Chua, Joseph Cruz, Ivan KristelCueto, Kristina Mae

I. Bangsamoro Basic LawGeneral Principles and PoliciesBangsamoro Basic Law is a certified urgent bill proposed to the Congress by the President to be the Basic Law of the new Bangsamoro political entity that will replace the current Autonomous Region in Muslim Mindanao (ARMM). When approved into law, the proposed BBL will implement the Framework Agreement on the Bangsamoro (FAB) and its Annexes entered into between the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF). When approved into law, the proposed BBL will implement the Framework Agreement on the Bangsamoro (FAB) and its Annexes entered into between the Government of the Philippines (GPH) and the Moro Islamic Liberation Front (MILF).[footnoteRef:2] [2: Primer on the proposed Bangsamoro Basic Law, http://www.hdcentre.org/uploads/tx_news/Primer-on-the-proposed-Bangsamoro-Basic-Law.pdf, (last visited May 25, 2015)]

Its purpose is to establish a political entity, provide for its basic structure of government in recognition of the justness and legitimacy of the cause of the Bangsamoro people and their aspiration to chart their political future through a democratic process that will secure their identity and posterity and allow for meaningful selfgovernance. (Art. 1, sec. 3)[footnoteRef:3] [3: Id.]

It can be said that passing the Bangsamoro Basic Law (BBL) may be thesolutionto the long-term conflict in Mindanao that will finally bring peace to the Bangsamoro people of Mindanao. The purpose of this law,according to the Office of the Presidential Adviser on the Peace Process, is to establish the new Bangsamoro political entity and provide for its basicstructureof government, in recognition of the aspirations of the Bangsamoro people.[footnoteRef:4] [4: Edrian Echague, Deal or No Deal? Should the Bangsamoro Basic Law be given a chance, March 8, 2015]

However, despite attempts to pass the said bill, there are many who have opposed to such, all expressing their views through media, blogs, and even social networking sites. Among the few influential people against the said bill, the very vocal of whom is Senator Miriam Defensor Santiago.The basic constitutional issues are laid down, to better understand whether it conforms to our constitution or not.Amendment to the ConstitutionThe Senate and the House acting only by themselves cannot approve the proposed BBL in its present form. It has to be promulgated by nothing less than an amendment to the Constitution.A constitutional amendment should apply the method prescribed by the Constitution itselfconstitutional convention, constituent assembly, or peoples initiativewith revisions subject to ratification by the national electorate in a plebiscite.The amendments the House ad hoc committee introduced in its version of the BBL draft failed to reconcile the bill with the Constitution, specifically on issues of sovereignty, autonomy, the creation of a sub-state, and territorial integrity. [footnoteRef:5] [5: http://miriam.com.ph/newsblog/2015/05/21/miriam-new-name-wont-cure-bbl/#more-2556]

Violation of national sovereignty and territorial integrityThe BBL is unconstitutional because it violates what the Constitution provides for as national sovereignty and territorial integrity of our country.The national territory comprises the Philippine Archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction.[footnoteRef:6] [6: 1987 Constitution, Article I]

As stated in Article II, Section 1 of the 1987 Constitution, The Philippines is a democratic and republican state. Sovereignty resides in the people and all government authority emanates from them.The term sovereignty means the supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent.[footnoteRef:7] [7: Blacks Law Dictionary, 6th Edition]

Those are the guidelines set by the Constitution in providing for autonomous regions for regional authority. Its obvious that in the contemplation of the Constitution, the territorial units of our country are provinces, cities, barangays, municipalities, and autonomous regions. Theres no mention at all of a sub-state. What was only stated is that there shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided.[footnoteRef:8] [8: 1987 Constitution, Article X, Section 1]

While the Philippines remains a sovereign state, the changes sought by the BBL conspire to create a part-sovereign state or a sub-state, meaning a political community in which part of the powers of external sovereignty are exercised by the home government, and part are vested in or controlled by some other political body or bodies.Thus creating what today we usually call a sub-state, the BBL creates an entire state within the Philippine state.[footnoteRef:9] [9: Report by the Committee on Constitutional Amendments and Revision of Codes, Office of Senator Miriam Santiago ]

This was supported by the following provisions therein stated in the proposed bill, among the following are: The powers of the central government shall be determined by the Agreement, thus turning Bangsamoro into a substate. The Autonomous Region for Muslim Mindanao, which is provided for by the Constitution, will be abolished by mere agreement with the MILF, which is not surprising if you consider that the Bangsamoro has become a substate. Allocation to the Bangsamoro of all powers exercised by the national government over local government units. Although the Constitution provides that natural resources belong to the state, in the Bangsamoro territory, only Bangsamoro will have exclusive jurisdiction over natural resources. The Annex on Power Sharing gives to Bangsamoro so-called exclusive powers, which is defined as a tautology, as powers or matters over which authority and jurisdiction pertain to the Bangsamoro government. Only the Bangsamoro shall be under a ministerial form of government, while the rest of the country will operate under a presidential form of government. The Agreement in Part 7, para. 4, subpara (b) enumerates the functions of the Transition Commission which at present is reportedly drafting the Bangsamoro Basic Law. One of the functions of the Transition Commission is as follows: To work on proposals to amend the Philippine Constitution for the purpose of amending and enriching in the Constitution the agreements of the Parties whenever necessary without derogating from any prior peace agreement.[footnoteRef:10] [10: Ayee Macaraig, Bangsamoro deal illegal, creates substate, April 02, 2014, http://www.rappler.com/nation/54510-miriam-bangsamoro-deal-illegal]

Santiago added that the name itself showed that the BBL is intended to have the same effect as the constitution or constitutional law of the Bangsamoro territory, in the same manner that the 1987 Constitution is supreme in the territory of the Republic of the Philippines. [footnoteRef:11] [11: Miriam: New name wont cure BBL, May 21, 2015, http://miriam.com.ph/newsblog/2015/05/21/miriam-new-name-wont-cure-bbl/#more-2556]

It goes without saying that two different constitutional instruments cannot have legal effect at the same time and in the same territory. The proposed BBL must be consistent with the provisions of the Constitution of the Philippines, she said.Parliamentary form of GovernmentBBL is contrary to the Constitutional provision that the autonomous region should consist of an executive and legislative branch, both of which shall be elective and representative of constituent unit. Executive infringing on Congress powerThe executive branch infringed upon the powers of the legislative branch in negotiating the agreement with the MILF. The agreement should not have identified the executive as the Philippine government.The reality is that only one of the 3 branches of government the executive branch, consisting of the Office of the President acting through a peace panel of negotiators represented the government. The executive branch alone does not represent the Philippine Government. Thus, the executive branch, in negotiating the Agreement had no power to bind the two other branches legislative and judicial.Santiago said the executive misrepresented itself as the government. Thus, the Agreement is concluded between one branch mistakenly identifying itself as the government, and what will turn out to be a substate.Excess of DecentralizationThe BBL seeks to establish a political entity so far unknown in the rest of constitutional democracies. While the Constitution takes care to define the limits of local autonomy, the BBL is vested with powers far beyond constitutional limits.Sen. Santiago cautioned thatthe Autonomous Region in Muslim Mindanao is less-than-sovereign self-determination, but the excess of decentralization under the BBL may lead to a spectre of Balkanization, the action of dividing an area into smaller, eventually hostile states.Enumeration of powers, questionableThe House panel retained three types: Reserved powers reside only on the national government; concurrent powers are shared; while exclusive powers rest solely on the Bangsamoro government.The concept of concurrent powers and exclusive powers tear asunder the supreme authority possessed by the sovereignty of the people. These will make the Bangsamoro government co-equal with the national government, and thus a subs-state, the senator said.Santiago particularly opposed the extensive taxing and revenue raising powers the BBL would give the Bangsamoro government. Effectively, the Bangsamoro government will have seceded from, yet remain financially supported by the Philippine government, she added.The provision granting the Bangsamoro exclusive powers and use of natural resources found in the area also drew Santiagos criticism. Under constitutional language, nothing of value may be exclusively allocated to any territorial part of the Philippine archipelago, she said.Principle of SubsidiarityInstead of implying a transfer of sovereignty from the national government to the Bangsamoro Government, the BBL should observe the principle of subsidiarity as a way to allocate decision-making power, the senator said in her first recommendation.Subsidiarity is the principle that a central authoritys function should be subsidiary, performing only tasks that cannot be performed effectively at a mere local level.The proposed BBL must provide a minimal threshold of competencies in order to ensure that the national sovereignty of the Philippines remains intact, and is not limited nor shared.Exercise of Local AutonomyAlthough the BBL purports to be an exercise in local autonomy, it bursts its bounds and turns into a part-sovereign state or a sub-state. The term Bangsamoro territory implies that although it is under the jurisdiction of the Philippines, it is a separate part.Transition Commission, void.The Transition Commission which drafted it is void because President Aquino III has no powerto create a public office. No constitutional provision or law allows its creation. In no way can it be considered an existing agency prior toits creation. It cannot be justified as a means bywhich the President ensures that the laws are faithfully executed precisely because its creation is for the purpose of abrogating the existing organic actof the ARMMLegally speaking, therefore, thedraft Bangsamoro Basic Law does not exist, and because it does not exist, the President cannot certify it as urgent, and the Congress cannot act on the same. Framework Agreement, unconstitutionalThe Agreement is betweenthe Philippine Government (GPH) and the MILF. It is misleading for the Agreement to identify that oneparty is the "Philippine Government." The reality is that only one of the three branches of government - the executive branch, consisting of the Office of the President acting through a peace panel of negotiators- represented the government. The executive branch alone does not represent the Philippine Government. Thus, the executive branch, in negotiating the Agreement had no power to bind the two otherbranches - legislative and judicial. In negotiating for the government, the executive branch not only exceeded its powers, but may have infringed upon the powers of the legislative branch.When the executivebranch misrepresenting itself as the Philippine Government enters into an agreement with the rebel group, the result is not a mere autonomous region as provided for by our Constitution, but a substate. Thus, the Agreement is concluded between one branch mistakenly identifying itself as the government, and what will turn outto be a substate.The Philippine Constitution provides for the powers of the state. The Constitution is supreme. The Agreement reserves to the central government the exercise of certain so-called "reserved powers," which are described as powers "retained by the central government." Thus, the Agreementdiminishes the sovereignty of the Philippine Government by listing what arethe powers that the central government can retain. In other words, the Agreement attempts to redefine the sovereignty of the Philippine state. In addition, the Agreement provides that the powers reserved to the central government will depend upon further negotiation by providing: "This list is without prejudice to additional powers that may be agreed upon by the parties." Thus, theAgreement not only reduces the sovereignty ofthe central government, but also provides that in thefuture, such sovereign powers as have been reserved may be further increased, provided the Bangsamoro agrees. It will therefore be theBangsamoro which willdetermine what should be the remaining sovereign powers of the central government.[footnoteRef:12] [12: Shad Blax, The Bangsamoro Basic Law is unconstitutional for two principal reasons, http://www.academia.edu/9810938/The_Bangsamoro_Basic_Law_is_unconstitutional_for_two_principal _reasons, (last visited May 25, 2015)]

No true representationSantiago believed that even after the BBL is passed, under its present form, the war in Mindanao would continue because the people are not truly represented.The first thing that would happen the moment that Bangsamoro law is passed is there will be internal war, another non-international armed conflict, this time among those claiming to be leaders, Santiago said.The first thing that the two panels negotiationg for the peace in Mindanao should have done was to present their credentials. Since events have already taken place, it would be best if Malacaang would form its own review committee to check the BBL for unconstitutional features instead of letting other branches of the government do it for them, especially the Supreme Court.She said Malacaang should tap the legal luminaries who attended the Senate hearing on the BBL.[footnoteRef:13] [13: Amita O. Legaspi, Miriam to Govt, MILF: Scrap Bangsamoro Law, renegotiate peace deal, March 5, 2015, GMA News]

Bangsamoro TerritoryFormer Supreme Court Justice Vicente Mendoza states that to call the proposed political entity as a "Bangsamoro territory" is to consider it a separate part of the Philippines although under its jurisdiction. Such a political entity is only a little different to the "associative relationship" of the Bangsamoro Juridical Entity under the MOA-AD. The Constitution does not contemplate any state in the jurisdiction of the state much less does it provide for a transition status that prepares any part of the Philippines for independence.However, former Supreme Court Justice Adolf Azcuna says otherwise, saying that Bangsamoromeans "nation of the Moro." It's a recognition of a nation of people with a distinct culture. There can be many nations within a state. Although it is thinking out of the box, it is not unconstitutional. Bangsamoro PeopleProvisions referring to "Bangsamoro people" limit suffrage and membership to the Bangsamoro government to those who ascribe to the Bangsamoro identity thus denying the rights and privileges of national citizenship guaranteed in the national Constitution, according to Former CJ Mendoza. Gascon posits however that, everything in the provisions affirm the rights of all citizens. There is no two-tier citizenship. What it does say is that the Bangsamoro shall have the opportunity for self-governance by way of the establishment of a political entity that will govern themselves day to day. Bangsamoro shall be governed by all those elected by all citizens of the Bangsamoro, whether they ascribe to be Bangsamoro or not. There is nothing in the Bangsamoro Basic Law that says that only the Bangsamoro may be elected.II. Freeze Order on the Bank Accounts of Vice President BinayA resolution, which was dated May 11, granted a petition of the Anti-Money Laundering Council (AMLC) to allow the council to scrutinize the bank accounts of Binay and members of his family, as well as corporations linked to the Vice President.A division of the Court of Appeals (CA) has frozen 242 bank accounts and insurance policies belonging to Vice President Jejomar Binay. The Court of Appeals found that from 2008 to 2014 Vice President Binay and his supposed dummies had large and frequent bank transactions during the construction of the allegedly overpriced Makati parking building and Makati Science High School.[footnoteRef:14] A freeze order was issued by the First Division, which is composed of Presiding Justice Andres Reyes Jr. and Associate Justices Edwin Sorongon and Ricardo Rosario which shall last for 6 months. The AMLC and the Office of the Ombudsman wanted to ensure that personal assets of Binay that were allegedly ill-gotten would not be dissipated and so a freeze order must be issued by the appellate court. [14: Ayee Macaraig, Nancy Binay on freeze order: Roxas so desperate, May 13, 2015, Rappler]

The Court of Appeals issued the resolution on the basis of finding probable cause with the petition filed by AMLC. It also ordered banks to immediately make a reporting of amounts remaining in the bank accounts of the Binays within 24 hours after the banks concerned receive a copy of the order.[footnoteRef:15] In the freeze order, the Court of Appeals stated that the AMLC observed an increase in the net worth of Vice President Binay. Such increase were not commensurate to their declared incomes, assets, liabilities, and business interest. However, Binays lawyer said that the Binays can explain the bank transactions through the Vice Presidents Statement of Assets, Liabilities and Net Worth and records from the Bureau of Internal Revenue. They added that the AMLC failed to include the money received by the Vice President from 2010 campaign. The contribution is worth P231 million and only P218 million was used.[footnoteRef:16] [15: Jomar Canlas, CA Freezes Binays bank accounts, May 13, 2015, The Manila Times] [16: Ayee Macaraig, Nancy Binay on freeze order: Roxas so desperate, May 13, 2015, Rappler]

According to Harry Roque, law professor from University of the Philippines, the freeze order was unconstitutional. Since it violates his immunity from suits as mandated by the Constitution.[footnoteRef:17] This contradicts the earlier statement of Justice Secretary Leila De Lima who said that only the president is immune from suits. The Constitution states that: [17: Janvic Mateo, Freeze order vs Binays assets unconstitutional-lawyer, May 17, 2015, The Philippine Star]

The President, the Vice President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment form and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.[footnoteRef:18] [18: 1987 Constitution, Article XI, Section 2]

Both the President and the Vice President are considered impeachable officer but only the President is immune from suit while in office.[footnoteRef:19] Impeachability means that the President or Vice President cannot be removed from office except through impeachment. Secretary De Lima said that any suit filed against the Vice President that would not result in his removal from office, like a civil suit for forfeiture of ill-gotten wealth, is allowed.[footnoteRef:20] There has been no legal basis or doctrine in constitutional or political law that would provide immunity from suits of impeachable officials, except the President. Thus, Binay is not immune from suit or investigations, such as the inquiry conducted by the AMLC on his alleged violation of Anti-Money Laundering Act. [19: Janvic Mateo, Freeze order vs Binays assets unconstitutional-lawyer, May 17, 2015, The Philippine Star] [20: Jerome Aning, De Lima: Only President immune from suit, not VP Binay, May 22, 2015, Philippine Daily Inquirer]

The Constitution does not expressly postulate presidential immunity from suit but the Supreme Court believes that it is already implied based on jurisprudence. In the case of In Re: Bermudez, the Court expressly held that it is equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.[footnoteRef:21] In the said case, the immunity from suit of the incumbent Vice President was not stated. The purpose of the said immunity was discussed in the case of Soliven, et. al v Makasiar. The Court held that: The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention.[footnoteRef:22] The President needs to concentrate on his duty of running the government. Again in this case, it is not expressly nor impliedly stated whether the Vice President is immune from suit. The issue on the immunity of the Vice President would be best settled by the Supreme Court. [21: See G.R. No. 76180 October 24, 1986] [22: See G.R. No. 82585 November 14, 1988]

III. The Alleged Responsibility of the Commander-in-Chief in the Mamasapano incidentOplan Exodus is a police operation that took place last January 25, 2015 aimed at arresting the most wanted terrorist Zulkifli bin Hir alias Marwan and Abdul Basit Usman The operation led to the death of 44 members of the Philippine National Police Special Action Force.The PNP Board of Inquiry report found that President Benigno Aquino III bypassed the chain of command in the PNP hierarchy that cost the lives of 44 SAF troopers[footnoteRef:23]. The Senate panel also found that President Aquino is ultimately liable for the clash because he allowed the then suspended PNP chief General Alan Purisima to be involved in the operation. The suspension of the PNP chief inhibits him from official activities. President Aquino III violated Executive Order 226 or the rule in command responsibility. Section 1 of the said order states that: [23: Mark Meruenas, De Lima: 90 to be charged over Mamasapano clash, April 16, 2015, GMA News]

Neglect of Duty Under the Doctrine of "Command Responsibility". - Any government official or supervisor, or officer of the Philippine National Police or that of any other law enforcement agency shall be held accountable for "Neglect of Duty" under the doctrine of "command responsibility" if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during, or immediately after its commission.

Executive Order 226 highlights the need for strict and effective management and control of an organization by the supervisor as critical in ensuring the responsive delivery of the services by the government, especially in police matters.[footnoteRef:24] There is chain of command in the PNP and in other government agencies as stated in the said order. The PNP is subject to the authority of the secretary of the Department of Interior and Local Government who is thereby under the President. The President is, therefore, on top of the hierarchy. [24: FVR:PNoy liable in Mamasapano fiasco for violating command responsibility, March 18, 2015, GMA News]

Where there is a chain of command, the doctrine of command responsibility generally applies[footnoteRef:25]. Malacanang defended Aquino saying that PNP is a purely civilian agency and not part of the Armed Force or military where the chain of command responsibility applies[footnoteRef:26]; thus, the President as chief executive of civilian organization has the prerogative to talk to his subordinate and cannot be compelled to follow PNPs internal procedure. But based on Executive Order 226 command responsibility applies to all government offices, military or civilian. As the chief executive of the PNP, President Aquino has liability. He has direct control and supervision of PNP.[footnoteRef:27] [25: Ernie Reyes, De Lima doctrine on Aquinos command responsibility assailed in Senates Mamasapano report, InterAksyon.com] [26: Jose C. Sison, Command Responsibility, March 20, 2015, The Philippine Star] [27: FVR:PNoy liable in Mamasapano fiasco for violating command responsibility, March 18, 2015, GMA News]

In the case of Saez vs Macapagal-Arroyo[footnoteRef:28], the Supreme Court laid down the rule on the command responsibility of the president. The court enumerated the following elements that must be obtained to hold someone liable under the doctrine of command responsibility: [28: See G.R. 183533, February 25, 2012]

1. The existence of superior-subordinate relationship between him and the perpetrator of the act of omission;2. The superior knew or had reason to know that the act or omission was about to be or had been committed or omitted;3. The superior failed to take the necessary and reasonable measures to prevent the act or omission or punish the perpetrator.

Based on the ruling of the said case, President Aquino would appear to be liable. Under Section 18 Article VII of the 1987 Constitution, the President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.[footnoteRef:29] Even though the PNP is a civilian entity, it is also an armed force. Therefor as stated in the Constitution, the President is the Commander-in-Chief of PNP. Thus command responsibility for PNP resides in the President. There exist a superior-subordinate relationship between him and the PNP officials. Under Executive Order 226 or the Institutionalization of the Doctrine of Command Responsibility, the superior may be charge with constructive knowledge. It is presumed that the superior had knowledge of the act or irregularities. President Aquino also admitted having knowledge of the general details of the operation but refused to tell whether or not he gave the go signal.[footnoteRef:30] As to the last element, the president being the Commander-in-Chief has the power to effectively control and give commands to his subordinate. A commander is responsible for what his subordinate does or fails to do. [29: 1987 Constitution Article VII] [30: Angela Casauay, Miriam: Determine command responsibility over Mamasapano, February 2, 2015, Rappler]

In defense, Senate President Drilon argued that he does not believe that the President is liable for the bloody incident. The principle of command responsibility does not apply in this case. As stated in the said order, the superior incurs liability if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates. In this case the SAF troopers are there not to commit a crime but to serve warrants of arrest to the high-ranking terrorist.[footnoteRef:31] [31: Id.]

The President having the immunity can only be held liable for the charges after his term of office ends or by impeachment proceedings. But under Section 2 Article XI of the 1987 Constitution, the President may be removed from office, on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust.[footnoteRef:32] The alleged liability of the President in the Mamasapano incident is therefore not among the grounds that could impeach the President. [32: 1987 Constitution Article XI]

1. Following the concepts of Freedom of Speech and of Information, will there be a constitutional violation if the government prohibits the publication of exit polls before the national election, on the basis that such exit polls unduly influence the voting public and create an imbalance in the playing field of candidates? Discuss thoroughly.

There would be no constitutional violation if the publication of exit polls before the closing of the polls for the national election is banned. Exit polls as defined by COMELEC Resolution Nos. 3636 and 6520 is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters for the names of candidates they have voted for, immediately after they have officially cast their ballots[footnoteRef:33]. These resolutions are in accordance with RA 9006 or the Fair Election Act. According to Sec. 5.5 (d) of the Act exit polls may be announced after the closing of the polls on election day. It is important to note that the Act uses the word may rather than the word must in prescribing the time of publication of exit polls[footnoteRef:34]. Another important thing to note is that under the concept of Freedom of Speech and of Information is not absolute and may be subjected to regulation or restraint by the State. Such interference or regulation takes the form of Police Power which allows the State to interfere with certain rights. Still, the case of ABS-CBN v. COMELEC (G.R. No. 133486), and the concepts of Freedom of Speech and of Information shed light on why there would be no constitutional violation if the publication of exit polls before the closing of the national election polls is banned. [33: COMELEC Resolution Nos. 3636, 6520] [34: RA 9006, Sec.5.5 (d)]

ABS-CBN v. COMELEC involves COMELEC Resolution No. 98-1419 which outright prohibits ABS-CBN or any other groups, their agents, and representatives on conducting an exit poll for the 1998 National Election and ABS-CBNs petition to lift the restraining order promulgated by COMELEC in accordance with said resolution. Respondent COMELEC asserts that the holding of exit polls can unduly influence the voting public and may also result in confusion among the other voters on who are the real or potential winners or losers in the election. It also further asserts that such exit polls violate the sanctity of the ballot and that being charged to promote clean, honest, orderly and credible May 11, 1998 elections it is in its power to ban such exit polls. On the other hand, petitioner ABS-CBN invokes the constitutional rights of Freedom of Speech and of Information, as well as Freedom of the Press as the reasons to allow the conduct of exit polls. While the case focuses on the outright prohibition on exit polls it serves as a landmark case for here the Court laid down guidelines and even possible measures to be followed in conducting exit polls. The Court also discussed a little about the Clear and Present Danger Rule/ Test to determine whether the freedom of speech or information must be regulated.[footnoteRef:35] [35: ABS-CBN v. COMELEC, G.R. No. 133486 (January 28, 200)]

To begin with, Freedom of Speech and of Information is not an absolute right. For the Freedom of Speech, the Clear and Present Danger Rule/Test is applied to determine whether such right must be regulated. The Clear and Present Danger Rule states that a right may be regulated when there is a clear and present danger of a substantive evil which the State has the right to intervene or prevent. This test is frequently applied to circumstances in which the Freedom of Speech is invoked. However, it must be important to remember that freedom of speech also involves the freedom to remain silent. It does not only encompass the freedom to agree or disagree, but also to remain silent. In addition, there are two elements of freedom of speech; 1.) Freedom from prior restraint or censorship, and 2.) Freedom from subsequent punishment. Freedom from censorship involves the restraint prior to the publication or dissemination of speech or ideas. Censorship involves an approval of the content of any publication before it is published. On the other hand, freedom from subsequent punishment means freedom from threat of being punished after words have been uttered or ideas have been published. The case at hand involves censorship since exit polls are outright banned by the COMELEC. The Court in arriving at a decision applied the Clear and Present Danger Test to determine if there is indeed a need to ban exit polls. Here the Court and ABS-CBN and even COMELEC recognized that announcing exit polls prior to the closing of polls for national election produces the danger of a bandwagon effect or unduly influencing the voters. As such RA 9006 and the subsequent COMELEC resolutions came to be, which prescribes that exit polls may be announced after the closing of polls on election day. In the end, the Court ruled that exit polls may not be outright banned since it would violate the freedom of speech, but instead must adhere to certain standards and measures in order to ensure clean, honest, and orderly elections.Freedom of Information, on the other hand, as provided by the Constitution involves the right to access to information involving matters, particularly to official or governmental records subject to such limitations as may be provided by law. The phrase subject to such limitations as may be provided by law indicates that the right is not absolute and may be subject of regulation. As such, regulatory discretion involves not just the determination on what matters are of public concern and the manner of how such information may be accessed. Exit polls while not an accurate tally or forecast of the winners of an election gives the public an overview of who might be the winners especially in the national elections. National elections being integral to determine the next set of leaders of the country, it is only right that the people has an access to information that may give them an idea on how the tally is going, one of which is the exit polls. However, recognizing the danger of undue influence that the exit polls may have on those who have not cast their ballots yet it is only proper that the manner of how the information may be accessed be regulated. This would bring us back to the promulgation of RA 9006 and the subsequent COMELEC resolutions which prescribe that exit polls may be announced after the closing of polls on election day.To sum it up, both Freedom of Speech and of Information is not absolute and may be regulated through legislation. For Freedom of Speech, it may be regulated or restricted when there is a clear and present danger of a substantive evil which the State has the right to intervene or prevent. On the other hand, Freedom of Information may be regulated on what matters are of public concern and how such information may be accessed. In addition, keeping in mind that RA 9006 and COMELEC Resolution Nos. 3636 and 6520 prescribes that exit polls may be announced after the closing of polls on election day and that the word may can be construed as a mandatory rather than directory under statutory construction it is clear that there would be no constitutional violation if the announcement of exit polls before the closing of polls for national election is banned. First, as ruled by the Court in ABS-CBN v. COMELEC there is a danger of unduly influencing those who have not cast their votes yet if exit polls are announced before the closing of polls on election day and therefore it must be regulated but not banned outright, recognizing that banning the exit polls would be a violation of the Freedom of Speech or Press. This resulted in RA 9006 and COMELEC Resolution Nos. 3636 and 6520 which recognizing that under the Freedom of Information, matters of public concern may be regulated through the manner by which information may be accessed, prescribed that exit polls may be announced after the closing of polls in election day. Therefore, banning the announcement of exit polls before the closing of polls for National Election is only proper and in accordance not just with law but also with the concepts of Freedom of Speech and of Information.

2. Discuss the idea of Academic Freedom

Academic freedom is a right guaranteed by the Constitution in Art. XIV, Sec. 5, paragraph 2 which states that academic freedom shall be enjoyed in all institutions of higher learning. Furthermore, as defined by the 1940 Statement of Principles of the American Association of University Professors (AAUP), academic freedom means that:(a) The teacher is entitled to full freedom in research and in the publication of the results, subject to the adequate performance of his other academic duties(b) The teacher is entitled freedom in the classroom in discussing his subject, but he should be careful not to introduce into his teaching controversial matter which has no relation to his subject(c) The college or university teacher is a citizen, a member of learned profession, and an officer in an educational institution. When he speaks or writes as a citizen, he should be free from institutional censorship or discipline, but his special position in the community imposes special obligations. As a man of learning and an educational officer, he should remember that the public may judge his profession and his institution by his utterances. Hence, he should at all times be accurate, should exercise appropriate restraint, should show respect for the opinion of others, and should make every effort to indicate that he is not an institutional spokesman.[footnoteRef:36] [36: JOAQUIN G. BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 1297 (2009).]

Basing on the definition it can be seen that the idea of academic freedom originally involves only the freedom of an educator in teaching. The educator is free to teach his subject in any manner he sees fit without any interference as long as the discussion and the manner that it is done are relevant to the subject matter at hand. Additionally, academic freedom would also encompass the freedom enjoyed by the educator in conducting academic researches and publishing them. On the other hand, such interference would include not just the imposition of restrictions in his way of teaching but also censorship or control over the content of his discussions relevant to his subject. Still, despite having the benefit of academic freedom, special obligations are imposed upon the educator since he represents the institution he is under. The educator notwithstanding the benefit of academic freedom must still be careful with his discussions as well as publications since the public may judge him based on such manner, with it having an effect not just on his image as a man in the educational field but also in his image as a private individual and ultimately, the image of the institution hes working for. His life may be likened to that a politician, whose behaviour is always under scrutiny by the public.Academic freedom despite starting as the freedom on a teacher in his classroom gradually evolved to include the freedom enjoyed by the very institution that the teacher represents. This can be gleamed on the second part of the definition provided earlier. The second part which states that the educator has freedom over the discussion of his subject but subject to the limitation that he may not discussed things not relevant to the subject at hand shows an emphasis on institutional academic freedom in which the institution may determine for itself; 1.) who will teach, 2.) what may be taught, 3.) how it should be taught, and 4.) who may be admitted to study. Such institutional freedom was first introduced in the 1973 Constitution which stated that All institutions of higher learning shall enjoy academic freedom. As noted by Fr. Joaquin Bernas, SJ in his book, The 1987 Constitution of the Republic of the Philippines: A Commentary, the guarantee of academic freedom for the faculty members did not appear in the Constitution with the possible implication that the faculty members academic freedom must be anchored on the general guarantee of freedom in the Bill of Rights. It can be also noted that such provision broadened the scope of academic freedom to include private education institutions, protecting them against the regulatory powers of the State yet at the same time providing a balance between the regulatory powers of the State and the academic freedom enjoyed by educational institutions. Such provision was preserved in the 1987 Constitution.[footnoteRef:37] [37: BERNAS, S.J., supra, at 1301.]

Academic Freedom is composed of four aspects: 1.) Who will teach, 2.) What may be taught, 3.) How it should be taught, and 4.) Who may be admitted to study, with each aspect being composed of finer details in which an education institution has the freedom to control. An example would be providing for a Masters degree as one of the qualifications in a teaching post for the first aspect. Likewise, an education institution has the freedom of not only choosing its faculty members but also on what subjects to include in its curriculum. On the other hand, books and other educational materials mandated by an educational institution for use falls by the students or faculty members alike fall under the third aspect. Lastly, conducting an admission test to for those who would like to enter a university or any educational institution belongs under the fourth aspect. Still, other details would include what facilities are going to be used or constructed for the benefit of the students, or the faculty members, or both, the ways of how the institution may generate revenue, its tuition fee, and many others. Additionally, academic freedom may perhaps be likened to the idea of management prerogative in labor law. Management prerogative in labor means that the company or employer has the freedom of choosing who to hire, what product/s to sell, how to sell it, and who will be their customers. It follows the same concept of allowing as much as freedom as possible to the company in the management of affairs. The same can be said with education institutions since under the concept of academic freedom an educational institution has the freedom of managing its own with little or no interference coming from the public or the government.Academic Freedom despite being a very broad mantle of protection for educational institutions is not an absolute power. Even though such right is guaranteed by the constitution it still must yield to the power of the government at times, specifically the Police Power. The Police Power being the most pervasive and least limitable power of the State, the government therefore has the power to interfere at times to restrict or even prohibit certain actions of education institutions in the interest of public welfare or public good. In fact, Police Power can be even used to outright regulate the very existence of educational institutions by prescribing minimum standards for them and with the academic freedom not being a valid excuse to advance the interests of such institutions to the detriment of the public. This is one of the reasons why organizations like CHED and PAASCU were formed, to regulate and ensure that educational institutions would be able to provide quality education. Furthermore, the right to a quality education being guaranteed by the Constitution and since education is invested with public interest, it is only appropriate that the government help in achieving quality education through legislation, regulation, and other acts which though may interfere with academic freedom is necessary to reach such objective.As such, jurisprudence in the Philippines would show the various circumstances in which academic freedom in relation to student, subjects, or faculty members is discussed. One good example is Mercado v. AMA Computer College Paranaque City which involves teachers who were not given salary increases due to them not passing the higher standards for hiring and maintaining teachers implemented by AMA for the year 2000-2001, this eventually lead to the non-renewal of their teaching contracts with the institution. Here, the Court discussed that academic freedom includes the right of the school or college to decide and adopt its aims and objectives, and to determine how these objectives can best be attained, free from outside coercion or interference, save possibly when the overriding public welfare calls for some restraint. It also includes the right of the school to set minimum or higher standards to ensure that it will be able to provide quality education and at the same time to regulate the employment of its faculty members, subject to the limits provided by the Labor Code and other laws[footnoteRef:38]. Another case of significance is Calawag v. University of the Philippines Visayas in which a group of students in Master of Science in Fisheries Biology filed a petition for preliminary mandatory injunction to compel the dean of UP Visayas to approve their thesis titles which said dean disapproved since such titles are not appropriate their respective masters degrees. Here, the Court ruled in favour of the institution, it appearing that the dean has the power to approve thesis titles as provided by school policy and as such would also imply that he has also the power to disapprove them. Furthermore, the Court stated that under the aspect of who may be admitted to study, an education institution has the freedom to establish requirements for graduation, such as the completion of thesis and the manner of how it is to be accomplished. In regard to this the Court may not interfere with the institutions discretion unless there is a clear showing that such discretion is arbitrarily or capriciously exercised[footnoteRef:39]. Lastly, Regino v. Pangasinan Colleges of Science and Technology is a good example regarding an educational institutions academic freedom in determining tuition fees. Here, a girl was not allowed to take her final examinations in two subjects since she wasnt able to buy the tickets for a party organized by the school as a fundraising campaign for the construction of its tennis and volleyball courts. Here, the Court discussed that upon enrolment, students and the school enter into a reciprocal contract which involves the student complying with the policies of the school and the itemized fees to be paid upon being informed by the school and while the school enjoys academic freedom in determining its fees, specifically the tuition fee, it cannot, after the enrolment of the student, vary the terms of the contract by requiring fees other than those it specified upon enrolment.[footnoteRef:40] [38: Mercado v. AMA Computer College Paranaque City, G.R. No. 183572 (April 13, 2010)] [39: Calawag v. University of the Philippines Visayas, G.R. No. 207412 (August 7, 2013)] [40: Regino v. Pangasinan Colleges of Science and Technology, G.R. No. 156109 (November 18, 2004)]