Levi's vs. Live's

Tony Lim was engaged in the manufacture, sale, and distribution of various denim jeans and pants under the brand name “LIVE’S.” Levi Strauss (Phils.), Inc. claimed that a “confusing similarity” could be noted between LEVI’s jeans and Tony Lim’s LIVE’S denim jeans and pants. Is there unfair competition?


SUGGESTER ANSWER:

No. The SC reiterated its ruling in Emerald Garment Manufacturing Corporation v. CA. The Court explained that since maong pants or jeans are not inexpensive, the casual buyer is more cautious and discerning and would prefer to mull over his purchase, making confusion and deception less likely. Where the Court held that in resolving cases of infringement and unfair competition, the courts should take into consideration several factors which would affect its conclusion, to wit: the age, training and education of the usual purchaser, the nature and cost of the article, whether the article is bought for immediate consumption and also the conditions under which it is usually purchased.

“We cannot sustain Secretary Bello’s opinion that to establish probable cause, “it is enough that the respondent gave to his product the general appearance of the product” of petitioner. It bears stressing that that is only one element of unfair competition. All others must be shown to exist. More importantly, the likelihood of confusion exists not only if there is confusing similarity. It should also be likely to cause confusion or mistake or deceive purchasers. Thus, the CA correctly ruled that the mere fact that some resemblance can be pointed out between the marks used does not in itself prove unfair competition. To reiterate, the resemblance must be such as is likely to deceive the ordinary purchaser exercising ordinary care.

The SC further agreed with the CA that the probability of deception must be tested at the point of sale since it is at this point that the ordinary purchaser mulls upon the product and is likely to buy the same under the belief that he is buying another. The test of fraudulent simulation is to be found in the likelihood of deception, or the possibility of deception of some persons in some measure acquainted with an established design and desirous of purchasing the commodity with which that design has been associated. (LEVI STRAUSS (PHILS.), INC vs. TONY LIM G.R. No. 162311, December 4, 2008)

Pre-Proc after Proclamation

Abainza and Arellano were among the candidates for the position of member of the Sangguniang Bayan of Jovellar, Albay. Abainza garnered 3,014 votes and held the 8th spot while Arellano received 2,983 votes. On May 15, 2007, the Municipal Board of Canvassers proclaimed Abainza as one of the duly elected members of the Sangguniang Bayan. Arellano filed a petition for correction of the number of votes in Clustered Precinct Nos. 46-A/47-A due to erroneous tally. It was alleged that an Election Return from said precinct showed a tally of 114 votes in favor of Arellano but indicated a corresponding total in words and figures of only 14 votes. May the COMELEC grant a petition for correction of manifest error which was in the nature of a pre-proclamation controversy despite a proclamation and oath by Abainza as elected councilor?

SUGGESTED ANSWER:

Yes. The SC ruled that “Despite the proclamation of the winning candidates, the COMELEC still has jurisdiction to correct manifest errors in the election returns for the Sangguniang Bayan candidates. Section 7 of the COMELEC Rules of Procedure provides for the correction of errors in tabulation or tallying of results by the Board of Canvassers, viz.:

Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. - (a) Where it is clearly shown before proclamation that manifest errors were committed in the tabulation or tallying of election returns, or certificates of canvass, during the canvassing as where (1) a copy of the election returns of one precinct or two or more copies of a certificate of canvass were tabulated more than once, (2) two copies of the election returns or certificate of canvass were tabulated separately, (3) there was a mistake in the adding or copying of the figures into the certificate of canvass or into the statement of votes by precinct, or (4) so-called election returns from non-existent precincts were included in the canvass, the board may motu proprio, or upon verified petition by any candidate, political party, organization or coalition or political parties, after due notice and hearing, correct the errors committed.


It is true that this provision deals with pre-proclamation controversies. However, it has also been held applicable to cases when a proclamation had already been made, where the validity of the candidate’s proclamation was precisely in question. After all, the election returns that are later on reflected in the statement of votes form the basis of the certificate of canvass and of the proclamation. Any error in the election returns ultimately affects the validity of the proclamation.

With the finding by the COMELEC of a manifest error in Election Return No. 2900930 from Clustered Precinct Nos. 46-A/47-A, petitioner’s proclamation was, therefore, flawed from the very beginning. It was not a valid proclamation. And when a proclamation is null and void, the proclamation is no proclamation at all; thus, the proclaimed candidate’s assumption of office cannot deprive the COMELEC of the power to declare such nullity and annul the proclamation. xxx The error in the entry in the election return is very evident to the eye, needing no evidence to make it clear. Abainza’s proclamation and eventual assumption of office, was predicated on clerical and “manifest” error, not on the legitimate will of the electorate.

In Duremdes v. Commission on Elections, it was Duremdes’ submission that his proclamation could not be declared null and void because a pre-proclamation controversy was not proper after a proclamation had been made, the proper recourse being an election protest. However, the Court ruled that Duremdes’ contention was proper only if there had been a valid proclamation. (ABAINZA vs. Arellano, G.R. No. 181644, December 8, 2008, ponente: Nachura)

Plebiscite not required in legislative apportionment or reapportionment

Former CDO Congressman Jaraula filed and sponsored House Bill No. 5859. The bill eventually became R.A. No. 9371. It increased CDO’s legislative district from one to two. Rogelio Bagabuyo now seeks to nullify R.A. No. 9371 on constitutional grounds. He argued that the plebiscite requirement under Section 10, Article X of the 1987 Constitution when there is a creation, division, merger, abolition or substantial alteration of boundaries of a province, city, municipality, or barangay was not complied. Does R.A. No. 9371 involve the division and conversion of a local government unit? Is a plebiscite necessary?

SUGGESTED ANSWER:

No. The SC ruled that Article X, Section 10 of the Constitution does not come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two districts. R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance with the authority granted to Congress under Article VI, Section 5(4) of the Constitution.

“To illustrate this effect, before the reapportionment, Cagayan de Oro had only one congressman and 12 city council members citywide for its population of approximately 500,000. By having two legislative districts, each of them with one congressman, Cagayan de Oro now effectively has two congressmen, each one representing 250,000 of the city’s population. In terms of services for city residents, this easily means better access to their congressman since each one now services only 250,000 constituents as against the 500,000 he used to represent.”

What is the difference between “legislative apportionment” and “reapportionment”?

SUGGESTED ANSWER:

Legislative apportionment is defined by Black’s Law Dictionary as the determination of the number of representatives which a State, county or other subdivision may send to a legislative body. It is the allocation of seats in a legislative body in proportion to the population; the drawing of voting district lines so as to equalize population and voting power among the districts.

Reapportionment, on the other hand, is the realignment or change in legislative districts brought about by changes in population and mandated by the constitutional requirement of equality of representation.

no plebiscite requirement exists under the apportionment or reapportionment provision (Article 6 (5))

What are the distinctions between a legislative apportionment or reapportionment and the division of a local government unit?

SUGGESTED ANSWER:

In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10 expressly speaks of how local government units may be “created, divided, merged, abolished, or its boundary substantially altered.” Its concern is the commencement, the termination, and the modification of local government units’ corporate existence and territorial coverage; and it speaks of two specific standards that must be observed in implementing this concern, namely, the criteria established in the local government code and the approval by a majority of the votes cast in a plebiscite in the political units directly affected. Under the Local Government Code (R.A. No. 7160) passed in 1991, the criteria of income, population and land area are specified as verifiable indicators of viability and capacity to provide services. The division or merger of existing units must comply with the same requirements (since a new local government unit will come into being), provided that a division shall not reduce the income, population, or land area of the unit affected to less than the minimum requirement prescribed in the Code.

A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the requirement of a plebiscite. The Constitution and the Local Government Code expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local government unit. In contrast, no plebiscite requirement exists under the apportionment or reapportionment provision. (Bagabuyo vs. COMELEC, G.R. No. 176970, December 8, 2008)

Judge D used ear drops for his eyes

Instead of dispensing a doctor-prescribed eye drops, a pharmacist assistant of Mercury Drugs gave ear drops to Judge Raul De Leon. As a result, the judge felt “searing pain” when he applied the ear drops to his left eye. Should Mercury Drug Corporation and the pharmacist assistant be held liable for damages?

SUGGESTED ANSWER:

Yes. “Druggists must exercise the highest practicable degree of prudence and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines.”

In dismissing Mercury Drug’s claim that De Leon’s own failure to read the label in the drug was the proximate cause of his injury, the Supreme Court ruled that in the purchase and sale of drugs, “the buyer and seller do not stand at arm’s length. There exists an imperative duty on the seller or the druggist to take precaution to prevent death or injury to any person who relies on one’s absolute honesty and peculiar learning.” The Court thus held that customers depend on the expertise and experience of druggists in dispensing the right medicine.

“It is generally recognized that the drugstore business is imbued with public interest. This can not be more real for Mercury Drug, the country’s biggest drugstore chain. This Court can not tolerate any form of negligence which can jeopardize the health and safety of its loyal patrons,” the Court concluded. (GR No.165622, Mercury Drug Corporation v. De Leon, October 17, 2008).

Bail on potential extraditee

Juan Muñoz was charged before a Hong Kong Court with several counts of offenses in violation of Hong Kong laws. If convicted, he faces a jail term of 7 to 14 years for each charge. After Juan Muñoz was arrested in the Philippines, the Hong Kong Special Administrative Region filed with the RTC of Manila a petition for the extradition of Juan Muñoz. On December 20, 2001, Judge X of RTC-Manila allowed Juan Muñoz to post bail. However, the government of Hong Kong alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting him to bail because “there is nothing in the Constitution or statutory law providing that a potential extraditee a right to bail, the right being limited solely to criminal proceedings.” May Juan Muñoz, a potential extradite, be granted bail on the basis of clear and convincing evidence that he is not a flight risk and will abide with all the orders and processes of the extradition court?

SUGGESTED ANSWER:

Yes. In a unanimous decision the SC remanded to the Manila RTC, to determine whether Juan Muñoz is entitled to bail on the basis of “clear and convincing evidence.” If Muñoz is not entitled to such, the trial court should order the cancellation of his bail bond and his immediate detention; and thereafter, conduct the extradition proceedings with dispatch.

“If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceeding where the innocence or guilt of the person detained is not in issue,” the Court said.

Citing the various international treaties giving recognition and protection to human rights, the Court saw the need to reexamine its ruling in Government of United States of America v. Judge Purganan which limited the exercise of the right to bail to criminal proceedings. (visit fellester.blogspot.com)

It said that while our extradition law does not provide for the grant of bail to an extraditee, there is no provision prohibiting him or her from filing a motion for bail, a right under the Constitution.

It further said that even if a potential extradite is a criminal, an extradition proceeding is not by its nature criminal, for it is not punishment for a crime, even though such punishment may follow extradition. It added that “extradition is not a trial to determine the guilt or innocence of potential extraditee. Nor is it a full-blown civil action, but one that is merely administrative in character. (GR No. 153675, Government of Hong Kong Special Administrative Region v. Judge Olalia, Jr. and Muñoz, April 19, 2007)

Note: In Government of United States of America v. Judge Purganan, September 24, 2002, The SC ruled that Mark Jimenez is not entitled to the right to bail and provisional liberty while the extradition proceedings are pending except upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances.

Mandatory Drug Testing Case

The Comprehensive Dangerous Drugs Act of 2002 (RA 9165), contains the following provisions:

1. Mandatory drug testing of all candidates for public office whether appointed or elected both in the national or local government
2. Mandatory drug testing of all persons charged before the prosecutor’s office with a criminal offense having an imposable penalty of imprisonment of not less than 6 years and 1 day
3. Random drug testing for secondary and tertiary school students as well as for officials and employees of public and private offices

Are the said provisions of the law constitutional?

ANSWER: Numbers 1 and 2 are unconstitutional. However, the SC upheld the constitutionality of Number 3.

In declaring sec. 36(g) unconstitutional, the Court said that the same “unmistakably requires a candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if proper, be proclaimed senator-elect,” adding that the assailed provision of the law and the COMELEC Resolution “add another layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate.”

The Court also found no valid justification for mandatory drug testing for persons accused of crimes, as required by sec. 36(f) of the law, as a mandatory drug testing in the case of persons charged with a crime before the prosecutor’s office “can never be random or suspicionless.”

“When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will,” said the Court. “To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a person’s right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.” (visit fellester.blogspot.com)

On the other hand, the High Court held that sec. 36(c) and (d) of RA 9165 requiring mandatory drug testing of students and officials and employees of public and private offices are constitutional.

The Court, taking note of the proliferation of prohibited drugs in the country which threaten “the well-being of the people, particularly the youth and school children who usually end up as victims,” stated that until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary and tertiary schools “is not only acceptable but may even be necessary if the safety and interest of the student population, doubtless a legitimate concern of the government, are to be promoted and protected.”

The Court, taking into account the reduced expectation of privacy on the part of employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of random drug testing, held that the challenged drug test requirement for those employed in public and private offices is, under the limited context of the case, reasonable and constitutional. (GR No. 157870, Social Justice Society v. Dangerous Drugs Board and PDEA, November 3, 2008)

Neri Vs. Senate

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 Neri’s 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 Arroyo’s 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 people’s 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)

Jennifer got it all

Facts: Jennifer Cagandahan has organs of both male and female because she is suffering from a rare and permanent medical condition known as Congenital Adrenal Hyperplasia (CAH). Jennifer is genetically female but has phenotypic features of a male individual. In 2003, she filed a Petition for Correction of Entries in her Birth Certificate to change her name from “Jennifer” to “Jeff” and her gender to male. The RTC granted her petition. However, the Office of the Solicitor General appealed to the SC arguing that the petition is fatally defective because it did not implead the local civil registrar, an indispensable party under Rules 103 and 108 of the Rules of Court. Should the court allow the change of name?

ANSWER: Yes. The Court ruled that a change of name is not a matter of right but of judicial discretion, to be exercised in the light of the reasons and the consequences that will follow. In the instant case, “if we determine respondent to be a female, then there is no basis for a change in the birth certificate entry for gender. But if we determine, based on medical testimony and scientific development showing the respondent to be other than female, then a change in the subject’s birth certificate entry is in order.” The Court, in deciding the case, considered “the compassionate calls for recognition of the various degrees of intersex as variations which should not be subject to outright denial.” It noted that Cagandahan “thinks of himself as a male and considering that his body produces high levels of male hormones (androgen), there is preponderant biological support for considering him as being male.” (visit fellester.blogspot.com) It stressed that she has let nature take its course in her development to reveal more fully his male characteristics. The SC agrees that there is substantial compliance with Rule 108 when respondent furnished a copy of the petition to the local civil registrar. Rule 1 of the Rules of Court states that courts shall construe the Rules liberally to promote their objectives of securing to the parties a just, speedy and inexpensive disposition of the matters brought before it. (GR No. 166676, Republic v. Cagandahan, September 12, 2008)

Rommel wants to be a bride

Facts: Rommel Silverio filed a petition for the change of his gender and first name in his birth certificate to facilitate his marriage with his fiancé. A year before, Silverio has underwent sex re-assignment surgery in Bangkok, Thailand. In his petition, he wants to change his first name from “Rommel” to “Mely.” Should the court allow the change of name?

ANSWER: No. The SC said that considering that there is no law recognizing sex re-assignment, the determination of a person’s sex at the time of birth, if not attended by error, is immutable. It held that “while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in the civil registry for that reason. There is no special law in the country governing sex reassignment and its effect. (visit fellester.blogspot.com) This is fatal to petitioner’s cause.” The Court said that the change in gender sought by petitioner “will have serious and wide-ranging legal and public policy consequences,” i.e., substantially reconfigure and greatly alter the laws on marriage and family relations and substantially affect the public policy in relation to women in laws such as the provisions of the Labor Code on employment of women, certain felonies under the Revised Penal Code, etc. (GR No. 174689, Silverio v. Republic, October 22, 2007)

Boracay: Beach or Forest?

Secretary vs. Yap
(G.R. No. 167707,October 8, 2008)

Several persons want to secure titles over lands in Boracay. They declared that they had been in open, continuous, exclusive, and notorious possession and occupation in Boracay since time immemorial. They also argued that they invested billions of pesos in developing their lands and building internationally renowned first class resorts on their lots. Do these give them the right to apply for a title to the land they are presently occupying?

SUGGESTED ANSWER:

No. Boracay Island (prior to Proclamation No. 1064 of May 22, 2006) had not been classified as alienable and disposable, whatever possession they had cannot ripen into ownership. The Regalian Doctrine dictates that all lands of the public domain belong to the State, that the State is the source of any asserted right to ownership of land and charged with the conservation of such patrimony. (visit fellester.blogspot.com) All lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. xxx A positive act declaring land as alienable and disposable is required. In keeping with the presumption of State ownership, the Court has time and again emphasized that there must be a positive act of the government, such as an official proclamation,] declassifying inalienable public land into disposable land for agricultural or other purposes. (G.R. No. 167707, Secretary of DENR v. Yap, October 8, 2008)

The 1987 Constitution classified lands of the public domain into agricultural, forest or timber and National Parks. Of these, only agricultural lands may be alienated. Prior to Proclamation No. 1064 of May 22, 2006, Boracay Island had never been expressly and administratively classified under any of these grand divisions. What is then the classification of Boracay prior to Proc. No. 1064?

SUGGESTED ANSWER:

Forest. PD No. 705 categorized all unclassified lands of the public domain as public forest. xxx Nevertheless, that the occupants of Boracay have built multi-million peso beach resorts on the island; that the island has already been stripped of its forest cover; or that the implementation of Proclamation No. 1064 will destroy the island’s tourism industry, do not negate its character as public forest. The classification is descriptive of its legal nature or status and does not have to be descriptive of what the land actually looks like. (Heirs of Amunategui v. Director of Forestry)


President can classify lands of Public Domain

Sometime in 2006, President Arroyo issued Proclamation No. 1064 classifying Boracay into reserved forest and agricultural land. It was such Proclamation which positively declared part of Boracay as alienable and opened the same to private ownership. Petitioners filed petition to nullify Proc. No. 1064. They argued that since Boracay is a public forest under PD No. 705, President Arroyo can no longer convert it into an agricultural land without running afoul the provisions of the CARL. Is the argument of the petitioners tenable?

SUGGESTED ANSWER:

No. In issuing Proclamation No. 1064, President Arroyo merely exercised the authority granted to her to classify lands of the public domain, presumably subject to existing vested rights. Classification of public lands is the exclusive prerogative of the Executive Department, through the Office of the President. Courts have no authority to do so. Absent such classification, the land remains unclassified until released and rendered open to disposition. Proclamation No. 1064 does not violate the Comprehensive Agrarian Reform Law. Moreover, the prohibition under the CARL applies only to a “reclassification” of land. If the land had never been previously classified, as in the case of Boracay, there can be no prohibited reclassification under the agrarian law. (G.R. No. 173775, Sacay v. Secretary of DENR, October 8, 2008)

SC's first Amparo case

FACTS:

Brothers Raymond and Reynaldo Manalo were abducted by military men belonging to the CAFGU on the suspicion that they were members and supporters of the NPA. After 18 months of detention and torture, the brothers escaped on August 13, 2007.

Ten days after their escape, they filed a Petition for Prohibition, Injunction, and Temporary Restraining Order to stop the military officers and agents from depriving them of their right to liberty and other basic rights. While the said case was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. The Manalos subsequently filed a manifestation and omnibus motion to treat their existing petition as amparo petition.

On December 26, 2007, the Court of Appeals granted the privilege of the writ of amparo. The CA ordered the Secretary of National Defense and the Chief of Staff of the AFP to furnish the Manalos and the court with all official and unofficial investigation reports as to the Manalos’ custody, confirm the present places of official assignment of two military officials involved, and produce all medical reports and records of the Manalo brothers while under military custody. The Secretary of National Defense and the Chief of Staff of the AFP appealed to the SC seeking to reverse and set aside the decision promulgated by the CA.

HELD:

In upholding the CA decision, the Supreme Court ruled that there is a continuing violation of the Manalos right to security. xxx The Writ of Amparo is the most potent remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission by public officials or employees and by private individuals or entities. xxx Understandably, since their escape, the Manalos have been under concealment and protection by private citizens because of the threat to their life, liberty, and security. The circumstances of respondents’ abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo,” the Court explained. (GR No. 180906, The Secretary of National Defense v. Manalo, October 7, 2008)

Distinguish the production order under the Rule on the Writ of Amparo from a search warrant.

SUGGESTED ANSWER:

The production order under the Rule on the Writ of Amparo should not be confused with a search warrant for law enforcement under Art. III, sec. 2 of the 1987 Constitution. It said that the production order should be likened to the production of documents or things under sec. 1, Rule 27 of the Rules of Civil Procedure which states that “upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control.” (GR No. 180906, The Secretary of National Defense v. Manalo, October 7, 2008)

Executive Privilege

Explain the principle of Executive Privilege?

ANSWER: Executive Privilege is power of the government to withhold information from the public, the courts and congress. This privilege, based on the doctrine of separation of powers, exempts the executive from disclosure requirements where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations and extends not only to military and diplomatic secrets but also to documents integral to the appropriate exercise of domestic decisional and policy making functions. (Senate vs. Ermita, GR No. 169777, April 20, 2006)

What are the two kinds of Executive Privilege?

ANSWER: 1. Presidential Communications Privilege
2. Deliberative Process Privilege

What is Presidential Communications Privilege?

ANSWER: Presidential Communications Privilege pertains to “communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential.” It is rooted in the constitutional principle of separation of power and the President’s unique constitutional role. Further, it applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones. It is always subject to greater scrutiny than denial of the deliberative process privilege. The following are its elements:
1) it must relate to a “quintessential and non-delegable presidential power.”

2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President.

3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the unavailability of the information elsewhere by an appropriate investigating authority.

When is the President’s claim of Executive Privilege (over documents) proper?

ANSWER: A proper claim of exectuive privilege requires a specific description of the documents within its scope as well as the precise reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim. (Senate vs. Ermita, GR No. 169777, April 20, 2006)

What is Deliberative Process Privilege?

ANSWER: Deliberative Process Privilege advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. It applies to decision-making of executive officials and is rooted on common law privilege.



Diplomatic Negotiations are Privileged in Character

Petitioners filed a petition before the SC to obtain from the government the full text of the Japan-Philippines Economic Partnership Agreement or JPEPA “prior to its finalization between the two States parties” as well as the Philippine and Japanese offers submitted during the negotiation process. JPEPA, the first bilateral free trade agreement between the Philippines and another country, has yet to take effect since it still has to obtain Senate concurrence as required under the Constitution. Petitioners invoked their right to information on matters of public concern and the constitutional provisions on transparency. From the nature of the JPEPA as an international trade agreement, the government did not dispute that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. However, they claim that the diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure. Are the diplomatic negotiations covered under the doctrine of executive privilege?

SUGGESTED ANSWER:

Yes. The diplomatic negotiations are covered by the doctrine of executive privilege. It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature. As for the Philippine and Japanese offers during JPEPA’s negotiations, the Court ruled that the offers are privileged communications that are confidential in character. “It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that ‘historic confidentiality’ would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations.” The Court also held that to overcome executive privilege, the party demanding the information must show that the information sought is vital not just for satisfaction of curiosity but for effective and reasonable participation in social, political, and economic decision-making. The SC concluded that Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by petitioners against the application of the ruling therein to the present case have not persuaded the Court. Moreover, petitioners – both private citizens and members of the House of Representatives – have failed to present a “sufficient showing of need” to overcome the claim of privilege in this case. (GR No. 170516, Akbayan Citizen’s Action Party v. Aquino, July 16, 2008)

Note: The Court noted that the petition “has been largely rendered moot and academic” by the public disclosure of JPEPA’s text after its signing by President Arroyo during the pendency of the petition. The court also explained that the said Decision shall not be interpreted as departing from the ruling in Senate v. Ermita that executive privilege should be invoked by the President or through the Executive Secretary “by order of the President.” (visit fellester.blogspot.com)


Senate vs. Ermita
GR No. 169777, April 20, 2006

The Senate sent invitations to various officials of the Executive Department to be resource speakers in the investigations regarding the North Rail Project and the alleged wire-tapping incident involving the President in the May 2004 elections. The invitations were reiterated to the same officials, but this time Executive Secretary Ermita sent a reply letter informing the Senate President of the issuance of EO 464, mandating that certain senior officials should first secure the consent of the President before they are allowed to attend Congressional hearings, and that such consent was not yet secured. Can the officials invited refuse to attend the Inquiries conducted by the Senate by Invoking E.O. 464?

SUGGESTED ANSWER:

No. In resolving the issue, the Court delineated between Section 21 (inquiry in aid of legislation) and Section 22 (question hour) of Article VI of the 1987 Constitution. It stated that sections 21 and 22. Article VI, while closely related and complementary to each other," should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued its right to such Information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22 in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which' Congress requires their appearance is "in aid of legislation' under Section 11, the appearance is mandatory. And the only way for department heads to exempt themselves from it is by a valid claim of pr1vllege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power – the President on whom executive power is vested, hence beyond the reach of congress except through the power of impeachment. (Senate vs. Ermita, GR No. 169777, April 20, 2006)


President has absolute authority over the armed forces

The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of massive cheating in the 2004 elections and the surfacing of the “Hello Garci” controversy. President Arroyo issued E.O 164 enjoining officials of the executive department including the military establishment from appearing in any legislative inquiry without her approval. However, the two concluded their testimonies before the Senate in spite the fact that a directive has been given to them. As a result, both of them were relieved of their assignments for allegedly violating the Articles of War and the time honored principle of the “Chain of Command.” May the President prevent a member of the armed forces from testifying before a legislative inquiry?

SUGGESTED ANSWER:

Yes. Soldiers are constitutionally obliged to obey the President they may dislike or distrust. The ability of the President to prevent military officials from testifying before Congress DOES NOT TURN ON EXECUTIVE PRIVILEGE BUT ON THE CHIEF EXECUTIVE’S POWER AS COMMANDER IN CHIEF to control the actions and speech of the armed forces. Under the Commander in Chief Clause (Art. XVl, section 5), the President has absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law. (Gudani vs. Senga, GR No. 170165, August 15, 2006)

The President can prevent a member of the armed forces from testifying before a legislative inquiry. Is this rule absolute?

ANSWER: No. The rule is not absolute. In as much as it is ill advised for Congress to interfere with the President’s power as Commander-in-Chief, it is similarly detrimental for the President to unduly interfere with Congress right to conduct legislative inquiries. xxx Courts are empowered, under the principle of JUDICIAL REVIEW, to arbitrate disputes between the executive and legislative branches of the government on the proper parameters of power. By this, if the court so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the President has earlier disregarded with notion of officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the court. (Gudani vs. Senga, GR No. 170165, August 15, 2006)


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 Neri’s 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 Arroyo’s 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 people’s 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.

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)

Sabio vs. Gordon

Former President Cory issued EO No. 1 creating the PCGG. She entrusted upon this body the task of recovering the ill-gotten wealth accumulated by the deposed President Marcos and his close associates. To ensure the PCGG’s unhampered performance of its tasks, Section 4 (b) of E.O. No. 1 provides that: “No member or staff of the Commission shall be required to testify or produce evidence in any judicial, legislative or administrative proceeding concerning matters within its official cognizance.”

20 years later, the Senate invited PCGG Chairman Camilo Sabio to be one of the resource persons in a Senate investigation. However, Chairman Sabio declined the invitation invoking Section 4 (b) of E.O. No. 1.May Section 4 (b) of E.O. No. 1 be invoked by Chairman Sabio to justify non-appearance on legislative investigations?

SUGGESTED ANSWER:

No. Section 4 (b) of E.O. No. 1 is declared REPEALED by the 1987 Constitution. The Congress’ power of inquiry, being broad, encompasses everything that concerns the administration of existing laws as well as proposed or possibly needed statutes. It even extends “to government agencies created by Congress and officers whose positions are within the power of Congress to regulate or even abolish.” (Sabio vs. Gordon, October 17, 2006)

Note: Article VI, Section 21 grants the power of inquiry not only to the Senate and the House of Representatives, but also to any of their respective committees.

Trillanes cannot get his ass out to attend senate sessions

Trillanes vs. Pimentel

Antonio Trillanes won a seat in the Senate while being under detention for staging an alleged coup d’etat. 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 people’s will, repudiating the people’s 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 d’etat 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)

ARMM Regional Assembly Cannot Create Provinces and Cities

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.

Freedom of the Press

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 content-based 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)

SC Declares GRP-MILF MOA-AD Unconstitutional

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:

No. The SC ruled that 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, it said. Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the President herself is authorized to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference with that process. 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.

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 forces…The sovereignty and territorial integrity of the Philippines would have been compromised.” (GR No. 183591, Province of North Cotabato v. Republic, October 14, 2008)

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)