May former President Joseph Estrada run for public office despite having been convicted of the crime

of plunder
which carried an accessory penalty of perpetual disqualification to hold public office? The Supreme Court ruled yes,
because he was granted an absolute pardon.

The next question is: can he run for President again? It is my opinion that he cannot as the prohibition in the
Constitution is absolute.

Q Former President Joseph Estrada filed his certified of candidacy for Mayor of Manila in 2013 elections. Atty. RisoVidal filed a petition for his disqualified contending that Estrada has been convicted of the crime of plunder and the
SB imposed the penalty of reclusion perpetua with perpetual absolute disqualification. She based her petition under
Sec. 40 of the Local Government Code which provides for the disqualification of person who have been sentenced by
final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of
imprisonment. Furthermore, she cited Sec. 12 of the Omnibus Election Code which disqualifies a person who has
been convicted of a crime involving moral turpitude from running for public office. Estrada contended that he is
qualified because he was granted absolute pardon by former President Arroyo. The COMELEC decided in his favor
ruling that the pardon granted to him was an absolute pardon and that he was restored to his civil and political rights.
Risos-Vidal in her petition before the SC argued that the pardon was not absolute as evidenced by the acceptance of
Estrada with the condition in the third Whereas Clause that he has publicly committed to no longer seek an elective
position or office. She contended that the executive clemency would not have been granted without such condition,
hence, when he ran for public office, he committed a breach of the pardon. She contended that even with the pardon,
Estrada could not run because of the requirements under Articles 36 & 41 of the Revised Penal Code, the
disqualifications must be expressly remitted in the pardon. The pardon granted did not expressly remit the accessory
penalty of perpetual absolute disqualification to hold public office. She argued that it is not enough that the pardon
makes a general statement that the pardon carriers with it the restoration of civil and political rights. She argued that
such constraints are mandatory that shun a general or implied restoration of civil and political rights in pardons.

For his part, former President Estrada argued that he was granted an absolute pardon and thereby restored to his
full civil and political rights, including the right to seek public elective office such as the mayoral (sic) position in the
City of Manila; that the majority decision in the case of Monsanto v. Factoran, Jr., which was erroneously cited by
both Vidal and Lim as authority for their respective claims, x x x reveal that there was no discussion whatsoever in the
ratio decidendi of the Monsanto case as to the alleged necessity for an expressed restoration of the right to hold
public office in the pardon as a legal prerequisite to remove the subject perpetual special disqualification;
thatmoreover, the principal question raised in this Monsanto case is whether or not a public officer, who has been
granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of
a new appointment; that his expressed acceptance [of the pardon] is not proof that the pardon extended to [him] is
conditional and not absolute; or President back in 2009-2010; that Articles 36 and 41 of the Revised Penal Code
cannot abridge or diminish the pardoning power of the President expressly granted by the Constitution; that the text
of the pardon granted to him substantially, if not fully, complied with the requirement posed by Article 36 of the
Revised Penal Code as it was categorically stated in the said document that he was restored to his civil and political
rights; that since pardon is an act of grace, it must be construed favorably in favor of the grantee; and that his
disqualification will result in massive disenfranchisement of the hundreds of thousands of Manileos who voted for
him.

Is the petition for certiorari proper? Why?

Held: No. The petition for certiorari lacks merit. Former President Estrada was granted an absolute pardon that fully
restored all his civil and political rights, which naturally includes the right to seek public elective office, the focal point
of this controversy. The wording of the pardon extended to former President Estrada is complete, unambiguous, and
unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective,
and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41
of the Revised Penal Code. (Atty. Alicia Risos-Vidl v. COMELEC, et al., G.R. No. 206666, January 21, 2015,
Leonardo de Castro, J).

It is apparent from the foregoing constitutional provisions that the only instances in which the President may not
extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and
(3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation
coming from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to
delimit the pardoning power of the President.

In Cristobal v. Labrador, 71 Phil. 34, 38 [1940] and Pelobello v. Palatino,72 Phil. 441, 442 [1941] the SC declared that
subject to the limitations imposed by the Constitution, the pardoning power cannot be restricted or controlled by
legislative action. In Monsanto v. Factoran, Jr. it was also said that a pardon, being a presidential prerogative, should
not be circumscribed by legislative action. The exercise of the pardoning power is discretionary in the President and
may not be interfered with by Congress or the Court, except only when it exceeds the limits provided for by the
Constitution.

This doctrine of non-diminution or non-impairment of the Presidents power of pardon by acts of Congress,
specifically through legislation, was strongly adhered to by an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve out an exception from the pardoning power of the President
in the form of offenses involving graft and corruption that would be enumerated and defined by Congress through
the enactment of a law. (Atty. Risos-Vidal v. COMELEC, et al., supra).

The proper interpretation of Articles 36 and 41 of the Revised Penal Code

Articles 36 and 41 of the Revised Penal Code cannot, in any way, serve to abridge or diminish the exclusive power
and prerogative of the President to pardon persons convicted of violating penal statutes.

A rigid and inflexible reading of the above provisions of law, is unwarranted, especially so if it will defeat or unduly
restrict the power of the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the words of a statute are clear, plain, and free from ambiguity, it
must be given its literal meaning and applied without attempted interpretation. Verba legis non est recedendum. From
the words of a statute there should be no departure. (Republic v. Camacho, G.R. No. 185604, June 13, 2013, 698
SCRA 380, 398). The phrase in the presidential pardon at issue which declares that former President Estrada is
hereby restored to his civil and political rights substantially complies with the requirement of express restoration.
(Atty. Risos-Vidal v. COMELEC, et al., supra).

The overbroad statement that Congress may dictate as to how the President may exercise his/her power of executive
clemency is not correct. The form or manner by which the President, or Congress for that matter, should exercise
their respective Constitutional powers or prerogatives cannot be interfered with unless it is so provided in the
Constitution. This is the essence of the principle of separation of powers deeply ingrained in our system of
government which ordains that each of the three great branches of government has exclusive cognizance of and is
supreme in matters falling within its own constitutionally allocated sphere. (Bureau of Customs Employees
Association (BOCEA) v. Teves, G.R. No. 181704, December 6, 2011, 661 SCRA 589, 604). Moreso, this fundamental
principle must be observed if noncompliance with the form imposed by one branch on a co-equal and coordinate
branch will result into the diminution of an exclusive Constitutional prerogative.

For this reason, Articles 36 and 41 of the Revised Penal Code should be construed in a way that will give full effect to
the executive clemency granted by the President, instead of indulging in an overly strict interpretation that may serve
to impair or diminish the import of the pardon which emanated from the Office of the President and duly signed by the
Chief Executive himself/herself. The said codal provisions must be construed to harmonize the power of Congress to
define crimes and prescribe the penalties for such crimes and the power of the President to grant executive
clemency. All that the said provisions impart is that the pardon of the principal penalty does not carry with it the
remission of the accessory penalties unless the President expressly includes said accessory penalties in the pardon.
It still recognizes the Presidential prerogative to grant executive clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties or to pardon both. Thus, Articles 36 and 41 only clarify the
effect of the pardon so decided upon by the President on the penalties imposed in accordance with law (Atty. RisosVidal v. COMELEC, et al., supra).

The third preambular clause of the pardon did not operate to make the pardon conditional.
The third preambular clause of the pardon, i.e., [w]hereas, Joseph Ejercito Estrada has publicly committed to no
longer seek any elective position or office, neither made the pardon conditional, nor militate against the conclusion
that former President Estradas rights to suffrage and to seek public elective office have been restored. This is
especially true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use
of the term civil and political rights as being restored.

Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory or preparatory clause
that explains the reasons for the enactment, usually introduced by the word whereas. (People v. Balasa, 356 Phil.
362, 396 [1998]). Whereas clauses do not form part of a statute because, strictly speaking, they are not part of the
operative language of the statute. (Llamado v. Court of Appeals, 256 Phil. 328, 339 [1989]). In this case, the whereas
clause at issue is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to
make the pardon conditional or to make its effectivity contingent upon the fulfilment of the aforementioned
commitment nor to limit the scope of the pardon.
The statement [h]e is hereby restored to his civil and political rights, is crystal clear the pardon granted to former
President Estrada was absolute, meaning, it was not only unconditional, it was unrestricted in scope, complete and
plenary in character, as the term political rights adverted to has a settled meaning in law and jurisprudence.

The omission of the qualifying word full can be construed as excluding the restoration ofthe rights of suffrage and to
hold public office. There appears to be no distinction as to the coverage of the term full political rights and the term
political rights used alone without any qualification. How to ascribe to the latter term the meaning that it is partial
and not full defies ones understanding. More so, it will be extremely difficult to identify which of the political rights
are restored by the pardon, when the text of the latter is silent on this matter. Exceptions to the grant of pardon

cannot be presumed from the absence of the qualifying word full when the pardon restored the political rights of
former President Estrada without any exclusion or reservation.
Therefore, there can be no other conclusion but to say that the pardon granted to former President Estrada was
absolute in the absence of a clear, unequivocal and concrete factual basis upon which to anchor or support the
Presidential intent to grant a limited pardon (Atty. Risos-Vidal v. COMELEC, et al., supra).

-------------

The Government and the MILF were scheduled to sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia. The GRP-MILF
agreement is the result of a formal peace talks between the parties in Tripoli, Libya in 2001. The pertinent provisions
in the MOA-AD provides for the establishment of an associative relationship between the Bangsamoro Juridical Entity
(BJE) and the Central Government. It speaks of the relationship between the BJE and the Philippine government as
associative, thus implying an international relationship and therefore suggesting an autonomous state. Furthermore,
under the MOA-AD, the GRP Peace Panel guarantees that necessary amendments to the Constitution and the laws
will eventually be put in place. Is the said MOA-AD constitutional?

ANSWER:

Justice Santiago said, among others, that the MOA-AD contains provisions which are repugnant to the Constitution
and which will result in the virtual surrender of part of the Philippines territorial sovereignty. She further said that had
the MOA-AD been signed by parties, would have bound the government to the creation of a separate Bangsamoro
state having its own territory, government, civil institutions, and armed forcesThe sovereignty and territorial integrity
of the Philippines would have been compromised. (GR No. 183591, Province of North Cotabato v. Republic

Notes:

In this case, The Court explained that the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated by EO No. 3, RA 7160, and RA
8371.

EO No. 3 is replete with mechanics for continuing consultations on both national and local levels and for a principal
forum for consensus-building.

RA 7160 (the Local Government Code of 1991) requires all national offices to conduct consultations before any
project or program critical to the environment and human ecology including those that may call for the eviction of a
particular group of people residing in such locality, is implemented therein. The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

RA 8371 (the Indigenous Peoples Rights Act of 1997) provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other things, the observance of the free and prior informed
consent (FPIC) of the Indigenous Cultural Communities/Indigenous Peoples. (GR No. 183591, Province of North
Cotabato v. Republic, October 14, 2008)

Case Digest: GR No. 183591

2/4/2015 2 Comments

Province of North Cotabato, Province of Zamboanga Del Norte, City of Iligan, City of Zamboanga, petitioners in
intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linnamon, Intervenors Franklin Drilon and
Adel Tamano and Sec. Mar Roxas

-vs-

Ermita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator National Mapping & Resource
Information Authority and Davide Jr. and respondents in intervention Muslim Multi-Sectoral Movement for Peace and
Development and Muslim Legal Assistance Foundation Inc.,

Facts:

Subject of this case is the Memorandum of Agreement on the Ancestral Domain (MOA-AD) which is scheduled to be
signed by the Government of the Republic of the Philippines and the MILF in August 05, 2008. Five cases bearing the
same subject matter were consolidated by this court namely:-

GR 183591 by the Province of Cotabato and Vice Governor Pinol on its prayer to declare unconstitutional and to
have the MOA-AD disclosed to the public and be open for public consultation.
GR 183752 by the City of Zamboanga et al on its prayer to declare null and void said MOA-AD and to exclude the city
to the BJE.
GR 183893 by the City of Iligan enjoining the respondents from signing the MOA-AD and additionally impleading
Exec. Sec. Ermita.
GR 183951 by the Province of Zamboanga del Norte et al, praying to declare null and void the MOA-AD and without
operative effect and those respondents enjoined from executing the MOA-AD.

GR 183692 by Maceda, Binay and Pimentel III, praying for a judgment prohibiting and permanently enjoining
respondents from formally signing and executing the MOA-AD and or any other agreement derived therefrom or
similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal and impleading Iqbal.

The MOA-AD is a result of various agreements entered into by and between the government and the MILF
starting in 1996; then in 1997, they signed the Agreement on General Cessation of Hostilities; and the following year,
they signed the General Framework of Agreement of Intent on August 27, 1998. However, in 1999 and in the early of
2000, the MILF attacked a number of municipalities in Central Mindanao. In March 2000, they took the hall of
Kauswagan, Lanao del Norte; hence, then Pres. Estrada declared an all-out war-which tolled the peace negotiation. It
was when then Pres. Arroyo assumed office, when the negotiation regarding peace in Mindanao continued. MILF was
hesitant; however, this negotiation proceeded when the government of Malaysia interceded. Formal peace talks
resumed and MILF suspended all its military actions. The Tripoli Agreement in 2001 lead to the ceasefire between the
parties. After the death of MILF Chairman Hashim and Iqbal took over his position, the crafting of MOA-AD in its final
form was born.

MOA-AD Overview
This is an agreement to be signed by the GRP and the MILF. Used as reference in the birth of this MOA-AD are the
Tripoli Agreement, organic act of ARMM, IPRA Law, international laws such as ILO Convention 169, the UN Charter
etc., and the principle of Islam i.e compact right entrenchment (law of compact, treaty and order). The body is divided
into concepts and principles, territory, resources, and governance.

Embodied in concepts and principles, is the definition of Bangsamoro as all indigenous peoples of Mindanao and its
adjacent islands. These people have the right to self- governance of their Bangsamoro homeland to which they have
exclusive ownership by virtue of their prior rights of occupation in the land. The MOA-AD goes on to describe the
Bangsamoro people as "the First Nation' with defined territory and with a system of government having entered into
treaties of amity and commerce with foreign nations." It then mentions for the first time the "Bangsamoro Juridical
Entity" (BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.

As defined in the territory of the MOA-AD, the BJE shall embrace the Mindanao-Sulu-Palawan geographic region,
involving the present ARMM, parts of which are those which voted in the inclusion to ARMM in a plebiscite. The
territory is divided into two categories, A which will be subject to plebiscite not later than 12 mos. after the signing
and B which will be subject to plebiscite 25 years from the signing of another separate agreement. Embodied in the
MOA-AD that the BJE shall have jurisdiction over the internal waters-15kms from the coastline of the BJE territory;
they shall also have "territorial waters," which shall stretch beyond the BJE internal waters up to the baselines of the
Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial
waters, the BJE and the government shall exercise joint jurisdiction, authority and management over all natural
resources. There will also be sharing of minerals in the territorial waters; but no provision on the internal waters.

Included in the resources is the stipulation that the BJE is free to enter into any economic cooperation and trade
relations with foreign countries and shall have the option to establish trade missions in those countries, as well as
environmental cooperation agreements, but not to include aggression in the GRP. The external defense of the BJE is
to remain the duty and obligation of the government. The BJE shall have participation in international meetings and

events" like those of the ASEAN and the specialized agencies of the UN. They are to be entitled to participate in
Philippine official missions and delegations for the negotiation of border agreements or protocols for environmental
protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain. The BJE shall also have the right to explore its resources and that the
sharing between the Central Government and the BJE of total production pertaining to natural resources is to be
75:25 in favor of the BJE. And they shall have the right to cancel or modify concessions and TLAs.

And lastly in the governance, the MOA-AD claims that the relationship between the GRP and MILF is associative i.e.
characterized by shared authority and responsibility. This structure of governance shall be further discussed in the
Comprehensive Compact, a stipulation which was highly contested before the court. The BJE shall also be given the
right to build, develop and maintain its own institutions, the details of which shall be discussed in the comprehensive
compact as well.

Issues:

1. WON the petitions have complied with the procedural requirements for the exercise of judicial review

2. WON respondents violate constitutional and statutory provisions on public consultation and the right to information
when they negotiated and later initialed the MOA-AD; and

3. WON the contents of the MOA-AD violated the Constitution and the laws

Ruling:

The SC declared the MOA-AD contrary to law and the Constitution.

On the Procedural Issue

1st issue: As regards the procedural issue, SC upheld that there is indeed a need for the exercise of judicial review.

The power of judicial review is limited to actual cases or controversy, that is the court will decline on issues that are
hypothetical, feigned problems or mere academic questions. Related to the requirement of an actual case or
controversy is the requirement of ripeness. The contention of the SolGen is that there is no issue ripe for adjudication
since the MOA-AD is only a proposal and does not automatically create legally demandable rights and obligations.
Such was denied.

The SC emphasized that the petitions are alleging acts made in violation of their duty or in grave abuse of discretion.
Well-settled jurisprudence states that acts made by authority which exceed their authority, by violating their duties
under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for
Certiorari, Prohibition, and Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of
a branch of government is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. This is aside from the fact that concrete acts made under the MOA-AD
are not necessary to render the present controversy ripe and that the law or act in question as not yet effective does
not negate ripeness.

With regards to the locus standi, the court upheld the personalities of the Province of Cotabato, Province of
Zamboanga del norte, City of Iligan, City of Zamboanga, petitioners in intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linnamon to have locus standi since it is their LGUs which will be affected in whole or in
part if include within the BJE. Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,
assert that government funds would be expended for the conduct of an illegal and unconstitutional plebiscite to
delineate the BJE territory. On that score alone, they can be given legal standing. Senator Mar Roxas is also given a
standing as an intervenor. And lastly, the Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and prosperity in Muslim Mindanao; and
Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers since they stand to be
benefited or prejudiced in the resolution of the petitions regarding the MOA-AD.

On the contention of mootness of the issue considering the signing of the MOA-AD has already been suspended and
that the President has already disbanded the GRP, the SC disagrees. The court reiterates that the moot and
academic principle is a general rule only, the exceptions, provided in David v. Macapagal-Arroyo, that it will decide
cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution; (b) the situation
is of exceptional character and paramount public interest is involved; (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and (d) the case is capable of
repetition yet evading review; and that where there is a voluntary cessation of the activity complained of by the
defendant or doer, it does not divest the court the power to hear and try the case especially when the plaintiff is
seeking for damages or injunctive relief.

Clearly, the suspension of the signing of the MOA-AD and the disbandment of the GRP did not render the petitions
moot and academic. The MOA-AD is subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the
bar, the public and, in this case, the government and its negotiating entity.

At all events, the Court has jurisdiction over most if not the rest of the petitions. There is a reasonable expectation
that petitioners will again be subjected to the same problem in the future as respondents' actions are capable of
repetition, in another or any form. But with respect to the prayer of Mandamus to the signing of the MOA-AD, such
has become moot and academic considering that parties have already complied thereat.

On the Substantive Issue

2nd Issue: The SC ruled that the MOA-AD is a matter of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large.

As enshrined in the Constitution, the right to information guarantees the right of the people to demand information,
and integrated therein is the recognition of the duty of the officialdom to give information even if nobody demands.
The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely
open democracy, with the people's right to know as the centerpiece. It is a mandate of the State to be accountable by
following such policy. These provisions are vital to the exercise of the freedom of expression and essential to hold
public officials at all times accountable to the people.

Also, it was held that such stipulation in the Constitution is self-executory with reasonable safeguards the effectivity
of which need not await the passing of a statute. Hence, it is essential to keep open a continuing dialogue or process
of communication between the government and the people. It is in the interest of the State that the channels for free
political discussion be maintained to the end that the government may perceive and be responsive to the people's
will.

The idea of a feedback mechanism was also sought for since it is corollary to the twin rights to information and
disclosure. And feedback means not only the conduct of the plebiscite as per the contention of the respondents.
Clearly, what the law states is the right of the petitioners to be consulted in the peace agenda as corollary to the
constitutional right to information and disclosure. As such, respondent Esperon committed grave abuse of discretion
for failing to carry out the furtive process by which the MOA-AD was designed and crafted runs contrary to and in
excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise
thereto. Moreover, he cannot invoke of executive privilege because he already waived it when he complied with the
Courts order to the unqualified disclosure of the official copies of the final draft of the MOA-AD.

In addition, the LGU petitioners has the right to be involved in matters related to such peace talks as enshrined in the
State policy. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of
a great number of inhabitants from their total environment.

With respect to the ICC/IPPs they also have the right to participate fully at all levels on decisions that would clearly
affect their lives, rights and destinies. The MOA-AD is an instrument recognizing ancestral domain, hence it should
have observed the free and prior informed consent to the ICC/IPPs; but it failed to do so. More specially noted by the
court is the excess in authority exercised by the respondentsince they allowed delineation and recognition of
ancestral domain claim by mere agreement and compromise; such power cannot be found in IPRA or in any law to
the effect.

3rd issue: With regard to the provisions of the MOA-AD, there can be no question that they cannot be all
accommodated under the present Constitution and laws. Not only its specific provisions but the very concept
underlying them:

On matters of the Constitution.

Association as the type of relationship governing between the parties. The parties manifested that in crafting the
MOA-AD, the term association was adapted from the international law. In international law, association happens
when two states of equal power voluntarily establish durable links i.e. the one state, the associate, delegates certain
responsibilities to the other, principal, while maintaining its international status as state; free association is a middle
ground between integration and independence. The MOA-AD contains many provisions that are consistent with the
international definition of association which fairly would deduced that the agreement vest into the BJE a status of an
associated state, or at any rate, a status closely approximating it. The court vehemently objects because the principle
of association is not recognized under the present Constitution.

On the recognition of the BJE entity as a state. The concept implies power beyond what the Constitution can grant to
a local government; even the ARMM do not have such recognition; and the fact is such concept implies recognition of
the associated entity as a state. There is nothing in the law that contemplate any state within the jurisdiction other
than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine
territory for independence. The court disagrees with the respondent that the MOA-AD merely expands the ARMM.
BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a
permanent population, a defined territory, a government, and a capacity to enter into relations with other states. As
such the MOA-AD clearly runs counter to the national sovereignty and territorial integrity of the Republic.

On the expansion of the territory of the BJE. The territory included in the BJE includes those areas who voted in the
plebiscite for them to become part of the ARMM. The stipulation of the respondents in the MOA-AD that these areas
need not participate in the plebiscite is in contrary to the express provision of the Constitution. The law states that that
"[t]he creation of the autonomous region shall be effective when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas
voting favorably in such plebiscite shall be included in the autonomous region." Clearly, assuming that the BJE is just
an expansion of the ARMM, it would still run afoul the wordings of the law since those included in its territory are
areas which voted in its inclusion to the ARMM and not to the BJE.

On the powers vested in the BJE as an entity. The respondents contend that the powers vested to the BJE in the
MOA-AD shall be within sub-paragraph 9 of sec 20, art. 10 of the constitution and that a mere passage of a law is
necessary in order to vest in the BJE powers included in the agreement. The Court was not persuaded. SC ruled that
such conferment calls for amendment of the Constitution; otherwise new legislation will not concur with the
Constitution. Take for instance the treaty making power vested to the BJE in the MOA-AD. The Constitution is clear
that only the President has the sole organ and is the countrys sole representative with foreign nation. Should the BJE
be granted with the authority to negotiate with other states, the former provision must be amended consequently.
Section 22 must also be amendedthe provision of the law that promotes national unity and development. Because
clearly, associative arrangement of the MOA-AD does not epitomize national unity but rather, of semblance of unity.
The associative ties between the BJE and the national government, the act of placing a portion of Philippine territory
in a status which, in international practice, has generally been a preparation for independence, is certainly not
conducive to national unity.

On matters of domestic statutes.

o Provisions contrary to the organic act of ARMM. RA 9054 is a bar to the adoption of the definition of Bangsamoro
people used in the MOA-AD. Said law specifically distinguishes between the Bangsamoro people and the Tribal
peoples that is contrary with the definition of the MOA-AD which includes all indigenous people of Mindanao.

o Provisions contrary to the IPRA law. Also, the delineation and recognition of the ancestral domain is a clear
departure from the procedure embodied in the IPRA law which ironically is the term of reference of the MOA-AD.

On matters of international law.

The Philippines adopts the generally accepted principle of international law as part of the law of the land. In
international law, the right to self-determination has long been recognized which states that people can freely
determine their political status and freely pursue their economic, social, and cultural development. There are the
internal and external self-determinationinternal, meaning the self-pursuit of man and the external which takes the
form of the assertion of the right to unilateral secession. This principle of self-determination is viewed with respect
accorded to the territorial integrity of existing states. External self-determination is only afforded in exceptional cases
when there is an actual block in the meaningful exercise of the right to internal self-determination. International law,
as a general rule, subject only to limited and exceptional cases, recognizes that the right of disposing national
territory is essentially an attribute of the sovereignty of every state.

On matters relative to indigenous people, international law states that indigenous peoples situated within states do
not have a general right to independence or secession from those states under international law, but they do have
rights amounting to what was discussed above as the right to internal self-determination; have the right to autonomy
or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their
autonomous functions; have the right to the lands, territories and resources which they have traditionally owned,
occupied or otherwise used or acquired.

Clearly, there is nothing in the law that required the State to guarantee the indigenous people their own police and
security force; but rather, it shall be the State, through police officers, that will provide for the protection of the people.
With regards to the autonomy of the indigenous people, the law does not obligate States to grant indigenous peoples
the near-independent status of a state; since it would impair the territorial integrity or political unity of sovereign and
independent states.

On the basis of the suspensive clause.

o It was contented by the respondents that grave abuse of discretion cannot be had, since the provisions assailed
as unconstitutional shall not take effect until the necessary changes to the legal framework are effected.

The Court is not persuaded. This suspensive clause runs contrary to Memorandum of Instructions from the President
stating that negotiations shall be conducted in accordance to the territorial integrity of the countrysuch was negated
by the provision on association incorporated in the MOA-AD. Apart from this, the suspensive clause was also held
invalid because of the delegated power to the GRP Peace panel to advance peace talks even if it will require new
legislation or even constitutional amendments. The legality of the suspensive clause hence hinges on the query
whether the President can exercise such power as delegated by EO No.3 to the GRP Peace Panel. Well settled is
the rule that the President cannot delegate a power that she herself does not possess. The power of the President to
conduct peace negotiations is not explicitly mentioned in the Constitution but is rather implied from her powers as
Chief Executive and Commander-in-chief. As Chief Executive, the President has the general responsibility to promote
public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and
lawless violence.

As such, the President is given the leeway to explore, in the course of peace negotiations, solutions that may require
changes to the Constitution for their implementation. At all event, the president may not, of course, unilaterally
implement the solutions that she considers viable; but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for
constitutional amendment and revision.

While the President does not possess constituent powers - as those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative and referendum - she may submit proposals for
constitutional change to Congress in a manner that does not involve the arrogation of constituent powers. Clearly, the
principle may be inferred that the President - in the course of conducting peace negotiations - may validly consider
implementing even those policies that require changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if the assent of that body were assumed as a
certainty. The Presidents power is limited only to the preservation and defense of the Constitution but not changing
the same but simply recommending proposed amendments or revisions.

o The Court ruled that the suspensive clause is not a suspensive condition but is a term because it is not a question
of whether the necessary changes to the legal framework will take effect; but, when. Hence, the stipulation is
mandatory for the GRP to effect the changes to the legal framework which changes would include constitutional
amendments. Simply put, the suspensive clause is inconsistent with the limits of the President's authority to propose
constitutional amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the
Philippines will certainly be adjusted to conform to all the "consensus points" found in the MOA-AD. Hence, it must be
struck down as unconstitutional.

On the concept underlying the MOA-AD.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the
Philippines under international law, respondents' act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective. The MOA-AD not being a document that can bind
the Philippines under international law notwithstanding, respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse
lies not in the fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in
their brazen willingness to guarantee that Congress and the sovereign Filipino people would give their imprimatur to
their solution. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only
in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way

that the Executive can ensure the outcome of the amendment process is through an undue influence or interference
with that process.

G.R. No. 183591 October 14 2008

Province of North Cotabato vs Government of the Republic of the Philippines

FACTS:
On August 5, 2008, the Government of the Republic of the Philippines and the Moro Islamic Liberation Front (MILF)
were scheduled to sign a Memorandum of Agreement of the Ancestral Domain Aspect of the GRP - MILF Tripoli
Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.
Invoking the right to information on matters of public concern, the petitioners seek to compel respondents to disclose
and furnish them the complete and official copies of the MA-AD and to prohibit the slated signing of the MOA-AD and
the holding of public consultation thereon. They also pray that the MOA-AD be declared unconstitutional. The Court
issued a TRO enjoining the GRP from signing the same.

ISSUES:
1. Whether or not the constitutionality and the legality of the MOA is ripe for adjudication;
2. Whether or not there is a violation of the people's right to information on matters of public concern (Art 3 Sec. 7)
under a state policy of full disclosure of all its transactions involving public interest (Art 2, Sec 28) including public
consultation under RA 7160 (Local Government Code of 1991)
3. Whether or not the signing of the MOA, the Government of the Republic of the Philippines would be binding itself
b) to revise or amend the Constitution and existing laws to conform to the MOA;
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)

RULINGS:
1. Yes, the petitions are ripe for adjudication. The failure of the respondents to consult the local government units or
communities affected constitutes a departure by respondents from their mandate under EO No. 3. Moreover, the
respondents exceeded their authority by the mere act of guaranteeing amendments to the Constitution. Any alleged
violation of the Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance,
the Court grants the petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in
keeping with the liberal stance adopted in David v. Macapagal- Arroyo.
In Pimentel, Jr. v. Aguirre, this Court held:

By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is
seriously alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the
responsibility of the courts.
That the law or act in question is not yet effective does not negate ripeness.

2. Yes. The Court finds that there is a grave violation of the Constitution involved in the matters of public concern (Sec
7 Art III) under a state policy of full disclosure of all its transactions involving public interest (Art 2, Sec 28) including
public consultation under RA 7160 (Local Government Code of 1991).
(Sec 7 ArtIII) The right to information guarantees the right of the people to demand information, while Sec 28
recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise
of the right to information necessitates that its complementary provision on public disclosure derive the same selfexecutory nature, subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In
declaring that the right to information contemplates steps and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement.
E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a
principal forum for consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to
conduct regular dialogues to seek relevant information, comments, advice, and recommendations from peace
partners and concerned sectors of society.

3.

The concept of association is not recognized under the present Constitution.

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an associative
relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted
by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a
state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State,
much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

The BJE is a far more powerful entity than the autonomous region recognized in the Constitution. It is not merely an
expanded version of the ARMM, the status of its relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in
the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to
enter into relations with other states.

The defining concept underlying the relationship between the national government and the BJE being itself contrary
to the present Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation
and powers of the BJE are in conflict with the Constitution and the laws. The BJE is more of a state than an

autonomous region. But even assuming that it is covered by the term autonomous region in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it.

b) to revise or amend the Constitution and existing laws to conform to the MOA:

It will be observed that the President has authority, as stated in her oath of office, only to preserve and defend the
Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but
simply to recommend proposed amendments or revision. As long as she limits herself to recommending these
changes and submits to the proper procedure for constitutional amendments and revision, her mere recommendation
need not be construed as an unconstitutional act.

The suspensive clause in the MOA-AD viewed in light of the above-discussed standards.

Given the limited nature of the Presidents authority to propose constitutional amendments, she cannot guarantee to
any third party that the required amendments will eventually be put in place, nor even be submitted to a plebiscite.
The most she could do is submit these proposals as recommendations either to Congress or the people, in whom
constituent powers are vested.

particularly Section 3(g) & Chapter VII (DELINEATION,

RECOGNITION OF ANCESTRAL DOMAINS)
This strand begins with the statement that it is the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as Bangsamoros. It defines Bangsamoro people as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu archipelago at the time of conquest
or colonization, and their descendants whether mixed or of full blood, including their spouses.

Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes not only Moros as
traditionally understood even by Muslims, but all indigenous peoples of Mindanao and its adjacent islands. The MOAAD adds that the freedom of choice of indigenous peoples shall be respected. What this freedom of choice consists in
has not been specifically defined. The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of
which is vested exclusively in the Bangsamoro people by virtue of their prior rights of occupation. Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of the public domain.

Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which entails, among other things, the observance of the free and
prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not
grant the Executive Department or any government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct
consultations beforeany project or program critical to the environment and human ecology including those that may
call for the eviction of a particular group of people residing in such locality, is implemented therein. The MOA-AD is
one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the Bangsamoro
people, which could pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.

CONCLUSION:
In sum, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry
out the pertinent consultation process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No.
8371. The furtive process by which the MOA-AD was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic exercise thereof. It illustrates a
gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the
very concept underlying them, namely, the associative relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the associated entity is a state and implies that the same is on its
way to independence.

-----------

Case Digest: GR No. 187167

Prof. Magallona, Hontiveros, Prof. Roque and 38 UP College of Law Students

-vs-

Ermita Exec.Sec., Romulo Sec DFA, Andaya Sec DBM, Ventura Administrator National Mapping & Resource
Information Authority and Davide Jr.

-writ of certiorari and prohibition assailing the constitutionality of RA 9522

Facts:

RA 3046 was passed in 1961 which provides among others the demarcation lines of the baselines of the Philippines
as an archipelago. This is in consonance with UNCLOS I.

RA 5446 amended RA 3046 in terms of typographical errors and included Section 2 in which the government
reserved the drawing of baselines in Sabah in North Borneo.

RA 9522 took effect on March 2009 amending RA 5446. The amendments, which are in compliance with UNCLOS III
in which the Philippines is one of the signatory, shortening one baseline while optimizing the other and classifying
Kalayaan Group of Island and Scarborough Shoal as Regimes of Island.

Petitioners in their capacity as taxpayer, citizen and legislator assailed the constitutionality of RA 9522:- it reduces the
territory of the Philippines in violation to the Constitution and it opens the country to maritime passage of vessels and
aircrafts of other states to the detriment of the economy, sovereignty, national security and of the Constitution as well.
They added that the classification of Regime of Islands would be prejudicial to the lives of the fishermen.

Issues:

1. WON the petitioners have locus standi to bring the suit; and
2. WON RA 9522 is unconstitutional

Ruling:

Petition is dismissed.

1st Issue:
The SC ruled the suit is not a taxpayer or legislator, but as a citizen suit, since it is the citizens who will be directly
injured and benefitted in affording relief over the remedy sought.

2nd Issue:
The SC upheld the constitutionality of RA 9522.

First, RA 9522 did not delineate the territory the Philippines but is merely a statutory tool to demarcate the countrys
maritime zone and continental shelf under UNCLOS III. SC emphasized that UNCLOS III is not a mode of acquiring

or losing a territory as provided under the laws of nations. UNCLOS III is a multi-lateral treaty that is a result of a longtime negotiation to establish a uniform sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles
from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves. In order to measure said distances, it is a must for the state
parties to have their archipelagic doctrines measured in accordance to the treatythe role played by RA 9522. The
contention of the petitioner that RA 9522 resulted to the loss of 15,000 square nautical miles is devoid of merit. The
truth is, RA 9522, by optimizing the location of base points, increased the Philippines total maritime space of 145,216
square nautical miles.

Second, the classification of KGI and Scarborough Shoal as Regime of Islands is consistent with the Philippines
sovereignty. Had RA 9522 enclosed the islands as part of the archipelago, the country will be violating UNCLOS III
since it categorically stated that the length of the baseline shall not exceed 125 nautical miles. So what the legislators
did is to carefully analyze the situation: the country, for decades, had been claiming sovereignty over KGI and
Scarborough Shoal on one hand and on the other hand they had to consider that these are located at nonappreciable distance from the nearest shoreline of the Philippine archipelago. So, the classification is in accordance
with the Philippines sovereignty and States responsible observance of its pacta sunt servanda obligation under
UNCLOS III.

Third, the new base line introduced by RA 9522 is without prejudice with delineation of the baselines of the territorial
sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired
dominion and sovereignty.

And lastly, the UNCLOS III and RA 9522 are not incompatible with the Constitutions delineation of internal waters.
Petitioners contend that RA 9522 transformed the internal waters of the Philippines to archipelagic waters hence
subjecting these waters to the right of innocent and sea lanes passages, exposing the Philippine internal waters to
nuclear and maritime pollution hazards. The Court emphasized that the Philippines exercises sovereignty over the
body of water lying landward of the baselines, including the air space over it and the submarine areas underneath,
regardless whether internal or archipelagic waters. However, sovereignty will not bar the Philippines to comply with its
obligation in maintaining freedom of navigation and the generally accepted principles of international law. It can be
either passed by legislator as a municipal law or in the absence thereof, it is deemed incorporated in the Philippines
law since the right of innocent passage is a customary international law, thus automatically incorporated thereto.

This does not mean that the states are placed in a lesser footing; it just signifies concession of archipelagic states in
exchange for their right to claim all waters inside the baseline. In fact, the demarcation of the baselines enables the
Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and
non-living resources within such zone. Such a maritime delineation binds the international community since the
delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the
international community will of course reject it and will refuse to be bound by it.

The Court expressed that it is within the Congress who has the prerogative to determine the passing of a law and not
the Court. Moreover, such enactment was necessary in order to comply with the UNCLOS III; otherwise, it shall
backfire on the Philippines for its territory shall be open to seafaring powers to freely enter and exploit the resources
in the waters and submarine areas around our archipelago and it will weaken the countrys case in any international
dispute over Philippine maritime space.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as
embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines maritime
zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our national interest.

-------

The Regional Assembly of the ARMM passed Muslim Mindanao Autonomy (MMA) Act No. 201 creating the Province
of Shariff Kabunsuan out of certain municipalities in the Province of Maguindanao. Would it be legal for regional or
local legislative bodies to create or reapportion legislative districts for a national legislature like Congress?

SUGGESTED ANSWER:

No. The Supreme Court declared unconstitutional the grant to the Regional Assembly of the ARMM of the power to
create provinces and cities by Congress under RA 9054. Only Congress can create provinces and cities because the
creation of provinces and cities necessarily includes the creation of legislative districts and that Congress exercises
these powers through a law that the Congress itself enacts and not through a law that a regional or local legislative
bodies enact. An inferior legislative body, created by a superior legislative body, cannot change the membership of
the superior legislative body.(GR Nos. 177597 and 178628, Sema v. Comelec and Marquez v. Comelec, July 16,
2008)

Dissenting Opinion:

Justice Dante O. Tinga dissented, opining that there is nothing in the Constitution that bars Congress from delegating
the power to create provinces and that considering the constitutional mandate of local autonomy for Muslim
Mindanao, it can be said that such delegation is in furtherance of the constitutional design. He wrote that a law may
later be passed by Congress to create a legislative district in the new province. He was joined by Justices Consuelo
Ynares Santiago, Adolfo S. Azcuna, Minita V. Chico-Nazario, Teresita J. Leonardo-De Castro, and Arturo D. Brion.

----------

What are the four aspects of freedom of the press?

SUGGESTED ANSWER:

1. freedom from prior restraint

2. freedom from punishment subsequent to publication

3. freedom of access to information
4. freedom of circulation

What is the difference between content-neutral regulation and a content-based restraint?

SUGGESTED ANSWER:

A content-neutral regulation merely concerned with the incidents of the speech or one that controls the time, place
or manner and under well defined standards (example BP 880). A content-based restraint or censorship is based on
the subject matter of the utterance or speech.

The first is subjected to an intermediate review. The other bears a heavy presumption of invalidity and is measured
against the clear and present danger rule.

Hello Garci CDs Case

In 2006, following the public release of the Hello Garci tapes, DOJ Secretary Raul Gonzalez and the NTC issued a
warning against reporters from airing the same. Gonzales warned reporters that those who had copies of the CD and
those broadcasting or publishing its contents could be held liable under the Anti-Wiretapping Act. Are the official
statements of the Gonzales and the NTC constitutional?

SUGGESTED ANSWER:

No. The SC nullified the official statements made by DOJ Secretary Gonzalez and the NTC for constituting
unconstitutional prior restraint on the exercise of freedom of speech and of the press. The Court held that the
challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are contentbased restrictions. The acts of respondents focused solely on but one object a specific content fixed as these
were on the alleged taped conversations between President Arroyo and Garcillano.

The Court said that a governmental action that restricts freedom of speech or of the press based on content is given
the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the
clear and present danger rule. visit fellester.blogspot.com This rule applies equally to all kinds of media, including
broadcast media. Prior restraint on speech based on its content cannot be justified by hypothetical fears, said the
Court. (GR No. 168338, Chavez v. Gonzalez, February 15, 2008)
-----------------

Trillanes vs. Pimentel

Antonio Trillanes won a seat in the Senate while being under detention for staging an alleged coup detat. Before the
commencement of his term, his fellow opposition Senators filed a motion to allow him to attend Senate sessions and
perform his duties as senator. It was argued that there is a world of difference between his case and that of Jalosjos
respecting the type of offense involved, the stage of filing of the motion, and other circumstances which demonstrate
the inapplicability of Jalosjos. Trillanes posits that his election provides the legal justification to allow him to serve his
mandate, after the people, in their sovereign capacity, elected him as Senator. He argues that denying his Omnibus
Motion is tantamount to removing him from office, depriving the people of proper representation, denying the peoples
will, repudiating the peoples choice, and overruling the mandate of the people. Moreover, he pleads for the same
liberal treatment accorded certain detention prisoners who have also been charged with non-bailable offenses, like
former President Joseph Estrada and former Governor Nur Misuari who were allowed to attend social functions. Are
the contentions of Trillanes tenable?

SUGGESTED ANSWER:

No. The SC ruled that the distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that
election to Congress is not a reasonable classification in criminal law enforcement as the functions and duties of the
office are not substantial distinctions which lift one from the class of prisoners interrupted in their freedom and
restricted in liberty of movement. No less than the Constitution provides: All persons, except those charged with
offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. That the cited provisions apply
equally to rape and coup detat cases, both being punishable by reclusion perpetua, is beyond cavil. (visit
fellester.blogspot.com) Within the class of offenses covered by the stated range of imposable penalties, there is
clearly no distinction as to the political complexion of or moral turpitude involved in the crime charged. The high court
also denied Trillanes assertion that he was not a flight risk since he voluntary surrendered to authorities. The incident
at the Manila Peninsula Hotel in Makati showed him to be a flight risk. xxx The performance of legitimate and even
essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by
the mandate of the people are multifarious. xxx Congress continues to function well in the physical absence of one
or a few of its members. x x x Never has the call of a particular duty lifted a prisoner into a different classification from
those others who are validly restrained by law. (Trillanes vs. Pimentel, G.R. No. 179817, June 27, 2008)

--------------------Neri vs. Senate

G.R. No. 180643, March 25, 2008

Former NEDA Director General Romulo Neri testified before the Senate for 11 hours relating to the ZTE-NBN mess.
However, when probed further on what he and the President discussed about the NBN Project, he refused to answer,
invoking executive privilege. In particular, he refused to answer 3 questions:

(a) whether or not President Arroyo followed up the NBN Project

(b) whether or not she directed him to prioritize it
(c) whether or not she directed him to approve it

Unrelenting, the Senate Committees issued a Subpoena Ad Testificandum to Neri, requiring him to appear and testify
on November 20, 2007. However, Executive Secretary Eduardo R. Ermita requested the Senate Committees to
dispense with Neris testimony on the ground of executive privilege. In his letter, Ermita said that the information
sought to be disclosed might impair our diplomatic as well as economic relations with China. Neri did not appear
before the Committees. As a result, the Senate issued an Order citing him in contempt and ordered his arrest and
detention until such time that he would appear and give his testimony.

Are the communications elicited by the subject three (3) questions covered by executive privilege?

SUGGESTED ANSWER:

Yes. The Communications elicited by the 3 Questions are covered by Executive Privilege. xxx we are convinced that
the communications elicited by the questions are covered by the presidential communications privilege. First, the
communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an
executive agreement with other countries. This authority of the President to enter into executive agreements without
the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the
communications are received by a close advisor of the President. Under the operational proximity test, petitioner
can be considered a close advisor, being a member of President Arroyos cabinet. And third, there is no adequate
showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority.

The Senate contends that the grant of the executive privilege violates the Right of the people to information on
matters of public concern. Is the senate correct?

ANSWER: No. While Congress is composed of representatives elected by the people, it does not follow, except in a
highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to
information. The right of Congress or any of its Committees to obtain information in aid of legislation cannot be
equated with the peoples right to public information. The distinction between such rights is laid down in Senate v.
Ermita: There are clear distinctions between the right of Congress to information which underlies the power of inquiry
and the right of people to information on matters of public concern. For one, the demand of a citizen for the
production of documents pursuant to his right to information does not have the same obligatory force as a subpoena
duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony
from government officials. These powers belong only to Congress, not to an individual citizen. (visit
fellester.blogspot.com)

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking E.O. 464. Is there a recognized
claim of executive privilege despite the revocation of E.O. 464?

ANSWER: Yes. The revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is
because this concept has Constitutional underpinnings.

In Senate v. Ermita, the executive privilege should be invoked by the President or through the Executive Secretary
by order of the President. Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by
order of the President?

ANSWER: Yes. The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It
serves as the formal claim of privilege. There, he expressly states that this Office is constrained to invoke the settled
doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Obviously,
he is referring to the Office of the President. That is more than enough compliance.

May the Congress require the executive to state the reasons for the claim with particularity?

ANSWER: No. The Congress must not require the executive to state the reasons for the claim with such particularity
as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a
coordinate and co-equal department. (Senate v. Ermita)

Is the contempt and arrest Order of Neri valid?

ANSWER: No. There being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from
constitutional infirmity. The respondent Committees did not comply with the requirement laid down in Senate v. Ermita
that the invitations should contain the possible needed statute which prompted the need for the inquiry, along with
the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof. The SC also
find merit in the argument of the OSG that respondent Committees violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the duly published rules of procedure. The respondent
Committees issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent
Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they
curtly dismissed his explanation as unsatisfactory and simultaneously issued the Order citing him in contempt and
ordering his immediate arrest and detention. (Neri vs. Senate, G.R. No. 180643, March 25, 2008)