
upon. For instance, there is no way that the inordinate and unconscionable delay in the trial of
1  Britannica, Democracy, available at https://www.britannica.com/topic/democracy (last accessed Dec. 22, 2021).
2  San Jose State University, Principles of Democracy, at 59, available at https://www.sjsu.edu/people/ken.nuger/courses/
pols120/Ch-3-Principles-of-Democracy.pdf (last accessed Dec. 22, 2021) [https://www.sjsu.edu/people/ken.nuger/
courses/c6/].
3  Laza Kekic, Democracy Index 2006, in THE ECONOMIST INTELLIGENCE UNIT’S INDEX OF DEMOCRACY
3 (Economist Intelligence Unit., 2006).
4  The Economist, Democracy Index 2015, in THE ECONOMIST INTELLIsGENCE UNIT’S INDEX OF
DEMOCRACY 4 (Economist Intelligence Unit., 2015).
5  Id.
210
cases and the detention of the accused—which in worse cases, may last up to the full maximum
sentence imposable for a certain crime, and in the worst of cases, may go beyond the full maximum
sentence imposable had the accused been found guilty, only for him/her to be adjudged innocent
in the promulgation—can be assessed.
As democracy can be perceived to have been disentangled with the oppressed minorities
in the society, it is almost inconceivable for people who are free—at least in the sense that they are
not behind bars—to think about the everyday predicament, let alone the civil and political rights
of those who are detained awaiting judgment, and convicted PDL. As considered “social ills” of
society, to say that the discrimination to this sector is doubled would be an understatement.
In the hopes to propose that the status of the PDL and other marginalized sectors of the
society be used as an indicator in the democracy index, an attempt to contextualize the current
situation of jails and clogged courts in the Philippines; lay down the causes and repercussions of
such a situation; examine existing laws, statutes, rules and regulations in the country and compare it
vis-a-vis international standards and foundation was made—all geared towards revisiting and giving
a deeper sense and meaning to the concept of a genuine and more inclusive democracy.
The Elephant in the Room
A Person Deprived of Liberty (PDL), as defined by the Implementing Rules and Regulations
(IRR) of Republic Act 10575, or The Bureau of Corrections Act of 2013, refers to a “detainee,
inmate, or prisoner, or other persons under confinement or custody in any other manner.”6 In
order to prevent labeling, branding, or shaming by the use of other derogatory words, the term
“prisoner” has been replaced by a more neutral phrase “Person Deprived of Liberty,” pursuant to
Article 10, of the International Covenant on Civil and Political Rights (ICCPR).7 This is consistent
with ICCPR’s call for the humane treatment of PDL “with respect for the inherent dignity of the
human person”8 among others. The said definition covers both (1) those who were convicted and
sentenced to a prison term; and (2) those who are undergoing investigation, undergoing trial, and
those awaiting final judgment.9 For purposes of this article’s discussion, the definition of PDL
will be confined in the latter meaning—those who are detained awaiting final determination of
the case. The author is of the opinion that PDL connotes more than political correctness, and
presumption of innocence for those who are yet to be tried. The emphasis is rather on the “person”
who remains to be a human being; the only difference being, in the interest of justice, that s/he
is deprived of liberty. It is one that goes to the very core of human nature—that the accused is a
person before anything else; a person in spite and despite of the allegations, and the possibility of
having committed the crime charged.
In the pursuit to link the status of the PDL with democracy, another index was examined—
the World Justice Project’s Rule of Law Index. The rule of law, being one of the tenets of democracy,
as an indicator, was further divided into eight. The last of said indicators is the Criminal Justice
System as a key aspect of the rule of law, constituting the mechanism to redress grievances and
bring action against individuals for offenses against society.10 On the criterion that the “criminal
adjudication system is timely and effective,” which measures whether perpetrators of crimes are
6  Revised Implementing Rules and Regulations of Republic Act 10575 [Bureau of Corrections Act of 2013], Republic
Act 10575, §3(u) (2013).
7  International Covenant on Civil and Political Rights art 9, signed Dec. 19, 1996, U.N.T.S 999.
8  International Covenant on Civil and Political Rights art 10, signed Dec. 19, 1996, U.N.T.S 999.
9  Bureau of Jail Management and Penology, BJMP Comprehensive Operations Manual 2015, §16 (2015).
10  World Justice Project, WJP Rule of Law Index, (country insights), available at https://worldjusticeproject.org/rule-of-
law-index/country/2021/Philippines/Criminal%20Justice (last accessed Dec.22, 2021).
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effectively prosecuted and punished; and whether criminal judges and other judicial officers are
competent and produce speedy decisions, the Philippines ranked 124th out of 139 countries and
jurisdictions in its global ranking and placed last on its regional rank in the latest survey.11 Another
criterion which measures whether the basic rights of criminal suspects are respected, including
the presumption of innocence and the freedom from arbitrary arrest and unreasonable pre-trial
detention among others, the Philippines placed 135th out of 139 countries in its global ranking,
and 13th place out of the 15 countries in the region.12
These international rankings showing the Philippines at the bottom of the spectrum do
not lie. The actual population, situation, and experience of the PDL in the Philippines would
confirm such rankings. As of May 31, 2021, the Bureau of Jail Management and Penology (BJMP)
Actual Jail Population Data provides that 90.15% of the PDL nationwide are awaiting, undergoing
court trial, or awaiting final judgment.13 The remaining percentage consists of those who were
sentenced for three years and below, and 3 years and 1 day to death.14
These numbers were further affirmed by last year’s Country Reports on Human Rights
Practices for 202015 which revealed that along with prison congestion, the persistence of a lengthy
pretrial detention continues to plague the judicial system. Of the 470 facilities in city, district,
municipal, and provincial jails of the BJMP in the country, approximately 98% of housed PDL
were pretrial detainees; the remaining 2% consists of convicted criminals serving less than three-
year sentences.16 Just like the years in detention stretched over many years, the statistics remain to
be consistently and stagnantly delayed five years ago from the latest data available.
Last 2016, the BJMP reported that between 85% and 90% of the more than 94,000
inmates in its custody are awaiting or undergoing trial for that year alone.17 This delay is mainly
attributed to the slow and ineffectual justice system.18
As if this is not a crisis in itself, the prevalence and not just the mere presence of the plight
of the PDL whose pretrial detention equates or even extends in excess of the possible maximum
sentence of the crime had the accused been convicted19 continues to reflect the broken judicial
system in the country. In other words, the accused is made to suffer a sentence without conviction,
thereby violating the guaranteed protection enshrined in the constitution of the right to be
presumed innocent20 until proven guilty beyond reasonable doubt.21
Although the law provides that cases should be resolved within three months to two years
depending on the court, trials effectively had no time limits.22 Government officials estimated that
11  Id.
12  Id.
13  Bureau of Jail Management and Penology, BJMP Actual Jail Population Data, available at https://www.bjmp.gov.ph/
images/data_and_stats/BJMP_Actual_Jail_Population_Data.jpg (last accessed Dec.22, 2021).
14  Id.
15  United States Department of State Bureau of Democracy, Human Rights and Labor,
Country Reports on Human Rights Practices for 2020 (Philippines 2020 Human Rights Report) available at https://
www.state.gov/wp-content/uploads/2021/03/PHILIPPINES-2020-HUMAN-RIGHTS-REPORT.pdf (last accessed
Dec.22, 2021).
16  Id.
17  Carlos Conde, Injustice and Misery in Ph Jails, HR ORG NEWS, Mar. 8, 2006, available at https://www.hrw.org/
news/2016/03/08/injustice-and-misery-ph-jails (last accessed Dec.22, 2021).
18  Country Reports on Human Rights Practices for 2020, supra note 15, at 12.
19  Id.
20  PHIL. CONST. art III, §14 (2).
21  2000 REVISED RULES OF CRIMINAL PROCEDURE, rule 115, §1.
22  Country Reports on Human Rights Practices for 2020, supra note 15, at 13.
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it takes an average of five to six years to obtain a decision.23 However, it is an open secret that in
a worst-case scenario, trial of cases could even last up to decades; and in some cases, only for the
accused to be acquitted. In fact, wrongly jailed professor Narag mentioned in his article, that it
takes longer for an inmate to stay in temporary detention centers and jails than in prisons.24 He
further added that the question then shifts from whether the accused was convicted or not to
whether one is bailed out or not.25 This is because for him, being denied bail in the Philippines is
tantamount to serving a sentence.26
Clogged Court Causes
Through the years, studies and insights on the causes of delay in the administration
of justice had been numerous and have encompassed a wide range of proposed approaches and
solutions. Despite the myriad of studies and proposals comprising of innovations to address such
problem, and the very presence of the constitutional provisions, statutes, rules and regulations
serving as safeguards to protect and promote the right to a speedy trial, proposals remain to be
unenacted—or at the very least adopted and implemented, albeit inefficiently or/and ineffectively.
In other words, it looks good only on paper but not in practice. Indeed, despite all these efforts, and
mechanisms, still, for every ten hearings, only two will push through—wasting scarce government
resources.27
Further, the figures continue to bombard the people with hard facts. The present jail
situation in the country is symbolic of a systemic problem facing the judiciary branch of the
government. According to the National Statistical Coordination Board (NSCB), the Philippine
judiciary faces serious difficulties in addressing case backlogs as lower courts are congested with
over a million cases every year equivalent to an average of around 4,221 cases per working day.28
This downtrend outflow of cases remains despite the decline in the total inflow of cases in the lower
courts.29 The over a million cases swamping the lower courts a year also means that each judge needs
to handle an annual caseload of 644 cases, or about three cases to be resolved each working day.30
Among the causes of delay, according to staunch human rights lawyer and judicial reform
advocate, Atty. Diokno, is the excessive number of vacancies in the judiciary.31 The unfilled vacancies
per the Office of the Court Administrator, as of February 28, 2019, were a total of 285 judgeship/
justiceship posts that are awaiting appointments from the Palace which has already lapsed the
constitutionally mandated 90 days to fill a vacancy.32 Further, there is a total of 2,617 vacancies for
trial courts nationwide awaiting an appointment from the president.33
23  Id.
24  Raymund Narag, Philippines’ Dark Secret: Lengthy Pretrial Detention RAPPLER, Oct. 19, 2018 available at https://
www.rappler.com/voices/thought-leaders/214533-analysis-lengthy-pretrial-detention-philippines-little-dark-secret/
(last accessed Dec. 22, 2021).
25  Id.
26  Id.
27  Id.
28  Louis Bacani, Courts Congested with Over 1 million Cases Yearly – NSCB PHILSTAR, Jun. 14, 2013, available at https://
www.philstar.com/headlines/2013/06/14/953927/courts-congested-over-1-million-cases-yearly-nscb (last accessed Dec.
22, 2021)
29  Id.
30  Id.
31  Lian Buan, Diokno on Ph Justice System: Too Many Vacancies in Judiciary, Lacks Transparency RAPPLER, May. 10,
2019 available at https://www.rappler.com/nation/elections/230089-diokno-says-too-many-unfilled-vacancy-lacks-
transparency-justice-system-philippines/ (last accessed Dec. 22, 2021).
32  Mike Navallo, CJ Bersamin Not Alarmed by Existing Vacancies in the Judiciary ABSCBN NEWS, Apr. 8, 2019, available
at https://news.abs-cbn.com/news/04/08/19/cj-bersamin-not-alarmed-by-existing-vacancies-in-the-judiciary.
33  Id.
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The lack of public prosecutors which continuously hounds the service is also pointed out
as one of the reasons for the delay in resolving criminal cases.34 This is validated by Justice Secretary
Guevarra’s attribution of the slow wheels of justice in the country to the shortage of government
prosecutors—explaining that addressing the shortage is necessary to expedite the resolution
of criminal complaints pending before the prosecutorial arm of the Department of Justice, the
National Prosecution Service.35 Aside from the pending appointments for judges and justices, there
are still hundreds of appointments for prosecutors that have remained pending before the Office
of the President.36
To make matters worse, aside from the shortage, the limited number of prosecutors
available were found to have been lacking the necessary expertise and training.37 This is very much
detrimental to the already overworked prosecutors hampered with severe workload as they were
spread too thin as agents in the administration of justice. Some prosecutors described and likened
their experience to being thrown into an ocean with no swimming skills.38 This is because prior
to entering the profession, they have not undergone prior training, nor is there any professional
development support while they spend decades39 learning and keeping up with the job.
In one study, other causes of delay were categorized into three: 1) those which arose from
human failures; (2) those caused by the nature of the judicial system itself; and (3) the indiscriminate
filing of cases in court.40
The first category refers to the shortcomings of people administering the judicial system
including the judges, lawyer-advocates, court personnel, prosecutors, sheriffs, defense counsel,
process servers, and others connected to or with the system which results in a sweeping delayed
resolution of cases—emanating from inefficiency, incompetence, sloth or laziness, corruption, or
conflict of interests of these officials.41
The second category belongs to the factors arising from the adversarial nature of the
judicial process and the constitutional requirements of due process of law. As the constitutional
presumption of innocence requires careful screening of criminal charges, the challenge, therefore,
is to shorten the different stages of processing without detracting from the objective of protecting
the legal rights of those drawn into the judicial process.42 Further, the study presented that the strict
procedural legality for requirements and the required net period of time for giving notices and the
preparation of pleadings also contributes to the delay. These periods are extended many times "even
for such an amorphous reason that counsel is indisposed or feeling sick.”43
34  Severino H. Gana Jr., Building a Criminal Case in the Philippines (Problems, Insights, and Proposals) available at
https://www.unafei.or.jp/publications/pdf/RS_No95/No95_VE_Gana1.pdf (last accessed Dec. 23, 2021).
35  Edu Punay, Delayed justice? Guevarra Cites Shortage in Prosecutors PHILSTAR, Jul 23, 2018 available at https://
www.philstar.com/headlines/2018/07/23/1835933/delayed-justice-guevarra-cites-shortage-prosecutors (last accessed
Dec. 22, 2021).
36  Id.
37  International Law Development Organization, Postcards from Prosecutors: Philippine Department of Justice available
at https://www.idlo.int/news/highlights/postcards-prosecutors-philippines-department-justice (last accessed Dec. 22,
2021).
38  Id.
39  Id.
40  Alfredo F. Tadiar, Unclogging the Court Dockets available at https://dirp3.pids.gov.ph/ris/taps/tapspp9926.pdf (last
accessed Dec. 22, 2021)
41  Id.
42  Id.
43  Id.
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Citing then Chief Justice Davide, Jr., the study also mentioned that the modern electronic
means of communication are not utilized to the fullest; and that when it comes to the application of
advances in technology in the legal system, the country has a lot of catching up to do.44
The last category pertains to the overuse and abuse, and misuse of the judicial remedy of
a person seeking redress of a grievance without having to go through first a more practical mode of
dispute resolution.45 This is aggravated by the presence of litigation-prone lawyers.46
Other causes include the court actors and governmental bodies’ lack of coordination and
culture of professional courtesy.47
People not just Papers
Looking at the figures, one can visualize papers or dockets piling up day by day—a fairly
acceptable or tolerable situation in a country with a government described to be “bureaucratic.”
However, these papers translate to people—lives spent inside dire inhumane conditions. In a report
published by the Commission on Human Rights (CHR), overcrowding and congestion is the
primary source of mistreatment in police lock-up cells—emphasizing that 26 of said facilities in
Metro Manila alone nearly reached 300 percent of its capacity.48
As these persons deprived of liberty are confined and cramped in a little space, with no
natural light coming in and poor ventilation inside dilapidated cells, they are left with no choice
but to stand or sit while sleeping on card boxes and makeshift hammocks attached on ceilings.49
Worse, they endure a shifting schedule just so one of them would be able to sleep.50 This is not to
mention the nonexistence or poor maintenance of toilets and sanitation, and the absence of other
essential facilities such as one that will address their medical needs.51 Such a situation is not only a
sure breeding ground for different diseases, but also a hatchery for demoralized dignity.
The most basic principle of The United Nations Standard Minimum Rules for the
Treatment of Prisoners (UNSMRTP) or the Nelson Mandela Rules, was laid out in its first rule
which states “All prisoners shall be treated with the respect due to their inherent dignity and value as
human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture
and other cruel, inhuman or degrading treatment or punishment, for which no circumstances
whatsoever may be invoked as a justification.”52 Each rule in UNSMRTP provided for the basic
standard of treatment and living conditions from the medical and recreational facilities down to
bedding and sleeping arrangement, and sanitation. Without a doubt, the Philippine jail is far from
achieving the international standards set.
Given that more than 90% of the population in jail are detainees awaiting final judgment
for an extended number of years, it is only logical that congestion could have been avoided had the
44  Id.
45  Id.
46  Id.
47 Narag, supra note 24.
48 Conde supra note 17.
49  Id.
50  Id.
51  Id.
52  United Nations Office on Drugs and Crimes, The United Nations Standard Minimum Rules for the Treatment of
Prisoners, rule 1, available at https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-
ebook.pdf (last accessed Dec. 21, 2021)
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Philippine courts been more compliant with the international standards, and its own constitutional
mandate on the basic treatment and rights of an accused in the speedy disposition of the case
against him.
Article 3, the bill of rights of the 1987 Constitution states: “In all criminal prosecutions,
the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right
to be heard by himself and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial…”53 The mandated speedy dispatch of the
case is reinforced in the same article which provides: “All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or administrative bodies.”54 It seems
that in practice, the right to a speedy trial is the most violated right of the accused yet conferred
with complacency and leniency. The challenge is to clearly define and limit what should constitute
“reasonable delay” and balance it with the objective of attaining and serving justice.
Aside from the constitutional mandate, the Philippines is also a signatory to the
International Covenant on Civil and Political Rights.55 Article 14 (3) of said covenant provides that
in the determination of any criminal charge against an accused, it is of minimum guarantee that s/
he “must be tried without undue delay.”56
Clearly, the data and actual experience of persons deprived of liberty show that the accused
is already made to suffer his/her sentence without a conviction through his prolonged detention—
another violation of the right laid out in Article 3, Section 14 (1) of the Constitution: “No person
shall be held to answer for a criminal offense without due process of law,”57 and the international
standards.
An examination of existing statutes, and rules and regulations founded upon the paramount
law of the land, the Constitution, and the international human rights instruments were also made.
The statutory mechanisms of the state to ensure a speedy and efficient hearing and disposition of
the cases include: the Speedy Trial Act of 1998, which aims to provide for a specific time limit for
every stage of the criminal case;58 the Recognizance Law of 2012 to secure the temporary release
of any person in custody or detention for the commission of an offense who is unable to post bail
due to abject poverty;59 Republic Act No. 9285 or the Alternative Dispute Resolution (ADR) Act
of 2004 which actively encourages and promotes the use of ADR as an important means to achieve
speedy and impartial justice and de-clog court dockets;60 and as well as ADR through Katarungang
Pambarangay.61
In his paper, Atty. Gana, Jr. enumerated some of the judicial mechanisms in place for
a more efficient and speedy criminal trial, and are as follows: provisions on the Rules of Courts
which makes it mandatory for all cases to undergo pre-trial proceedings; Court Annexed Mediation
(CAM) proceeding or Judicial Dispute Resolution (JDR); A.M. No. 12-11-2-SC or the Guidelines
53  PHIL. CONST. art III, §14 (2).
54  PHIL. CONST. art III, §16.
55  International Covenant on Civil and Political Rights art 14 (3), signed Dec. 19, 1996, U.N.T.S 999.
56  Id.
57  PHIL. CONST. art III, §14 (1) 3.
58  See generally An Act to Ensure a Speedy Trial of All Criminal Cases Before the Sandiganbayan, Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court, and Municipal Circuit Trial Courts [Speedy Trial Act of 1998], RA
8493 (1998).
59  See generally An Act Institutionalizing Recognizance as a Mode of Granting the Release of an Indigent Person in
Custody as an Accused in a Criminal Case and for Other Purposes [Recognizance Law of 2012], RA 10389 (2012).
60  See generally An Act to Institutionalize the Use of an Alternative Dispute Resolution System in the Philippines and to
Establish Office for Alternative Dispute Resolution [Alternative Dispute Resolution Act of 2004] (2004).
61  See generally An Act Providing for a Local Government Code. [Local Government Code of 1991] (1991).
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for the Decongestion of Holding Jails by enforcing the rights of the accused to bail and to speedy
trial; AM No. 15-10-06-SC, the Revised Guidelines for Continuous Trial; A.M. 12-8-8 SC, the
Judicial Affidavit Rule; and A.M . No. 08-8-7-SC, the Rule on Small Claims.62
Additionally, he also enumerated out-of-court mechanisms that have been employed in
the hopes to speed up the case disposition rate. These include the Case Flow Management (CFM)
Program, together with the subsequent Case Administrator Information System (CAMIS), the
Hustisyeah! Project, and the Enhanced Justice on Wheels (EJOW).63
With the safeguards in place through the existence of numerous laws and initiatives
through the years, which aims to have a more efficient disposition of cases, the resolve to combat the
longstanding delay of litigation is manifest—albeit characterized by a lukewarm or hot-and-cold
reception and resolution resulting in the stagnant state of the judicial disposition of cases—as latest
data still shows that unwarranted delays continue to persist. Stricter and better implementation of
numerous, already good, existing laws and rules and regulations coupled with a strong accountability
mechanism is a good starting point. A multi-faceted approach involving all the stakeholders—from
enactment and enforcement to adjudication—as has been pointed out in many proposals can be
revisited, keeping in mind that people with rights and lives are involved. The enactment of new
laws, which will not be thoroughly implemented and monitored is only impractical, expensive, and
futile.
In addition, any step towards judicial reforms must be fact-based whether that be an
attempt to enact a law, or streamline a procedure among other initiatives. For instance, the numerous
vacancies in the prosecution and judgeship could have been easily addressed had the government
been more critical of the hard facts. Equipping the prosecutors with the needed skills and training
can speed up the dispensation of cases rather than breed complacency and incompetence which
furthers the delays. Logically, congestion in cells could have been avoided too had the PDL been
tried swiftly, but conscientiously.
The clogged court culture should not be accepted nor tolerated when the state is all-
knowing of the numbers, causes, effects, and mechanisms to drive the nation out of this threat.
Decongesting Dangers
The desperate situation of persons deprived of liberty is an elephant in the room—an
obvious and too-enormous-not-to-notice problem but is evaded to be acknowledged and is only
resolved on a surface level.
The right to be presumed innocent until proven guilty, the right to a speedy trial, and
the proverbial “justice delayed is justice denied” are not hollow words. Rather, these constitute the
tenets and very foundation of what the people hold so dear—the long-fought-for democracy free
62 Gana supra note 34, 36
63  Id.
217

from exclusion and any form of unwarranted oppression. For as long people will not find anything
problematic with the provision that states: “Whenever an accused has undergone preventive
imprisonment for a period equal to or more than the possible maximum imprisonment of the
offense charged to which he may be sentenced and his case is not yet terminated, he shall be released
immediately without prejudice to the continuation of the trial thereof or the proceeding on appeal,
if the same is under review.”64 Among other laws, when such must not be existent to begin with, the
delay in the administration of justice will be an impasse incapable of a genuine resolution.
While prudence dictates that it is counterintuitive to have gone through the rigors of a
delayed and inefficient trial for years, while already being made to serve and suffer the penalty to
which the trial is precisely for, empathy dictates that the right to basic human dignity should not
be begged for, and that basic human decency protected by one’s rights should not be taken away
from any person. The agony and affliction of people serving their sentence prior to conviction are
unimaginable. This said, the pursuit of justice for one party at the expense of another’s justice is a
disservice and a serious threat to democracy.
The repercussions of time spent behind bars are not only costly but are irreparable. Thus,
the state in the pursuit of justice must temper its mechanisms by considering the rights of an
accused. Shifting the focus from merely improving the process to one which is human-centered,
one that accounts for a person whose very life and liberty are at stake, can ultimately be a game-
changer.
Excluding the most vulnerable in society is hypocrisy for it is inconsistent with the notion
of a free and equal society. Desensitization to injustice is not only a mockery but an impending
prologue towards the death of genuine democracy. Experience has shown people that this precise
situation has been a perennial problem since time immemorial. The vicious cycle of unending delay
can last a generation to resolve robbing a person of his/her very life; and the state of the proper
opportunity to litigate while memory, evidence, and people such as witnesses are still credible for
having been preserved by the essence of time. This said, it is a threat that is seemingly a non-issue, but
which poses a serious danger to the rule of law, and ultimately to the people’s concept, perception,
and realization of democracy—a government supposedly of, for, and by the people. Forwarding
this judicial reform will decongest the danger that could afflict any abiding and innocent citizen.
In a democratic society where the majority are desensitized to the plights of the
marginalized, can it be said that one who has witnessed the height of injustices and remained silent
and has done nothing as truly “free?”
64  The Revised Penal Code of the Philippines with Special Penal Laws, [REVISED PENAL CODE], Republic Act 3815,
§29 (1932).
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The Relationship between the Criminalization of Abortion and Its Impacts on the
Reproductive Autonomy of Filipino Women
Patricia Ann P. Salvador
Introduction
There has always been a debate over when a baby is considered born. Yet, it is still difficult,
even for medical professionals, to pinpoint exactly when a fetus is considered to be regarded truly as
a human being. Meaning, when it has the right to live and its termination becomes akin to murder.
Thus, it has remained a moral dilemma as to whether abortion is either the killing of an unborn
child or a right of a woman over her body.
Abortion is the ending of pregnancy using surgery or pills. It is performed generally
because the woman does not want to continue such pregnancy due to personal reasons, such as she
may have a medical condition that makes pregnancy dangerous, or the fetus itself is facing a serious
condition.1 It is the last option of birth control for a woman who cannot afford to be pregnant.
However, the Philippines does not allow abortion in all circumstances, except for the sake
of saving the woman’s life.2 Under the Philippine legal system, it is clear that many policies protect
the unborn child from the moment of fertilization – which is to be discussed in this paper. Once
a woman becomes pregnant, her only legal option is to carry it out until full term unless she can
prove it to be harmful to her health.
The stigma of contraceptive use also results from the criminalization of abortion as they
are often mistaken to be the same thing by a portion of society. Additionally, contraceptive use is
not as widespread in the Philippines as it should be due to legal and social barriers. Women, then,
are more likely to experience unplanned pregnancies, further driving them to seek abortion despite
the risk of imprisonment. Thus, the goal of this paper is to analyze the criminalization of abortion
in the Philippines on the reproductive autonomy of women in the nation, and how penalization of
the act itself can be detrimental to the women it wants to protect.
Philippine Reproductive Health Law: Protecting the Unborn
The Responsible Parenthood and Reproductive Health Act of 2012 (Republic Act No.
10354), or the Reproductive Health (RH Law), is the most important statute governing the legal
status of reproductive health in the Philippines. Despite its noble aim of promoting the reproductive
health of Filipinos through education and easier access to important medical processes, the RH
Law was met with heavy criticism during its passage. The divisiveness in opinions among different
groups led to its constitutionality being questioned by the Supreme Court (SC) in the landmark
case Imbong v. Ochoa.3
The RH Law heavily prioritizes protecting the unborn child. In fact, it mandates, through
its declaration of policy, the equal protection of the life of the mother and the life of the unborn
from conception as one of the main duties of the State, following Section 12, Article II of the
1987 Philippine Constitution. Here, it was reiterated that the health of the unborn child is just as
important as his mother, thus it can be interpreted that terminating the pregnancy and sacrificing
the unborn child is a valid exchange for the safety of his mother. The duty of the RH Law to protect
them both is as strong as its duty to:
1  Everyday Health., What is Abortion, available at https://www.everydayhealth.com/abortion/guide/ (last accessed
December 20, 2021).
2  Geluz v. Court of Appeals, G.R. No. L-16439, 2 SCRA 801 (1961)
3  Imbong v. Ochoa G.R. No. 204819, 721 SCRA 146 (2014).
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1. Protect and strengthen the family as a basic autonomous social
institution;
2. Protect and promote the right to health of women, especially
mothers;
3. Promote women's rights and gender equality;
4. Protecting the welfare of children; and
5. Respect family planning, according to not only their lifestyle but
also their religious beliefs.4
The RH law also aims to guarantee universal access to medically safe, non-abortifacient,
effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies
that do not prevent the implantation of a fertilized ovum as determined by the Food and Drug
Administration (FDA) and relevant information and education thereon according to the priority
needs of women, children and other underprivileged sectors.5 This goal aligns clearly with its
policy of protecting the life of the unborn child. Under the RH Law, an abortifacient is defined as
any drug or device that induces abortion or the destruction of a fetus inside the mother’s womb
or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb upon
determination of the FDA6.
Despite the RH law’s general stance against the legalization of abortion, it strongly
prioritizes proper medical care for women who do end up pursuing the action to terminate
their pregnancies illegally. It states that while the act itself “recognizes that abortion is illegal and
punishable by law, the government shall ensure that all women needing care for post-abortive
complications and all other complications arising from pregnancy, labor and delivery, and related
issues shall be treated and counseled .”7 The RH Law will not bar any woman from pursuing
necessary services just because she chooses to abort her child for all sorts of reasons, including those
that are considered “illegal”.
Since abortion remains an illegal procedure, the government has also limited its preventive
measures in dealing with the problem of unwanted pregnancies. The measures allowed by law for
the chance of reducing unintended pregnancy are:
1. Providing age and development-appropriate reproductive health education to
adolescents;8
2. Dispensation of condoms, injectables, and oral contraceptive pills, which
prevent pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother’s womb, at barangay health
stations;9 and
3. Promotion and provision of information and access, without bias, to all modern
methods of family planning, whether natural or artificial. It shall take into
account the needs of acceptors and their religious convictions.10
Abortion as a Crime
The illegality of this act is rooted in the 1987 Constitution. It was the clear intent of the
4  An Act Providing for a National Policy Responsible Parenthood and Reproductive Health [The Responsible Parenthood
and Reproductive Health Act], Republic Act No. 10354, § 2 (2012).
5  Id.
6  The Responsible Parenthood and Reproductive Health Act, § 4(a).
7  Id. § 3(j).
8  The Responsible Parenthood and Reproductive Health Act, § 14.
9  Department of Health, Revised Rules and Regulations Implementing The Responsible Parenthood and Reproductive
Health Act of 2012, Republic Act No. 10354, § 5.03, 3.01 (2013).
10  Id. § 2.01 (h).
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framers to “equally protect the life of the mother and the life of the unborn from conception.”11 The
framers intended to create this provision to bar future laws from legalizing abortion, even abortion
to protect the mother’s health, from ever being passed by Congress.
The detailed criminalization of abortion is found specifically in the Revised Penal Code
(RPC). Under the RPC, illegal abortion can be committed in different ways and forms. First, there
is abortion done by a person to another woman, which can be either intentional or unintentional.
Under the RPC, the crime of intentional abortion is committed by the person if:
1. He shall use any violence upon the person of the pregnant woman;
2. Without using violence, he shall act without the consent of the
woman; and
3. He shall act with the consent of the woman.12
In the third case, not only is the person who committed abortion liable but also the woman
who consented to the intentional abortion.13 On the other hand, any person who shall cause an
abortion by violence, albeit unintentionally, will be punished under the crime of unintentional
abortion to which only the person who caused harm can be made liable.14
The second form of abortion is abortion practiced by the woman herself or her parents.
The pregnant woman is penalized under this crime if she practices an abortion upon herself, gives
consent to a third person to do it for her, or consents to any or both of her parents to do the act
as a way of concealing her dishonor.15 Lastly, there is abortion practiced by a physician or midwife
and dispensing of abortive. In this crime, only the physician or midwife can be punished, not the
pregnant woman. Any pharmacist, who without the proper prescription from a physician, shall
dispense any abortive shall also be punished.16
So far, therapeutic abortion is the only legal form of abortion in the Philippines.
Therapeutic abortion is generally abortion conducted to save the woman’s life or prevent her from
experiencing debilitating conditions in the future.17 It is recognized that therapeutic abortion is
allowed to save the life of the woman.18
Philippine Reproductive Health Law and the Issue of Right to Privacy
In the Philippines, the constitutional right to privacy is the right of a person to be free
from unwarranted interference by the public in matters which do not necessarily concern the
public.19 Thus, it can also include the right of a person to have control over their own body when
it comes to reproductive and sexual matters. Under previous jurisprudence, the right to privacy is
the right of the individual, married or single, to be free from unwarranted governmental intrusion,
into matters so fundamentally affecting a person as a decision whether to bear or beget children.20
11  PHIL. CONST., art. II, § 12.
12  An Act Revising the Penal Code and other Penal Laws [REV. PENAL CODE], art. 256 (1930).
13  LUIS B. REYES, , THE REVISED PENAL CODE: CRIMINAL LAW BOOK TWO 544 (19th ed. 2017)
14  REV. PENAL CODE, art. 257.
15  REV. PENAL CODE, art. 258.
16  Id. art. 259.
17  132 Healthwise, What is Theraputic Abortion, available at https://www.132healthwise.com/what-is-a-therapeutic-
abortion.php (last accessed December 20, 2021)
18  Tonette Orejas, Duterte told: Therapeutic Abortion Allowed to Save Women’s Lives, July 26,2017, INQUIRER,
available at https://newsinfo.inquirer.net/917566/duterte-told-therapeutic-abortion-allowed-to-save-womens-lives (last
accessed February 11, 2022)
19  Khersien Y. Bautista and Llewellyn L. Llanillo. Zones of Privacy: How Private?, July 26, 2021, DEFENSE COUNSEL
JOURNAL, available at https://www.iadclaw.org/defensecounseljournal/zones-of-privacy-how-private/ (last accessed
February 11, 2022)
20  Irene R. Cortes, Population and Law: The Fundamental Rights Aspects in the Philippine Setting, 48 PHIL. L.J. 303,
311(1973).
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The RH Law can be interpreted as a way for the government to give people the privacy of choosing
how they will have or not have children while still having oversight as a State.
Under the RH Law, these two provisions were subject to controversy:
1. A married person has the right to receive legal and medically-safe
reproductive health procedures even without the consent of their spouse.
In case of disagreement, the decision of the one undergoing the procedures
shall prevail;21 and
2. Minors are only allowed access to modern methods of family planning
without written consent from their parents or guardians if they are already
parents or have suffered a miscarriage.22
For the first provision, the petitioners argued that the provision allowing a person to
pursue reproductive health procedures like tubal ligation and vasectomy without the consent of their
spouse goes against the State’s duty to defend the right of the spouses to find a family under Section
3, Art. XV of the Constitution.23 The SC agreed and declared this provision unconstitutional.
According to the SC, the “..RH Law cannot be allowed to infringe upon this mutual decision-
making. By giving absolute authority to the spouse who would undergo a procedure, and barring
the other spouse from participating in the decision would drive a wedge between the husband
and wife, …, and endanger the marriage and the family …”24 The SC also ruled that the second
provision went against the State’s duty "to protect and strengthen the family as an inviolable social
institution."25 Parents have the natural duty of raising their children and excluding them from the
decision-making of their minor children just because they gave birth or miscarried is considered
deplorable.26
The declaration of these two provisions as unconstitutional by the SC shows that the
right to privacy in reproductive health is intertwined with the concept of the Filipino family. The
individual does have the right to choose. Yet, her choice cannot go against the wishes of her spouse
or/and her family. The need for the State to protect the right to privacy made it more difficult for
females to make autonomous decisions over their bodies in the Philippines.
One can argue that the need for a child to have parental consent to pursue modern family
planning services goes against the child’s right to privacy. Internationally, the UN Committee on
the Rights of the Child has recommended that governments ensure that children have access to
confidential medical counsel and assistance without parental consent, including for reproductive
health services. Also, “guaranteeing all adolescents, defined by the UN as persons between the ages
of 10 and 19, the right to make autonomous decisions about their sexual and reproductive health
and rights is a critical component of the right to equality and nondiscrimination.”27
Statistics in the Philippines also show that limiting the access of these services to minors or
adolescents leads to unfavorable sexual consequences such as unintended pregnancies. For example,
one of the most important modern family planning services offered under the RH Law is long-
acting reversible contraceptives (LARCs), such as intrauterine devices (IUDs) and implants, as it is
more effective in delaying pregnancy than normal condoms.28 Yet, the adolescents who need it most
21  The Responsible Parenthood and Reproductive Health Act, § 23(I).
22  Id., § 7.
23  Imbong, 721 SCRA at 349
24  Id.
25  Id. at 350
26  Id. at 351-52.
27  Humans Right Watch, Submission by Human Rights Watch to the UN Special Rapporteur on the Right to Privacy,
available at https://www.hrw.org/news/2020/10/19/submission-human-rights-watch-un-special-rapporteur-right-
privacy (last accessed Feb 4,2022).
28  Mari, Nagai, e.t. al, Opportunities Lost: Barriers to Increasing the Use of Effective Contraception in the Philippines
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cannot receive it unless their parents agree to it. Many of them do not even want to disclose sexual
activities to their parents due to the social stigma surrounding sex.29
The Philippine Statistics Authority reported in 2017 that 538 babies are being born
to teenage mothers every day, with one in ten women aged 15 to 19 years old having begun
childbearing.30 These statistics are not surprising as premarital sexual activity is rising among
teenagers. It was discovered in one study that premarital sex increased from 18% in 1994 to 23% in
2002 among young adults aged 15–24, making contraceptive use all the more important.31
On the other hand, the need for spousal consent may be difficult for women in abusive
marriages. Sexual violence between intimate partners can include acts of reproductive control. A man
can commit intimate partner violence (IPV) by using threats, physical aggression, or intimidation
to carry out actions that go against the reproductive choices or goals of the woman. He may, for
example, choose to sabotage her usage of contraceptives or pressure her to carry out a pregnancy.32 A
husband can choose to withhold his consent for a reproductive health procedure that his wife wants
out of a need for control. Additionally, “the rationale of the Court not only disregards the decision
of the wife to undergo the procedure; it has the effect of making the decision of the husband, who
opposes the procedure, prevail because, according to the Court, they must decide together.”33
Overall, the legal barriers that were imposed by the Supreme Court through the case of
Imbong v. Ochoa limited further the right of privacy of women and girls over their own bodies
in sexual matters. Since these preventive measures become less available, unintended pregnancies
become more likely to happen which further drives the need for abortion.
The RH Law instead of helping them ends up giving them more roadblocks.
Social Stigma of Contraceptive Use and Abortion
Societal beliefs have always influenced the creation and even the implementation of the
law. Abortion continues to be criminalized thanks to the strong influence of the Catholic Church
on the State. “The strength of the Catholic hierarchy’s influence in the Philippines was evident
in 1987 when Catholic bishops and leaders succeeded in making the 1987 Constitution the first
Philippines Constitution ever to recognize a government obligation to protect “the life of the
unborn from conception.”34 The stigma that abortion has received from society, as a sort of murder
of the unborn child has contributed to the stigma of contraceptive use since the latter is still seen
as an abortifacient by some due to misinformation. The World Health Organization (WHO) has
already confirmed that methods such as contraceptives cannot be labeled as abortifacients since
they do not show to cause the abortion of an implanted fetus.35 Additionally, it does not also help
(PLOS ONE Free Article July 25, 2019) available at https://journals.plos.org/plosone/article?id=10.1371/journal.
pone.0218187 (last accessed Feb 5,2022 ).
29  UNFPA, Eliminating Teenage Pregnancy in the Philippines, available at https://philippines.unfpa.org/sites/default/
files/pub-pdf/UNFPA_Policy_Brief_Teenage_Pregnancy_%282020-01-24%29.pdf (last accessed Feb 5,2022).
30  Michelle Abad, PopCom: Amend RH Law Provision on Minors’ Access to Birth Control , RAPPLER, Nov. 6, 2019,
available at
https://www.rappler.com/nation/244302-popcom-says-amend-reproductive-health-law-provision-minors-access-birth-
control/ (last accessed Feb 5,2022).
31  Guttmacher Institute, Facts on Barriers to Contraceptive Use in the Philippines, available at https://www.guttmacher.
org/sites/default/files/factsheet/fb-contraceptives-philippines.pdf (last accessed February 5, 2022 )
32  Guttmacher Institute, Understanding Intimate Partner Violence as a Sexual and Reproductive Health and Rights Issue
in the United States, available at https://www.guttmacher.org/gpr/2016/07/understanding-intimate-partner-violence-
sexual-and-reproductive-health-and-rights-issue (last accessed February 5, 2022)
33  Amparita S. Sta. Maria, Government Medical Practitioners as Conscientious Objectors: An Examination of the
Compelling State Interest and Religious Freedom in Imbong v. Ochoa Jr., 61 ATENEO L.J. 1037,1057 (2017).
34  Center for Reproductive Rights, Facts on Abortion in the Philippines: Criminalization and a General Ban on Abortion,
available at https://www.reproductiverights.org/sites/crr.civicactions.net/files/documents/pub_fac_philippines_1%20
10.pdf (last accessed Febuary 6. 2021).
35  Miriam Defensor-Santiago, Responsible Planning and Reproductive Health, 86 PHIL. L.J. 54,85 (2011).
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that artificial contraceptives are seen as morally wrong by the Church with natural family planning
being the only approved method of preventing pregnancy.36
Social stigma has also been displayed by the health care providers themselves. For example,
some of them believe that it is inappropriate for females to receive LARCs if they have never gotten
pregnant, despite there being no legal basis.37 Some women are also afraid of seeking post-abortion
care mandated under the law because of shame or intimidation received by health workers and
threats of being reported to the police by those who believe they are criminals for what they did.38
The Rise in Illegal Abortion Services and Drugs
Both the criminalization of abortion and the lack of contraceptive measures have made
women desperate for illegal abortions. First, there is the boom of underground abortion services
which cater to them. These procedures are very risky for pregnant women because they are mainly
done by untrained personnel and in environments that do not meet medical standards. Usually,
backstreet abortionists would choose to advertise their underground services in online forums,
promising painless abortions for pregnant women. They would also assure that a pregnancy can
be terminated, even up until 7 months. In cases like these, reviews are always mixed. While some
operations go smoothly, other women would end up being subjected to painful experiences such as
nightmarish post-abortion complications or procedures without anesthesia.39
Only a few medical doctors are willing to risk their license to give women truly safe but
illegal abortions for the sake of their well-being. They perform abortions according to the standards
approved by the WHO. They would typically offer their services in secret and most only perform
medical abortions for the first trimester and various surgeries, depending on how far along the
pregnancy is.40
Instead of going to someone to have the procedure done, other women choose to induce
their abortions at home. This is typically in the form of illegal abortive pills. For example, women
can choose to buy Cytotec and Misoprostol from several online sellers for these self-administrative
abortion pills.41 Just like underground abortions, these abortion pills are not tested or ensured for
safety by important authorities due to their illegality. Thus, the purchase of these products will
always pose great risks to pregnant women who choose to buy them.
The Case for the Legalization of the Abortion
The legalization of abortion, first, could lead to the prevention of negative consequences
caused by unsafe abortions. When it comes to illegal abortions, there is always a risk of health
complications, including death, to the woman who undergoes it due to a lack of oversight by
medical professionals and other necessary authorities. One study estimated that around 1,000
Filipino women die each year from abortion, and many have suffered complications that went
untreated. Illegal abortions can lead to many complications such as hemorrhage, infection, and
36  Guttmacher Institute, Unintended Pregnancy and Unsafe Abortion in the Philippines, available at https://www.
guttmacher.org/sites/default/files/factsheet/fb-contraceptives-philippines.pdf (last accessed Febuary 6. 2021).
37  Nagai, e.t. al, supra note 26
38  Guttmacher Institute, supra note 34.
39  Natashya Guiterez, How Backstreet Abortionists Terminate 7- Month Pregnancies, RAPPLER, Aug 15 , 2018 , available
at https://www.rappler.com/nation/209416-ways-backstreet-abortionists-philippines-terminate-late-term-pregnancies/
(last accessed December 11,2021).
40  Frances Roberto and Cesar Garcia, Secret Service: Underground Doctors Induce Safe Abortions , RAPPLER, Aug 20,
2018, available at https://www.rappler.com/newsbreak/investigative/209891-underground-doctors-induce-safe-
abortions-philippines/ ( last accessed December 11, 2021).
41  Vittoria Elliot, The Philippines’ Underground World of Abortion Drug Sellers, REST OF WORLD, June 9, 2020,
available at https://restofworld.org/2020/philippines-abortion-social-media/ , (last accessed December 11,2021).
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damage to the genital tract and internal organs.42
Legal abortion may also possibly help females recover from traumatic situations. Women
have become accidentally pregnant due to incidents of sexual violence which result in mental
trauma. According to one study, sexual violence is predicted to cause the development of post-
traumatic stress disorder (PTSD) in women more than any other trauma, including physical attacks
or natural disasters. Thus, restricting abortion could make it harder for a woman to recover from the
trauma caused by the sexual violence for keeping the child may force her to be in constant contact
with the abuser.43
Lastly, abortion has already been recognized internationally as a human right in
many countries. It is estimated that globally only six countries ban abortion entirely. Although the
restrictions surrounding abortion vary from region to region, around 125 countries have typically
allowed the procedure depending on the circumstances which include socioeconomic reasons, risks
to the physical or mental health of the woman, or the presence of fetal anomalies. In general, it
seems there has been a trend of liberalization in abortion laws, with 29 countries expanding the
legal grounds allowing the procedure since 2000.44
Included in these 29 countries, are places that are even predominantly Catholic like the
Philippines. Recently, the Supreme Court of Mexico, the second-largest Roman Catholic country,
ruled that criminalizing abortion is unconstitutional on September 7, 2021. While there are no
set laws allowing the medical procedure yet, judges are now bound to follow this jurisprudence.
Women under arrest for abortion can now sue to have their charges dropped. Spain, a country that
colonized many places using religion, has also relaxed its restrictions when it comes to abortion. The
Spanish Senate approved a new law in 2010, which allowed and declared it a right, abortion at up
to 14 weeks gestation regardless of circumstance as stated under the Organic Law 2-2010 of March
3 on Sexual and Reproductive Health and Voluntary Termination of Pregnancy.45
Instead of outright repealing Articles 256- 259 of the RPC, which punishes abortion, the
Philippines could choose to at least relax its restrictions when it comes to abortion.
Conclusion
The criminalization of abortion has a heavy influence on the reproductive autonomy of
the woman. The constitutional need to protect the unborn has not only influenced a woman’s
treatment by the law but also the way society views her choices as well, whether she is pregnant or
not. While she is supposed to choose what feels best for her body, she cannot. It becomes difficult
when a family-oriented nation also prioritizes the ideals of the people intimately related to her. The
inherently private nature of a woman's reproductive health and being becomes a very public matter
thanks to law and society.
42  World Health Organization, Preventing Unsafe Abortion, available at https://www.who.int/news-room/fact-sheets/
detail/abortion (last accessed December 20,2021).
43  Id.
44  Id.
45  Guttmacher Institute, Spain Expands Legal Access to Abortion, available at
https://www.guttmacher.org/article/2010/03/spain-expands-legal-access-abortion (last accessed December 21,2021).
225

Democracy In The Philippines: Unfinished, Undefeated
Comm. Rene V. Sarmiento (Ret.)
“Somehow we’ve reached and witnessed a nation that isn’t broken but
simply unfinished… But while democracy can be periodically delayed it can
never be permanently defeated….”
“The Hill We Climb,” Amanda Gorman
Poetic and uplifting torrent of words from 23-year-old National Youth Poet Laureate
Amanda Gorman were eloquently delivered during the January 20, 2020 Inauguration of U.S.A’s
46th President, Joseph R. Biden. Descriptive of American democracy that now faces historic
challenges because of the January 6, 2020 violent assault against the U.S Capitol by insurrectionists,
because of false claims of electoral fraud during the 2020 Presidential Elections, and because of
racial antagonisms against Afro-Americans and Asians, the poem’s words “unfinished” and “can
never be permanently defeated” can well apply to Philippine democracy today.
Philippine democracy, despite its difficulties and imperfections, is not yet on its own death
throes, gasping for breath, falling apart at its seams, but continues to be a work in progress and
striving to be a full democracy.
Democratic fundamentals like a tripartite system of government inspired by Baron
de Montesquieu’s “The Spirit of Laws,” periodic elections, social justice principles, and direct
democracy mechanisms (e.g., referendum, initiative, and recall) were put in place in the 1987
Constitution after the overthrow of authoritarianism on 1986 and the overhaul of the 1973
Constitution. These fundamentals are intact and the 1987 Constitution, warts and all, glows as the
only Constitution in the world today with an Article on Social Justice and Human Rights and an
elegantly-crafted climate-friendly declaration proclaiming “the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.”
Measured against the lofty provisions of the 1987 Constitution that envision a mix of
representative and direct democracy, is Philippine democracy veering towards the drain of lost
causes or, to borrow the word of Andrew Sheng, former Chair of the Hong Kong Securities and
Future Commission (SFC), a democracy on ventilator?”
Gil Yuzon, in his article “Will Democracy still be our future?” (Philippine Daily Inquirer,
January 2, 2022), described the status of Philippine democracy. He wrote:
“But after more than three decades of enjoying the restored benefits of democracy,
it may be a stretch for many of our younger countrymen to imagine losing their democratic
space, since most of them never lived under martial law, even if these democratic gains have
been progressively eroded in the last five years under the present dispensation. They are surely
aware of the thousands of unsolved and unresolved human rights violations (extrajudicial
killings, arbitrary detentions, harassment, and persecution of political critics), not to mention
unbridled corruption and abuse of executive, judicial and legislative prerogatives.
In a very real way, our choices will determine whether the democracy we have
enjoyed these past decades will continue to thrive, or go down the drain of lost causes.”
-- at p. C2.
In a related article about democracy scores in many countries at present, citing Freedom
House’s Freedom in the World 2021 report entitled “Democracy under Siege” and Swedish V.
Dem Institute’s Democracy Report 2021 “Autocratization Turns Viral” and the British Economist
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Intelligence Unit’s (EIU) “Democracy Index 2020,” Andrew Sheng writes:
“The real threat to democracy in any form, therefore, is the inability to tackle truly tough
structural problems that complex and globalized society faces daily. As political economist, Thomas
Piketty and others have repeatedly pointed out, even though the gap between rich and poor countries has
narrowed, social inequalities in terms of growing income and wealth losses by the middle class within
almost all countries have worsened in the last two decades. Corruption, climate warming, technological
disruption, money politics, power concentration, and pandemics all come together to demand very painful
system-wide structural reforms. However, because democratic elections depend on money from vested
interests, almost all democratic governments have postponed tough reforms to avoid the Junker curse of
losing elections when the right thing.”
- - Philippine Daily Inquirer, “In Democracy on Ventilators,”
January 11, 2022, p. A7.
Assault against human dignity and decency, social injustices, political inequalities,
economic disparities, corruption, and money politics in the Philippines today show a democracy
that is flawed and broken, wounded and scarred, but not without hope and redemption. The
democratic fundamentals remain in place with a steady though the declining supply of honest and
patriotic civil servants. For Philippine democracy to be reinvigorated and radiant, four essentials are
required. These four essentials are indivisible and interdependent.
These are: one, an enlightened and energized Spirit-filled host of citizens from many
sectors of the Philippine society ready to wage an electoral campaign for platform-based, upright
and competent candidates, to vote for them in the 2022 National and Local Elections and not to
retreat to their comfort zones after the elections but ready to voice out their perspectives and views
on current local and national issues and to monitor the performance of elective and appointive
officials; two, an army of inspired and dedicated public servants willing to transcend their partisan
political loyalties and biases and to serve for the sake of power but for power designed to achieve
what is good for all; three, a big reserve of citizens who are willing to take to the streets in non-violent
protests to push for a social reform agenda or to expose government’s inadequacies and venalities;
and fourth, in the formative stage of children and youth, to teach them about the importance of
the electoral process and about the ethical values of citizen participation and engagement, honesty
and integrity.
Surely, making democracy work towards achieving the preambular vision of the 1987
Constitution’s “to build a just and human society” is not a walk in the park, Democracy is not a
destination but a journey with zigs-zags and detours that requires summoning the greatness in every
Filipino. Words of wisdom coming from civil rights activist and former congressman John Robert
Lewis of Georgia, U.S.A. are worth pondering:
“When you see something that is not right, you must say something. You must do
something. Democracy is not a state. It is an act, and each generation must do its part to help
build what we called the Beloved Community, a nation and world society, at peace with itself.”
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An Analysis on the Feasibility of Adopting a Jury System in the Philippines
Joanna Colleen A. Simbulan
Introduction
After centuries of oppression and tyranny, the transformation of the Philippines as a
democratic republic in the last century is perhaps one of its greatest achievements in history. Such
a characteristic is of great importance that it is enshrined in our 1987 Constitution providing that
sovereignty resides with the people.1 A republic is a state in which the supreme power is held by
the people and their elected representatives. This sheds a powerful light on the importance of the
people’s participation in the operation of its government.
The government and its citizens must always be side by side as one cannot exist without
the other. Our courts are designed to represent a solemn and important institution, consisting of
judges who are well-versed in the law and imbued with the cold neutrality of an impartial arbiter.
However, in recent times, the decisions of our courts have become an increasing focus for political
contestation. This article will shed light on the advantages and disadvantages of adopting the jury
system in the Philippines and attempt to demonstrate why such a system may be important to our
democracy.
History of the Judicial System in the Philippines
There was no written law, prior to the arrival of the Spaniards in the Philippines. Laws
were mainly derived from customs and tradition and were believed to have been given by a
divine supernatural being. There were no judges nor lawyers, and the datu of the local indigenous
community exercised all functions of the government – executive, legislative, and judicial.
During the reign of the Spanish colonizers, King Philip II established the Real Audencia
de Manila which was granted judicial, as well as legislative, executive, advisory, and administrative
functions.2 It functioned as both a trial and appellate court and exercised exclusive, original,
concurrent original, and exclusive appellate jurisdictions.3 It was later limited to performing
administration of justice and was later renamed Audiencia Territorial de Manila.4 Spanish rule was
essentially military, trial by juries did not exist5 and justice was largely dependent upon the military
governor.6 As a Spanish colony, the Philippines followed the inquisitorial system, where judges
played an active role in litigation.7
After Spain’s defeat in the Spanish-American War in 1898, the judicial system during the
military regime functioned under the executive branch. A year later, the Audencia was re-established
which applied Spanish laws and jurisprudence recognized by the American military governor. It was
1  PHIL. CONST. art. II, § 1.
2  Supreme Court of the Philippines. A Constitutional History of the Supreme Court of the Philippines, available at
https://sc.judiciary.gov.ph/387/ (last accessed Jan. 2, 2022).
3  Id.
4  Id.
5  United States v. Dorr, G.R. No. 1049, 002 Phil. 269 (1903).
6  Lebbeus R. Wilfley, The New Philippine Judiciary, 178 N. AM. REV. 730, 731 (1904).
7  Jose Manuel I. Diokno, Now or Never: Judicial and Legal Reforms in the Philippines, 63 ATENEO L.J. 1, 2 (2018).
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organized into two divisions: the civil branch and the criminal branch.8 In June 1901, Act No. 1369
was passed which abolished the Audencia and established the Supreme Court of the Philippine
Islands.10
The Supreme Court under Act. No. 136 consisted of seven judges, Americans and Filipinos,
who were appointed by the President and held office at his pleasure.11 The maladministration of the
Spanish law in the Philippines by the military government required that the shift from a Spanish
to an Anglo-American system be radical. The inquisitorial system was replaced by the adversarial
system, where the judges have a passive role thereby placing the burden of proof on the party
seeking judicial relief.12 However, conditions in the Philippines made necessary the retention of
some features from the Spanish system, one of which is the trial by judges not by juries.13 The mere
cession of territory did not extend the right to trial by jury existing in the United States to the
Philippines.14
During the Commonwealth and the Japanese occupation, the function of the Supreme
Court remained essentially the same. Hardly undisturbed for a few decades, a significant
transformation in the function and composition of the Supreme Court occurred following the
declaration of Martial Law and the creation of the 1973 Constitution. Thereafter, the successful
People Power Revolution and the 1987 Constitution which provided with finality the extent of
judicial power reinstated the independence of the judiciary.
However, a provision providing for the right to a trial by jury is still nowhere to be
found.
The Jury System
Since the 1935 and the 1987 Constitutions were largely modeled after the American
Constitution, the author deemed it best that this article be heavily based on the jury system of the
United States in criminal cases.
The term “jury” used throughout this article refers to the petit jury in the United States
which is a group of laypersons empaneled to listen to the evidence presented in court and return
a verdict and not the grand jury that determines whether there is sufficient basis for bringing a
criminal charge against a suspect.
The basis of the right to a trial by jury in the United States lies in their Constitution.
Article III states that “[t]rial of all Crimes, except in Cases of Impeachment, shall be by Jury; and
such Trial shall be held in the State where the said Crimes shall have been committed; but when not
committed within any State, the Trial shall be at such Place or Places as the Congress may by Law
have directed.”15 Such right was expanded by its Sixth Amendment for criminal prosecutions and
by its Seventh Amendment for civil disputes.
The jury system operates on the principle that one has the right to judge and be judged by
8  Supreme Court, supra note 1.
9  An Act Providing for the Organization of Courts in the Philippine Islands, Act No. 136, (1901).
10  Supreme Court, supra note 1.
11 Wilfley, supra note 5, at 735.
12 Diokno, supra note 6, at 2.
13 Wilfley, supra note 5, at 734.
14  United States v. Dorr, 002 Phil. 269.
15  U.S. CONST. art. III, § 2 (3).
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his own peers or equals.16 In practice, a jury is a certain number of men, selected according to law,
and sworn to inquire of certain matters of fact, and declare the truth upon evidence to be laid before
them. As used in the Constitution of the United States, the terms “jury” and “trial by jury” refer to
twelve competent men, disinterested and impartial, not of kin, nor personal dependents of either
of the parties, having their homes within the jurisdictional limits of the court, drawn and selected
by officers free from all bias in favor of or against either party, duly impaneled and sworn to render
a true verdict according to the law and the evidence.17
When cases are tried before a jury, the jury listens to the evidence during trial, and draws
inferences from the facts established by the pieces of evidence which then form as the basis for their
decision on whether a defendant is guilty or not guilty in criminal cases, and liable or not liable
in civil cases. The jury is the fact-finder but only from evidence that is legally admissible. Thus,
judges still have an important role in such a system by determining which pieces of evidence may
be considered and by instructing the jury on the legal principles or rules that must be followed in
weighing the facts.
Jury System and the Philippine Constitution
Although heavily patterned after the American legal procedure, the most significant
deviation by the Philippines is its non-adoption of the jury system.18 Factors that contributed to the
initial rejection of the jury system include the Filipinos’ lack of experience with juries, contrasting
traditions and cultural patterns with the United States and the United Kingdom, as well as the
language barrier created by the multiple dialects throughout the country.19 The United States
Supreme Court even decreed that the right to a trial by jury should not be extended to American
citizens living in the Philippines.20
The nearest we have ever gotten to a jury system was when the Americans provided for a
system of assessors during the early stages of its occupation. This system, considered as the halfway
point towards the adoption of a jury system,21 entitled either party the option to have two assessors
who sit with the trial court but may only act in a mere advisory capacity.22 In his testimony before
the Senate Committee, Governor William Howard Taft explained the problems that may occur in
adopting the jury system in the Philippines, to wit:
“Ninety percent of the people are so ignorant that they could not sit on the jury,
to begin with, and understand anything that would be adduced. Then I am bound to say
that the difficulty of selecting judges who are above reproach, makes it certain that the
selection of juries would lead to nothing but corruption and injustice…. The difficulty
with the Filipino mind today in the administering of a public trust or the decision of
a question between the parties is his inability to bring himself to the point of looking
impartially at a question between parties.”23
Strangely, after more than 80 years following Taft’s assessment, while the Bill of Rights
under the 1987 Constitution is patterned after the United States Constitution, it deleted the right
16  Lorna Patajo-Kapunan, Jury System: The answer to EJK? available at https://businessmirror.com.ph/2017/02/05/
jury-system-the-answer-to-ejk/ (last accessed Jan. 2, 2022).
17  Jury, Black’s Law Dictionary (10th ed.)
18  George W. Pugh, Aspects of the Administration of Justice in the Philippines, 40 PHIL. L.J. 519, 527 (1965).
19 Pugh, supra note 18, at 530.
20  United States v. Dorr, 002 Phil. 269.
21  Id.
22 Wilfley, supra note 5, at 735.
23  Id., at 734 (emphasis supplied).
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to a jury trial from the latter. Article II, Section 14 of the 1987 Philippine Constitution provides
that:
In all criminal prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy, impartial
and public trial, to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses and the production of evidence in his behalf. However,
after arraignment, trial may proceed notwithstanding the absence of the accused:
Provided, that he has been duly notified and his failure to appear is unjustifiable.24
Whereas the Sixth Amendment in the United States Constitution provides that:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall have
been committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defense.25
Although never adopting the jury system, the Philippines nevertheless inherited the
procedural rules and evidentiary rules of the United States, which were actually designed for a
jury system.26 Rules on evidence pertaining to relevance,27 similar acts as evidence,28 hearsay and
its exceptions,29 expert opinions,30 and privileges,31 among others, developed for a jury system, are
strictly applied by Philippine courts in both civil and criminal cases. The non-recognition of such
an important historical fact points to a fundamental defect in the Philippine justice system.32
Advantages of a Jury System
Reforming the legal and judicial system to grant the people the right to trial by jury will
further promote the mandate of promoting justice. Jury trials provide better safeguards against
violations of the Constitution and human rights. In Duncan v. Louisiana, the United States Supreme
Court emphasized the importance of a trial by jury in administering justice and upholding the right
to due process.33 Adopting the jury system allows more transparency and efficiency in the judicial
process and jury trial outcomes more likely reflect the people’s will. The judge, while well-versed
in the law, is not all-knowing and all-seeing; and while generally their rulings ultimately should
depend on law and evidence, others may require some form of discretion, which entirely depends
on the judge’s morals and principles.
Delay in receiving the court’s judgment is a huge problem in the Philippines. Clogging of
court dockets is recognized as one of the major problems in our judicial system and multiple reforms
have been proposed by Congress and lawyers. Just by comparing the procedural differences between
a jury trial and a bench trial, it might be supposed that because of the absence of a jury system in
the Philippines, trials are conducted quicker, but such is not the case. Despite the existence of a
24  PHIL. CONST. art. II, § 14 (emphasis supplied).
25  U.S. CONST. amend. VI (emphasis supplied).
26 Riano, supra note 14, at 23.
27  Revised Rules on Evidence, rule 128, § 4.
28  Id. rule 130, § 35.
29  Id. rule 130, §§ 37-50.
30  Id. rule 130, § 52.
31  Id. rule 130, §§ 24-26.
32  Diokno, supra note 6, at 5.
33  Duncan v. Louisiana, 391 U.S. 145 (1968).
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guideline for the continuous trial of criminal cases,34 trials are frequently fragmented extending over
months or years instead of it being continuous where all of the available testimony is presented.
In our courts, after the presentation of one or two witnesses, the trial is continued at a
later date, a process that goes on until its termination. This practice of a piecemeal trial is not a
necessary consequence of a bench trial, but it does not preclude it, and other possible factors such
as the Filipino culture of not being pressured by time,35 promote it. Trials do proceed more slowly
before a jury than before a judge, but it has been found that jury-tried cases actually last less long
on the docket than judge-tried cases.36 The time a case is pending on a docket should be of vital
interest not only to lawyers and litigants but also to society at large. Aside from the psychological
burden of uncertainty, relief cannot be had without entry of judgment; the receipt of attorney’s fees
gets delayed, and backlogs create a negative perception of justice to the public.
Aside from safeguarding the rights of the accused, the maladministration of justice
especially in high-profile cases such as those involving drugs, and graft and corruption makes the
adoption of a jury system attractive. Firstly, jury trials prevent tyranny and corruption. Corrupt
litigants are able to get an easy way out of a criminal penalty or civil liability through bribery or
intimidation. Adopting a jury system would lessen corruption as it is much more difficult and
costly to bribe multiple jurors than a corruptible single judge. The jury system would also promote
civic participation and self-governance. Serving on a jury is the most impactful way to connect with
the fundamental law of the land, more so than voting, as jury service is mandatory. Jury service is a
civic duty and an honored privilege bestowed upon ordinary citizens and holds them accountable
through our participation in jury service. By familiarizing average people with the law and their
rights, juries instill habits of mind that make citizens better voters and more self-confident.
Disadvantages of a Jury System
Any rationale for the jury system must be coupled with an analysis of the criticisms of
the jury in general. Introducing the jury system in the Philippines would also pose threats to our
most valued constitutional rights. Allowing trials by a jury may put at risk the fundamental right
to due process, especially in complex litigations that require a technical and deeper understanding
of the law. The primary value of the right to due process is to minimize the risk of arbitrary and
erroneous decisions, and procedural due process requires that judgment must be rendered only after
trial and based on the evidence presented therein. However, if the case presented is so complex that
the jury is unable to understand the evidence and apply the relevant legal rules, these values and
requirements of due process are bound to be violated unlike in our current judicial setting where
the judge is required to explain his findings of fact and rigid application of the law, a jury can
disregard legal rules and arrive at a verdict that is in contravention of the law.37 Fortunately, some
technical solutions have been presented to make jury trials of complex cases more manageable and
aid the jury in understanding the issue presented. The court may make use of special interrogatories,
provide periodic instructions on legal issues, allow the jury to take notes during the trial, make
transcripts available during their deliberations, permit the use of special juries or administrative
34  A.M. No. 15-06-10 SC
35  Alfredo F. Tadiar, The Administration of Criminal Justice in the Philippines: Some Aspects for a Comparative Study with
That of the United States. 47 Phil L.J. 547 (1972).
36  Theodore Eisenberg & Kevin M. Clermont, Trial by Jury or Judge: Which is Speedier?, 228, Cornell Law Faculty
Publication (1996).
37  Steven W. Davis, Clash Between Due Process and the Right to Trial by Jury in Complex Litigation, 35 U. MIAMI L. REV.
164, 169 (1980).
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agencies competent in the subject matter.38
It was mentioned earlier that one of the reasons why the jury system was not implemented
was because of Filipino culture; and even now, a jury system may not be feasible for the exact
same reason as it affects the right of an accused to an impartial trial. Mark Twain put into better
perspective the criticism against the jury system involving impartiality –
When a gentleman of high social standing, intelligence, and probity swears that
testimony given under the same oath will outweigh with him, street talk and newspaper
reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their
own ignorance and stupidity . . . Why could not the jury law be so altered as to give men
of brains and honesty an equal chance with fools and miscreants?39
Jury trials are most often more dramatic than bench trials as its focus is on a jury that is
more easily swayed and manipulated by emotion rather than a cold neutral judge who is learned
in the law and trained to disregard off-court evidence and on camera performances of parties to a
litigation, and whose mere exposure to publications and publicity stunt does not per se fatally infect
their impartiality.40 Jury members must be overly protected from publicity otherwise they might
lose their impartiality41 and this problem becomes worse in high-profile trials covered by the media
thus arriving at a rational and logical judgment based solely on the evidence presented in court may
be difficult. However, the freedom of the press42 must not be abridged to give way to the right to
a trial by jury. The obstacle was addressed in the case of Sheppard v. Maxwell in the United States
where it recognized the role of the media in affecting the impartiality of a jury requiring trial courts
to balance the right to press freedom and the right to an impartial trial, pronouncing that “where
there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge
should continue the case until the threat abates, or transfer it to another county not so permeated
with publicity.”43
Another disadvantage of the jury system is the possible limitations on the right to privacy.
At the beginning of a jury trial, lawyers on opposing sides have the opportunity to question
potential jurors during the process called “voir dire.” This lengthy process is utilized to eliminate
potential bias in the jury’s verdict and may sometimes require potential jurors to disclose personal
information that they would have preferred to have kept private. Lastly, are issues with logistics
and finances. Jury trials are considered to be more costly than bench trials. Jury service, while
mandatory, requires that serving jurors be given a living wage for their participation as well as
compensation for transportation and lodging. Reconstruction of our courts to accommodate a jury
may be required and with the current conditions of our physical courts, cramped and depreciating,
there may be other areas of construction that are more urgent and important. Thus, problems in
funding push the use of a jury system further down the list of priorities.
Conclusion
Alexis de Tocqueville writes, "[t]he institution of the jury may be aristocratic or
democratic, according to the class from which the jurors are taken; but it always preserves its
republican character, in that it places the real direction of society in the hands of the governed, or of
a portion of the governed, and not in that of the government." Trial by juries impartially selected is
38  Id. at 173.
39  People v. Teehankee, Jr., G.R. Nos. 111206-08, 294 SCRA 54, (1995).
40  Id.
41  Id.
42  PHIL. CONST. art. III, § 4.
43  Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1607 (1966).
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the best of all safeguards of liberty and property.44 It is justly prized as the cornerstone of democracy.
The jury system is important to democracy because of the unbiased, impartial viewpoints that can
be derived from our citizens. It improves the quality of justice and is the sole means of keeping its
administration attuned to community standards.45
Transforming our judicial system to accommodate the jury is a Herculean task,
complicated by disadvantages that some may not even be prepared to accept. However, over the last
few decades, justice seems to be used to oppress the poor and shield the wealthy. It might be time
for our courts to consider opening its doors to ordinary citizens and allow them to participate in its
administration of justice.
44  The Roots of the Jury System available at https://www.americanbar.org/content/dam/aba/administrative/public_
education/publication_documents/LawCourts_intro_roots_of_jury_system.pdf (last accessed Feb. 19, 2022).
45  (add fn - as noted by Hon. Tom C. Clark, former justice of the USSC).
234
Kasarinlan: Protecting the Integrity of Philippine Elections
from Foreign Electoral Interference
William Jay L. Terencio
The supreme art of war is to subdue the enemy without fighting.
- Sun Tzu
Introduction
Elections determine the leaders who will govern a country. Given the importance of the
election, foreign imperialists view it as an opportunity to gain influence over another state. In 2020,
Senator Ralph Recto predicted the possibility of foreign electoral interference in the upcoming
2022 national and local elections.1 Former Facebook manager Frances Haugen reinforced this
statement before the United States Congress that Facebook is indeed responsible for the rise of
authoritarianism in the Philippines for not properly conducting content moderation and implied
that Facebook destabilizes democracies.2
Now that the 2022 elections are near, will such predictions happen? Will foreign electoral
interference succeed or will Philippine laws be on guard against it?
The Concept of Foreign Electoral Interference
Foreign electoral interference refers to any efforts by foreign entities, such as a foreign
state, to influence domestic elections. This includes a wide range of actions by foreign entities
designed to interfere in the internal affairs of states in their electoral processes. This discussion will
focus on partisan electoral intervention. Dov H. Levin, an acclaimed political scientist, defined
partisan electoral intervention as:
“a situation in which one or more sovereign countries intentionally undertakes
specific actions to influence an upcoming election in another sovereign country in an
overt or covert manner which they believe will favor or hurt one of the sides contesting
that election and which incurs, or may incur, significant costs to the intervener or the
intervened country.”3
Partisan electoral interference happens when a foreign actor connives with a local or
national candidate. The foreign actor may support his preferred candidate or attack the opposing
candidate. The support may be in the form of cyber-interference by online promotion of the
candidate, provision of campaign funds, or aid in political strategy or materials.
On the other hand, an example of an attack is the spread of online disinformation in social
media to vilify candidates and decrease their number of voters.4 A foreign actor may also resort to
physical acts to sabotage the campaign efforts of the opposing candidate.5 Another form of electoral
1  Vanne Elaine Terrazola, Recto Warns of Foreign Interference In 2022 Polls, MANILA BULLETIN NEWS, Sept. 24,
2020, available at https://mb.com.ph/2020/09/24/recto-warns-of-foreign-interference-in-2022-polls/ (last accessed Dec
7, 2021)
2  Rommel F. Lopez, Facebook Played a Role in Rise of Authoritarianism in PH – Whistleblower, PRESS ONE, Oct 7, 2021,
available at https: //pressone.ph/facebook-played-a-role-in-rise-of-authoritarianism-in-ph -whistleblower /(last accessed
Dec 05, 2021)
3  Dov H. Levin, Partisan Electoral Interventions by the Great Powers: Introducing the Peig Dataset, 36 CMPS, 88, 89 (2019).
4  See Michael N. Schmitt, Foreign Cyber Interference in Elections, 97 INT’L L. STUD. 739, 741 (2021)
5  Dov H. Levin, supra note 3, at 91 Table I.
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interference is ballot manipulation. It is done through the physical or virtual alteration of the votes
to favor a candidate.
A foreign country usually intervenes in domestic matters to promote or guard its interests.
For instance, a foreign country will interfere to ensure that the domestic policies of a state will favor
its interests.6 In other cases, some domestic actors ask for foreign support to aid their chance of
winning.7
What makes foreign electoral interference dangerous is that it is hard to detect, and it is an
effective strategy in exercising an indirect influence towards a different country.8 In fact, according
to Michael Schmitt, foreign interference through “trolls” in social media deprives voters of their
freedom of choice by creating a situation in which voters could not fairly evaluate the information
they are provided.9
A Brief History of Foreign Electoral Interference
Electoral interference is prevalent throughout history, according to Dov Levin: "between
1946 and 2000, the United States (U.S.) and the Soviet Union/Russia have intervened in about
one of every nine competitive national-level executive elections".10 In 1919, Vladimir Lenin and
his associates created the communist international or Comintern to spread communism across the
world.11 In an attempt to do so, the communist international interfered with the domestic elections
by distributing money and propaganda organs in different countries to ensure that communist
affiliated parties would win the elections.
Fast-forward, according to disinformation campaign researcher Dr. Henning Lahmann:
“During the period of the Cold War, both the United States and the Soviet Union
almost routinely meddled with elections in foreign countries, with varying degrees of subversion
and coercion. Former officers from U.S. intelligence services readily admit to having engaged
in the practice during the decades after the end of the Second World War.” 12
In 1968 the U.S. assisted in the election of the dictator Forbes Burnham in Guyana. After
which, Forbes Burnham’s dictatorial rule lasted for several years.13 On the other hand, in 2000, the
U.S. interfered with Serbia’s election to keep Slobodan Milošević, a genocide-linked leader, out of
power.14
6  See Bubeck, et al., Why Do States Intervene in the Elections of Others? The Role of Incumbent-Opposition Divisions,52
BJPolS 85, 90-93 (2020)
7  See DOV H. LEVIN, MEDDLING IN THE BALLOT BOX: THE CAUSES AND EFFECTS OF PARTISAN
ELECTORAL INTERVENTIONS (2020)
8  See Dov H. Levin, When the Great Power Gets a Vote: The Effects of Great Power Electoral Interventions on Election Results,60
I.S.Q. 189, 189-190 (2016)
9  Michael N. Schmitt, "Virtual" Disenfranchisement: Cyber Election Meddling in the Grey Zones of International Law, 19
CHI. J. INT'L L. 30, 51 (2018)
10  Dov H. Levin supra note 8 at 189
11  The Editors of Encyclopedia Britannica, Third International Association of Political Parties (Encyclopedia Britannica),
available at https://www.britannica.com/topic/Third-International (last accessed Nov 28, 2021)
12  Henning Lahmann, Does Foreign Electoral Interference Violate International Law? (Commentary February 2021),
available at https://www.ippi.org.il/electoral-interferance-violate-international-law/, (last accessed Nov 28, 2021)
13  Peter Beinart, The U.S. Needs to Face Up to Its Long History of Election Meddling. (The Atlantic article), available
at https://www.theatlantic.com/ideas/archive/2018/07/the-us-has-a-long-history-of-election- meddling/565538/(last
accessed Jan 01, 2021)
14  Todd Carney, Establishing A United Nations Convention to Stop Foreign Election Interference, 17 7 Loy. U. Chi. Int'l L.
Rev.21, 21 (2021)
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In recent history, Russian government-affiliated actors attempted to influence the 2016
U.S. Presidential Elections15. According to the U.S Senate Intelligence Committee: “Russian military
intelligence carried out a hacking operation targeting American political figures and institutions.
The Internet Research Agency—an entity with ties to Russian President Vladimir Putin—used
social media to sow disinformation and discord among the American electorate,”.16 Russia made
its efforts to ensure that Donald Trump will win the 2016 elections and despite the controversies
surrounding him, Donald Trump nevertheless won the elections.
History of the Philippines with Foreign Interference
The Philippines have been under the control of multiple colonialists such as Spain, the
U.S., the United Kingdom (U.K.), and Japan. More often than not, colonialists meddle with the
local politics to maintain their reign.
Western colonialists are well-versed with the game of politics and will capitalize on the
greediness of local politicians to maintain their control. Take President Emilio Aguinaldo for example.
The president himself, after his capture in 1901, surrendered and advocated for the submission to
the Americans by asking some of his men to surrender. President Aguinaldo, while remaining a
prominent figure, kept on collaborating with the U.S. government. It was later found that after his
capture, President Aguinaldo was given by the colonial government a lifetime pension.17 This event
exhibits that even influential political figures of the Philippines are susceptible to being controlled
by foreigners through their covert interference.
A foreign-controlled leader endangers his country by implementing policies that are
disadvantageous to his state but is favorable to his foreign masters. In the case of former president
Aguinaldo, he received a lifetime pension; thereafter he advocated for the interests of the U.S
government by acknowledging that Filipinos could not defeat the Americans. True enough, the
U.S. government made a wise investment because eventually, the Filipinos lost the war for they
were too divided to fight for their sovereignty.
Recently, the dubious emergence of Chinese help desks,18 the questionable Malampaya
deal that involved the sale of one of the most valuable energy resources of the Philippines,19 and the
lack of effort to assert the sovereign rights of the Philippines in the West Philippine Sea may have
cast a shadow of a doubt as to the existence of foreign electoral interference in the Philippines.20
However, there is no recent judicially proven case of foreign electoral interference here in the
Philippines as of writing.
15  U.S. Senate Select Committee on Intelligence, Russian Targeting of Election Infrastructure During the 2016 Election:
Summary of Initial Findings and Recommendations(Publications, May 2018), available at https://www.intelligence.
senate.gov/publications/russia-inquiry
16  U.S. Senate Select Committee on Intelligence, Russian Active Measures Campaigns and Interference
In The 2016 U.S. Election (Volume 1: Russian Efforts Against Election Infrastructure With Additional Views) at Additional
Views of Senators Harris, Bennet, and Heinrich, available at https://www.intelligence.senate.gov/sites/default/files/
documents/Report_Volume1.pdf last accessed Nov 28 2021
17  See Satoshi Ara, Emilio Aguinaldo under American and Japanese Rule Submission for Independence?, Vol. 63, No. 2
PHILIPPINE STUDIES: HISTORICAL & ETHNOGRAPHIC VIEWPOINTS, 161 (2015)
18  Franco Luna, Creation of 'China desks' at PNP offices Seen to Proceed, PHILSTAR, September 2, 2021, available at
https://www.philstar.com/headlines/2021/09/02/2124387/pnp-beijing-police-discuss-china-desks-pnp-offices-anew
(last accessed Feb 9, 2022)
19  Victor Saulon, Udenna Defends Malampaya Deal, Business World, November 19, 2021, available at https://www
.bworldonline.com/udenna-defends-malampaya-deal/ (last accessed February 9, 2022)
20  Patricia Lourdes Viray, Filipinos deserve a president who will defend West Philippine Sea — Carpio, PHILSTAR, April
29, 2021, available at https://www.philstar.com/headlines/2021/04/29/2094639/filipinos-deserve -president-who-will-
defend-west-philippine-sea-carpio (last accessed February 9, 2022)
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International Law Principles on Interference
The general principles of international law provide rules and principles regarding foreign
electoral interference. One of the applicable international law principles is the principle of non-
intervention or non-interference. This principle prohibits states from interfering with the internal
affairs of another state. According to Emmerich de Vattel, no foreign power has the right to
interfere with the administration of fundamental laws of another state.21 Under Article 3 of the
U.N. Declaration of the Rights and Duties of the State: “Every State has the duty to refrain from
intervention in the internal or external affairs of any other State.”22
Taken altogether, interference violates the non-intervention principle if it constitutes
intervention.
What is Intervention?
According to Justice Isagani Cruz: “Intervention may be defined as an act by which a state
interferes with the domestic or foreign affairs of another state or states through the employment
of force or threat of force. Such force may be physical or, in the present state of world affairs, even
political or economic”.23
In the case of U.S. v. Nicaragua, it was ruled that intervention is unlawful under
international law if it amounts to “coercion.” In this case, the U.S. government coercively intervened
with the internal affairs of Nicaragua by providing funds and training for military and paramilitary
activities in and against Nicaragua while at the same time directly attacking it. The International
Court of Justice ruled that the United States violated customary international law by its acts of
interference for they were coercive.24 This case emphasized that what is prohibited is the use of force
or providing funds or aid in military and paramilitary activities that interfere with the government
of another state.
The Necessity of Broadening the Scope of the Non-Intervention Principle
From the foregoing, it was seen that certain forms of foreign electoral interference will not
violate the non-intervention principle if they are neither forceful nor coercive. Take, for example,
cyber-interference and foreign sponsorship. In cyber-interference, a foreign state will promote
its preferred candidate by spreading disinformation towards the opposition or it will spread
disinformation, or propaganda that highly favors its preferred candidate. In cyber-interference
and foreign sponsorship, a foreign country does not use force or provide funds to military or
paramilitary forces in opposition to the government. Nevertheless, it intervenes in the internal
affairs of a foreign country by indirectly manipulating the people of a different state in voting for
21  See JOSEPH CHITTY, THE LAW OF NATIONS: OR, PRINCIPLES OF THE LAW OF NATURE APPLIED TO
THE CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS FROM THE FRENCH OF MONSIEUR
DE VATTEL. 11 (6th ed. 1844)
22  Declaration on Rights and Duties of States, G.A. Res. 375 4/6, annex, art 3 (December 1949)
23  ISAGANI A. CRUZ & CARLO L. CRUZ, INTERNATIONAL LAW, 148 (2020 EDITION)
24  Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, Judgement,
1986 I.C.J. 113, 119 (June 27)
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its preferred candidate.25
The non-intervention principle was established to ensure that states respect each other
by not intervening with each other’s administration unless necessary to defend themselves. Its
primordial aim is to prohibit a state from interfering with the internal affairs of another state; thus
to implement this principle its prohibition must include acts such as cyber-interference and foreign
sponsorship.26
Sovereignty
Another principle applicable is sovereignty vis-à-vis the right to self-determination under
which sovereign states have the right to freedom from external control and have the exclusive right
to govern their affairs.27
It is submitted that even on the assumption that cyber interference and foreign sponsorship
may fall short of the narrow prohibition of the non-intervention principle, these acts of interference
nevertheless violate the principle of state sovereignty established under customary international
law.28 The essence of sovereignty is freedom from external control. According to Justice Isagani Cruz,
it is: “the power of the state to direct its own external affairs without interference and dictation from
other states.”29 Foreign electoral interference violates the principle of sovereignty for it indirectly
controls a different state by ensuring that its elected leaders are within its control or influence.
The importance of establishing that electoral interference violates international law is that
the Philippines may only resort to the International Court of Justice to demand accountability and
protect its interests upon finding a violation of international law. In the case of U.S. v. Nicaragua,
the International Court of Justice, upon ruling that the U.S violated international law, ordered the
U.S. to refrain from violating international law and to make reparations for the damages that it
caused.30
The Interplay of Philippine Laws on Interference
Foreign electoral interference is dealt with by Philippine laws in varying degrees. Each law
plays a different role in deterring and punishing foreign electoral interference.
The 1987 Constitution
The highest law of the land sets a fundamental safeguard against foreign electoral
interference by ensuring that the elected officials are loyal Filipino citizens. Article IV, Section 5 of
the 1987 Constitution recognizes that dual allegiance is inimical to the national interest.31
25 See William Ossoff, Hacking the Domaine Reserve:The Rule of Non-Intervention and Political Interference in
Cyberspace 62 Harv Int'l LJ 295, 323 (2021)
26  See Nicholas Tsagourias, Electoral Cyber Interference, Self-Determination and the Principle of Non-Intervent- ion in
Cyberspace(Blog of the European Journal of International Law) available at https://www .ejiltalk.org/ electoral-cyber-
interference-self-determination-and-the-principle-of-non-intervention-in-cyberspace/(last accessed Dec 27, 2021)
27  ISAGANI A. CRUZ & CARLO L. CRUZ, supra note 20 at 63
28  Samantha Besson, Sovereignty (Max Planck Encyclopedia of Public International Law) Par 87, available at https://opil.
ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1472 (last accessed Dec 1, 2021)
29  ISAGANI A. CRUZ & CARLO L. CRUZ, supra note 20 at 63
30  ISAGANI A. CRUZ & CARLO L. CRUZ, supra note 20 at 149
31  PHIL. CONST. art. IV, § 5
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In addition, Articles VI, VII, and VIII of the Constitution only allow natural-born citizens
to fill the highest positions in the three branches of government. Consequently, the Constitution
ensures that the Philippine election is solely the business of Filipinos by prohibiting foreign nationals
and individuals with foreign allegiance from being elected or appointed to a national position.32
A Brief Analysis of the Law and the Current Elections
In the upcoming 2022 elections, there are national-level politicians such as Senator Bong
Go and Doc Willie Ong holding and running, respectively, for national positions while bearing
Chinese last names. Some might argue that the constitutional safeguards are insufficient as they
still accommodate dual citizens or Filipino citizens with foreign heritage from being admitted to
a national office even though some parts of the Philippine territory are being claimed by China.
In the case of Mercado vs. Manzano, the Supreme Court decided that there is a difference
between dual allegiance and dual citizenship, and what is prohibited is dual allegiance.33 It
means that having a foreign heritage is not a ground for the disqualification of a candidate and
what matters is being considered a natural-born Filipino Citizen whose sole allegiance is to the
Philippines. Likewise, it must also be remembered that the Philippines is a melting pot of culture.34
History suggests that the Filipino gene pool consists of Chinese, Indian, Indonesian, Malaysian,
Spanish, American, British, Japanese, and others. According to Former President Sergio Osmeña,
the Filipino people are “the most occidental of orientals and the most oriental of occidentals. In
them, East and West meet.”35 With this, the idea of “foreign heritage” is a blurred concept because
the word Filipino may not be narrowed down to a particular set of characteristics due to our diverse
identity.
Statutes
1. Omnibus Election Code
Foreign Sponsorship
As mentioned earlier, foreign sponsorship of candidates is one of the forms of foreign
interference. A foreign country will provide financial or material aid to its preferred candidate
for the following reasons: (1) To ensure that the administration will adopt policies that favor the
sponsoring state; or (2) The foreign state will indirectly control the country through the puppet
leader that it sponsored.
Foreign-sponsored leaders endanger a subject country for they implement domestic policies
that favor their foreign sponsors rather than policies that prioritize their citizens. Fortunately, the
Omnibus Election Code deters and prohibits foreign sponsorship of candidates through various
legal provisions. Under Section 81 of the Omnibus Election Code:
“It shall be unlawful for any foreigner, whether a judicial or natural person, to
aid any candidate or political party, directly or indirectly, or take part in or influence in any
32  PHIL. CONST. arts. VI-VIII
33  Mercado v. Manzano, G.R. No. 135083, 367 PHIL 132-153, (1999)
34  See Carolina G. Hernandez, Philippines, (Encyclopedia Britannica) available at https://www.britannica.com /place/
Philippines (last accessed Dec 26, 2021)
35  American Historical Association, What is a Filipino?, available at https://www.historians.org/about -aha
-and -membership/aha-history-and-archives/gi-roundtable-series/pamphlets/em-24-what-lies-ahead-for-the-
philippines-(1945)/what-is-a-filipino (last accessed Dec 1, 2021)
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manner any election, or to contribute or make any expenditure in connection with any election
campaign or partisan political activity.”36
This provision is broad as it covers any foreigner and the prohibition includes both direct
and indirect acts of influence. This provision is not constrained by particularity, thus giving the
judiciary enough room for interpretation.
Furthermore, Section 96 of the Omnibus Election Code also prohibits soliciting or
receiving contributions from foreign sources. Section 96 provides:
“It shall be unlawful for any person, including a political party or public or private
entity to solicit or receive, directly or indirectly, any aid or contribution of whatever form or
nature from any foreign national, government, or entity or entity for the purposes of influencing
the results of the election.”37
Both laws address specific forms of electoral interference without distinction whether the
actor is a Filipino or a foreigner.
To aid the enforcement of these legal provisions on foreign electoral sponsorship, section
99 of the omnibus election code requires the campaign donor to report his donation to a candidate,
to wit:
SECTION 99. Report of contributions. – Every person giving contributions to any
candidate, treasurer of the party, or authorized representative of such candidate or treasurer
shall, not later than thirty days after the day of the election, file with the Commission a report
under oath stating the amount of each contribution, the name of the candidate, agent of the
candidate or political party receiving the contribution, and the date of the contribution.38
Finally, Section 98 of the Omnibus Election Code prohibits campaign donations under a
fake name to make the aforementioned provisions foolproof39
2. REPUBLIC ACT No. 8436 (amended by RA 9369)
Ballot Manipulation
Further boosting the line of defense against foreign electoral interference is R.A. No. 8436
as amended by R.A. 9369. R.A. No. 9369 counters ballot manipulation by prohibiting a variety of
acts that endangers the integrity of the elections, to wit:
SEC. 28. Section 29 of Republic Act No. 8436 is hereby amended to read as follows:
"SEC. 35. Prohibited Acts and Penalties. — The following shall be penalized as provided in
this Act, whether or not said acts affect the electoral process or results:
"(a) Utilizing without authorization, tampering with, damaging, destroying or stealing:
"(1) Official ballots, election returns, and certificates of canvass of votes used in the system; and
"(2) Electronic devices or their components, peripherals or supplies used in the AES such as
counting machine, memory pack/diskette, memory pack receiver and computer set;
"(b) Interfering with, impeding, absconding for purpose of gain, preventing the installation or
use of computer counting devices and the processing, storage, generation and transmission of
election results, data or information;
"(c) Gaining or causing access to, using, altering, destroying or disclosing any computer data,
program, system software, network, or any computer-related devices, facilities, hardware or
equipment, whether classified or declassified;
"(d) Refusal of the citizens' arm to present for perusal its copy of election return to the board
of canvassers;40
36  Omnibus Election Code of the Philippines[OMNIBUS ELECTION CODE], Batas Pambansa Blg. 881, S 81(1985)
37  Id. § 96
38  Id. § 99
39 Id. § 98
40  An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing The Commission On Elections To Use An
Automated Election System In The May 11, 1998 National Or Local Elections And In Subsequent National And Local
241

Furthermore, the law also unequivocally prohibits any person from tampering, increasing,
or decreasing the votes received by candidates in any election.41
Aside from prohibiting inimical acts, the law provides further security to the elections
through the Advisory Council and the Technical Evaluation Committee. The Advisory Council
is a body composed of professionals from different relevant fields. It has technical experts from
the Commission on Information Communications Technology, the Department of Science and
Technology, and members from information communications technology (ICT) professional
organizations to provide their technical expertise in preventing any form of hacking and
recommending the most appropriate, secure, applicable, and cost-effective technology in the
Automated Election System. 42
In sum, the law prevents foreign interference by prohibiting acts that endanger the
legitimacy of electoral processes while simultaneously designating different technical experts who
will ensure that the elections reflect the legitimate will of the electorate.
Analysis and Recommendations
The Philippines has enough laws to counter manual and virtual forms of foreign electoral
interference. Still, the Philippine legislature may improve the current legal system. Philippine
legislators may look into the legislative history and legal framework of foreign legislations against
foreign electoral interference such as the Foreign Agents Registration Act (FARA) of the United
States.43 FARA requires the periodic relationship disclosure of the “agents” of foreign principals in
political-related transactions. Adapting similar legislation would provide better transparency.
Nevertheless, the absence of laws like FARA does not leave the Philippines defenseless
from foreign electoral interference. While there are numerous ways to commit electoral interference,
there are also multiple laws that prohibit acts that are harmful to the electoral processes of the
Philippines. Along with R.A. No. 9369 is the Omnibus Election Code’s Section 261. Section
261 prohibits different acts that tend to endanger the legitimacy of the Philippine elections from
vote-buying to threats, intimidation, terrorism, and use of a fraudulent device or other forms of
coercion.44 Aside from the prohibitions provided by law, there are also designated bodies that guard
the electoral processes such as the Board of Election Inspectors and the Commission on Elections
(COMELEC).45
COMELEC has the power to authorize different law enforcement agencies to act as
deputies to ensure the holding of free, orderly, and honest elections.46 It is also provided under
Section 5 of the R.A. 9369 that “the Commission shall deputize information technology personnel
from among the agencies and instrumentalities of the government, including government-owned
and controlled corporations” to assist them with the equipment adopted for the elections.47 With
Electoral Exercises, To Encourage Transparency, Credibility, Fairness And Accuracy Of Elections, Amending For The
Purpose Batas Pambansa Blg. 881, As Amended, Republic Act No. 7166 And Other Related Elections Laws, Providing
Funds Therefor And For Other Purposes", Republic Act No. 9369, § 28(2007)
41  Id.§ 42
42  Id.§ 9
43  An Act to Require the Registration of Certain Persons Employed By Agencies to Disseminate Propaganda in the United
States and for Other Purposes. [Foreign Agents Registration Act of 1938](1938) (U.S.). (as amended)
44  Omnibus Election Code, § 261
45  Id. art XIV.
46  Id.§ 52
47  Republic Act No. 9369, § 5
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all these laws in place, the COMELEC has enough manpower and technical expertise to prevent
any manual or virtual forms of hacking that will interfere with the elections.
These election laws are further supplemented by the Code of Conduct and Ethical
Standards for Public Officials and Employees which requires public officials to file their statement
of assets and liabilities to ensure transparency.48 The Code of Conduct also aids in deterring foreign
sponsorship by prohibiting public officials and employees from soliciting and accepting any gifts,
gratuity, favor, entertainment, loan, or anything of monetary value from any person in the course
of their official duties.49 Should there be an elected foreign-controlled leader, the Anti-Graft and
Corrupt Practices Act protects the Philippines by prohibiting public officials from entering into any
contract or transaction that is manifestly and grossly disadvantageous for the government.50
The Revised Corporation Code also deters foreign sponsorship by prohibiting foreign
corporations from giving donations in aid of any political party or candidate or for purposes of
partisan political activity.51
Private citizens also play a role in fighting against foreign electoral interference. Under
Article III, Section 7 of the Constitution, the people have the right to information on matters of
public concern.52 In the case of Legaspi v. Civil Service Commission, the Supreme Court ruled that
the right to information is a self-executing provision. Citizens may use this right in demanding
government transparency to ensure that the government does not enter into disadvantageous
agreements or implement harmful policies that favor foreign sponsors to the detriment of the
Filipino people.53
For physical acts of sabotage to the campaign, the Omnibus Election Code54 and the
Revised Penal Code penalize different actions that are harmful to people and properties.55
The legislature placed enough legal safeguards to counter manual forms of foreign
electoral interference. These laws, however, must be thoroughly enforced to ensure protection from
foreign electoral interference, but it is acknowledged that law implementation will be challenging
specifically, it will be difficult to discover “under the table” dealings of corrupt politicians.
Aside from implementation, there is also a need to legislate against cyber interference.
In October 2021, Facebook whistleblower Frances Haugen, former Facebook manager, testified
that Facebook is responsible for the rise of authoritarianism in the Philippines for not properly
conducting content moderation. Frances Haugen also said that Facebook undermined democracy
by boosting hateful content.56 During the 2016 elections, troll farms heavily utilized social media to
spread disinformation. A report suggested that: "In the 2016 presidential polls, international experts
have dubbed the Philippines as ‘patient zero’ when it comes to digital disinformation."57 Another
48  An Act Establishing A Code of Conduct and Ethical Standards for Public Officials and Employees, to Uphold the
Time-Honored Principle Of Public Office Being A Public Trust, Granting Incentives and Rewards for Exemplary
Service, Enumerating Prohibited Acts and Transactions and Providing Penalties for Violations Thereof and for Other
Purposes[Code of Conduct and Ethical Standards for Public Officials and Employees.] Republic Act No. 6713, § 8(1989)
49  Id. § 7
50  Anti-Graft and Corrupt Practices Act, Republic Act No. 3019, § 3 (g)(1960) (as amended)
51  An Act Providing for the Revised Corporation Code of the Philippines [Revised Corporation Code of the Philippines]
Republic Act No. 11232, § 35 (i) (2019)
52  PHIL. CONST. Art III, § 7
53  Legaspi v. Civil Service Commission, G.R. No. L-72119, 150 SCRA 350 (1987)
54  Omnibus Election Code, § 261
55  An Act Revising the Penal Code and Other Penal Laws [REV. PENAL CODE], Act No. 3185(1930)
56  Rommel F. Lopez, supra note 2
57  Gaby Baizas, Investigating troll farms: What to look out for, RAPPLER, July 17, 2021, available at https://www.
243
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report also stated that there has been a Chinese disinformation campaign in the Philippines.58
Furthermore, data suggests that the Philippines has 89.00 million social media users as of January
2021.59 From the foregoing, it can be seen that the Philippines is a vulnerable country to social
media manipulation; without adequate laws, the Filipino voters are wide open to social media
manipulation by foreign companies, and the legitimacy of our elections is vulnerable to indirect
interference. Therefore, there is a need to legislate a new law protecting the Philippine elections
from social media manipulations to keep the integrity of the Philippine elections.
The Philippine legislature already recognized the perils brought by social media
disinformation. On July 1, 2019, Senator Tito Sotto filed Senate Bill No. 9 entitled: Anti-False
Content Act. This bill aims to prohibit online misinformation by punishing the publishing of false
information and using a fictitious account.60 Alongside S.B. 9 is Senate Bill No. 1492 or the Anti-
Fake News Act of 2017. This bill seeks to punish those who maliciously publish fake news online.61
freedom for the thought that we hate, no less than for the thought that agrees with us.” 62
Conclusion
Foreign electoral interference is a pressing issue for the upcoming 2022 elections. While
there are laws in place, there must be a proper implementation to ensure honest and orderly elections.
Article V Section 2 of the Constitution states that Congress must provide a system for securing the
secrecy and sanctity of the ballot.63 The Constitution impliedly anticipated the possibility of foreign
interference by mandating the necessity of a secured system. To fully comply with this constitutional
mandate, the elected legislators must understand and act upon the challenges brought forth by the
digital age.

These laws have the noble purpose of combating online misinformation that is harmful
to the election, for it manipulates voters through false propaganda. However, like any other law,
these penal laws are susceptible to abuse because they take down certain forms of speech. Under
section five of the Anti-False Content Act, the Department of Justice will have the power to issue a
“takedown” order. The takedown order directs the owner or administrator of an account or website
to take down published content. This provision is a double-edged sword as it grants authority to
take down fake news but in the same breath, it may be used arbitrarily to disempower legitimate
dissent.
Nevertheless, it is not the law per se that is harmful but the manner of enforcement.
Under a tyrant regime, any statute may be applied selectively to discriminate against an individual.
An unjust ruler may utilize any statute to keep its regime intact. The caution therefore should not
only be with the laws enacted but also with the officials that are elected.
Foreign electoral interference is covertly committed and invisible in plain sight. It
flourishes through the corruption that plagues the government. Therefore, law implementation
must be without undue favor, and public officials must be held accountable following the paramount
principle that public office is a public trust.
The Filipino people must also elect leaders who are not associated with corruption to ensure
legitimate Filipino leadership. Sovereignty and democracy gave the Filipino people the chance to
craft their destiny thus, the fundamental processes governing which must always be guarded with
zeal because imperialists will never be gone. They only change their ways. Who knows? Perhaps they
already succeeded and we just do not know it yet.

Protecting the independence of the electoral process of the Philippines is just as important
as protecting its shores from foreign invaders. Nevertheless, the right to freedom of speech, as a
fundamental right, must not be curtailed. The legislature must strike a balance between freedom of
speech and guarding the electoral sovereignty of the Philippines.

Finally, it must be understood that political discourse is an integral part of a democratic

society. It is through which the people intelligently formulate their votes. Therefore, it must be both
encouraged and protected. Its regulation must be only to the extent of protecting the people from
fake news, and dissent must not be discouraged. As restated by the Supreme Court through Justice
Puno in the landmark case of Chavez v. Gonzales:

“To be truly meaningful, freedom of speech and the press should allow and even
encourage the articulation of the unorthodox view, though it be hostile to or derided by others;
or through such view ‘induces a condition of unrest, creates dissatisfaction with conditions as
they are, or even stirs people to anger.’ To paraphrase Justice Holmes, it (freedom of speech) is

rappler .com/newsbreak/iq/investigating-troll-farms-what-to-look-out-for/ (last accessed Dec 5, 2021)

58  Gregory Winger, China’s Disinformation Campaign in the Philippines, THE DIPLOMAT, Oct 6, 2020, available at
https://thediplomat.com/2020/10/chinas-disinformation-campaign-in-the-philippines/ (last accessed Feb 10, 2022)
59  Simon Kemp, Digital 2021:Philippines, Feb 11, 2021, available at https://datareportal .com/reports /digital
-2021-philippines (last accessed Dec 05, 2021)
60  An Act Prohibiting The Publication And Proliferation of False Content on The Philippine Internet, Providing Measures
To Counteract Its Effects And Prescribing Penalties Therefor, S.B. 9,18th Cong., 1st Reg. Sess. (2019)
61  An Act Penalizing The Malicious Distribution Of False News And Other Related Violations, Senate Bill 1492, 17th
Cong., 2nd Reg. Sess.(2017) 62  Chavez v. Gonzales, G.R. No. 168338, 569 Phil. 155, 199 (2008)
63  PHIL. CONST. art V, § 2

244 245

Protection of Labor and the Right to Life:
A Precarious Balancing Act in the Time of COVID
Althea Olivia E. Violeta
Introduction1
The 1987 Philippine Constitution proffers utmost regard for laborers. This
is evident in Article XIII, Section 3, which guarantees that "The State shall afford full
protection to labor, local and overseas, organized and unorganized, and promote full
employment opportunities for all.”2 The principle that labor partakes of the nature of
property right,3 and is thus accorded the same protection as embodied in Article III,
Section 1 of the same Constitution, which provides that: “No person shall be deprived of
life, liberty, or property without due process of law…”4 is well-settled.
In the case of Alhambra v. National Labor Relations Commission, the Supreme
Court upheld the standing of labor in society today as that which transcends mere human
activity, one which is accorded with utmost importance. In fact, the Court said that the
termination of employment is not only a severance of contractual relations between parties
but an “economic phenomenon” that affects members of the laborers’ families.5
But these constitutional and statutory guarantees, however paramount and
seemingly supreme, were put to a rigid test at the onset of the COVID-19 pandemic –
when the interlocking complexities of the interest of public health and safety on one hand,
and that of the economy, on the other, have forthwith become inevitably averse to one
another.
Impact of COVID-19 on Labor
The multifaceted effects of the onset of the COVID-19 pandemic on people and
businesses everywhere in the world were remarkable – and it was even more so for the
common laborers.
The International Labor Organization (ILO) estimates that about 1.6 billion
workers in the informal sector all over the world have been directly affected by the
COVID-19 crisis.6 In 2020, the organization estimated that about 10.9 million workers
in the Philippines will face job disruption due to the pandemic.7
1  This study focuses on the impact of COVID-19 restrictions on the Philippine labor laws, the ramifications of the State’s
act of conferring paramountcy on public health over labor, and the burden that the Philippine workforce, particularly
the rank-and-file employees, has to shoulder as an end result of these restrictions.
2  PHIL. CONST. art. XIII § 3 (1).
3  Callanta v. Carnation Philippines, Inc., G.R. No. 70615, 145 SCRA 268 (1986).
4  PHIL. CONST. art. III § 1.
5  Alhambra Industries, Inc. v. National Labor Relations Commission and Danilo Rupisan, G.R. No. 106771, 238 SCRA
232 (1994)
6  International Labor Organization, Application of International Labour Standards in Times of Crisis: The Importance of
International Labour standards and Effective and Authoritative Supervision in the Context of the COVID-19 Pandemic
available at https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_767351.
pdf (last accessed Feb. 2, 2022)
7  International Labor Organization, The Philippines’ Workers’ Protection in a New Employment Relationship available at
https://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo-manila/documents/publication/wcms_762209.
246
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The intricacies presented by such an unprecedented event have actualized the
unfortunate reality that it was the members of the labor sector, particularly those in private
employment, who were most affected by government restrictions during the onset of this
pandemic in March 2020.8
While numerous livelihood and businesses were directly affected by the
repercussions of the drastic measures taken by the government in its effort to repel and
avert the proliferation of the COVID-19 virus in the country, it was the labor sector,
especially those working under specific industries deemed non-essential,9 who suffered the
most. It was during this peculiar time that the constitutional guarantees for the protection
of labor, echoed in totality and magnified by the Labor Code, were gravely subdued in
favor of the more important constitutional guarantee of right to life, and of public health
and safety.
State Policies
Governments all around the world enforced strict measures in an effort to
contain the transmission of COVID-19. Travel restrictions, lockdowns, and state-enforced
quarantines have inevitably marshaled in recession on a global scale – which, in turn,
resulted in historical levels of unemployment.10
In the Philippines, businesses that were deemed non-essential by the government
were ordered temporarily closed for the duration of the Enhanced Community Quarantine
(ECQ), affecting mostly establishments such as hotels and similar enterprises, movie
houses, sports centers, retail establishments of non-essential goods, service providers of
non-essential services, and many others.11
In an attempt to curtail the adverse effects of the temporary closure of these
establishments to the affected laborers, several measures were imposed by the Philippine
government. But some policies favorable to businesses – although already in effect prior
to the pandemic – proved to be inimical to the laborers most especially in the time of
pandemic. Among, and perhaps the most significant of these, was the “no work, no pay”
policy.
The “no work, no pay” policy, a common practice among many businesses in the
country, has been upheld by the Supreme Court on numerous occasions on the grounds
of fair and reasonable considerations.12 After all, compelling employers to remunerate
employees even in the absence of compensable work by the latter amounts to unjust
enrichment on the part of the employees. But given the long period that workers of certain
businesses in particular sectors were prevented from reporting for work due to government
restrictions, this policy has heavily burdened those whose livelihood are entirely dependent
on employment.
pdf (last accessed Dec. 21, 2021)
8  INTER-AGENCY TASK FORCE, Omnibus Guidelines in the Implementation of Community Quarantine in the
Philippines, § 2 (Apr. 29, 2020)
9  Id.
10 supra note 7.
11 Omnibus Guidelines in the Implementation of Community Quarantine in the Philippines
12 See Aklan Electric Cooperative Incorporated v. NLRC, Retiso G.R. No. 121439 January 2000
247
 BEDAN LAW REVIEW
State Measures
Several laws enacted for the purpose of allowing the government to effectively
enforce strategies to curb the spread of COVID-19 contained provisions that aim to
alleviate the impact of these restrictions on the livelihood of low-income workers as well as
those of displaced workers. The first of these laws was the Bayanihan Act of 2020.
The Bayanihan Act of 2020
On March 25, 2020, Republic Act No. 11469, otherwise known as the
“Bayanihan to Heal as One Act” took effect.13 The Social Amelioration Program (SAP)
was first introduced under this law in line with the state policy to “undertake a program
for recovery and rehabilitation.” It was aimed at abating the devastating effects of the many
restrictions that the government has implemented on businesses in an effort to mitigate
the transmission of the COVID-19 virus among the populace.14 Other features of the
Bayanihan Act directly benefiting the laborers include a period of reprieve for the payment
of taxes, basic utilities such as electricity and water, and a moratorium for the payment of
residential rentals, among others.15 Financial grants were also given to healthcare workers
in the form of compensation to recognize the primary importance of their role in ensuring
the protection of public health.16
Section 4 of the same act granted the President the authority to provide an
emergency subsidy to around eighteen (18) million low-income households in the form
of cash assistance. This is in an amount ranging from five thousand pesos (P5,000.00) to
eight thousand pesos (P8,000.00), computed based on prevailing regional minimum wage
rates. Given the prevailing cost of living and cost of basic goods especially in the highly
urbanized areas of the country, these amounts are significantly lower than the average of
what a minimum wage earner receives on a monthly basis. As of 2018, the minimum wage
was pegged at at least around eight thousand four hundred seventy pesos (P8,470.00) or
one hundred sixty-nine US dollars and ninety-nine cents (US$169.99) per month.17
The Bayanihan Act 2
Republic Act No. 11494, otherwise known as the “Bayanihan Act 2”, was signed
into law by President Rodrigo Duterte on September 11, 2020.18 Under this law, the
President was authorized to undertake measures to assist displaced workers through cash
assistance, in the form of emergency subsidies to low-income households.19 Said law also
13  An Act Declaring the Existence of a National Emergency Arising from the Coronavirus Disease 2019 (COVID-19)
Situation and a National Policy in Connection Therewith, and Authorizing the President of the Republic of the
Philippines for a Limited Period and Subject to Restriction, to Exercise Powers Necessary and Proper to Carry Out the
Decided National Policy and for Other Purposes [Bayanihan to Heal as One Act], § 7.02 (2020).
14  Id. § 4.
15  Id.
16  Id.
17  Philippine Statistics Authority, Data Highlights, available at https://psa.gov.ph/current-labor-statistics/highlights (last
accessed Dec. 21, 2021)
18  An Act Providing for COVID-19 Response and Recovery Interventions and Providing Mechanisms to Accelerate the
Recovery and Bolster the Resiliency of the Philippine Economy, Providing Funds Therefor, and for Other Purposes
[Bayanihan to Recover As One Act], Republic Act No. 11494, § 18 (2020).
19  Id. § 4.
248
allows the President to move the statutory deadlines and timelines for the payment of
taxes.20 A provision was likewise included to empower the President to direct certain public
utility providers such as those providing water, electricity, telecommunications, and other
similar services to allow a grace period for a total of thirty (30) days for all accounts falling
due during the implementation of ECQ and modified enhanced community quarantine
(MECQ), and to implement a minimum of thirty (30) days grace period for payments of
residential rents of those not permitted to work.21 Nothing in this law, however, provides
for additional assistance or measures to help improve displaced laborers’ conditions apart
from those already provided in the first Bayanihan Act.
LGU Assistance
Local Government Units all over the country have also devised and implemented
their respective assistance programs for their affected constituents. In Pasig City, for
example, a loan program was introduced to revitalize the economy of small and medium
enterprises,22 ensuring, in turn, that those employed by these businesses, or at least a
fraction of them, retain their employment. The City of Manila, on the other hand, hired
seamstresses, tailors, and master cutters for a project that aimed to supply a million face
masks for its residents,23 providing employment opportunities (albeit temporary) for its
constituents in the process. Other LGUs, such as the City of Muntinlupa, handed food
packages to affected residents such as jeepney and tricycle drivers and operators, minimum
wage earners, and senior citizens, among others, for the entire duration of the ECQ.24
Despite the many programs that the LGUs have carried out to help ease the
hardships of their constituents, many members of the affected labor sector have not been
extended any help. Displaced workers who did not qualify as indigents, and at the same
time could not be classified as minimum wage earners, have found themselves in a hopeless
predicament that rendered them disqualified for assistance although their financial
situations have proven otherwise.
Conclusion
While numerous measures have been taken in order to ease the burden brought
about on businesses by the restrictions imposed by the government, the only concrete and
uniform measure taken by the national government to assist displaced laborers was the
SAP,25 a program which benefited only a fraction of those actually affected.
Workers from sectors prevented from operating for long periods due to
government restrictions acted as “shock absorbers”, so to speak, of the devastating effects
of the pandemic on the economy at large. This is because business owners were given a
20  Id. §§ 4, 5 & 6.
21  Id. § 4.
22  UNAIDS, Pasig City Signs Fast-Track Cities Initiative to Scale-Up the Response to the HIV Epidemic in the Context
of COVID-19 available at https://www.unaids.org/en/20200722_Pasig_city (last accessed Dec. 21, 2021)
23  Minka Klaudia Tiangco, Manila Gets DOH Award for COVID-19 Response, MANILA BULLETIN, Oct. 18, 2020,
available at https://mb.com.ph/2020/10/18/manila-gets-doh-award-for-covid-19-response/ (last accessed Dec. 21,
2021)
24  Jonathan Hicap, Muntinlupa Starts Payout of P4442-M Financial Aid to Residents, Apr. 8, 2021, available at https://
mb.com.ph/2021/04/08/muntinlupa-starts-payout-of-p442-m-financial-aid-to-residents/ (last accessed Dec. 21, 2021)
25  Bayanihan to Recover as One Act, § 4.
249
 BEDAN LAW REVIEW

handful of grants and privileges26 intended to help them salvage their respective businesses, San Beda College School Of Law, Alabang
while displaced workers were left with little to no assistance from the government. True To Its Tradition Of Excellence*1
Justice Japar B. Dimaampao
Ultimately, despite the numerous layers of protection provided by the
Constitution, the Labor Code, and other laws for the common laborers, none will ever
be compelling enough to overcome the paramountcy of public health and public safety. President Rector Gerardo Ma. De Villa; Vice President for Academic Affairs
The consequences brought about by the COVID-19 pandemic has gravely illustrated how Andres San Mateo; Vice Dean Melanie Trinidad; Registrar Visimar Mores; Dean Dr.
protecting the rights of labor on one hand, and the right of the entire populace to life, Ulan Sarmiento; Prefect Carlo Busmente; Esteemed Members of the Faculty; Officers
public health, and public safety, on the other, requires a precarious balancing act where the of the Law Student Government; Guests, Friends, Parents and Law Graduates Batch
scales tend to tilt ever in favor of the latter, mostly at the expense of the former. 2021 both physically and virtually present -

Magandang hapon po sa inyong lahat.

No words could adequately describe the pride and humility your invitation has given
me to speak before the members of the graduation batch of 2021 who may be considered as our
nation's future breed of leaders. Thank you for inviting me to witness your commencement rites,
and for allowing me this remarkable opportunity to usher in our new graduates as they begin a new
journey in their lives.

My sincere congratulations to each and everyone of you. To all proud parents, you deserve
full accolade and praises for having proven equal to the task of molding the future leaders of our
nation. Your children may walk away with the diplomas, yet you hold something far greater – the
knowledge that you have assured them of a bright future. Take pride in your children and their
achievements, and may this significant moment be indelibly ingrained in your hearts and minds.

To the school administrators and educators, I commend you for your unwavering
commitment to the vision of opening young minds through comprehensive and holistic education
and for infusing our youth with the indomitable spirit of truth, honesty and responsibility.

Indeed, the Greek philosopher Plato has wisely said that if the education of a person is
neglected then that person walks lame till the end of life. You have thus given our students here
today a reason to walk proudly. It is a cold hard fact that the San Beda Alabang School of Law
prepares its law students not only to be knowledgeable and skilled, it also apprises or reminds
its students of their responsibilities towards the growth of our nation, and to society as a whole,
for only then can they become the instruments of change they were meant to be. And it is the
fulfilment of this vision which makes the San Beda Alabang apart from others.

Your professors must have taken the initiative to ensure that you leave this School of Law
with pride in your Bedan heritage, and with the certainty that you have been equipped with an
education that will enable you to meet the future with conviction, knowledge and accountability.
Likewise, they must have performed the unspoken duty to explain to you the vicissitudes of life.
You must understand that while the future is full of promises, new possibilities and options, the
reality is that along with opportunities, there will inevitably be obstacles and difficulties. This is
the truth of life. Challenges are a daily occurrence, and we should not be deterred by them, but
rather, learn to confront these challenges and to convert them into opportunities for learning,
growth and development. You must be resilient, like the bamboo that bends with strong wind,
yet never breaks. You must go not being content with overcoming the challenges, you must go
beyond resilience..

26  Philippine Board of Investments, Financial Assistance, available at https://boi.gov.ph/financial-assistance/ (last accessed 1  *Delivered at the Commencement Exercises of Graduating Batch 2021 on 25 July 2021 at the San Beda College
Dec. 31, 2021) Alabang Campus.

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Make excellence your goal, and do your utmost to achieve it. Work with single-minded
devotion to attain your goals. It will seem daunting and formidable, certainly excellence will not
happen overnight. It will require not only knowledge and discipline, but also the desire to perform
the task at hand as best as you can. However, I have faith in you. I know that within you lies a
tremendous potential for excellence to meet the future with confidence, taking the best from what
you have learned here and applying them to the best of your abilities. I assure you that if you do
that, there can be no failure – only success awaits you.
Excellence can be achieved. The remarkable performance of San Beda Alabang alumni in
the Bar Examinations speaks volumes about this excellence. In 2011, Atty. Rodolfo Ding Aquino
placed 10th in that challenging Bar Examinations. Atty. Dawna Bandiola garnered the 4th place in
the grueling 2019 Bar Examinations. The performance of Atty. Ramayana Saidamen as 2nd Placer
in the 2020 Shari'ah Bar Examinations went down in history in that she was the lone alumni who
topped the Shari'ah Bar Examinations. Above all, the Supreme Court has officially recognized the
San Beda Alabang School of Law as one of the top law schools in the country.
Through the years, San Beda Alabang, School of Law has been true to its tradition of
excellence. And as living legacies of this School of Law considered as the Happiest Law School in
the whole universe, the noble task of upholding that tradition now lies in your hands.
My dear graduates, let today's momentous occasion be just one of your milestones.
Continue to mark your lives with positive and concrete achievements, and explore new heights of
excellence. Forge a deeper understanding with the world, with your environment and with your
fellow men.
Having the passion for a deeper understanding of the law, you as law graduates must take
to heart the basic principles of justice and fairness. Securing justice for the people in accordance
with the laws is essential if we are to instil a sense of confidence and respect for the law.
While some would argue that there are already too many lawyers, I would reply that more
are needed, for lawyers are in essence the pillars of justice and freedom in a democratic society.
Justice Felix Frankfurter of the United States Supreme Court, had once said, "Limited as (the)
law is, it is all that we have standing between us and the tyranny of mere will and the cruelty of
unbridled feeling." In other words, human society will always have a need for law; however, law
alone cannot guarantee justice and freedom. The rule of law, which is so essential for justice and
freedom to prevail, cannot work without the services of dedicated, competent and courageous
lawyers to serve the cause of human justice and freedom.
Today, more than ever, we need strong laws to attain our highest aspirations for
righteousness, growth and development. Just as important, we need good lawyers. Men and women
of the law who will give voice and enable the law to rule and reign supreme in our country. Men
and women of the law who will test the meaning and substance of the laws in the name of justice
and fair play. Men and women of the law who will advocate for reforms needed as we adapt the
laws to the needs of society ever mindful of the dictum espoused by Justice Oliver Wendell Holmes,
Jr. of the US Supreme Court - “The life of the law has not been logic, it has been experience.”
Given that the law is our guide, we must uphold the truth. In so doing, we promote
justice. After all, justice looks at truth alone. ''Solam veritatem spectat justitia.'' It must be justice
for the greatest good for the greatest number. Justice for all, not just for some. Justice for the
present and the future, not just for here and now. In our quest for truth, we must be guided by
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this centuries-old latin maxim – ''Fiat justitia ruat caelum'' – Let justice be done though the heavens
fall. Justice must be realized regardless of consequences. Nothing can possible go wrong with this
as guiding mantra.
It is my hope that you, our dear graduates, would help us in the task of maintaining our
democratic institutions by zealously upholding the rule of law, promoting justice, and protecting
people's rights and freedom.
As you leave these halls of learning, allow me to remind you of the immortable
words of Albert Einstein - “Learn from yesterday, live for today, hope for tomorrow. The important
thing is not to stop questioning.” Dear graduates, keep the spirit of inquiry alive. Continue to
broaden your knowledge, expand the horizon of your minds and you will see it enhance your work
and add to your own development as an individual.
Today's graduation opens the door to a new colossal challenge – hurdle the 2021
Bar Examinations. In this regard, taking cue from my experience as Bar Examiner in 2013,
2016 and 2019 Bar Examinations, I humbly opine that for you to pass the Bar examinations, you
must possess these three proven and tested (3) qualities –
1) knowledge of the law and jurisprudence;
2) Good command of English language; and
3) Clear and vivid presentation of your answers to the questions. Of course, these must
be reinforced by incessant and fervent prayers to the ALMIGHTY GOD.
Finally, may you always have in your heart a sense of wonder at the joy and
inspiration of life. To live a meaningful life, it is not about being rich, being popular, being highly
educated or being perfect. It is about being real, being humble, being strong, being able to share
ourselves and touch the lives of others. It is only then that we could have a full, happy and
contented life.
As you practice your legal profession, be clothed with humility, for God resists the proud,
but gives grace to the humble.
Again, my profound and heartfelt congratulations to all of you and may you all have a
glorious future ahead of you.
God bless us all. Maraming salamat po.
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