USLS College of Law Journal Volume I Issue I

VOLUME 1 | ISSUE 1 AY 2 0 14-2 0 1 5

University of St. La Salle College of Law La Salle Avenue, Bacolod City 6100 Email: uslslawjournal@gmail.com Volume 1 | Issue 1 Law Journal Staff Maria Reylan Garcia Editor Ralph Romeo Bascones Jamie Bentinganan Ma. Khatherine Denise Dumancas Jose Luis Guatelara Alexandra Soledad Writers Daniel del Rosario III Ciro dela Cruz Arven Mendoza Czarina Letecia Rubica Nilsy Ynzon Researchers Fatima Rodriguez Art Director Atty. Ralph Sarmiento Dean

Cover and Back Page by: http://www.newmiamiblog.com/files/2013/04/ judge.jpg, April 13, 2015

FOREWORD

The University of St. La Salle Law Journal serves as a platform for scholarly inquiry and analysis of legal issues that bear upon society. It seeks to establish itself as an essential reference not only for those who live and breathe the law, but also for those affected by its application. Knowledge of the law is power, and the Law Journal aims to enhance that power further with the Lasallian spirit of faith and zeal, and make it available as a potent weapon in the pursuit of justice and service to humanity.

The Law Journal will be published at least annually to highlight important legal articles written by the students, faculty, and alumni of the University of St. La Salle College of Law. It will feature analyses of significant legal developments and digests of notable national and foreign jurisprudence, and also offer an outlet for the publication of high quality thesis works of senior law students.

The publication of the Law Journal is the result of the hard work of the editorial board under the leadership of Maria Reylan Garcia. I thank all of them, the writers, researchers, and artists, for their great efforts. I believe every reader will find all the articles enlightening, and will feel inspired by the unremitting pursuit of truth and of the rule of law.

Atty. Ralph A. Sarmiento Dean

NOTE FROM THE EDITOR

It is with the sincerest joy that I present to you Volume 1, Issue 1 of the University of St. La Salle College of Law Journal. After two decades of providing holistic development for future Christian lawyers, the time is opportune for creating a printed medium to immortalize in paper the insights and novelty of its students, faculty and alumni.

The objective of the USLS Law Journal is to publish updated and innovative legal articles and essays, as well as quick-read case briefs of relevant jurisprudence. The journal is composed of an all-student team under the guidance of our dynamic dean, Atty. Ralph Sarmiento. We aim to be a journal that is engaging, thought-provoking and insightful.

This pioneer issue features legal essays laying down theoretical and pragmatic issues confronting the legal profession. Case briefs of pertinent jurisprudence on the topic of the separation of powers and of newly promulgated Supreme Court decisions in 2013-2014 are summarily narrated. Self-help articles discuss tips and techniques to assist throughout the law student’s academic journey – from studying for class recitations to preparing for the bar examinations. This initial issue highlights two thesis articles from University of St. La Salle College of Law graduates on the right to privacy and cyber libel.

Any legal research article or essay you would like to submit either individually or collaboratively will be appreciated for the development and triumph of our future issues.

Best Regards, Maria Reylan M. Garcia Email: uslslawjournal@gmail.com; reylangarcia@gmail.com

CONTENTS LEGAL ESSAYS

2

CASE DIGESTS

35 37 39 42 44 46 49 51 54 57 59 61 63 66 68 70

SELF-HELP ARTICLES

Privacy or Right to be Left Alone

Atty. Joel Dojillo 5 An Unjustly Vexatious Law

Atty Ralph Sarmiento 15 Rethinking Separationof Powers in the Philippines

Ralph Romeo Bascones 26 Good Faith and Backwages

Atty Dennis Cortes 29 Locating the Market Place of Ideas

Maria Reylan Garcia Senate v. Ermita (E.O.464) Santiago v Guingona Francisco v House of Representatives Araullo v President Aquino Pimentel v Senate Committee Philippine Constitutional Association v Enriquez Tan v Macapagal Youngstown Sheet & Tube Co. v Sawyer Imbong v Ochoa People v Juamawon People v Avellano Villasi v Garcia Gonzales v Office of the President Atty. Alconera v Pallanan Neri v Sandiganbayan Disini v Secretary of Justice (Cybercrime Law)

74 How and Why the Law Student Studies

Maria Reylan M. Garcia 79 Time Management: What to do when you do full-time

Jamie Bentinganan 83 Studying According to Necessity

Jose Luis Guatelara 86 Significance of Legal Education in Nation Building: A

Law Student’s Perspective

Alexandra G. Soledad 88 Preparing for the Bar Exam: The Little Known Tips

Ma. Khatherine Denise Dumancas 90 The Bar Exam for Dummies

Atty. Analou Sazon

THESIS ARTICLES

ORGS/CLASS PHOTOS

ANNEXES

97 The Right to Privacy vs. National Security: An Inevitable Reality

Shawn Dustin B. Coscolluela 118 The Crime of Libel in the Cyber-era

Rhodora P. Lo 134 135 136 137 138 139

1st Year 2nd Year 3rd Year 4th Year USLS College of Law Student Council USLS College of Law Journal Team

141 Cybercrime Law 141 152 RH Law 152

1 LEGAL ESSAYS Scholarly write-ups of University of St. La Salle College of Law faculty, alumni and studentso various legal issues

Privacy or the Right to be Left Alone Atty. Joel Dojillo

In 2003, former Senator Panfilo Lacson accused then first gentleman Mike Arroyo of corrupt practices and of hiding illegally acquired wealth which include California properties and funds believed to be deposited with Union Bank and BPI Savings Bank under the name of Jose Pidal.

A senate hearing was conducted. First Gentleman Arroyo denied the accusation contending that it was his brother Iggy who was the real Jose Pidal. Iggy Arroyo subsequently came forward corroborating the first gentleman’s testimony. However, he refused to answer questions about said bank accounts and financial sources. Iggy invoked his right to privacy more than 20 times.

Senator Joker Arroyo who was chairman of the Blue Ribbon Committee initially sustained the former’s exercise of right. But, the group of Senator Aquilino Pimentel raised questions to the legality of raising right to privacy in a senate hearing. The group claimed that in doing so, the legislative process will be deemed useless.

In light of this controversy, Atty. Joel Dojillo wrote a commentary published in October 4, 2003 in the Philippine Daily Inquirer presenting his arguments as to why Iggy’s right to privacy must prevail. *** Senator Aquilino Pimentel correctly pointed out, if rather high-handedly, that there was no specific provision in the Constitution that guaranteed “the right to privacy” invoked by Ignacio Arroyo during the Senate hearing on the Jose Pidal controversy. However, the abence of such specific provision in the chatter does not mean the right does not exist.

The right exists even if not spelled out in the fundamental law for it is a free society like ours. Essentially, a free man, first, can do whatever he

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pleases and, second, cannot be compelled to do what he does not want to do.

The right of a free man to do whatever he pleases is of course not absolute.

The rights of others provide the limits to the exercise of such right. As a Constitutional Law professor in law school eloquently explained, “Your right to freely move your hand ends, where the nose of your neighbor begins.”

However, while the right of a free man to do whatever he pleases is somewhat limited, his right to refuse doing what he does not want to do or to be left alone is almost absolute. It is almost absolute because inaction does not essentially affect the rights of others. In fact, under Article 11671 of the Civil Code, specific performance is not a remedy in personal obligations (obligations to do), otherwise this may amount to involuntary servitude, which is prohibited by our Constitution.2 The Constitution not only recognizes a private citizen’s right to privacy or right to be left alone. It even enjoins the State against the deprivation of said right without due process of law. Thus, Section 1, Article III of the Constitution provides that: “No person shall be deprived of his life, liberty or property without due process of law x x x” The only instance in the Constitution which provides that a person can be compelled to do what he may not want to do is contained in Section 4 Article II of the Constitution which reads that: “The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil service.” This provision is logical in that the people must protect the State, on whose existence the enjoyment of their rights depends.

As it is, Ignacio Arroyo correctly, or better still, wisely invoked the right to privacy instead of the right against self-incrimination in refusing to answer questions posed by senators. Invoking the right against self-incrimination connotes guilt. Invoking the right to privacy simply means he has the right to be left alone. *** Footnotes: 1 Article 1167 If a person obliged to do something fails to do it, the same

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shall be executed at his cost.

Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations.

(2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

2

Bionote: Atty. Joel Dojillo is a lawyer and a writer. He is a member of the University of St. La Salle College of Law Faculty.

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An Unjustly Vexatious Law1 Atty. Ralph A. Sarmiento

If you are asked to avoid committing “unjust vexation” in the same way as you should avoid committing theft, murder, rape or any other crime, would you know what to avoid? Would you be in a position to know exactly what particular acts or omissions you should avoid? I guess you wouldn’t! Unlike the crimes of theft, murder and rape that are specifically defined in the Revised Penal Code, one may search for the definition of the crime of unjust vexation but it is conspicuously absent. How can you therefore expect a person to avoid something that is not even defined by our criminal statutes?

Unjust vexation is punished under the 2nd paragraph of Article 287 of the Revised Penal Code that says: “Any other coercions or unjust vexations shall be punished by arresto menor or a fine ranging from 5 pesos to 200 pesos, or both.”

Professors of Criminal Law justify this apparent lack of definition saying that unjust vexation is a catch-all crime that applies whenever the act or omission complained of does not specifically fall under any other provision of the Revised Penal Code. But we do not even allow common-law crimes, so how could we countenance the existence of having catch-all crimes in the face of the due process guaranty?

An examination of the annals of our jurisprudence would show that Art. 287, par. 2 of the Revised Penal Code has been used to punish a great variety of different acts: • In People v. Reyes2, Art. 287, par. 2 of the Revised Penal Code was used to punish the defendants for unjust vexation for the act of disturbing or interrupting a ceremony of a religious character; •

In Lino v. Fugoso3, it was used to prosecute the accused of unjust vexation committed by stopping the jeep driven by the complainant in a threatening attitude and without any just cause therefor and telling him to stop driving for the City of Manila while the strike of city laborers was still going on;

•

In People v. Reyes4, it was held that the act of seizing, taking and holding possession of passenger jeep belonging to complainant,

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without the knowledge and consent of the latter, for the purpose of answering for the debt of the said owner, constitutes unjust vexation; •

In People v. Yanga5, the accused was convicted of unjust vexation for the act of compelling the complainant to do something against his will, by holding the latter around the neck and dragging him from the latter’s residence to the police outpost;

•

In People v. Abuy6, the accused was prosecuted for unjust vexation for the act of embracing and taking hold of the wrist of the complainant;

•

In People v. Carreon7, the accused was convicted of unjust vexation for the act of threatening the complainant by holding and pushing his shoulder and uttering to the latter in a threatening tone the following words: “What inspection did you make to my sister in the mountain when you are not connected with the Bureau of Education?”;

•

In People v. Gilo8, the Court held that the absence of an allegation of “lewd design” in a complaint for acts of lasciviousness converts the act into unjust vexation;

•

In Andal v. People of the Philippines9, the accused were found guilty of unjust vexation under an information charging them with the offense of offending religious feelings, by the performance of acts notoriously offensive to the feelings of the faithful;

•

In People v. Maravilla10, the accused was convicted of unjust vexation for the act of grabbing the left breast of the complainant against her will;

•

Kwan v. Court of Appeals11, the act of abruptly cutting off the electric, water pipe and telephone lines of a business establishment causing interruption of its business operations during peak hours was held as unjust vexation.

The aforementioned cases decided by the Philippine Supreme Court readily show that Art. 287, Par. 2 of the Revised Penal Code has not been used to prosecute a well-defined or specific criminal act. Instead, it was used as a “catch-all” provision to prosecute acts which are not expressly made criminal by any other provision of the Revised Penal Code. Isn’t this anathema to criminal due process that requires notice of what specific act or omission is punished by law?

It will not burn too much brain cells to realize that Article 287, paragraph 2 of the Revised Penal Code that punishes “unjust vexation” suffers from

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congenital defects and should be declared unconstitutional for the following reasons: •

Article 287, paragraph 2 of the Revised Penal Code condemns no specific or definite act or omission thus failing to define any crime or felony;

•

Said penal provision is so indefinite, vague and overbroad as not to enable it to be known what act is forbidden;

•

Such vagueness and overbreadth result to violation of the due process clause and the right to be informed of the nature of the offense charged; and

•

Such vagueness and overbreadth likewise amount to an invalid delegation by Congress of its legislative power to the courts to determine what acts should be held criminal and punishable.

A CRIMINAL OR PENAL LEGISLATION MUST CLEARLY DEFINE OR SPECIFY THE PARTICULAR ACT OR ACTS PUNISHED. It is a well-established doctrine that a criminal or penal legislation must clearly define or specify the particular acts or omissions punished. As early as 1916, in the case of United States vs. Luling12, the Supreme Court had the occasion to hold that: “In some of the States, as well as in England, there exist what are known as common law offenses. In the Philippine Islands no act is a crime unless it is made so by statute. The state having the right to declare what acts are criminal, within certain well defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt, and then to put upon the defendant the burden of showing that such act or acts are innocent and are not committed with any criminal intent or intention.13” (emphasis and underscoring supplied) Two years later, this was followed by a scholarly exposition by Justice Johnson in the case of In re: R. Mcculloch Di ck14, where he stated that: “In the Philippine Islands no act is a crime unless it is made so by law. The law must specify the particular act or acts constituting the crime.

If that were not so, the inhabitants could not know when they would be liable to be arrested, tried and punished. Otherwise the mandatory provisions of the law, that all criminal laws shall be prescribed, would prove to be a pitfall and a snare. The inhabitants of the Philippine Islands, whether citizens, denizens or friendly aliens, have a right to know, in advance of arrest, trial and punishment, the particular acts for which

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they may be so tried. They cannot be arrested and tried, and then be informed for the first time that their acts have been subsequently made a crime, and be punished therefor. x x x” (emphasis and underscoring supplied) Justice (later Chief Justice) Fernando in his concurring opinion in People v.

Cabural15, also made a similar observation, stating that: “The maxim Nullum crimen nulla poena sine lege has its roots in history. It is in accordance with both centuries of civil law and common law tradition. Moreover, it is an indispensable corollary to a regime of liberty enshrined in our Constitution. It is of the essence then that while anti-social acts should be penalized, there must be a clear definition of the punishable offense as well as the penalty that may be imposed - a penalty, to repeat, that can be fixed by the legislative body, and the legislative body alone. So constitutionalism mandates, with its stress on jurisdictio rather than guvernaculum. The judiciary as the dispenser of justice through law must be aware of the limitation on its own power.” (emphasis and underscoring supplied) The rationale of the doctrine that a criminal or penal legislation must clearly define or specify the particular act or acts punished is ably explained by the United Stated Supreme Court in the case of Lanzetta v. State Of New Jersey16, where it held that: “It is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns against transgression. x x x No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. x x x” (emphasis and underscoring supplied) ARTICLE 287, PAR. 2 OF THE REVISED PENAL CODE CONDEMNS NO SPECIFIC ACT OR OMISSION! THEREFORE, IT DOES NOT DEFINE ANY CRIME OR FELONY. Paragraph 2 of Article 287 of the Revised Penal Code does not define, much less specify, the acts constituting or deemed included in the term “unjust vexations” resulting to making the said provision a sort of a “catchall” provision patently offensive to the due process clause.

The right to define and punish crimes is an attribute of sovereignty. Each State has the authority, under its police power, to define and punish crimes and to lay down the rules of criminal procedure. Pursuant to this power to define and punish crimes, the State may not punish an act as a crime unless

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it is first defined in a criminal statute so that the people will be forewarned as to what act is punishable. The people cannot be left guessing at the meaning of criminal statutes.

Article 3 of the Revised Penal Code defines FELONIES (delitos) as “acts or omissions” punishable by law. Article 287, Par. 2 of the Revised Penal Code condemns no specific act or omission.

Therefore, it does not define any crime or felony.

Instead, any and all kind of acts that are not specifically covered by any other provision of the Revised Penal Code and which may cause annoyance, irritation, vexation, torment, distress or disturbance to the mind of the person to whom it is directed may be punished as unjust vexation.

ART. 287, PAR. 2 OF THE REVISED PENAL CODE SUFFERS FROM A CONGENITAL DEFECT OF VAGUENESS AND MUST BE STRICKEN DOWN AS UNCONSTITUTIONAL. The term “unjust vexation” is a highly imprecise and relative term that has no common law meaning or settled definition by prior judicial or administrative precedents. Thus, for its vagueness and overbreadth, said provision violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize.

This kind of challenge to the constitutionality of a penal statute on ground of vagueness and overbreadth is not entirely novel in our jurisdiction. In an en banc decision in the case of Gonzales v. Comelec17, re: Constitutionality of Republic Act No. 4880, the Supreme Court ruled that the terms “election campaign” and “partisan political activity” which are punished in R.A. 4880 would have been void for their vagueness were it not for the express enumeration of the acts deemed included in the said terms.

The Supreme Court held: “The limitation on the period of “election campaign” or “partisan political activity” calls for a more intensive scrutiny. According to Republic Act No. 4880: “It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term ‘candidate’

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refers to any person aspiring for or seeking an elective public office regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term ‘election campaign’ of ‘partisan political activity’ refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office . . .”

“If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. x x x” xxxxxxxxx “There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with “election campaign” or “partisan political activity” must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the enumeration of the acts deemed included in the terms “election campaign” or “partisan political activity.” (emphasis and underscoring supplied) Article 287, par. 2 of the Revised Penal Code punishes “unjust vexations” and that is all there is to it! As such, applying the incontestable logic of the Supreme Court in said case of Gonzales v. Comelec would lead us to the inescapable conclusion that said penal provision suffers from the fatal constitutional infirmity of vagueness and must be stricken down as unconstitutional.

In the case of Connally v. General Construction Co.18, cited by our own Supreme Court en banc in the case of Ermita-Malate Hotel and Motel Operators Assn., Inc. v. City Mayor of Manila, (G.R. No. L-24693, July 31, 1967), the United States Supreme Court ruled: “That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (emphasis and underscoring supplied) In fact, it is worst in the case of the 2nd Paragraph of Article 287 of the

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Revised Penal Code because it punishes “unjust vexations” without even defining or enumerating the acts constituting the said crime thus leaving men of common intelligence necessarily guessing at its meaning and differing as to its application in complete disregard of constitutional due process.

Our Supreme Court in the case of U.S. v. Nag Tang Ho19, held that one cannot be convicted of a violation of a law that fails to set up an ascertainable standard of guilt. Said ruling cites the landmark case of U.S. v. L. Cohen Grocery Co.20, where the United States Supreme Court in striking down Section 4 of the Federal Food Control Act of August 10, 1917, as amended, as unconstitutional, declared that: “The sole remaining inquiry, therefore, is the certainty or uncertainty of the text in question, that is, whether the words ‘that it is hereby made unlawful for any person willfully … to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,’ constituted a fixing by Congress of an ascertainable standard of guilt and are adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them. That they are not, we are of opinion, so clearly results from their mere statement as to render elaboration on the subject wholly unnecessary. OBSERVE THAT THE SECTION FORBIDS NO SPECIFIC OR DEFINITE ACT. It confines the subject matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against. In fact, we see no reason to doubt the soundness of the observation of the court below in its opinion to the effect that, to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court x x x” (emphasis and underscoring supplied) In Coates V. City Of Cincinnati 21, the United States Supreme Court passed upon the issue of constitutionality of a Cincinnati, Ohio, ordinance that provides that: “It shall be unlawful for three or more persons to assemble, except at a public meeting of citizens, on any of the sidewalks, street corners, vacant lots, or mouths of alleys, and there conduct themselves in a manner annoying to persons passing by, or occupants of adjacent buildings. Whoever violates any of the provisions of this section shall be

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fined not exceeding fifty dollars ($50.00), or be imprisoned not less than one (1) nor more than thirty (30) days or both.” Section 901-L6, Code of Ordinances of the City of Cincinnati. (emphasis and underscoring supplied) In hammering down the constitutionality of the above-cited Cincinnati, Ohio ordinance in its landmark decision, the United States Supreme Court held that: “Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.

As a result, “men of common intelligence must necessarily guess at its meaning.” (Connally v. General Construction Co., 269 U.S. 385, 391) “It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city’s constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed. “ (emphasis and underscoring supplied) Same thing can be said of Art. 287, par. 2 of the Revised Penal Code that punishes “unjust vexation.” As previously shown, the term “unjust vexation” is broad enough to encompass many types of acts or conduct. But while these acts of types of conduct are within the State’s police power to prohibit and punish, it cannot however constitutionally do so when its violation may entirely depend upon whether or not another is vexed or annoyed by said act or conduct and whether or not said act or conduct is unjust is the estimation of the court.

ARTICLE 287, PAR. 2 OF THE REVISED PENAL CODE IS AN INVALID DELEGATION OF THE LEGISLATIVE POWER TO DEFINE WHAT ACTS SHOULD BE HELD BE CRIMINAL AND PUNISHABLE The failure of Art. 287, par. 2 of the Revised Penal Code to define or specify the act or omission that it punishes likewise amounts to an invalid delegation by Congress of its legislative power to the courts to determine what acts should be held criminal and punishable. Potestas delegata

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non delegare potest. What has been delegated cannot be delegated.

This doctrine is based on the ethical principle that such delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not through the intervening mind of another (United States v. Barrias, 11 Phil. 327, 330).

Congress alone has power to define crimes. This power as an attribute of sovereignty may not be delegated to the courts. When a criminal legislation leaves the halls of Congress, it must be complete in itself in that it must clearly define and specify the acts or omissions deemed punishable; and when it reaches the courts, there must be nothing left for the latter to do, except to determine whether person or persons indicted are guilty of committing the said acts or omissions defined and made punishable by Congress. Otherwise, borrowing the immortal words of Justice Isagani Cruz in Ynot v. Intermediate Appellate Court (148 SCRA 659), the law becomes a “roving commission,” a wide and sweeping authority that is not “canalized within banks that keep it from overflowing,” in short a clearly profligate and therefore invalid delegation of legislative powers.

Art. 287, par. 2 of the Revised Penal Code fails to set an immutable and ascertainable standard of guilt, but leaves such standard to the variant and changing views and notions of different judges or courts which are called upon to enforce it. Instead of defining the specific acts or omissions punished, it leaves to the courts the power to determine what acts or types of conduct constitute “unjust vexation.” Moreover, liability under the said provision is also made dependent upon the varying degrees of sensibility and emotions of people. It depends upon whether or not another is vexed or annoyed by said act or conduct. As previously intimated, one cannot be convicted of a violation of a law that fails to set up an immutable and an ascertainable standard of guilt.

CONCLUSION From the foregoing, it appears that the law that was intended to punish unjust vexation turns out to be an unjustly vexatious law. Art. 287, par. 2 of the Revised Penal Code that punishes “unjust vexations” is unconstitutional on its face for its fatal failure to forbid a specific or definite act or conduct.

It suffers from congenital vagueness and overbreadth which are anathema to constitutional due process and the right of the accused to be informed of the nature of the offense charged.

Moreover, by leaving it to the judiciary to determine the “justness” or “unjustness” of an act or conduct that is not clearly defined or specified

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by law constitutes a fixing by Congress of an unascertainable standard of guilt and therefore an invalid delegation, if not an abdication, of legislative power.

As such, it is now high time that this unjustly vexatious law be declared unconstitutional and be wiped out from our statute books. Lawyers defending a client for “unjust vexation” should raise this constitutional challenge against this unjustly vexatious law and they are free to cite the arguments articulated herein.

Art. 287, par. 2 cannot be a basis of any criminal prosecution, much less conviction. An unspeakable injustice was therefore done to all those who were convicted under this unjustly vexatious law. If this law is not declared unconstitutional by our Supreme Court or is not immediately repealed by Congress, many persons would still fall prey to its snare unaware. *** Footnotes: 1 This article was first published in the author’s blog (http://www.attyralph. com) 2 60 Phil. 369, August 23, 1934 3 77 Phil. 983, January 30, 1947 4 98 Phil. 646, March 23, 1956 5 100 Phil. 385, November 28, 1956 6 G.R. No. L-17616, May 30, 1962 7 G.R. No. L-17920, May 30, 1962 8 G.R. No. L-18202, April 30, 1964 9 G.R. No. L-29814, March 28, 1969 10 G.R. No. L-47646, September 19, 1988 11 G.R. No. 113006, November 23, 2000 12 34 Phil. 725 13 cited in the fairly recent case of Dizon-Pamintuan v. People of the Philippines, G.R. No. 111426, July 11, 1994 14 38 Phil. 41, April 16, 1918 15 G.R. No. L-34105, February 4, 1983, 16 306 U.S. 451 17 G.R. No. L-27833, April 18, 1969 18 269 U.S. 385 19 43 Phil. 1 20 255 U.S. 81 21 402 U.S. 611 Bionote: Atty. Sarmiento is the Dean of the University of St. La Salle College of Law; He is also a Fulbright Institute Fellow, a Swiss IFF Scholar and a bar reviewer on International Law & Bar Exam Techniques.

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Rethinking Separation of Powers in the Philippines Ralph Romeo B. Bascones1

I.Introduction a. Definition of Separation of Powers b. History of Separation of Powers c. Philosophy of Separation of Powers d. Montesquieu’s Separation of Powers e. Madison’s Design of Separation of Powers f. Principle of Checks and Balances II.Separation of Powers through the years a. Malolos Constitution b. 1935 Constitution c. 1973 Constitution III.Separation of Powers under the 1987 Constitution a. Legislative Branch b. Executive Branch c. Judicial Branch IV.Checks and Balances and Blending of Power V.Conclusion INTRODUCTION An ancient yet generally accepted doctrine, the principle of separation of powers is respected and observed by constitutional democracies all over the world. The principle is observed to ensure the proper management of governmental institutions. The Philippines, as part of the democratic world, has labored to imbibe with its political system the doctrine of separation of powers.

Since the conception of the Philippine State, the principle of separation of powers has been incorporated as the bedrock of the system of government.

From the Malolos Constitution to the 1987 Constitution, the application of

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the doctrine is manifest though varied. Be it presidential or parliamentary system of government, the sharing of power amongst the branches of government is the norm in the Philippine state.

Separation of powers posits that the branches of government, the legislative, executive, and judiciary, must play their specific roles and responsibilities independently and that neither Congress nor the President and the Judiciary may encroach on fields reserved to the other branches of government. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to their interpretation and application to cases and controversies2. It is the traditional notion that there are separate and distinct roles for the executive, legislative, and judicial branches of government which should remain inviolate has changed over time to reflect the growing interrelationship among the branches of government.

The 1987 Philippine Constitution ingeniously embraced separation of powers. In an attempt to create an effective and strong state3, the framers of the constitution envisioned a government where tyranny is an impossibility. It is the objective of this paper to revisit and reassess separation of powers and its corollary doctrine, checks and balances, in the annals of Philippine jurisprudence.

I. Definition, History, and Philosophy of Separation of Powers Separation of powers is the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances4. In this construct, each branch is given a separate domain, a separate source of power, and the power to correct the abuses of the others5.

The doctrine may be traced back to ancient Greece when Aristotle discussed the idea of a “mixed government” or hybrid government in his work, Politics, where he drew upon many of the constitutional forms in the citystates of Ancient Greece. In ancient Rome, the historian Polybius assessed that the Roman Republic showed an example of a mixed government in the institutional construct of Roman Senate, Consuls and the Assemblies6.

Furthermore, he observed that the Roman Government has an exceptional stability due to its mixed nature.

However, the modern separation of powers or the tripartite system was derived from the work of Montesquieu in his book “The Spirit of Laws.”

According to him, the concept meant: (1) that the same person should not form part of more than one of the three organs; (2) that one organ of state should not interfere with the exercise or functions of other organs; (3) that

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one organ of state should not exercise the functions of another organ of state. Desirable as the concept of Montesquieu is to absolute separation, however, it is not possible for the branches must work as one.

The American system of government, the model government where the Philippine system was patterned from, modified Montesquieu’s design.

James Madison, in defending the 1787 US Constitution through Federalist No. 47, infers when Montesquieu wrote “there can be no liberty where the legislative and executive powers are united in the same person . . . or, if the power of judging be not separated from the legislative and executive powers,” does not mean that the powers should remain absolutely separate or that each branch should not have any control over the other branches7.

He argued that in the tripartite system, one branch must not work in exclusion of other branches. He further argued that one department cannot work alone.

James Madison further argued that to perfect the tripartite system, there should be checks and balances. By that he meant that one department is allowed to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by another department8. Referring to the principle of checks and balances, he phrased that “if men were all angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” 9 II. Separation of Powers through the years The Malolos Constitution of 1899, the first of its kind in the whole Asian continent, embraced separation of powers. Article 4 of the said fundamental law provides “the Government of the Republic is popular, representative, alternative, and responsible, and shall exercise three distinct powers: namely, the legislative, the executive, and the judicial. Any two or more of these three powers shall never be united in one person or cooperation, nor the legislative power vested in one single individual.”10 The framers thereof highlight the separation of the executive, legislative, and judicial powers to avoid tyranny. Explicitly, they included a clause to make the wielding of more than one power in one person unconstitutional. Genius we may call this set up, however, it did not survive the political landscape of its time.

The fundamental law itself was dissolved by the very same framers as they surrendered the Republic to the Americans.

Patterned from the 1787 United States constitution, the 1935 constitution established a presidential system of government with three equal branches – legislative, executive and judiciary. Although the word separation of powers did not appear therein, Articles VI, VII, and VIII succinctly established

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a framework of government that logically implies separation of powers.

Article VI provided the powers, functions, and operation of Congress.

Article VII systematized executive power in the executive department as it enumerated the powers and responsibilities of the President. Article VIII fielded judicial power to one Supreme Court and to inferior courts.

The same constitution supplied a mechanism for checks and balances by postulating impeachment in Article IX. Impeachable officers under Article IX are the President, Vice-President, Justices of the Supreme Court, and the Auditor General11. Through this article, congress can check the provinces of the executive and the judiciary if their officers committed culpable violation of the Constitution, treason, bribery, or other high crimes12.

The parliamentary system of the 1973 Constitution did not abandon the principle of separation of powers. It remained applicable as between the legislature and the executive department on one hand and the judiciary on the other. However, as between the legislature and the executive department, cooperation and not separation was the operative principle13.

The framers of the same constitution designed a system of government that would encourage sharing of legislative power between the President and the Batasang Pambansa14. Although Philippine law did not recognize legislative power as lodged in the presidency, the Supreme Court in Aquino, Jr. vs. COMELEC15 held that the President exercises legislative powers from his martial law powers and from Article XVII, Section 3(2) of the same constitution. Article IX provided the powers and functions of the Prime Minister and the Cabinet. It is through this provision where the constitution unionized the executive and the legislative. The Prime Minister and members of the Cabinet were either nominated or appointed by the President from the Batasang Pambansa subject to the concurrence of the latter16. This set up made the President very powerful. On the extreme end of the spectrum, the Judiciary enjoyed independence wielding the power of judicial review17. However, the Judiciary under the 1973 Constitution did not enjoy fiscal autonomy.

III. Separation of Powers under the 1987 Constitution The architects of the 1987 Constitution took measures to ensure that the government of the Philippines shall not fall to the darkness of tyranny, neither to succumb to mobocracy. Although the words “separation of powers” does not appear in the face of the fundamental document, the government structure expressly pronounces separation. Article VI, VII and VIII contained three great departments – legislative, executive, and judiciary.

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a. Legislative Branch Under the present constitution, the legislative branch of the Philippines possesses not only ordinary legislative power but also plenary legislative power. In the early case of Vera vs. Avelino18, it was stated “any power, deemed to be legislative by usage and tradition, is necessarily possessed

by Congress, unless the organic act has lodged it elsewhere. Legislative power is the authority to make laws and to alter and repeal them19. This is realized through the adoption of the bill that when approved becomes a statute20 A statute is “the written will of the legislature, solemnly expressed according to the forms necessary to constitute it the law of the state.” 21 The exclusive power to legislate is vested in the Congress of the Philippines, which consists of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum22. This constitutional provision has included the people, the repository of all governmental power, in legislative process. However, such power reserved to the people needs a legislative act for such legal right to come into reality. In the case of Defensor-Santiago vs. COMELEC23 where the Commission on Elections was questionedfor its adoption of Resolution No. 2300 regarding the conduct of initiative on amendments to the Constitution, the Supreme Court ruled that such act was invalid for the constitutional provision on initiative and referendum are non-executing.

To quote the wordings of the Court,-“Sec. 2, Art XVII of the Constitution is not self executory. Thus, without implementing legislation, the same cannot operate. Although the Constitution has recognized or granted the right, the people cannot exercise it if Congress does not provide for its implementation.” 24 Until this day, Congress has not passed a law for the implementation of the exercise of the people’s right to initiative and referendum.

Aside from the legislative power that Congress wields, it also exercises non-legislative powers such as the power of the purse or appropriation, power of taxation, power of legislative investigation, power to punish contempt and power to declare the existence of war. Moreover, Congress has the sole power to initiate impeachment as exercised by the House of Representatives and acts as the arbiter to determine the guilt of impeached officials as exercised by the Senate. Although the legislature is limited to its province – to make laws – it can be inferred from above that it is not absolutely isolated from other provinces of the government. b.Executive Department “The executive power shall be vested in the President of the Philippines.”25

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It includes power to carry into execution the national laws – including such other powers, not legislative or judicial in their nature, as may from time to time be declared – and to make sure that the law be faithfully executed.26 Under the present constitution, presidential powers are expressly enumerated. The president enjoys the totality of executive power and he controls all the executive departments, bureaus, and offices.27 The President wields ordinance power28 that is translated to (a) executive orders – Acts providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers; (b) Administrative Orders – acts which relate to particular aspects of governmental operations in pursuance of his duties as administrative head; (c) Proclamations – acts fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend; (d) Memorandum Orders – acts on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government; (e) Memorandum Circulars – acts on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance; (f ) General or Special Orders – Acts and commands in his capacity as Commander-in-Chief of the Armed Forces of the Philippines.

The Chief executive, with the consent of the Commission on Appointments, has the power to appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him by the Constitution29. As the Commanderin-Chief of the armed forces, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion.30 The fundamental law grants the President, except in cases of impeachment and such cases provided by the constitution31, the power to grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.32 The President also wields diplomatic power. This is inherent in a state to have the capacity to conduct foreign relations33. As the head of state of the Philippines, he acts as the representative of the nation towards the international community. He may forge treaties advancing the interest of the country. Furthermore, he may transact business with other states in promoting the nation’s foreign policy.

Aside from the enumerated powers under the Constitution, it has been held by the Supreme Court in Marcos vs Manglapus34 that the president enjoys residual powers. Such power, not expressly granted by the constitution, is

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neither legislative nor judicial and thus executive. Such pronouncement by the interpreter of laws has faced strong opposition because it grants the president power not specified in the constitution. Mr. Justice Isagani Cruz, in his dissent, invoked the argument of Mr. Justice Black in the Steel Seizure Case35 that residual power of the president contradicts the will of the framers of the constitution for they granted the president specific powers and not generic ones. However, the doctrine of residual powers under Marcos vs Manglapus is sustained and the honorable court has yet to decide in future cases about this power. c.Judicial Department

“Judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.”36 Judicial power is “the authority to settle justiciable controversies or disputes involving rights that are enforceable and demandable before the courts of justice or the redress of wrongs for violation of such rights.”37 It includes “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.”38 The 1987 Constitution has given the Supreme Court a formidable judicial power. It grants the highest court the power of judicial review. Such power is the authority to declare acts of the executive and legislative that is contrary to the constitution. However, its authority is only limited to justiciable questions. Non-political questions or justiciable questions are controversies that refer to the legality or validity of the contested act.39 IV. Checks and Balances and Blending of Powers While the constitution reserved separate powers for the three great departments, it does not speak of absolute separation. Instead, it encourages cooperation in the operation of the government. The Supreme Court gave an intensive discussion on the matter in the case of Angara vs Electoral Commission:40 “The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The

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Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointment of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.”

The purpose of the checks and balances is not only to avoid the concentration of power in one arm of government but also to ensure the cooperation amongst the three branches. Needless to say, the government is an intricate and complex organ. It is impracticable and injudicious to provide a complete separation. The possibility of one arm working alone is neither efficient nor effective in government machinery. An arm must collaborate with another, may check the latter’s affairs, and vice-versa, to achieve what is efficient. Hence, there are instances that certain powers are not restricted exclusively within one department but are dispensed to or shared by several departments. This instance is a constitutional principle of blending of powers.

The 1987 Constitution grants “checking power” to every department. In the executive branch, the President has the power to veto bills enacted

by Congress41 and he wields pardoning power that may set aside the judgment of courts. The legislative branch may (1) override the veto of the president, (2) reject appointments of the president through the Commission on Appointments, (3) rescind proclamation of martial law or suspension of the writ of habeas corpus, (4) has the power to define, prescribe, and apportion the jurisdiction of lower courts, and (5 ) prescribe qualifications of judges in lower courts. The judicial branch has one but controlling checking power, the power of judicial review.

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While “checks” in the principle of checks and balances can be found in the annals of jurisprudence and writings of legal luminaries, “balance” is hardly mentioned. Even Mr. Justice Izagani Cruz, Dr. Miriam Defensor-Santiago and Fr. Joaquin Bernas, three of the foremost authorities in Philippine Constitutional Law, did not mention balance in their works. They may phrase balance as the result of “checks” of the three departments. However, balance is more than that.

“Balance” is a concept earlier than “check.”42 Polybius used balance, not check, in his notion of separation of powers. Throughout history, checks and balances have been merged as though synonymous with each other.

However, Bolingbroke43 vividly drew a line separating checks and balances by distinguishing dependency of different parts of the government and their independency. He expounded the distinction that – “The constitutional dependency, as I have called it for distinction’s sake, consists in this, that the proceedings of each part of the government, when they come forth into action and affect the whole, are liable to be examined and controlled by the other parts. The independency pleaded for consists in this, that the resolutions of each part, which direct these proceedings, be taken independently and without any influence, direct or indirect, on the others. Without the first, each part would be at liberty to attempt destroying the balance by usurping or abusing power; but without the last there can be no balance at all.”44 Constitutional dependency represent “checks” while interdependency denotes balance. It is very important to stress their difference so that students of Constitutional Law would not fall to false popular notion that they are one and the same.

The 1987 Constitution provided for balances that would sustain the independent department of government in democratic form whilst eliminating tyrannical tendency. The legislative branch, with its bicameral structure, possesses self-evaluating/self-checking mechanism. Congress must pass bills approved by both houses. Failure of one to concur, the bill is postponed indefinitely. Another feature of Congress’s balance is its member’s term limits. No Senators can serve for more than 2 consecutive terms and no Representatives can serve for more than 3 consecutive terms. Congressional districting is also a “balance” feature that maintains the representational character of our democracy.

Balance in the executive branch includes term limits for the President and the Vice-President, voluntary resignation of the President and Vice President, and transmittal of the written declaration of the majority of the cabinet to the Senate President and Speaker of the House that the President is unable to discharge the powers and duties of his office.45 Balance in the judicial branch includes forced retirement of the Justices of

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the Supreme Court at the age of 70, limited power of adjudication as not to include non-justiciable questions, and constitutional supremacy over issues that requires judicial review.

V. Conclusion Separation of powers played a major role throughout Philippine history.

From the first republic to the present time, it proves to be the heart of governmental operation. It serves as an efficient tool for government to carry out its business. It wisely divides the job evenly and at times, merges them. Two departments may share power so that a job is done in a just and speedy manner. This is true with the quasi-judicial and quasi-legislative power of administrative agencies. Thus, there is no absolute separation.

It is said that the only limitation to government is the Bill of Rights but the doctrine and its corollary principle, checks and balances, proves wrong.

The purpose thereof is to give the legislative, executive, and judicial branches limitations to their overwhelming powers. It is an internal control to government affair to balance all things concerning the state.

Therefore, the duty of separation of powers is to guard democracy and to prevent tyranny at all cost. As a democratic warden, the doctrine promotes the rights of the people to life, liberty, property, due process of law, and equal protection. It does so because governmental power is lodged in different departments. No branch of government can be arbitrary, whimsical and capricious because one is subject to the “check” of other branches. A province, may it be legislative, executive, or judicial, is restricted with the “balance” imposed by the constitution. Hence, separation of powers is a system not only concerned with the three great departments of the government but with the people’s rights as well. *** Footnotes: 2 Bengzon vs Drilon 208 SCRA 133 3 In the strata of state classification, a “strong state” is where institutions, the government, people, and civil societies, operate in a healthy democracy.

(Author’s commentary) 4 http://www.ncsl.org/research/about-state-legislatures/separation-ofpowers-an-overview.aspx 5 The Human Polity, Kay Lawson 6 (Histories, Book 6, 11-13). Polybius 7 Federalist No. 47 8 Cruz, Political Law 9 Ibid 10 1899 Malolos Constitution

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Article IX, 1935 Constitution Ibid 13 Bernas, The 1987 Constitution a Commentary, p. 677.

14 Article VII, Section 9 “xxx while the lawmaking power of the president is in force.”

15 62 SCRA 275 (January 31, 1975) 16 Article IX, Section 3 17 Article X, Section 5 18 77 Phil. 192, 212 (1946) 19 Government of the Philippine Islands vs. Springer, 50 Phil. 276 20 Cruz, Political Law, 1996 edition, p. 142.

21 Black’s Law Dictionary, 4th Ed., p. 1581 22 Article VI, Section 1 of the 1987 Constitution.

23 G.R. No. 127325 - March 19, 1997 24 Ibid 25 Article VII, Section 1 of the 1987 Constitution.

26 Curtis, Constitutional History, p. 575.

27 Article VII, Section 17 of the 1987 Constitution.

28 Chapter 2, Executive Order No. 292 29 Article VII, Section XVI of the 1987 Constitution.

30 Article VII, Section XVIII of the 1987 Constitution.

31 Article IX (C), Section V of the 1987 Constitution.

32 Article VII, Section XIX of the 1987 Constitution.

33 Montevideo Convention of 1933 34 177 SCRA 668 35 343 US 579 36 Article VIII, Section 1(a) of the 1987 Constitution.

37 Lopez vs Roxas, 17 SCRA 756, 761 38 Ibid 39 Sanidad vs. Comelec, 73 SCRA 333, 40 63 Phil 139 41 Art 6, Sec 27 (1) of the 1987 Constitution.

42 Liberty, Metaphor, and Mechanism: “checks and balances” and the origins of modern constitutionalism by David Wootton 43 The Craftsman (1730).

44 Bolingbroke, in The Craftsman, published separately in 1743 in Remarks on the History of England; Letter VII, Works I, p. 341. Quoted in Gwyn, Meaning, p. 95.

45 Article VII, Section 11 (2) of the 1987 Constitution.

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Bionote: Ralph Romeo Bascones is a 2nd year law student of the University of St. La Salle College of Law. He is also a political science instructor at Carlos Hilado Memorial State College.

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Good Faith and Backwages1 Atty. Dennis M. Cortes

It seems to be almost SOP to award backwages in cases of illegal dismissal.

However, in March of this year the Supreme Court had occasion to clarify that not all instances of illegal dismissal warrant an award of backwages.

Such is the ruling of the Court in Jackqui R. Moreno vs. San Sebastian CollegeRecoletos, Manila.2 Jackqui was a member of the permanent college faculty of San Sebastian.

It seems she was one of the better teachers in the Accounting Department.

She consistently landed among the five best teachers per yearly evaluation of the performance of teachers, and she was even asked to be the chairman of Business Finance and Accountancy for SY 2002-2003.

It was later on discovered, however, that Jackqui had unauthorized teaching assignments at the Centro Escolar University during the first semester of SY 2002-2003 and at the College of the Holy Spirit, Manila during SY 2000-2001 and SY 2001-2002 as well as during the first semester of SY 2002-2003. Said activities were in violation of San Sebastian’s Faculty Manual and were punishable by suspension or dismissal.

In reply to a memorandum from the Dean of her college, Jackqui explained her side and mentioned that she merely wanted to improve her family’s poor financial conditions. A Special Grievance Committee was thereafter set up which eventually issued a resolution unanimously finding that Jackqui had violated the prohibition against a full-time faculty having an unauthorized external teaching load. San Sebastian approved and adopted the findings and recommendations of the grievance committee and sent Jackqui a letter informing her of the effectivity date of the termination of her employment.

Jackqui filed a labor case against San Sebastian. The labor arbiter found in favor of San Sebastian; the National Labor Relations Commission, however, reversed the labor arbiter’s decision; the Court of Appeals, on its part, reversed the Commission; and, finally, the Supreme Court reversed the

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Court of Appeals – in effect reinstating the Commission’s decision but with important modifications.

In upholding Jackqui’s stance that she was illegally dismissed, the Supreme Court agreed that she was guilty of misconduct, “However, said misconduct falls below the required level of gravity that would warrant dismissal as a penalty.” In support of this finding the Court cited its previous ruling in NLRC vs. Salgarino3: “Misconduct is defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not mere error of judgment. The misconduct to be serious within the meaning of the act must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless be in connection with the work of the employee to constitute just cause from his separation.”

“In order to constitute serious misconduct which will warrant the dismissal of an employee under paragraph (a) of Article 282 of the Labor Code, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent.”

The Supreme Court went on to explain that it is the employer who has the burden of proving wrongful intent, and this San Sebastian failed to do: “In the present case, SSC-R failed to adduce any concrete evidence that Moreno indeed harbored perverse or corrupt motivations in violating the aforesaid school policy.” The Court noted that San Sebastian failed to submit evidence controverting Jackqui’s claim that she was “prompted to engage in illicit teaching activities in other schools, as she desperately needed to augment her income.” Incidentally, the Supreme Court also found the penalty of dismissal disproportionate to the offense; suspension, in its view, would have been sufficient.

Despite said finding of illegal dismissal, the Supreme Court decided to grant reinstatement but without backwages: “In accordance with Durabuilt Recapping Plant & Co. v. National Labor Relations Commission [152 SCRA 328] the court may not only mitigate, but also absolve entirely, the liability of the employer to pay backwages where good faith is evident. Likewise, backwages may be withheld from a dismissed employee where exceptional circumstances are availing.

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“In the present case, the good faith of SSC-R is apparent.The termination of Moreno from her employment cannot be said to have been carried out in a malevolent, rbitrary or oppressive manner.Indeed, the only mistake of the respondent school has committed was to strictly apply the provisions of its Faculty Manual and its contract with Moreno without regard for the aforementioned special circumstances that were attendant in this case.Even then, Moreno’s right to procedural due process was fully respected, as she was given the required twin notices and ample opportunity to be heard. This fact was not even disputed by Moreno herself.” [Emphasis added] The moral of the story, insofar as management is concerned, is: Always comply with due process when dismissing an employee. Whether or not a just cause for dismissal exists in a particular case is oftentimes a highly debatable issue. In this case the labor arbiter and the Court of Appeals thought there was no illegal dismissal; the NLRC and the Supreme Court thought otherwise. The Supreme Court, however, has the final say. But at least the Supreme Court saw that San Sebastian was in good faith and that, therefore, it was not liable to pay backwages. *** Footnotes: 1 This article was first published in the author’s blog (http://www.attycortes. wordpress.com) 2 G.R. No. 175283; March 28, 2008 3 497 SCRA 361, 375-376 Bionote: Atty. Dennis M. Cortes is a practicing lawyer and a member of the University of St. La Salle College of Law faculty. He maintains a blog at http://www. attycortes.wordpress.com

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Locating the marketplace of ideas Maria Reylan M. Garcia

The near infallibility of a person’s freedom of expression cannot be overstated. This liberty is hailed among the most treasured and the most distinctive in a democratic state. In a long array of Philippine jurisprudence, our ponentes have quoted repeatedly Oliver Wendell Holmes, Jr. in his dissent for the 1919 case of Abrams v United States1, wherein the great jurist has opined that the “free trade of ideas” within the “competition of the market” is the reason for upholding freedom of expression. This means that ideas cannot be merely conceived in cerebral isolation, it must be delivered. Ideas must be expressed so it can be wielded through debate, and ultimately be used to theorize solutions to problems of any breadth.

As the above-cited case puts it, “ultimate good desired is better reached by a free trade in ideas.”

Freedom of expression, as enshrined in Article III of the 1987 Philippine Constitution2, is our talisman against the unreasonable censure and punishment of the government for speaking, writing and demonstrating against it. This freedom allows us to call our president as mentally retarded for having approved belatedly the funds for the Yolanda rehabilitation.

This freedom permits us to attend a Halloween party dressed up as a dark-skinned lady senator. And most importantly, this freedom survives Philippine media. As it has been ruled that, “The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring3.”

This freedom has daunted fears of the government’s retribution to critiques. But has it truly created the perceived marketplace of ideas?

The advent of social media has nonetheless made it convenient to publicize a layman’s opinion. Gone were the years when the only opinions that were heard and mattered were those published in national broadsheets and aired through the radio and television. It is deemed an inspiring anecdote

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when a minimum-wage-earning but Facebook-using Juan de la Cruz’ status update surpassed the number of likes and shares of a well-crafted opinion of a veteran legal columnist. Social media has actually provided a venue for everyone to virtually huddle and participate in a discussion of national issues – a scenario envisioned by the very freedom which permits the continued existence of the cyber platform.

In the recent case adjudicating the controversy of the Cybercrime Law4, the Supreme Court has recognized the susceptibility of social networking sites to a chilling effect brought by penal legislation. With millions of Filipinos actively owning accounts on Facebook, Twitter and the like, the unrestrained capacity to let everyone know what his breakfast looked like or why he detests a recently enacted legislation, is popular and wellreceived. The Filipino has grasped at least a partial appreciation of the freedom of expression. A more concrete proof is how immensely frustrated they become when a social networking site faces downtime or when a telecommunication network opts to discontinue its free mobile internet surfing.

However, free opinion continues to face grim consequences. Journalists are now unsurprised with receiving daily death threats and libel complaints. But the press is cradled in a long array of jurisprudence.

Justice Bellosillo, penning the case of Borjal v CA5, was unrelenting in emphasizing the endearingly called “public figure doctrine” laid down in New York Times v Sullivan6 – “The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not.

Apparently, justice does not strictly condemn what is false but what is malicious. Nevertheless, public figures continue to fill the court dockets with defamatory complaints, just as relentless. Amid the hailing of the freedom to express, those criticized, struggle to uphold their right to remedy a besmirched reputation.

And with countless social media posts disparaging one public figure – government official – to the next, more reputations are expected to be grazed by disgrace. This essay does not disagree with criticizing those in the spotlight of governance and leadership. This essay actually lauds how freedom of expression has evolved into a watchdog for political mischief.

This essay, however, inquires upon observation. Is our criticism today the same criticism perceived by our freedom advocates?

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The apparent style of opinion, especially in social media, has questionably lost substance. There can be opinions as trivial as mocking the head of state’s receding hairline. There can be viral comments haphazardly concluding that a city mayor’s tagged photo with beauty pageant contestants makes him a perverted sex maniac. It is then difficult to conceive how such expressions of opinion will lead to, as Justice Isagani Cruz writes, a discussion of common problems of the community and the nation7.

Again, freedom of expression is upheld to encourage a free trade of ideas and to construct a market for competing views. An idea is graphically portrayed as a light bulb that switches on to illuminate the dimmest of problems. Thus, when referring to an idea, it is naturally assumed that it will bring forth answers. But, there is a growing number of what can be heard and read to be less generative of ideas. Most are mere reviews, truthful, reflective and admittedly entertaining at that, but distant to what is originally understood as ideas. Indeed, this liberty has allowed to many voice out whatever one fancies but rare are the occasions when it has genuinely led to generate the iridescence of an idea.

As a particle of democracy, Juan dela Cruz ought to rejoice in the power to tell off a national leader for implementing yet another tactless policy. To some extent, it reminds him that his voice, though supposedly inaudible to the greater crowd, still matters simply because it is permitted to be aired. But such freedom, such power, should not be a measly consolation.

It must be an avenue to construct theories, cement principles and erect a monument of ideas. Freedom of expression mustn’t terminate in a critique of a nonsensical house bill. Freedom of expression must give rise to ideas on how such house bills can be made better.

The Bill of Rights, to which freedom of expression belongs, has been primarily formulated to protect the individual against the abuse of the government. Nevertheless, it also must be seen and construed in a constructive light – that freedom of expression too, was upheld to assist our government in finding solutions that may be more proper, more prudent and more feasible that originally conceived by our leaders. As per Georg Wilhelm Friederich Hegel’s dialectic, in order to create a synthesis, there must first be a thesis and a corresponding anti-thesis.

Simply submitted, freedom of expression, though ubiquitous, must bear fruit to more than just squeaks and qualms. For whatever ultimate aim did the constitutional framers have more in mind in drafting the law than to see to it that all activities lead to nation building? The legal map

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to the individual rights and liberties, including freedom of expression, is brilliantly cartographed by Philippine jurists and lawmakers. However, it remains baffling as to what has happened to the so-called market place of ideas. Has it temporarily closed down? Maybe it calls for a renovation. *** Footnotes: 1 250 U.S. 616 (1919) 2 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

3 McCartanTurkington Breen vs Times Newspapers Ltd. (2001) 2 AC 277 4 Republic Act (R.A.) 10175, Cybercrime Prevention Act of 2012; Disinivs Secretary of Justice, G.R. No. 203335, February 11, 2014 5 G.R. No. 126466, January 14, 1999 6 376 U.S. 254 (1964) 7 Cruz, I., Constitutional Law, 2007, p.200.

Bionote: Maria Reylan Garcia is a 2nd year law student of the University of St. La Salle College of Law.

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2 CASE DIGESTS Summary of Supreme Court decisions on the topic of separation of powers and new promulgations of 2013 - 2014

Separation of Powers

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Senate v Ermita (E.O.464) G.R. No. 169777 April 20, 2006

Facts: Senator Juan Ponce Enrile gave a privilege speech urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

Senate then issued invitations to various officials of the Executive Department for them to appear as resource speakers in a public hearing on the railway project of North Luzon Railways Corporation with the China National Machinery Group.

Senator Franklin Drilon received from Executive Secretary Eduardo Ermita a letter requesting for the postponement of the hearing; however, he was unable to grant such request because the notice came in late and all preparations are already complete. On the same day, Senator Drilon also received a letter from the North Rail project President requesting that the hearing of the North Rail be postponed or cancelled until a copy of the report of the UP Law Center on contract agreements had been secured.

Thereafter, the President issued Executive Order 464 which states that all heads of the executive branch shall secure the consent of the President prior to appearing before either house of the Congress; public officials may not divulge confidential classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest and that executive matters shall only be conducted in executive sessions.

On the same day, Senator Frankilin Drilon received from Executive Secretary Eduardo Ermita a copy of E.O. 464 and that executive officials invited were not able to attend because they failed to secure the required consent from the President.

Petitioners pray for EO 464’s declaration as null and void for being unconstitutional.

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Procedure: Supreme Court: Petition for certiorari and prohibition of the constitutionality of EO 464.

Issue: Is Section 3 of E.O. 464, which requires all the public officials, enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress, valid and constitutional?

Whether E.O. 464 violates the right of the people to information on matters of public concerns and contravenes the power of inquiry vested in the Congress?

Whether or not respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation.

Ruling: Petition partly granted.

Reasoning: E.O. 464 to the extent that it bars the appearance of executive officials before the Congress, deprives the Congress of the information in the possession of these officials. The power of inquiry, a power vested in the Congress, is expressly recognized in Sec. 21 of Article VI because, according to the court, a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation intended to affect or change, thus, making it an essential and appropriate auxiliary to the legislative function.

The people’s right to information was impaired by the Executive Order.

It is in the interest of the Senate that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people’s will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.

E.O. 464 should have been publicized first before being implemented as it has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before the Court. Due process thus requires that the people should have been made known of this issuance before it was implemented.

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Santiago v Guingona G. R. 134577 November 18, 1998

Facts: During the first regular session of the 11th Congress, its officers were elected. Senator Fernan and Senator Tatad were the two nominees for Senate President. Senator Fernan won by 20 votes to two. Senators Ople and Drilon were elected as president pro tempore and majority leader respectively. Senator Tatad manifested that he and Senator DefensorSantiago comprised the minority as they have voted against Senator Fernan’s presidency; thus, upon their agreement, he is to assume the position of minority leader. However, the Lakas-NUCD-UMDP Party with seven members, also considered themselves as minority and had simultaneously chosen Senator Guingona as the minority leader. Upon Senator Drilon’s confirmation that he has received the letter from LakasNUCD-UMDP senators electing Senator Guingona as the minority leader, Senator Fernan formally recognized the former as minority leader.

Procedure: Supreme Court: This is a quo warranto alleging that Senator Guingona had been usurping, unlawfully holding and exercising the position of Senate minority leader Issues: 1. What do the words majority and minority mean?

2. Did the election of the senate minority leader violate any constitutional provision?

Ruling: Dismissed the petition.

Decided: November 18, 1998 Reasoning: 1. The Supreme Court clarified that the term majority means – that number greater than half or more than half of any total. In the present case, majority vote necessarily means that the Senate President must obtain the votes of more than one half of all the senators. It cannot be implied that the same also provides for who actually makes up the “majority” or the “minority”.

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There is also nothing that can validate the petitioner’s contention that members who will not vote for him shall ipso facto constitute the“minority,” who could thereby elect the minority leader.

2. It was held by the Supreme Court that the constitution merely provides that“each House shall choose such other officers as it may deem necessary”.

It does not indicate the manner of choosing who will constitute the same. Thus, the Senate through its Rules and Regulations, shall prescribe the method. Notably, Rules I and II of the Senate do not provide for the positions of majority and minority leaders. Because of the absence of any pertinent legal provision, the Supreme Court does not have the basis to determine its legality. If and when the Supreme Court agrees with the petitioner and interprets the same to their favor, such would unjustly amount to the violation of the doctrine of separation of powers.

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Francisco v House of Representatives G.R. No. 160261 November 10, 2003

Facts: Former President Joseph E. Estrada filed the first impeachment complaint against Chief Justice Hilario Davide and seven associate justices, citing culpable violation of the Constitution, betrayal of public trust and other high crimes. The complaint was referred to the House Committee on Justice, which ruled that the first impeachment was sufficient in form, but insufficient in substance. A second impeachment complaint was filed with the Secretary General of the House of Representatives by Rep. Gilberto Teodoro and Rep. Felix William Fuentebella against Chief Justice Davide. The impeachment complaint was accompanied by a Resolution of Endorsement or Impeachment, which was signed by at least 1/3 of all the members of the House of Representatives.

Eighteen petitions has been filed in relation to the second impeachment complaint, wherein the petitioners contend that the filing of the second impeachment complaint is unconstitutional for infringing the constitutional doctrine of separation of powers, and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary.

The House of Representatives assert that the Court has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives from filing impeachment cases since it is an independent and co-equal branch of the government. The Senate stated that insofar as it is concerned, the petitions are premature and have no basis in law or in fact for there was no justiciable issue presented before it.

Procedure: Supreme Court: Petitions of certiorari, prohibition and mandamus Issues: 1. Whether the Rules of Procedure in Impeachment Proceedings of Congress are constitutional

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2. Whether the second impeachment complaint is barred under the Constitution Ruling: Sec. 16 and 17, Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on Nov. 28, 2001 are unconstitutional. The second impeachment complaint against Chief Justice Hilario G. Davide, Jr. is barred under Par. 5, Sec. 3, Art. XI of the Constitution.

Reasoning: The House of Representatives argue that Sec. 16 and 17 of Rule V of the House Impeachment Rules do not violate Sec. 3(5) of Art. XI of our present Constitution, contending that “initiate” does not mean to file, since filing can only be accomplished through: 1. A verified complaint for impeachment by any member of the House of Representatives; 2. By any citizen upon a resolution of endorsement by any member; 3. By at least 1/3 of all the members of the House of Representatives.

The House of Representatives conclude that the initiating of the impeachment complaint against the Chief Justice and the associate justices had not been initiated by the House of Representatives, for as a collecting body, they have yet to act on it.

The resolution of this issue thus hinges on the interpretation of the term “initiate.” Resort to statutory construction is, therefore, in order. “Initiate” of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set going. The beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice. The framers intended “initiation” to start with the filing of the complaint. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period.

Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of

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Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term “initiate� a meaning different meaning from filing and referral.

It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged Congress had absolute rule making power, then it would, by necessary implication have the power to alter or amend the meaning of the Constitution without need of referendum.

Validity of the Second Impeachment Complaint Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution.

In fine, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period.

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Araullo v President Aquino (DAP Case) G.R. NO. 209287

Facts: Senator Jinggoy Estarda in his privilege speech revealed that some senators, including himself, had been allotted an additional P50 Million each as “incentive” for voting in favor of the impeachment of former Chief Justice Renato C. Corona. Sec. Florencio Abad then made a public statement in response, explaining the funds released to the senators were part of the DAP (Disbursement Acceleration Program). Subsequently, the Department of Budget Management (DBM) official website also released the sources of DAP and its corresponding legal bases. These include (a) Section 25(5), Article VI of the 1987 Constitution, (b) Section 49 and Section 38 Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987); and (c) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013.

DAP then rose to public awareness. Nine were raised to the Supreme Court questioning the constitutionality of DAP. Araullo brought to the Court’s attention NBC (National budget Circular) No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012), alleging that NBC No. 541, which was issued to implement the DAP, directed the withdrawal of unobligated allotments as of June 30, 2012 of government agencies and offices with low levels of obligations, both for continuing and current allotments.

Procedure: Supreme Court: Petition for certiorari and prohibition; Oral arguments were held on November 19, 2013.

Issues: 1. Whether DAP violates Sec. 29, Art. VI of the 1987 Constitution 2. Whether DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution

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Ruling: Petition partially granted.

Decided: July 1, 2014 Reasoning: V1. DAP does not violates Sec. 29, art. VI of the 1987 Constitution. No law was necessary for the adoption and implementation of the DAP because of its being neither a fund nor an appropriation, but a program or an administrative system of prioritizing spending; and that the adoption of the DAP was by virtue of the authority of the President as the Chief Executive to ensure that laws were faithfully executed.

2. DAP, NBC No. 541 and all other executive issuances implementing the DAP violate Sec. 25(5), Art VI of the 1987 Constitution. Sec 25(5), Art VI of the 1987 Constitution provides that “No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.�

The Supreme Court emphasized that the exception in favor of the high officials limiting the authority to transfer savings only to augment another item in the GAA is strictly but reasonably construed as exclusive.

The transfer of appropriated funds, to be valid must be made upon a concurrence of the following requisites, namely: (a) There is a law authorizing the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer funds within their respective offices; (b) The funds to be transferred are savings generated from the appropriations for their respective offices (c) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices.

Section 25(5), has delineated borders between their offices, such that funds appropriated for one office are prohibited from crossing over to another office even in the guise of augmentation of a deficient item or items. It is termed by the court as cross-border transfers or cross-border augmentations. This is prohibited by the constitution.

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Pimentel v Senate Committee GR No 187717 March 8 ,2011

Facts: The Senate Ethics Committee was directed to investigate the conduct of senate president Manuel B. Villar, Jr. for using his position to relocate the C-5 road extension project to deliberately pass thru his properties, and to negotiate the overpriced purchase of road rights of way thru several properties owned by his corporations; thus, a blatant conflict of interest.

Upon the election of Juan Ponce-Enrile as the new Senate President, the Ethics Committee was reorganized. However, the Minority refused to field a representative which caused delay in the investigation. The Senate adopted the Rules of the Committee on Ethics which was published in the Official Gazette on 23 March 2009.

Sen. Villar gave a privilege speech stating that he will only answer accusations before the committee of the whole and not with the Ethics committee. Sen. Lacson, the new chairman of the latter, ordered that his committee’s responsibility be transferred to the former. Upon approval of the majority, hearing started. However, Petitioners attacked the procedural lapses that would endanger the right to due process of Sen. Villar. Petitioners seek to enjoin the Senate Committee of the Whole from conducting any hearings on the matter.

Procedure: Supreme Court: Petition for prohibition with prayer for issuance of a writ of preliminary injunction and/or temporary restraining order.

Issues: 1. Whether Sen. Villar’s right to equal protection is violated 2. Whether the adoption of the Rules of Ethics Committee as Rules of the Senate Committee of the Whole is violative of Sen. Villar’s right to due process and of the majority quorum requirement under the

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constitution 3. Whether publication of the rules of the Senate Committee of the Whole is required.

Ruling: Petition is partially granted.

Decided: March 8, 2011 Unanimous Decision: The Supreme Court grants the petition in part.

Reasoning: 1. Sen. Villar’s right to equal protection was not violated. While ordinarily an investigation about one of its members’ alleged irregular or unethical conduct is within the jurisdiction of the Ethics Committee, the Minority effectively prevented it from pursuing the investigatioVn when they refused to nominate their members to the Ethics Committee. The referral of the investigation to the Committee of the Whole was an extraordinary remedy undertaken by the Ethics Committee and approved by a majority of the members of the Senate.

2. The transfer of the investigation by the Ethics Committee to the Senate Committee of the Whole is an extraordinary remedy that does not violate Senator Villar’s right to due process. In the same manner, the adoption by the Senate Committee of the Whole of the Rules of the Ethics Committee does not violate Senator Villar’s right to due process.

3. The Constitution does not require publication of the internal rules of the House or Senate since rules of the House or the Senate that affect only their members are internal to the House or Senate, unless such rules expressly provide for their publication before the rules can take effect. In this particular case, the Rules of the Senate Committee of the Whole itself provide that the Rules must be published before the Rules can take effect.

Thus, even if publication is not required under the Constitution, publication of the Rules of the Senate Committee of the Whole is required because the Rules expressly mandate their publication.

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Philippine Constitution Association v Enriquez GR No 113105 August 19, 1994

Facts: The General Appropriation Bill of 1994 was passed and approved by both Houses of Congress which was subsequently signed into law by the President declaring the same to be the General Appropriation Act of 1994. On the same day, the President delivered his veto speech specifying the provisions of the bill which he imposed certain conditions: Provisions on the Debt Ceiling - The payment in excess of the amount indicated in the GAA shall be automatically appropriated subject to the approval of the President and concurrence of Congress.

Provisions on the appropriation for income generated from State Universities and Colleges - Provisions authorizing the use of agency income as well as the creation, operation and maintenance of revolving funds.

Provisions on Road Maintenance - Provisions limiting 70% (administrative) and 30% (contract) can result to impeding program implementation and breach of contractual obligations.

Provisions on purchases of medicine by the Armed Forces of the Philippines - Provision that subjects the purchases of medicine to a standard formulary should be provided a transition period so as to ensure smooth implementation, especially in the Armed Forces of the Philippines.

Provision which requires prior approval from Congress for purchases of military equipment - This provision violates the Constitutional mandate of non-impairment of contractual obligations.

Provisions on the use of savings fund to augment AFP pension funds The grant of retirement should be covered by a direct appropriations

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specifically approved for such purpose.

Provisions pertaining to the appropriations for the Supreme Court, Ombudsman, COA, and CHR - The President confirmed the conditions imposed by the GAA for the appropriations for the Supreme Court, Ombudsman, COA and CHR. Procedure: Supreme Court: Petitions of prohibition and mandamus; Taxpayer’s suit Issues: Whether vetoed items and subsequently imposed conditions of the President are valid Ruling: Petitions are dismissed, except on the following: a) Prayer to declare the provisions on allocation and automatic appropriation of any excess amount from the appropriation of debt service to DECS b) Prayer filed by the Senators as taxpayers - only in only insofar as it prays for the annulment of the veto of: c) Special Provision No. 2 of the item of appropriation for the Department of Public Works and Highways d) Special Provision No. 12 on the purchase of medicines by the Armed Forces of the Philippines Decided: August 19, 1994 Reasoning: The veto power, while exercisable by the President, is actually a part of the legislative process. There is, therefore, sound basis to indulge in the presumption of validity of a veto. The burden shifts on those questioning the validity thereof to show that its use is a violation of the Constitution.

Under his general veto power, the President has to veto the entire bill, not merely parts thereof, as provided by the Constitution. The only exception to this general rule is the veto power given to the President to veto any particular items in a general appropriation bill which is mainly limited to specified sums of money intended to specific purpose or fiscal unit.

Veto on the Debt Ceiling – The veto is not valid because it is actually an attempt to repeal existing laws (PD 1177 and EO 292, which should be done in a separate law and not in an appropriations act.

Veto on the appropriation for income generated from State Universities

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and Colleges –This veto is valid because the President allowed other agencies to enjoy such privilege because these agencies have been bestowed with such by a special law authorizing such practice.

Veto on Road Maintenance – This veto is invalid. The Special Provision is actually an inappropriate subject to a veto since it actually specifies the apportionment of government and that of private Veto on purchases of medicine by the Armed Forces of the Philippines – This veto is valid as they were inappropriate provisions. The requirement in Special Provision No. 2 on the “use of Fund” for the AFP modernization program that the President must submit all purchases of military equipment to Congress for its approval, is an exercise of the “congressional or legislative veto.” However the case at bench is not the proper occasion to resolve the issues of the validity of the legislative veto as provided in Special Provisions Nos. 2 and 3 because the issues at hand can be disposed of on other grounds.

Veto on the requirement for prior approval from Congress for purchases of military equipment – This veto is valid as this provision is in violation of the Constitutional prohibition on the passage of laws that impair the obligation of contracts (Art. III, Sec. 10), more so, contracts entered into by the Government itself.

Veto on the use of savings fund to augment AFP pension funds – This veto is valid since the provision is in violation of the Constitutional prohibition on the passage of laws that impair the obligation of contracts (Art. III, Sec. 10), more so, contracts entered into by the Government itself. The veto of said special provision is therefore valid.

Veto of the appropriations for the Supreme Court, Ombudsman, COA, and CHR – As there is less basis to complain when the President said that the expenditures shall be subject to guidelines he will issue, it cannot be determined whether they are proper or inappropriate. Under the Faithful Execution Clause, the President has the power to take “necessary and proper steps” to carry into execution the law. These steps are the ones to be embodied in the guidelines.

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Tan v Macapagal GR L-34161 February 29, 1972

Facts: The petition assailed the validity of the Laurel-Leido Resolution dealing with the range of the authority of the 1971 Constitutional Convention.

It sought to have the Court declare that the Convention was without power under the Constitution and RA 6132 to consider, discuss and adopt proposals which sought to revise the Constitution through the adoption of a form of government other than the form outlined in the Constitution itself. It argued that the Constitution merely empowered the Convention to propose improvements to the Constitution without altering it. The Court issued a resolution dismissing the case.

The petitioners filed a motion for reconsideration which relied mainly on American Jurisprudence, and again sought the Court’s declaration of the alleged nullity of the resolution of the Constitutional Convention.

Procedure: Supreme Court: Petition for declaratory relief Issue: Whether the court had the jurisdiction to exercise judicial oversight over the Constitutional Convention.

Ruling: The motion for reconsideration was denied.

Decided: February 29, 1972 Reasoning: The Court held that the matter was not yet ripe for adjudication, as any proposed amendment had not yet been acted upon, there being no room for the interposition of judicial oversight.It is a prerequisite to the exercise of judicial inquiry that something had by then been accomplished or performed by either the legislative or executive branch before a court

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may come into the picture. At such a time, it may pass on the validity of what was done but only when properly challenged in an appropriate legal proceeding. The doctrine of separation of powers calls for the other departments to be left alone to discharge their duties as they see fit. The appropriate case may only be instituted after the Convention has made concrete what it intends to submit for ratification.

Accordingly, the same principle applies to the competence lodged in the Constitutional Convention. The judiciary must leave it free to fulfill its responsibility according to its rights, without interference. This was the case not only because it was a coordinate agency but also because its powers are transcendent, amounting as it does to submitting for popular ratification proposals which may radically alter the organization and functions of all three departments, including the courts. It is imperative then that the rule of non-interference be strictly adhered to until the appropriate time comes, the courts being devoid of jurisdiction until then.

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Youngstown Sheet & Tube Co. v Sawyer 343 U.S. 579 (1952)

Facts: The United States of America was involved in the Korean War in 1950.

Steel was a primary source of raw material in the production of military arsenal such as but not limited to war ships, war planes, tanks, rifles, and pistols.

In the later part of 1951, labor disputes arose between the steel workers and the steel mills with regard to the terms and conditions over the new collective bargaining agreement. United Steelworkers of America, the employees’ representative then gave a notice of intention to hold a strike over the new terms and conditions of the collective bargaining agreement when the old one expires.

Various steps were taken to mediate between the steelworkers and their employees, the steel mills. However, these conciliation proceedings proved futile and thus United Steelworkers of America gave a notice of nationwide strike to begin on April 9, 1952.

President Truman, fearing that the nationwide strike will cripple the war effort in the Korean War issued Executive Order 10340 a few hours before the scheduled strike was to take effect. The Executive Order directed the Secretary of Commerce, Charles Sawyer, to take possession of most of the steel mills and continue its operations.

Under protest, the presidents of the seized steel mills obeyed the orders of Secretary Sawyer which directed them to serve as Operating Managers for the United States of America.

Procedure: Lower Court: District of Columbia, District CourtJudge David Andrew Pine Lower Court Ruling: District Judge Andrew Pine issued an injunction, thus, barring the United States of America from continuing to hold and operate the steel mills it had seized.

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Issue: Whether or not the seizure of the steel mills is within the constitutional power of the president Ruling: The Supreme Court affirmed the ruling of the District Court.

Decided: June 2, 1952 On a vote of 6-3, the majority of the Justices held to affirm the decision of the District Court in issuing an injunction barring the President of the United States of America from seizing the steel mills. The majority opinion was delivered by Justice Black.

Reasoning: As stated by Justice Black: “As The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here.� The Court held that the President has no other powers except those granted by the Constitution and those granted explicitly or expressly authorized by Congress.

Noteworthy is the separate concurring opinion Justice Jackson, in which he introduced the three part test in determining whether or not the executive has the authority or the power to take action in a given situation.

These are: 1.When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.

2.When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.

Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law 3.When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

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New Supreme Court Decisions 2013-2014

Imbong v Ochoa GR 204219 April 8,2014

Facts: Republic Act (R.A.) No. 10354or the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on December 21, 2012. However, just after the president signed his approval, a total of 14 petitions and two interventions were filed to assail its validity. The following are some of the grounds of petitioners: a. the RH law violates the right to life of the unborn because of authorizing the purchase of hormonal contraceptives, intra-uterine devices and injectables which are allegedly abortive. b. the RH law violates religious freedom since it authorizes the use of public funds for the procurement of contraceptives which is against the religious beliefs of the petitioners. c. the RH Law threatens conscientious objectors of criminal prosecution, imprisonment and other forms of punishment, as it is a form of compulsion for medical doctors to refer to other doctors and provide health education contrary to their beliefs. d. the RH Law violates the constitutional provision on involuntary servitude because medical practitioners to be accredited must provide forty-eight (48) hours of pro bona services for indigent women. e. the RH law violates the constitutional principle of non-delegation of legislative authority because FDA is then given the power to determine whether a product is non-abortifacient and to be included in the Emergency Drugs List.

Procedure: Supreme Court: Petitions for certiorari and prohibition and interventions alleging that RA 10354 is unconstitutional Status Quo Ante Order (SQAO) was issued enjoining the effects and implementation for 120 days. The cases were heard for oral arguments.

On July 16, 2013, the SQAO was ordered extended until further orders of the Court.

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Issue: Is the RH Law unconstitutional as to Right to Life, Freedom of Religion and the Right to Free Speech, Freedom of Expression and Academic Freedom, Involuntary Servitude and Delegation of Authority to the FDA? Ruling: Partially granted the petition.

Decided: April 8, 2014 Reasoning: The Supreme Court finds the RH Law obedient to the constitutional mandate to the Right to Life. It initially defined when life begins. T records of the Constitutional Convention revealed that the framers intended that life begins at the moment of fertilization. Nevertheless such did not intend to ban all contraceptives for being unconstitutional and it was for the courts to decide based on evidence. The RH law is actually full of provisions which aim to protect the pregnant mother and the offspring from the moment of fertilization. It even recognizes abortion as a crime The Supreme Court also upheld the power of the FDA to determine whether the drug is abortifacient or not since FDA, not Congress, has the expertise to perform such function.

As to the perceived contravention to the Freedom of Religion, the Supreme Court believes that theobligation to refer goes against the religious belief and conviction of a conscientious objector. “Once the medical practitioner, against his will, refers a patient seeking information on modem reproductive health products, services, procedures and methods, his conscience is immediately burdened as he has been compelled to perform an act against his beliefs.� Religious freedom of health providers, both public and private, should be more important than the likes of family planning. Otherwise, it will result to unwarranted coercion in the exercise of beliefs.

The Supreme Court held the implementing rules and regulations provision on non-exemption of the certain skilled health professionals such as provincial, city or municipal health officers, chiefs of hospital, head nurses, supervising midwives, among others, as being conscientious objectors, as unconstitutional. This is because of two reasons. First, because such provision and non-exemption was not provided in the law.

And second, because it infringes on the equal protection clause which should have applied equally to health professionals whether working in the public or private sector.

Regarding the involuntary servitude transgression, it was held by the

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Supreme Court that the reproductive health care service providers actually have the discretion on the manner and time of giving pro bono services (48 hours). Being a prerequisite to the accreditation of medical practitioners with PhilHealth, it violates no legal provision as accreditation itself is a mere privilege and not a right.

Other contentions such as on Reproductive Health Education in schools were passed lightly by the Supreme Court as the issues were to premature to be decided as the Department of Education is yet to produce a curriculum for the same.

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People v Juamawon GR 187495 April 21, 2014 Marital Rape should be treated in the like terms as non-marital rape cases

Facts: The case involves a husband and wife in Cagayan de Oro City, who were married on October 18, 1975. They have raised four kids and have businesses mainly through the efforts of the wife.The wife alleged that her husband raped her on two occasions when he forced her to have sexual intercourse despite her refusal and their children’s intervention.

The husband, however, interposed defenses of extra-marital affair and money squandering on the part of the wife.

He also contended that since he and his wife were married they had mutual obligations of and right to sexual intercourse. The RTC sustained the version of the prosecution by giving greater weight and credence to the spontaneous and straightforward testimonies of the prosecution’s witnesses.

Procedure: Regional Trial Court: Rape Court of Appeals: Appeal of trial court’s decision Issue: Whether marital relationship between spouses can be an exemption to the conviction of a man for raping his wife Ruling: Affirmed with modifications the decision of the Court of Appeals which affirmed the judgment of the Regional Trial Court.

Decided: April 21, 2014 Reasoning: The Supreme Court emphasized that rape is a form of sexual violence and such exists within marriage. A man who penetrates her wife without her consent on against her will commits sexual violence upon her, and the Philippines, as a State Party to the CEDAW (UN Convention on the Elimination of all forms of Discrimination Against Women), and its

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accompanying Declaration, defines and penalizes the act as rape under RA 8353” To treat marital rape cases differently from non-marital rape case in turns of the elements that constitute the crime and in the rules for their proof, extinguished on the equal protection clause.

A marriage license, as ruled by the Court, should not be viewed as a license for a husband to forcibly rape his married woman. She has the same right to control her own body, as an unmarried woman can. She can give or withhold sexual intercourse with her husband and he cannot unlawfully wrestle such consent from her in case she refuses.

“Rape is a crime that evokes global condemnation because it is abhorrence to a woman’s value and dignity as a human being. It respects no time, place, age, physical condition or social status. It can happen anywhere and it can happen to anyone. Even, as shown in the present case, to a wife, inside her timehonored fortress, the family home, committed against her by her husband who vowed to be her refuge from cruelty. The herein pronouncement is an affirmation to wives that our rape laws provide the atonement they seek from their sexually coercive husbands.”

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People v Avellano GR 189833 February 5, 2014 Conspiracy: Totality of Factual Circumstance

Facts: Javier Morilla Y Avellano, together with, Mayor Ronnie Mitra, Willie Yang, and Ruel Dequilla transported methamphetamine hydrochloride (shabu) using two motor vehicles. Police officers have already acquired prior knowledge that the said vehicles were to be used for transporting dangerous drugs. They conducted a search on the vehicles driven by Mayor Mitra and Morilla during the checkpoint in Real, Quezon.

The car driven by Morilla was an ambulance and the windows were untinted. This allowed the police officers to notice the several sacks inside the van. Upon inquiry of the contents, the accused replied that the sacks contained narra wooden tiles. Unconvinced, the police officers requested him to open the rear door of the car for further inspection.

When the rear door was opened, the operatives noticed that white crystalline granules were scattered on the floor. The police officers then requested to open the sacks.

The discovery in the car driven by Morilla prompted the operatives to chase the van of Mayor Mitra. The police officers were able to overtake the van and Mayor Mitra was asked to stop. They then inquired if the mayor knew Morilla. On plain view, the operatives noticed that his van was also loaded with sacks similar to those found in the ambulance. Thus, Mayor Mitra was also requested to open the door of the vehicle for inspection.

At this instance, Mayor Mitra offered to settle the matter but the same was rejected. Upon examination, the contents of the sacks were likewise found to contain sacks of methamphetamine hydrochloride.

Procedure Regional Trial Court: Criminal information on Illegal transport Court of Appeals: Appeal to RTC conviction Supreme Court: Appeal to CA affirmation of RTC’s conviction Issues: 1. Whether the accused may be convicted for conspiracy to commit

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the offense charged.

2. Whether the prosecution was able to prove his culpability as alleged in the Information.

Ruling: Petition is Denied. Penalty imposed is Reclusion perpetua with a fine of Php 10,000,000 by each of the accused.

Decision: February 5, 2014 Reasoning: 1. Morilla can be convicted. The totality of the factual circumstances leads to a conclusion that Morilla conspired with Mayor Mitra in a common desire to transport the dangerous drugs. In conspiracy, it need not be shown that the parties actually came together and agreed in express terms to enter into and pursue a common design. The assent of the minds may be and, from the secrecy of the crime, usually inferred from proof of facts and circumstances which, taken together, indicate that they are parts of some complete whole.

2. The prosecution was able to prove his culpability in the crime committed. Morilla and Mayor Mitra were caught in flagrante delicto in the act of transporting the dangerous drugs on board their vehicles.

Transport” as used under the Dangerous Drugs Act means “to carry or convey from one place to another.” The very act of transporting methamphetamine hydrochloride is malum prohibitum since it is punished as an offense under a special law. The fact of transportation of the sacks containing dangerous drugs need not be accompanied by proof of criminal intent, motive or knowledge.

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Villasi v Garcia Gr 190106 January 15, 2014 Accessory follows the principal; exception - the general rule on accession cannot be applied since the petitioner failed to prove claim of ownership of right of possession

Facts: Petitioner Magdalena T. Villasi engaged the services of respondent FilGarcia Construction, Inc. (FGCI) to construct a seven-storey condominium building. Villasi failed to pay full contract price despite several demands.

FGCI instituted a suit for small claim of money before the RTC. Villasi filed an answer specifically denying the allegations of the complaints and averred that she delivered the total amount of P7,490,325.10 to FGCI but the latter accomplished only 28% of the project.

RTC rendered a decision in favor of FGCI and upheld the claim for the unpaid amount of the contract. CA reversed the RTC’s decision, ruling that there was in fact an over payment and ordered FGCI to return the amount in excess. FGCI then filed a petition for certiorari but was subsequently denied because it was filed out of time. As a result, the decision by the CA became final and executory.

As the prevailing party, Villasi filed a motion for execution. The Sheriff levied on a building, declared for taxation purposes under the name of FGCI, and lots under the ownership of spouses Garcia.To forestall the sale on execution and to convince the court that there was an erroneous levy by the Sheriff, the spouses filed a an Affidavit of Third Party Claim and a Motion to Set Aside Notice of Sale on Execution, alleging that they are in fact the rightful owners of the building that was assessed.

Procedure: Regional Trial Court: claim of money Court of Appeals: Appeal of trial court’s decision Supreme Court: Petition for certiorari Affidavit of third party claim and motion to set aside notice of sale on execution Issues: Whether the general rule on accession is applicable to the at hand.

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Ruling: Petition granted and the assailed decision of the Court of Appeals is reversed and set aside.

Decided: January 15, 2014 Reasoning: No, the general rule on accession cannot be applied in this case since the petitioner failed to prove the claim of ownership or right of possession to the building.

While it is a general rule that the accessory follows the principal, such rule would still require that the claim of ownership or right of possession over the principal and the accessory be proven to be under the same person or entity. The rule on accession is not an iron-clad dictum. On instances where the Supreme Court was confronted with cases requiring judicial determination of the ownership of the building separate from the lot, it never hesitated to disregard such rule.

In this case, although spouses Garcia was able to present a Torrens Certificate of Title which substantiated its indisputable claim of ownership over the lot, the spouses, however failed to present any evidence for their claim of ownership or right to the possession over the building. Since there was no clear indication that there was a sole ownership over both the land as the principal, and the building as the accessory - the general rule on accession can be brushed aside.

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Gonzales v Office of the President GR 196231-32 January 28, 2014 Concept of Impeachment

Facts: A. Gonzales’ petition: An administrative charge for grave misconduct was filed before the National Police Commission (NAPOLCOM) against Manila Police District Senior Inspector Rolando Mendoza and four others following charges filed by Christian Kalaw with the Philippine National Police Internal Affairs Service (PNP-IAS) and with the Manila City Prosecutor’s Office for robbery, grave threat, robbery extortion and physical injury.

NAPOLCOM turned the case over to Deputy Ombudsman for Military and Other Law Enforcement Officers (MOLEO), Emilio Gonzales who found Mendoza and the others guilty of grave misconduct and imposed on them the penalty of dismissal from the service. He forwarded his draft to Ombudsman Merceditas Gutierrez for her review and was then approved. Mendoza filed a motion for reconsideration.

Pending final action by the Ombudsman on Mendoza, et al.’s case, on August 23, 2010, Mendoza hijacked a tourist bus and held the 21 foreign tourists and four Filipino tour assistants on board as hostages. The government attempted to peacefully resolve the hostage-taking; howe ver, it ended tragically. Mendoza died along with several hostages.

Incident Investigation and Review Committee (IIRC) was established to investigate on the case. It subsequently found out that Gutierrez and Gonzales accountable for their “gross negligence and grave misconduct in handling the case against Mendoza”, as they have failed to promptly resolve Mendoza’s motion for reconsideration, “without justification and despite repeated pleas precipitated the desperate resort to hostagetaking.” Gonzales was dismissed from service by the Office of the President.

B. Sulit’s Petition: In April 2005, the Office of the Ombudsman charged Major General

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Carlos F. Garcia and several others, before the Sandiganbayan, with plunder and money laundering.

On February 25, 2010, the Office of the Ombudsman, through Sulit and her prosecutorial staff, entered into a plea bargaining agreement (Agreement) with Garcia in which Garcia would plead guilty for lesser offenses but will have to surrender to the government ownership, rights and other interests over the real and personal properties.

Sandiganbayan approved the Agreement which drew public outrage and prompted the Committee on Justice of the House of Representatives to conduct an investigation and found that Sulit, her deputies and assistants committed culpable violations of the Constitution and betrayal of public trust – grounds for removal under Section 8(2) of RA No. 6770.

The Committee recommended to the President the dismissal from the service of Sulit.

Procedure: Supreme Court: Petition to assail the constitutionality of Section 8 (2) of RA 6770 Decided: January 28, 2014 Issue: Whether or not Section 8(2) of RA No. 6770 is unconstitutional having given the Office of the President jurisdiction Ruling: Gonzales’ petition to declare Section 8(2) of RA No. 6770 unconstitutional with respect to the Office of the Ombudsman was granted.

Reasoning: Section 8(2) of RA No. 6770 vesting disciplinary authority in the President over the Deputy Ombudsman violates the independence of the Office of the Ombudsman and is thus unconstitutional The Office of the Ombudsman, by express constitutional mandate, includes its key officials, all of them tasked to support the Ombudsman in carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted independence is what Section 8(2) of RA No. 6770 exactly did. By so doing, the law directly collided not only with the independence that the Constitution guarantees to the Office of the Ombudsman, but inevitably with the principle of checks and balances that the creation of an Ombudsman office seeks to revitalize.

The Executive power to remove and discipline key officials of the Office of the Ombudsman, or to exercise any power over them, would result in

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an absurd situation wherein the Office of the Ombudsman is given the duty to adjudicate on the integrity and competence of the very persons who can remove or suspend its members.

This conclusion does not apply to Sulit as the grant of independence is solely with respect to the Office of the Ombudsman which does not include the Office of the Special Prosecutor under the Constitution.

The 1987 Constitution created a new, independent Office of the Ombudsman. The existing Tanodbayan at the time became the Office of the Special Prosecutor under the 1987 Constitution. While the composition of the independent Office of the Ombudsman under the 1987 Constitution does not textually include the Special Prosecutor, the weight of the foregoing discussions on the unconstitutionality of Section 8(2) of RA No. 6770 should equally apply to the Special Prosecutor on the basis of the legislative history of the Office of the Ombudsman as expounded in jurisprudence.

The Special Prosecutor handles the prosecution of criminal cases within the jurisdiction of the Sandiganbayan and this prosecutorial authority includes high-ranking executive officials. For emphasis, subjecting the Special Prosecutor to disciplinary and removal powers of the President, whose own alter egos and officials in the Executive Department are subject to the prosecutorial authority of the Special Prosecutor, would seriously place the independence of the Office of the Ombudsman itself at risk.

Thus, even if the Office of the Special Prosecutor is not expressly made part of the composition of the Office of the Ombudsman, the role it performs as an organic component of that Office militates against a differential treatment between the Ombudsman’s Deputies, on one hand, and the Special Prosecutor himself, on the other. What is true for the Ombudsman must be equally true, not only for her Deputies but, also for other lesser officials of that Office who act directly as agents of the Ombudsman herself in the performance of her duties.

Thus, under the present Constitution, there is every reason to treat the Special Prosecutor to be at par with the Ombudsman’s deputies, at least insofar as an extraneous disciplinary authority is concerned, and must also enjoy the same grant of independence under the Constitution.

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Atty. Alconera v Pallanan AM-P-123-069 Public office discourtesy

Facts: Atty. Alconera was the counsel in an unlawful detainer case which was decided against his clients. Atty. Alconera proceeded to appeal the case; however, the opposition’s motion for execution was granted. Atty.

Alconera sought reconsideration.

While Atty. Alconera was out of town, his client’s daughter-in-law phoned him to report that respondent Sheriff Pallanan was about to implement the adverted writ of execution, and allegedly demanded a sum of money to settle the obligation. A verbal disagreement broke out between Atty.

Alconera and Sheriff Pallanan regarding the writ of execution, with the former insisting that he has filed a motion for reconsideration. However, the motion for reconsideration has actually been denied. The Sheriff explained that since there was no temporary restraining order enjoining such writ, he was legally mandated to proceed with the execution. Sheriff Pallanan proceeded to enforce the writ of execution.

It was only upon Atty. Alconera’s return to that the order denying the Motion for Reconsideration was served. He proceeded to Regional Trial Court Branch 36 to confront the sheriff. The verbal altercation between Atty. Alconera and Sheriff Pallanan was recorded on video. Atty. Alconera filed a complaint-affidavit against Sheriff Pallanan for grave misconduct, which was later supplemented to include false testimony when the Sheriff’s answer contained allegations that Atty. Alconera threatened him and shoved papers in his face. Sheriff Pallanan filed a complaint of grave misconduct and violation of the Code of Ethics against Atty.

Pallanan.

Procedure: Office of Court Administrator referred to the Regional Trial Court: Grave misconduct and false testimony against the sheriff; Grave misconduct and violation of Code of ethics against Alconera

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Issue: Whether or not Sherrif Pallanan can be held administratively liable for grave misconduct and false testimony.

Ruling: Alfredo Pallanan was admonished and warned to be always courteous in dealing with the public in the performance of official duties. A repetition of the same or similar acts will be dealt with more severely.

Reasoning: The Court held that none of the elements of grave misconduct has been exhibited by Sheriff Pallanan. Grave misconduct been defined as a “transgression of some established and definite rule of action, more particularly, unlawful behavior or gross negligence by a public officer.”

Such misconduct is grave if it involves any of the additional elements of corruption, willful intent to violate the law, or to disregard established rules. This must be supported with substantial evidence.

There is no legal impediment preventing Sheriff Pallanan from performing his responsibility of enforcing the writ of execution. A sheriff’s duty is purely ministerial in the execution of writs. However, the immediacy of the execution does not mean instant execution. The Sheriff is required to give notice and to demand the defendants to vacate the property within three days. It is only then that he can enforce the writ by bodily removal of the defendants from the property. Such notice cannot be dispensed with. Sheriff Pallanan is accorded the presumption of regularity in the performance of his duties. The burden to disprove such presumption falls upon Atty. Alconera.

Also, as a public officer and a trustee for the public, it is the ever existing responsibility of Sheriff Pallanan to demonstrate courtesy and civility in his official actuations with the public. Rude and hostile behavior often translates to a personal conflict into a potent pollutant of an otherwise peaceful workplace; ultimately, it affects the quality of service that the office renders to the public.

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Neri v Sandiganbayan GR 202243 August 7, 2013 Consolidation of criminal case; when nt advisable

Facts: Romulo L. Neri served as the Director General of the National Economic and Development Authority (NEDA) during the administration of former President Gloria Macapagal-Arroyo. On May 28, 2010, two criminal Informations for violation of the Anti-Graft and Corrupt Practices Act in connection with the botched Philippine-ZTE National Broadband Network (NBN) Project were filed by the Office of the Ombudsman with the Sandiganbayan. The first was against Benjamin Abalos and the second against Neri. These were raffled to different divisions of the Sandiganbayan.

Neri was accused him of being financially interested in the contract granted by the Government as evidenced by having lunch and playing golf with representatives and officials of the ZTE and meeting with the COMELEC Chairman Benjamin Abalos. Neri also allegedly sent his representative Engineer Rodolfo Noel Lozada to meet Chairman Abalos and Jose De Venecia III, President/General Manager of Amsterdam Holdings, Inc. (AHI) another proponent to implement the NBN Project and discuss matters with them.

Over a year later, the Office of the Special Prosecutor (OSP), moved for the consolidation of the People v. Neri case with the cases People v.

Abalos, People v. Arroyo, et al. and People v. Arroyo. This was to promote an expeditious, less expensive resolution of the controversy of cases involving the same business transaction.

However, the trial in the Neri and Abalos cases were both in advanced stages and Neri as the principal witness in the Abalos case had already finished with his testimony. Neri opposed the consolidation contending that it violated his rights as an accused and that consolidation would put him at risk of being identified with Abalos’ group. He argued that the other cases involved different issues and facts and that the motion was merely a ploy to further delay the prosecution of his case.

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The Fifth Division granted the OSP’s Motion to Consolidate, subject to the conformity of the Fourth Division in which Neri’s case was pending. The anti-graft court stated that consolidation would allow the government to save unnecessary expenses, avoid multiplicity of suits, prevent delay, clear congested dockets, and simplify the work of the trial court without violating the parties’ rights.

Procedure: Fifth Division of the Sandiganbayan: motion for consolidation Supreme Court: Petition for certiorari, prohibition and mandamus Issue: Whether the consolidation of trial would unreasonably and unduly delay the trial of the case against Neri in violation of his right to a speedy trial Ruling: The Supreme Court ruled in favor of Neri, owing for one on the occurrence of a supervening event in the Sandiganbayan itself. The rationale behind consolidation of cases is to promote expeditious and less expensive resolution of a controversy than if they were heard independently and separately. In the Abalos case, the prosecution listed 50 witnesses and still had to present 33 more witnesses. In the case against Neri the prosecution had no more witnesses to present and was about to terminate its evidence in chief.

Reasoning: The rights of an accused take precedence over minimizing the cost incidental to the resolution of controversies in question.

Consolidation, when proper, owing to the existence of the element of commonality of the lineage of the offenses charged should be ordered to achieve all the objects and purposes underlying the rule on consolidation, foremost of which is the swift dispensation of justice with the least expense and vexation to the parties. It should, however, be denied if it subverts any of the aims of consolidation. Ordering consolidation where the same is likely to delay the resolution of one of the cases, expose a party to the rigors of a lengthy litigation and in the process undermine the accused’s right to speedy disposition of cases constitutes grave abuse of discretion.

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Disini v Secretary of Justice (Cybercrime Law) G.R. No. 203335 February 11, 2014

Facts: Republic Act 10175, also known as “Cybercrime Prevention Act of 2012” (RA 10175 hereinafter for brevity), was signed into law on September 12, 2012 by President Benigno Aquino III.

Herein Petitioners filed a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Civil Procedure. The Petitioners assail the constitutionality of certain sections of RA 10175, for violating the fundamental rights protected under the constitution. The Petitioners contend that freedoms of expression and speech,are being curtailed by said Republic Act. Online libel as criminalized under RA 10175 brought about a clamor of calls and movements which seek to have RA 10175 declared as unconstitutional.

This article will focus on the provisions of RA 10175 with regard to online libel. This is specifically contained in Sec. 4 (C) number 4 which reads: (4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

Article 353 of the Revised Penal Code defines libel as: “A libel is public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.”

Article 354 of the same Code provides that: “Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

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2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.”

Finally, Article 355 of the aforementioned code provides that libel can be committed by: “A libel committed by means of writing, printing, lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall be punished by prisioncorreccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the offended party.”

Petitioners contend that the libel provisions of the cybercrime law carry with them the requirement of “presumed malice” even when the latest jurisprudence already replaces it with the higher standard of “actual malice” as a basis for conviction.

Procedure: Petition for review on Certiorari and Prohibition under Rule 65 of the Rules of Civil Procedure Issue: Whether Section 4(c)(4) that penalizes online libel, of RA 10175 is valid and constitutional Ruling: The Supreme Court held that Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post and react to it Reasoning: “There is “actual malice” or malice in factwhen the offender makes the defamatory statement with the knowledge that it is false or with reckless disregard of whether it was false or not.The reckless disregard standard used here requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even extreme negligence is not sufficient to establish actual malice” “The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the government has an

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obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes “similar means” for committing libel.”

Furthermore, the International Covenant on Civil and Political Rights under Article 19 provide that: Article 19 1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.

As can be gleaned from the above-stated proviso, Everyone shall have the right to freedom of expression but, shall be subject to certain restrictions.

The freedom of expression does not carry with it the freedom to debase, humiliate, dishonour and discredit another.

It is this writer’s humble opinion that the freedom of speech and expression is not absolute. It is limited by law to protect order and the rights of other individuals. For we may well be truly free to say anything and do everything, but we must all be ready for the consequences of what we have said or done.

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3 SELF-HELP ARTICLES Write-ups to assist the USLS Law Student in study management and BAR Exam preparation

How and Why the Law Student Studies Popular Study Techniques among USLS College of Law Students Maria Reylan M. Garcia

Studying is a staple activity for law students. With innumerable case readings and provisions assigned daily, law students have adapted to the academic demands and have accustomed themselves into utilizing different types of study techniques.

In January 2013, a study1 led by Kent State University professor John Dunlosky on effective learning techniques was published in the Psychological Science in Public Interest revealing the study techniques that yield the best results for students. 10 techniques were investigated, namely: summarization, highlighting, keyword mnemonic, practice testing, imagery use for text learning, rereading, distributed practice, elaborative interrogation, selfexplanation and interleaved practice. Practice Testing and Distributed practice arose as most effective study techniques.

Practice Testing is defined as an informal examination taken as a preparation for an actual or formal examination2. A would-be examinee simulates his upcoming test by answering similarly categorized questions. Distributed practice is otherwise known as spaced repetition in which practice is broken up into a number of short sessions over a longer period of time.

Last December 2014, a simpler derivative survey was formulated to determine which among the established study techniques are popularly used by University of St. La Salle College of Law students, and as per their subjective rating, which among them are more effective. Effectiveness was personally rated by the law students and was scored from 0-10, 10 being the most effective. A study technique observed among law students was included in the survey – explanation with group or group discussion. In addition to, the number of study hours was also gauged. Data acquired were analyzed according to year level.

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Gathered Data Number of study hours (%) Year Level less than 3 hours 1st Year

3 to 4 hours

5 to 7 hours

8 hours or more

31.3

37.25

25

6.25

2nd Year

0

28.6

50

21.4

3rd Year

25

66.7

0

8.3

4th Year

10

70

20

0

Table 1.1 – Number of hours of study of USLS law students per year level in percentage Study hours were categorized into four: less than 3 hours, 3-4 hours, 5-7 hours and 8 hours or more. The first, third and fourth year law students devote 3-4 hours per day for studying. The second year law students spend more time to prepare for class with 5-7 hours on average.

Most Popularly-used Study Techniques (%) Year Level Highlighting 1st Year

Summari- Discuszation sion with self

Discussion Distribued with group Practice

70

30

25

45

20

2nd Year

92.8

100

71.4

64.3

21.4

3rd Year

100

75

91.7

83.3

58.3

4th Year

100

70

30

40

20

Most Popularly-used Study Techniques (%) Year Level Keyword/ RereadMnemonic ing 1st Year

Practice Testing

Relating Information

Elaborative Interrogation

40

65

10

15

10

2nd Year

78.6

100

35.7

57.1

64.3

3rd Year

100

66.7

8.3

33.3

33.3

4th Year

80

70

20

50

30

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Table 2.1 – Percentage of most-popularly used study techniques by USLS law students per year level Most Popularly-used Study Techniques (%) Year Level Highlighting

Summari- Discuszation sion with self

Discussion Distribued with group Practice

1st Year

8.72

5.83

7.4

9.5

7

2nd Year

8.5

8.7

8.3

7.8

7.6

3rd Year

7.42

8.2

7

6.5

7.4

4th Year

6.9

8

7.3

7

8.5

Most Popularly-used Study Techniques (%) Year Level Keyword/ RereadMnemonic ing

Practice Testing

Relating Information

Elaborative Interrogation

1st Year

7.93

8.5

8.5

7

7

2nd Year

9.3

9.6

8.4

9

8.5

3rd Year

7.2

7.9

10

8

6.5

4th Year

7.8

7.9

7.5

7.2

6.3

Table 2.2 – Percentage of most-effective study techniques rated by USLS law students per year level The most popular study technique for the first year law students is highlighting or underlining. They rated the same with 8.72. The most effective study technique according to the first years is the small group discussion with a rating of 9.5, such however, ranked third in popularity.

The second year law students prefer to employ summarization or making notes and rereading as their study techniques. They considered rereading as most effective with a 9.6 rating. Summarization or making notes, however, ranked third in effectiveness. The third year law students’ most popular study techniques are highlighting or underlining and keyword mnemonics with a 7.4 and 7.2 rating respectively. However, despite being less popular, practice testing has a higher effectiveness rating for the third year law students with a perfect rating of 10. The fourth year law students use highlighting or underlining predominantly when studying, but as to

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effectiveness they only gave it a 6.9 rating. In contrast, the most effective study technique to them is distributed practice with an 8.5 rating.

Assumptions The first, third and fourth year law students mostly employ highlighting or underlining and the second year law students prefer summarization or making notes and rereading. The number of study hours may have contributed to the varying preferences.

Highlighting or underling consumes lesser time than making notes and rereading; thus, the first, third and fourth year law students, highlighting or underlining may have been more apt and convenient for their 3-4 study hour average. Highlighting and underlining leads to what researchers brand as the “isolation effect” wherein a unique or separate item is recalled more easily than one in a list or group. Thus, having highlighted the most important provisions or doctrines to remember, the first, third and fourth year law students need not reread or summarize the assigned readings; otherwise, it will necessitate more time.

The second year law students’ 5-7 study hour average may have provided them with an allowable time frame to summarize or make notes and reread. The observed benefits of summarizing or making notes are mostly grounded on informational organization in which the student believes will be easier to study and retain whilst the terms and concepts are outlined.

Rereading is, according to most researchers, one of the most used learning techniques having been used by over 80% of students.

It is noteworthy, however, that neither of the most popular study techniques popularly employed by law students were considered as the most effective by Dunlosky’s study. On contrary, highlighting, underlining, rereading and summarizing were all rated by the researchers as being of “low utility.” This is because these methods draw attention to individual facts; therefore it may hamper the process of making connections and drawing inferences.

Nevertheless, there is a reasonable concurrence of reasons of surveyed law students as to why they employ the likes of highlighting, rereading and summarizing. These methods are convenient and practical for them amid the bulk of provisions and case readings to process and digest for an overwhelmingly short period of time.

Each year level rated a distinct study technique as the most effective. The first year law students hailed the effectiveness of group discussion. As collectively reasoned out by the first year law students, group discussion allows them to brew better ideas and understanding of their assignments

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than which they can do alone. Bruner’s study3 in 1985 concluded that since students are confronted with different interpretations of given situations, the cooperative learning methods makes them internalize both external knowledge and critical thinking skills and ultimately problem-solving. The first year law students may have found group discussion more effective because in the early stages of their law education they are confronted by new and overwhelming principles and perspectives; therefore, subsequently knowing the majority interpretation among peers may truly comforts them.

Not only did the second year law students considered rereading as the most used but also the effective study technique. Their choice is analogous of several studies which dubbed rereading as one of the most used study technique. However, despite its popularity, a number of studies also contend that rereading provides little to no benefit in improving educational performance.

The third and the fourth year law students selected study techniques which are reflective of Dunlosky’s research – practice testing and distributed practice, respectively. These two were concluded to be high utility. Distributed practice basically controverts unhealthy cramming which, although may be useful for surviving a graded recitation or a major examination, the crammed information will just as haphazardly disappear from memory. Practice testing familiarizes students with a low-stakes version of testing. The use of flashcards or completing practice problems is a concrete example to depict its benefits.

For law students, practice testing can be accomplished through answering previous bar exam questions relevant to the present topic of study.

Despite the display of statistics, experts believe that studying – learning – is generally an individual process and is multi-factorial. The method employed is only a piece of the puzzle. Factors like environment, aptitude, enthusiasm or interest and even socio-cultural background remain significant variables.

Nevertheless, knowing what is scientifically proven to be an effective studying technique will help the law student identify what can more likely increase the productivity and efficiency of his learning, and more importantly, realize that probably the reason why he is failing or succeeding is not with the difficulty of the subject but on how effective his preparations were. *** Footnotes: 1 Dunlosky, J., et. al, Improving Students’ Learning With Effective Learning Techniques, January 9, 2013 2 Collin’s Dictionary definition 3 Bruner, J. Vygotsky: A historical and conceptual perspective. Culture, communication, and cognition, 1985

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Time Management: What to do when you do full-time Jamie Bentinganan

“The law is a jealous mistress and requires a long and constant courtship.

It is not to be won by trifling favors, but by lavish homage.”

--Supreme Court Justice Joseph Story For the working law student, work is the wife that relegates the law to the role of the mistress. With lavish homage paid only outside of office hours, the law student who is otherwise “married to the job” can turn law school into quite the jealous mistress.Not only is the law jealous, but she is also demanding, and as with all hard-to-please mistresses, trifling favors are not enough to win her.

Having a full-time job leaves less time to study, so how does one go about apportioning the remaining hours in a day to accommodate the amount of studying that needs to be done to survive law school? Only a person who has done it before can answer conclusively.

Atty. Jenny Kay Kalaw, alumnus and 2012 Bar Exam Survivor, can attest to the difficulties of juggling many roles while in law school. During her law school days, she also worked in their family business as a supervisor, cashier and purchaser, among other things. She was, and still is, a businesswoman.

“I work in a typical Chinese family business that requires all around work in managing and/or doing my function in the business,” according to Atty. Kalaw. “Aside from my work, I also started a business venture with my business partners in 2008, the year I went into first year ‘proper’ in law school.”

Atty. Kalaw’s hours of work were not the typical 8-hour job as they were

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as she described “semi-flexible and/or crazy as the years went by.” The way she managed this hectic schedule was by maximizing whatever free time she could for her studies.

Getting Ahead Free time isn’t just downtime. Free time used well can really help take the strain out of oncoming work days.

A typical Sunday for Atty Jenny was used to prepare for classes three days ahead as a typical work week went from Mondays to Saturdays. After serving in church and taking a power nap, she would spend the remaining half of the day (about 12 hours) on law stuff—reading books, cases, highlighting, making notes, and doing “kikay” things with her books and codals.

Atty. Jenny’s schedule Back in her student days, a typical work/school day forAtty. Jenny consisted in waking up, doing her devotional time,then jumpstarting the day with a bath and breakfast. Having done her first reading the previous Sunday, she would do her second reading (and notes,if time permitted), then she would go to work.

While she was at work,shewould scan her notes/books and considered that her third reading. (This might not be applicable to all work settings, but the important takeaway here is to use any lull to study. Break times and lunch are the best times to go through notes without compromising work.)

Before going to class, she saw to it to finishher third reading. According to Atty Jenny, however, this “luxury time” to read was afforded at the cost of a sacrificed social schedule.

Advice for those pressed for time While there isn’t one sure formula for perfect time management, the important thing is to find a balance. Break down the day into chunks of working hours and assign tasks accordingly. Be flexible—you might have a schedule, but the rest of the world isn’t supposed to just work around it.

Don’t skimp on reading as there are no shortcuts to surviving law school— cramming for 20 minutes before class starts only means that you will be standing in graded recitation for just as long, if not longer.

JENNY’S ABCDEFGHIJ’s for Law School Survival ATTITUDE is the key to survive law school. Every day we experience a lot

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of troubles. A bad day is not an excuse to skip studying. We should not use our problems as an excuse; instead we should focus on having the right attitude. Others may not appreciate how teachers conduct recitation, but coping is only a matter of attitude. As the saying goes, “Attitude is altitude.”

BE FOCUSED ON ONE GOAL = TO BECOME A LAWYER. Focus on your studies even while working. While not everybody has the same intellectual capacity, law school is all about diligence and passion. If you have the brains but you do not have the attitude (in connection with letter a), you’re in trouble. In the same way, if you have the passion and brains, but the law is not your calling, then you’re in trouble too.

CHOOSE YOUR BATTLES WISELY. Many things and many people will vie for your attention; however the number of hours in a day will not extend to accommodate all of them. Remember that you should know how to choose your battles. Choose wisely. Recognize that some things are too trivial to be minded and save your energy for the things that matter.

DELAYED GRATIFICATION. While it’s important to live in the present, it’s also good to plan for the future. When you want to enjoy something in the long run, you have to sacrifice something in the present. We cannot always have the best of both worlds. Don’t give up the long-term goal for the temporary pleasure. Focus.

EXCITEMENT. Be excited to become a lawyer. The bar is not just an intellectual exam. It’s also a test of character, resilience, physical, emotional and spiritual strength. Make sure that you’re excited and be ready with the right attitude. The Bar experience is very unique! It’s not the same story for everyone, and every lawyer or bar taker has their own unique story to tell.

While there are dark moments, there are also light and thrilling ones. Just enjoy the roller coaster ride!

HAVE FUN. Have fun once in a while. Being in law school does not mean that you should resign yourself to being boring. There are times when you just need to recharge. Be kind to yourself. Breathe and get back to work once you’ve recharged!

BE GRATEFUL. Be grateful to your teachers, classmates, schoolmates. They will be the ones who will help you figure it out once you become a lawyer.

Be grateful for the teachers, alumni, and colleagues, who are never selfish with what they know. When your intentions to help are pure, surely it will come back a hundred fold. But do not do this for the “blessing” benefit; do this because it’s the right thing to do. In helping other people, do not expect that they will do the same. It is in sharing that you multiply knowledge.

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Not all people you share with will return the same favor;sometimes, it’s the opposite, but just help anyway. For as long as your heart is sincere, the rainbow will always come after the rain.

BE HUMBLE. The Bar is a very humbling experience. While it feels great to have finally passed the Bar and getting the long-coveted ATTY. prefix placed before your name, stay grounded. After passing, you will soon realize that the lot you just learned will seem so little during legal practice.

Passing the bar is just the entrance exam to the legal profession.

STICK TO YOUR INTENTIONAL VALUES. A lot of surprises await you when you become a lawyer. You will get overwhelmed with a lot of pleadings and court procedures that may not have been taught in law school. When you are in doubt, stick to your intentional values – the good and ethical values.

BE JUST. In a lot of cases, you’ll never lose when you try to meet half way.

Strive to be a good Christian lawyer.

When people try to pull you down, be the better person and don’t stoop down to their level. Instead, inspire others to do better. Lift up others.

Strong people lift each other up. After all, it’s always rewarding to see other people succeed. Be happy for the success of other people. The world is full of negativity and drama already so choose to have a positive attitude and be happy!

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Studying According Necessity

A survey on teacher-based student studying performance among law students Jose Luis Guatelara

Pressure can push human beings past their limits or do something which is not enjoyable or a task-requiring effort. Students, whether in undergraduate or graduate school, can also be affected by pressure from their teachers. However, not all students are alike in handling pressure for some may even consider the same task as enjoyable.

Perhaps, it is really just a matter of perspective and outlook.

Studying can be enjoyable to some students but a burden to others. Teachers play a big role in the study habits of a student. More often, pressure given by teachers affect the degree of effort, seriousness, and focus a student would give for a particular subject.

The Law Journal Team has conducted a simple survey reflecting how University of St. La Salle College of Law students study for their subject vis-Ă -vis how the teacher is during the ordinary class days.

The survey classified the effort of students according to the following: (1) did not study, (2) with slight effort, (3) with regular effort, (4) with additional effort, and (5) with best possible effort; and as to the part of the professors: (1) with graded recitation and/or quiz, (2) class discussions only, (3) no recitation except for questions and clarifications, and (4) no recitation or quiz. In a nutshell, the results of this survey show how students respond on the teaching style of professors.

Year Level

1st Year

Effort into studying

with graded recitation and/ or quiz

do not study

10

slight effort

15

regular effort

class disscussions only %

no recitation for questions and clarifications 10

5 5

5

35

25

additional effort

40

50

25

best possible effort

30

5

40

In a review of the results, only the first year law students had the result of not studying

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on any of the professors’ participation. All other year levels would study even if there would be no recitation nor quiz. Many in all year levels would study with regular effort if the professor would have no recitation except for questions and clarifications as in the order from 1st year to 4th year, percentages of the sample corresponding to the year level would be 25%, 71%, 42%, and 70%. Although a very few would study with a slight effort (5%, 7.1%, 17%, and 20%), a good percentage would give additional effort given the same participation of the professors as the result would be 25%, 14%, 25% from 1st to 3rd year. However, in the fourth year, none would give additional effort. Most in the first year would give the best possible effort by having 40% of the sample in their batch with the 2nd to 4th years with 7.1%, 17%, and 10%.

Year Level

2nd Year

Effort into studying

with graded recitation and/ or quiz %

class disscussions only %

no recitation for questions and clarifications %

do not study

0

0

0

slight effort

0

7.1

7.1

regular effort

7.1

50

71

additional effort

29

29

14

best possible effort

64

14

7.1

For class discussions only, the second year to fourth year students would mostly give regular effort scoring for their respective batches 50%, 33% and 60%. The first year scored 35% but mostly giving additional effort with a percentage of 50%. The other year levels would get 29%, 25%, and 0%. A few of all students would give a slight effort (0%, 7.1%, 17%, and 30%) or the best possible effort (5%, 14%, 25%, and 10%).

It is only the first year that has students who would not study having 10%.

Year Level

3rd Year

Effort into studying

with graded recitation and/ or quiz %

class disscussions only %

no recitation for questions and clarifications %

do not study

0

0

0

slight effort

0

17

17

regular effort

8.3

33

42

additional effort

25

25

25

best possible effort

67

25

17

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Lastly, for those classes with graded recitations and/or quizzes, the second and third year would mostly give their best possible effort (64% and 67%), some giving additional effort (29% and 25%), a few who would give regular effort (7.1% and 8.3%), and none who would give slight effort nor not study at all. In the first and fourth years, most would just give additional effort (40% and 50%). Some may give the best possible effort (30% and 40%) and a small percentage would just be contented with regular effort (5% and 10%). However, the first year would deviate from the usual findings as a good number of 15% would either give slight effort and 10% would not even study at all.

Year Level

4th Year

Effort into studying

with graded recitation and/ or quiz %

class disscussions only %

no recitation for questions and clarifications %

do not study

0

0

0

slight effort

0

30

20

regular effort

10

60

70

additional effort

50

0

0

best possible effort

40

10

10

Conclusively, the students of law school do study much more than the usual whenever they have a quiz and/or a graded recitation and less when they have none. Inferred from the results, it is submitted that in general, students’ preparation for the subject can be attributed to the professor’s approach. When the professor would be lenient on recitations or gives quizzes, students would tend to be lax on that particular subject and maybe focus more on other subjects that would conduct recitations and/or quizzes.

Overall, student performance based on the teacher’s approach would show how a student would manage his/her time for specific subjects. Not studying for one subject may result in studying for another which would require more time and effort to finish the task imposed by a professor of another subject. Student performance in this survey refers to the preparations undertaken by the law students prior to entering the class discussion. This does not include a student’s general attitude towards the curriculum but rather on how the student can manage his/her time and energy for subjects needing more attention. ***

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Significance of Legal Education in Nation Building: A Law Student’s Perspective Alexandra G. Soledad

In 2014, the Philippines faced challenges we remain reluctant to identify in full and opportunities we fail to recognize at all. One of these is the enigmatic struggle of young jurists to apply the rule of law they learned in their classrooms to the issues ranging from national security, strategic needs to uphold human rights, the healing power of democracy and the unresolved political crises in the country.

No matter how hopeless the struggle is at times, the foregoing issues demand our courage and perseverance to learn and comprehend contemporaneous incidents. These are practically the causes why we crave to study more so, to explain the rationale behind their legality or otherwise.

This millennial generation of Filipino youth is at a privileged state because we have sufficient and efficient technology to access knowledge and bring us centuries backward and even forward. Consequently, that means that our development potential is great and we have so much human and material resources literally immeasurable as support.

Yet, when anyone in some highly-industrialized and developed countries mentions Philippines, the reaction is nothing less than rolling of eyes – poor disaster risk management, out-of-date weather instruments and calamity devices, graft and corruption, and poverty. With these in mind, one may ask: Isn’t Philippines hopeless? No, not unless one has failed to recognize that in today’s ASEAN Integration, we are one of the sleeping giants making some noise through radical transformation along with our national interests.

Before becoming future legal leaders and law makers of this country, law students must study a lengthy list of bar subjects with which we should pass.

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We consecrate our four years learning and getting obsessed with history retold in SCRA. We read full-text of decade old cases and jurisprudence and if we dearth time, scroll on case digests made by other minds. Shall we stop? I remember what our Dean and Constitutional Law professor, Atty.

Ralph Sarmiento once said, “As law students you must be auto-didact and shouldn’t be just complacent from learning with what you were told. It’s important that you read and read and read. Most importantly, you should understand what you’re reading is for. You don’t pass the bar to become lawyers. You become lawyers first before you pass the bar” We need to return to the socratic law students’ tradition of being actively intellectual and wise not just by reading but engaging and updating themselves with the present political events, social transformation of Filipinos and the latest jurisprudence. It’s not enough that we’re book-wise but must be socio-politically updated with time. In these ways, even as law students we could stand up for the underdogs and support the popular will even when such will conflicts with our own amid the turmoil of political change. Those who support justice through developing legal education will be awarded in the end, while the expedient toleration of ignorance and oppressive regimes invariably comes back to haunt us. If law students will act with one hypocrisy, it is a possibility that would undermine a hundred heroic deed of a responsible citizen.

Education is a fundamental human freedom and the grassroots of our legal system. Our legal education and law students must primarily scrimmage together false knowledge and ignorance. It is of no doubt that law students are the basic forces in the legal order. But if we lack the vision, we’d go nowhere productive. We educate ourselves. After all, in the great age of revolutions, not those of inadequate affairs led by guerrillas in berets, but the tremendous human revolutions of knowledge in different aspects of humanlife, to wit: women empowerment, racial equality, revolution in religious tolerance, information revolution and the geriatric revolution in which citizens not only live longer but continue to contribute.

Whether we plan it or not, law students will lead Philippines by controlling its every drop of blood which keeps its activities constantly well-tracked, its laws. If we remain wise and just, our generation of future lawyers will lessen, if not totally eradicate, its prejudices and make best lawyers and agents of the government. *** Bionote: Alexandra Soledad is a first year law student at the University of St. LA Salle College of Law. She is also a Top Outstanding Student of the Philippines awardee.

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Preparing for the Bar Exam: The Little Known Tips Ma. Khatherine Denise Dumancas

Bar exams essays are a lot different from law school essay exams as bar exam graders scrutinize exam papers for signs that the examinee know the black letter law and can apply it in a logical way, reasoning from law to conclusions.

It is different from what many law school professors give credit for under the rubric of “issue spotting.”The bar exam graders are actually practitioners who would want to see whether the bar candidate can analyze a fact pattern the way a practitioner does, stating the law and applying the law to the facts.

Below is a list of basic things to keep in mind when preparing for and taking the bar exams derived from a couple of interviews conducted with bar passers and current law practitioners: 1. Build you confidence. You can pass the exam if you take it seriously. Never take the bar exam as a “trial run”. Instead, work extremely hard and pass the exam the first time.

2. Clear the decks. Get your life in order. The months that you are studying is not the time to be fixing your car, running errands, taking vacations or starting new relationships.

3. Create a schedule. Passing the bar exam requires that you learn and memorize a large number of rules, take many practice exams, and attend bar review classes. You need a plan for how you will get it all done. Schedule what you will do every day of each week and make sure to stick to your schedule.

4. Organize study materials. It is important that all your needed materials are in order for you to be able to find things at a glance.

5. Use an outline. Using an outline is always key in studying law, and studying for the bar exam is no exception.

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6. Learn actively, not passively. You will not pass the bar exam if you spend all your time creating or memorizing outlines and notes.

Write out many practice essays and performance test questions.

7. Learn thoroughly. When you learn a rule of law, learn it thoroughly, one element at a time. Work out a hypo to show how each element applied to facts.

8. Master the fundamentals of each subject. There is a well-known rule that applies to economics, to business and to preparation for the bar examinations – 80% of the result flows from 20% of the raw material. You will find that 80% of the bar examinations comes from 20% of the legal material you must study.

9. Memorize. Memorization is vital to preparing for the bar exams.

Every bar candidate must memorize basic rules and mnemonics, if only because memorizing makes writing good essays so much easier. Repeat rules for mastery.

10. Focus. Preparing for the bar exams require total concentration. It is a high-intensity, high-stress, high-stakes performance.

Study for the bar exam with the aim of getting the most important rules of law into your mental inventory and learning to use them. Think about your personality and how you learn and tailor your study strategy to that.

Getting through law school and the bar exams is a tough journey that every aspiring lawyer would have to take. So, as soon as you start day one in your expedition condition yourself to not just learn how to win law suits, but to learn how to actually solve problems. ***

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The Bar Exam for Dummies Atty. Analou Sazon

PRELIMINARIES This should be the jumping board to psyche up for the momentous task ahead. Even this preliminary would need careful planning. But more than the efficiency factor, it’s better to be effective, therefore, always plan your trip around the pragmatic horizon.

1. Brief. - Bring only things you really truly honestly need for the preweek. Never overload. Prepare for a to-each-his-own scenario in the airport or port. You should never assume that someone would be there to meet and help you carry your luggage. Also, it’s good to trim down your materials to the most basic ones. You won’t have time to go over annotated books during the bar month. Go for codals instead and maybe reviewers and answers to bar questions.

Also, outlines and notes will do. In this way, you will be constrained to limit yourself to these materials and avoid spreading yourself out too thin.

2. Family Home. – Be it an airline or vessel reservations and lodging places, be sure to confirm your billeting. Make sure the landlady or the manager of the condo or dorm personally confirms your reservation. Don’t be hesitant to ask about amenities and furnishings. The last thing you will need during the entire bar month is an uncomfortable lodging place.

3. Grace Period. – Schedule your departure for Manila around a practical and comfortable time. Calculate the number of days you will need to process your permit and visit the Bar Confidant’s Office among other things. Also, allow yourself reasonable time/days for settling into your new place. You will need at least a week to allow the place to “grow on you” so that you will not shock your system and risk having to adjust yourself within the bar month. Pre-week reviews may help.

4. Bill of Particulars. – Be sure everything is complete for the processing of your bar permits. Ask around and confirm the completion of

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the requirements before leaving for Manila. Inquire at the Bar Confidant’s Office from time to time.

5. Adjust your body clock. – Months before the Bar, make sure you train yourself to wake up at 5 am and stay wide awake and alert till 5 pm. This will simulate the examination schedule. Also train yourself to eat a fast, but full lunch. This will require a very good technique. Lastly, as a very popular reviewer would suggest, “run the marathon”. Practice answering Bar questions using the exact same sign pen you will use during the bar within the exact bar examination time. That is 8am-12pm and 2pm-5pm. This will train your hands to write continuously for 4 hours.

6. Support Pendente Lite. – Take your vitamins, eat healthy, and drink lots of water. Never forget physical activities, you need that to keep your brain running smoothly too. If you have to try some new supplements, do so months before the bar so that you can monitor your body’s response.

7. Of course, you should have imbibed the 4L’s (law, logic, language, legible handwriting) in your system by now.

THE FIRST SATURDAY 1. This day should not be taken lightly for it is as nerve-racking as the first Sunday itself, especially for first time bar takers. The “fear of the unknown” will occupy position number one. Be weary of possible apparitions courtesy of early childhood traumas and fixations. You can never tell…

2. Do lots of calming exercises. Panic attacks and anxieties will be in overload on this day. Be sure to catch yourself and not waste your energy on useless worries. Pray a lot.

3. If possible, visit DLSU and find your assigned building. Familiarize yourself with the place and go through the anticipated routine.

This will at least ease your nerves at some level. “Knowing thy enemy is winning half the battle” 4. Limit your review to codals. Pace yourself and do not overdo it.

You are already expected to be finished with deep studying during the past 5 days or so. This is the time to relax a bit.

5. Attend the Bar Ops Mass. – You will need God’s blessing as well as a break from studying. Fresh air outside the four walls of your condo or dorm will do you a lot of good. It will clear your head. Also, this is the time to break away from the monotony of legal provisions and indulge your weary brain in some good old

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“tsismis” of what’s and who’s.

6. Savor the fellowship and the moral support given to you by your well wishers. They will be overflowing during the first Sunday, but you will sorely miss the action after they abruptly become invisible during the 2nd and 3rd weeks. So get a load of them while they are still there.

7. Call or talk to someone who inspires you.

8. TRY to get enough rest. (or sleep if you’re one of those who can) THE FIRST SUNDAY THE first Sunday is the height of the pendulum. In the roller coaster play of emotions that Bar takers would surely experience this whole month, the first Sunday will be the peak.

1. Ab Initio. - You should have set your alarm clocks the night before to make sure you don’t oversleep. Literally jump out of bed and do some physical movements and stretching. Read tips if you have, to rouse your sleepy brain. Just read, don’t study them. More importantly, welcome the day like a meeting with an old lost dear friend. The Bar is not something to conquer. Befriend it.

2. Pace yourself. Give enough time and provide for personal necessities. Recheck things to bring and make sure you don’t forget your permit and pens. Survival kit is essential. Wear comfortable clothes and shoes. (It’s advisable to make and keep a list according to your individual needs) 3. Damages. - Instead of “tagip-TIPS”, rely on your personal preparation.

Yes, you cynics! YOU CAN PASS THE BAR WITHOUT THOSE TIPS. Need testimonials? You won’t need to look very far.

4. Subpoena. - Call someone who inspires you.

5. Summons. - Call your family.

6. Nuisance. - Dress for success and enjoy the cheering squad awaiting you outside. Don’t skip the “parade”. Your “Bar experience” would not be complete without it.

THE MOMENT The make or break nature of this examination is not debatable, but the good news is, we have the opportunity to make it lean more on the “make” side. Of course, it is expected that you have done your share of studying and preparation. This is the moment of truth.

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1. Remember your 4L’s.

2. Be conscious of the time, but don’t let it get the better of you.

3. Calculate the minutes you would want to spend on a question to make sure you finish on time.

4. Remember the techniques in formulating your answer. The pyramid or the inverted pyramid will be very helpful.

5. Call to mind that the MOST minutes an examiner would spend on your booklet is 10. MAKE SURE HE GETS WHAT YOU MEAN IN TEN MINUTES. I’M TALKING ABOUT ALL 20 QUESTIONS. TEN MINUTES. 6. PRAY. 7. Think of someone who inspires you.

DURING THE PRE-WEEK This is still crucial and you can’t let your guard down just yet. The days in between will need genius planning and technique because you can’t waste a single day and lose it to an ill-prepared schedule. Remember, every minute counts. Smart studying is the key.

1. Destierro. - However, Mondays should be reserved for recreation and insanity. Off limits to books and review materials. Go out. You have the best excuse to have the audacity to indulge your most sinful desires and go zany. Just make sure you stay within the limits.

Go malling, eat out or do something insane as a release. Just make sure you don’t tarnish La Salle’s immaculate reputation by doing something foolhardy. “Use sound discretion, after all, we are all of legal age.”

2. Motion to Dismiss. - Do things that are not related to the bar. In a word, Un-law it!

3. ASSIGNMENT OF ERRORS: Berate yourself if you feel that you want to give in to your penchant for discussing answers. NEVER DISCUSS ANSWERS OR TALK ABOUT THE PAST EXAM. Consider it fait accompli, moot and academic. You’ve done your part. Get over it. It will help ease your nerves, as in “nerbiyos”.

4. Contract of Adhesion. - Tuesday onwards, back to serious business.

Study, Study, Study but pace yourself. Prioritize subjects, but rest when your body calls for it. Smart studying is the key. Don’t just study everything randomly. Chose more important topics to dwell on and disregard likely insignificant ones. Trust your instincts. “See the forest and not the trees” as one of our professors would say.

5. Postponement. - And if you lose the passion, pause for a while and

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think of the reason why you are here in the first place.

6. Subpoena. - Call someone who inspires you.

GETTING PERSONAL For those who will have roommates, getting through the bar month in good spirits is one mean feat. The pressure is there and it can get into everyone at one point or another. Here are a few tips: 1. Respect each other’s space.

2. Always remember that you are all going through the same thing.

You are a motley crew stashed away in one bedlam.

3. Don’t over react.

4. When you find yourself in tense situations, think happy thoughts.

5. Practice the art of compromise.

6. On money issues: Lay cards on the table. Don’t hesitate to discuss and keep a list of expenses.

7. Accommodate quirks and idiosyncracies.

8. Do at least one good thing for a roommate a day.

9. Be sensitive to the needs of others.

10. Be considerate.

11. Have some bonding time with roommates. Anticipate differences in opinions and attitudes. Upbringings and family backgrounds are enlightening. Different strokes for different folks.

12. Don’t take things too seriously.

13. Be honest with your feelings, but be open to suggestions.

14. Enjoy the experience.

15. Remember: The Bar will only be a month. You still have a lifetime of friendship to share together.

GETTING THROUGH THE REST OF THE WEEKS By the third week, you will feel the gradual but very pronounced loss of excitement, enthusiasm and energy. The enemy at this point? Giving in to self-pity and defeat because of the toll the bar brings physically, mentally, emotionally, and financially. But hold on, dear Bar taker, just the fact that you have come to this point only tells you one thing. You are here because you deserve it. You’ve earned it. Now is the worst time

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to give up. Here’s a little inspiration : “…you can never tell how close you are; it may be near when it seems afar; so stick to the fight when you’re hardest hit; it’s when things go rough that you must not quit.” Sustain your buoyancy. Keep floating.

HAPPY ENDING Nothing beats preparation and passion, but after all is said and done, you will walk out of the exam venue soaked in beer feeling proud of yourself. You’ve gotten through the bar in one piece. It will be hard, but you have to admit, it will also have its moments. Physically and emotionally, it will be a growing experience and not many people have the opportunity to claim that. That will constitute your BRAGGING RIGHTS. Enjoy! Treat yourself. You deserve it. But before you go paint the town red, don’t forget to pay your courtesy calls. Give out your thank you cards. Gratitude is never an outmoded virtue.

THE FORMULA “WORK AS IF NO PRAYER WOULD HELP, AND PRAY AS IF NO WORK WOULD HELP.” PREPARATION + PASSION and INSPIRATION + PRAYER AND NEVER FORGET TO ENJOY THE WHOLE BAR EXPERIENCE! *** Bionote: Atty. Analou Sazon graduated from the USLS College of Law in 2013 and also passed the Bar exams in the same year. She now works as a Public Prosecutor in Silay City.

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4 THESIS ARTICLES

4

The Right to Privacy vs.

National Security: An Inevitable Reality Shawn Dustin B. Coscolluela

ABSTRACT. This article argues for the need of a unified national intelligence agency and giving such agency the power to tap into the privacy of civilians in the name of national security as well as new or amended laws regarding the matter. This article is limited to and will challenge the right of privacy insofar as the right to be secure in one’s personal information or data, communications and habits versus the authority of the state to encroach such right due to compelling state interest. For the protection of state interest to take effect which will lead to true development, there must be a national intelligence agency that can monitor all information and movements as well as the authority to act on those real-time information that could potentially be dangerous to the country.

INTRODUCTION It is in man’s nature to want to be left alone to do as he pleases without having the need to explain his thoughts to others. It is an innate desire to secure one’s personality and information from the hands of others. All human beings experience this feeling or notion and there is no exception.

When it comes to privacy, the core of it is that it is sourced from the universal truth of man’s affinity to be safe.

Privacy is a given right that is laid down not only in nature but also in our laws. The right to privacy has been ruled upon in several cases and it has been imprinted into law so that there is a legal basis when one argues for the right. All countries give respect to the existence of privacy in one way or another. However, these laws merely recognize the existence of

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such right but they do not afford total protection as I will be discussing later on. Our own Constitution is even silent as to the extent of the right given to civilians. It only talks about privacy in terms of communication and correspondence in the Bill of Rights. This specificity has backfired in a way because it presented a total absence of understanding on the right to privacy in the Philippine setting. As such, only future cases or legislation will be able to define more aptly what the right to privacy is really about in the Philippines.

This right to privacy that we have come to treasure is “the most comprehensive of rights and the right most valued by civilized men.” In fact, Justice Cortes wrote that man’s moral nature is directly linked with his sense of privacy. But privacy isn’t as black and white as we thought it was a few years back. The concept of information has become so complex that the legalities behind it are so left behind in the conversation.

The privacy that this article seeks to argue is the privacy of a person in real time. That is, the privacy that you have in active time – as the second goes by. This article will also be touching up on the expectation of privacy on one’s personal data which is not in real time per se, but is closely associated with the topic that it has to be discussed.

Our country today has been in a state of stagnant development in the past few years and we all know of the dangers that lurk around. We have become havens for terrorist groups, rebels and everyone who wishes to hide from all authority because these people know that there is a total lack of law enforcement in our country. As a concerned citizen of the country, it is important to give light to this matter to all Filipino readers as well as to foreigners who wish to have this exchange of ideas.

They say that privacy is power. According to Professor Michael Froomkin, “the ability to protect a secret, to preserve one’s privacy, is a form of power.” Any person in his reasonable mind would say that such power is a dangerous thing to have, more so in our country that is very fragile and prone to attacks from outside and from within. Law breakers use this power as a means to protect themselves from the eyes and hands of law enforcers and it has gotten to a point where most of the Filipino citizens will always have a question mark hanging above their heads as to what is really going on behind the scenes in the government.

The working of current intelligence agencies such as the National Intelligence Coordinating Agency (NICA) and Intelligence Service, Armed Forces of the Philippines (ISAFP) have remained under the radar for years

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and while this may be acceptable in foreign countries such as the United States with their own Central Intelligence Agency (CIA) and National Security Agency (NSA), the same cannot be applied to our own country because of several reasons. First is that we are an archipelagic region where there is no easy access from one province to another therefore the issue of trust and partnership as between the provinces and regions is not the same as with states of the United States of America. Second, due to our archipelagic make-up, we are prone to illegal entries by foreign entities such as from other Southeast Asian terror groups which have been well documented in the news. Lastly, due to our political situation which has sort of become a black hole of negativity, a little bit of transparency will never hurt improve the current state of the nation.

THE RIGHT TO PRIVACY IN GENERAL AND ITS FLAWS The Right to Privacy is probably the most muddled right to understand. In reality, there is no set definition as to what it is apart from the definition given by scholars, authors, judges and luminaries and as to what laws gives this right to individuals.

The most agreed notion is that the right to privacy seeks to preserve the integrity and dignity of each and every individual. In fact, such right is a convergence of existing rights which is why such a right to privacy is considered an anomaly and hard to explain. In the Bill of Rights outlined in our Constitution, no person shall be deprived of life, liberty or property without due process of law. Our courts have held that the right to privacy is one aspect of “liberty” protected by the due process clause.

Privacy is a jewel that every person holds so near to their hearts because they know that without such, they become less of who they are. They become less than people. Without privacy a person is not a person at all.

The term privacy is simply a catch-all that courts try to explain with pitiful precision. To say that information must be kept private is to say very little.

This is particularly true as the Philippine courts have given us a total lack of accuracy as to what we mean when we invoke the right to privacy. The right to privacy may be described as an expectation of total secrecy.

In Oscar Franklin Tan’s discussion on the right to privacy, he stated that one of the types of privacy that the law seeks to protect is privacy as reputation.

I believe that this value in the right to privacy is very relevant when the right is held up against the state being given the license to violate such a right. If an individual is not guilty as to what is being assailed against

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him by the likes of NICA and ISAFP, he stands to be injured in terms of his reputation. Since the most likely suspects to be targeted by intelligence agencies in connection to illegal smuggling and other illegal business operations are big time businessmen, they stand the most to be injured in terms of their reputation. However, such reputation must not be an enough reason for businessmen from establishing the right to privacy as a means of protection from law enforcement agencies. The dangers are proven to be very current in light of the recent arrests related to drug traffickers. With a better national intelligence agency that has more powers to monitor illegal activities, drug busts like these would be more frequent.

Oscar Franklin Tan further stated that this value on reputation is found on the grounds of the right against unreasonable search, right against self-incrimination, right of privacy of correspondence and right against restraints on speech. He also stated that the value is also founded on the civil code and other legal sources with regard to the right of disclosure of private facts, right against false light and right from infliction of distress.

Other values to be protected as to the right to privacy also include privacy as autonomy, privacy as seclusion and privacy as identity. However, in this study, we will limit ourselves to general concepts and an overhaul in the framework of attempting to understand the right to privacy as opposed to going one by one on each of the sources stated. It is in my belief that to understand the right to privacy, one has to merely look at the principle in perspective and to see what is fair and is reasonable in terms of expecting one’s movements, information and communication to be private.

Going further, the right to privacy is a very broad concept which has many complexities attached to it. But such a right should never be used as a shield. As they say, if you have nothing to hide, then you have nothing to fear. This line was used by DILG Secretary Angelo Reyes with regard to the issue of the national ID system. However, this line is too dangerous to be thrown around like it is an absolute fact. Even if you are not doing anything wrong, you should have a consistently protected set of rights that you are entitled to being protected. In this article’s case – privacy. The protection of the right to privacy should not be limited to when you just need it but rather it should be present at all times.

I believe that the issue of privacy in the context of this article is ripe for discussion due to the advancements not only in technology and ways to encroach on the right but also due to the advancements in the understanding of our lawmakers and justices on the issue at hand. There is no better time to discuss informational privacy and privacy in general than in the dawn of the information age.

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Currently, our country’s understanding of the right to privacy is grounded on the cases of Morfe v. Mutuc and Ople v. Torres as well as the constitutional rights against unreasonable search and privacy in communications and correspondence. The right to privacy has always been linked with the right against unreasonable search as laid down by Justice Fernando in People v. Arceo and Lopez v. Commissioner of Customs. One’s own information is a property that he possesses and should not be subject to surveillance by the government without compelling reason.

Not only do we lack knowledge and experience in tackling the right to privacy, our legal system has apparently been very inconsistent with their understanding of the right to privacy as well. In the Constitution, the word “privacy” only appears under the Bill of Rights and that is with regard to communication. Further inconsistencies are cited in the cases of Estrada v. Escritor and Ilusorio v. Bildner, neither of these cases involved the disclosure of information because they dealt with privacy in a whole different perspective.

When it comes to surveillance by intelligence agencies, one of the types of privacy that I would like to dwell on is informational privacy as defined in Whalen v. Roe. It was defined as the individual interest in avoiding disclosure of personal matters. This type of privacy is further defined by Roger Clark as the right of privacy where data about themselves should not be automatically available to other individuals or organizations, and that, even where data is possessed by another party, the individual must be able to exercise a substantial degree of control over that data and its use.

Informational kind of privacy has two aspects: First, the right of an individual not to have private information about him disclosed and second, the right of an individual to live freely without surveillance and intrusion.

The second aspect of informational privacy can be broken down into two. In my opinion, they can be best categorized into privacy of personal behavior and privacy of personal communications. Clark described privacy of personal behavior as relating to all aspects of behavior especially to sensitive matters such as habits, political activities and religious practices both in private and public places. While on the other hand, privacy of personal communications pertains to the interest of individuals as to their communication without being monitored by other people or organization.

The two types mentioned are what I like to call the active application of the right to privacy since the right is being exercised in real-time or at the

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time the activities are being done while informational privacy is a passive application of the right to privacy since data or information is being stored elsewhere and the owner of such “property” is not actively participating in using them. Distinguishing between the three is very important as I my proposed framework later on will have a lot to do with these three separate aspects of the right to privacy.

Privacy in the Modern Era In the world that we live in right now, it is without a doubt agreed upon that there is a constant fear among citizens of their privacy being disregarded by other people and entities, most especially the government. Author Andrew Defilippis describes of a world in which we are moving towards called “informationships”, in which people frequently rely on others to act as custodians of their personal data, records and communications. With the existence of such a world, we are left with a lot of instances wherein personal information or data will actually be in the hands of entities that civilians did not give their permission to have.

People today voluntarily give their data over to third parties and have a reasonable expectation of privacy over the matter. I am not in agreement with the fact that a person can just say that his personal information is not subject to a search or to be monitored when in fact it is his actions that create the situation of the third party having control of such information.

My point of view is that when a person has done anything to leave such information in the hands of a third party, he loses any reasonable expectation of privacy over such information.

The same author also makes us of the term “privity” which is in essence the right to make limited disclosure of one’s personal information without surrendering the constitutional privacy interests that attach to it. To put it simply, it describes a particular type of privacy interest that is affected when the government compels individuals to turn over other’s confidential information or communications.

National intelligence agencies are key to my argument because if they function the way they are supposed to, it would enable our country to be protected from acts of violence ergo resulting to a better reputation ergo resulting further into better tourism profitability ergo eventually resulting into a development of our country in the national scale.

Privacy in the modern era is intertwined with our intelligence agencies because it is them that have their hands on everything. They know

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everything there is to know however I fear that what they know is still lacking because we can still see the reality of our country today. Terrorism in the Philippines is like finding iron in a scrapyard. It is common and it is already very old.

Paranoia against government surveillance might not be as far-fetched as some civilians might come to think. It is far more common that what people might be anticipating. In fact, majority of Americans say that they are deterred from using the internet because of privacy fears.

Some argue that people who have their information stored in cyberspace are sometimes not in control as to where such information about them might end up. That harm involved towards the civilian is sometimes disregarded in violating informational privacy.

If we hide behind the veil of online privacy, we are also endangering the state. E-mail accounts can be created for free and any person can write anything he wants to anyone he pleases. The Philippine government is not equipped with the same kind of technology that foreign countries have in tracing terrorist activity. For all we know, terrorist plotters are using the very same programs civilians use to enjoy themselves in cyberspace. The other side of the coin to protecting the right to privacy is the fear of the unknown with regard to terrorism.

This is the downside of the right to privacy that we so hold dear to our hearts. Being anonymous in the internet is a double edged sword because it works both in positive and negative ways. When it comes to normal innocent citizens, they use this anonymity as a means of expressing themselves through the online medium without the intent to cause destruction or violence. On the other hand, anonymity is also a very dangerous weapon that terrorists use to carry out their plans because they know that it is a loophole they can abuse over and over again if no change will ever come.

Not all ideas are good ideas and some have an evil tint to them. Let me bring you back down to earth; terrorists use the internet too. That is why internet security has been such a big deal in the past few years.

Some sort of supervision and control has to be exercised and the agencies that are in the best position to do so are the Department of National Defense (DND) and the numerous intelligence agencies that currently exist in our country today namely the National Intelligence Coordinating Agency (NICA) and the Intelligence Service, Armed Forces of the Philippines

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(ISAFP). However, these agencies are outdated and have questionable records so the creation of a new national intelligence, untainted and more powerful, is currently warranted.

In the modern age, the notion of “secret paradigm” wherein one’s information is either public or private is quite outdated. Such a paradigm cannot be accepted anymore by today’s standards because information dissemination is done in a grey area and we cannot just rule on the information as being private or public in any given instance.

As to privacy of personal behavior in the modern age, the Philippines is still in the stone age as to the methods being used to monitor personnel movements. Law enforcement agencies still use the on-foot tactics to follow suspects although there has been some evidence of advancements in the technology used in this field as well. This is evidenced by the “Hello Garci” wiretap scandal that happened a decade ago. Wiretapping is a source of behavioral study which intelligence agencies can use for their purpose which I will be discussing later on.

I believe that the right to privacy is not totally abrogated when the situation for the government to monitor arises. Such information shall not be divulged to the public as my framework will point out because the information will ultimately serve for a much more specific purpose which is for the government to decide whether the data collected is related to any national security risk.

How Intelligence Agencies Penetrate the Privacy of Civilians It is common knowledge right now that law enforcement agencies like NICA have the technology and the motive to survey the private lives of civilians. They can do it through the internet, landline phones, cellular phones and public cameras as well. They also have GPS tracking devices which is far beyond the comprehension of average citizens, let alone Filipinos.

Social media websites, through the internet, are relatively a cheap and easy way to conduct surveillance for anyone who would want to. However, intelligence gathering that would yield results with regard to a better fountain of information to better serve security purposes require much more than just sitting down and monitoring Facebook.

The right to privacy has long been violated by government agencies if we are to talk frankly about it. What I’m trying to put in the spotlight is how

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we can legitimize actions such as surveillance which is in fact a search and seizure of private enforcement and all the while empowering the agencies to do more. This will not only legitimize their actions in the eyes of the public but it will also meet their end goals of achieving a balance in privacy and national security.

In the case of Kyllo v. United States, it was pointed out that because of the advancements in the technology today, the right to privacy must so be liberally construed in favor of citizens to ensure that homeowners would not be left at the mercy of advancing technology, especially those that could discern movements of human beings in their own home. The case also cited the existence of far more advanced devices such as thermal imaging devices which captures heat emanating from any building, powerful directional microphones which pick up the most acute of sounds and satellites capable of monitoring movements in any place.

Yes privacy must be construed in favor of civilians all the time but not the point of being one-sided. For one, the advances of technology here is not the same as in the U.S. With the inevitable creation of a bigger national intelligence agency in the future, we are faced with a question as to what kind of supervision or control they will have over matters regarding information linked to our national security.

In writing down this article and proposing an empowered intelligence agency, my vision for it is for the end goal of a more developed Philippines.

However, I am doing this with an understanding of the right to privacy in the modern setting so as to counter the statement above. Yes we should be on our guard all the time because of the great dangers being presented.

But once we have a clear understanding of what we need right now as a state and what an efficient government can give, we will be able to move on to a higher understanding of our privacy rights without the fear of losing them.

In the case of Olmstead, the U.S. Supreme Court ruled that wire-tapping by government agencies do not violate the right against unreasonable search and seizure because no seizure of tangible effects takes place. The danger to this interpretation is that when the government is given the license to overstep the boundaries of privacy, the question becomes “When do they stop?� In the dissent of Justice Brandeis, he stated that with the progress of science in furnishing the government with means of espionage, the danger is that they will likely not stop with just wiretapping. Such was proven to

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be true in Katz v. United States. Electronic as well as physical intrusion into a place that is private in nature is a violation of the right to privacy. In fact, Justice Harlan in the Katz case cited that a man in a telephone booth does not ordinarily assume that his called will be intercepted so it must mean that he has an expectation of privacy.

I look at this matter in another point of view. Although conversations in general are not tangible in nature, they should be afforded some sort of protection but not an absolute one. The reason why is that wiretapping technology has become so advanced right now. It used to be that they had to be physically installed onto the device which was being tapped.

Today, signal can be interfered in numerous ways so that there is a danger of the task of being too easy for law enforcement officers to pull off. My view is that there should be a system of how to listen in on the personal communications of people in a viable way wherein the agent in charge would be liable if he incorrectly misapplies his authority to listen in and report his acquired information. This system of surveillance will be discussed later on in my proposal.

In the case of Silverman v. United States where agents used a microphone to convert a heater into a listening device, it was held that such act was unconstitutional. The coming of the technological age has certainly made this occurrence very common. Are we really that naïve to think that such operations are not occurring right now? Listening devices are rampant all over. Not just in the American setting with their easier access to advanced technology, but it also applies to the Philippines as well. The NICA and ISAFP certainly have the capability in intruding into the private lives of citizens. The question remains as to what purpose do they do this for? The danger in giving agencies the authority to freely watch over the business of private citizens is when such power is misused by these agencies. The reputation that the Philippine government has certainly doesn’t help when it comes to this argument.

Our current law allows for law enforcers to listen to, intercept and record any communication, message, conversation, discussion, or written or spoken words between members of judicially declared and outlawed terrorist organizations or any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism. The exception to this rule is that it cannot be authorized as to lawyers and their clients, doctors and their patients as well as journalists and their sources. Those that have been identified as terrorists under the act are even subject to the review of their financial records subject to judicial authorization. This is with regard

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as to the group itself and also its individual members.

What’s more is that the officer that is allowed by law to intercept messages may do so with the use of any mode, form or kind or type of electronic or other surveillance equipment or interception or tracking devices, or with the use of any other suitable ways and means for that purpose. The catch however is that any of the above mentioned acts should be done with a court order of the Court of Appeals.

This amount of liberty granted by the Human Security Act of 2007 is rather ominous and poses as a big blockade to the creation of a national intelligence agency that would not be clouded with a big shadow of doubt.

If people would become paranoid if what they are communicating is being monitored, they would be so discourage in voicing out their opinions. In a way, the leeway granted to these agencies affect the freedom of speech aside from one’s own privacy.

Furthermore, before being granted the order, the applicant must go through a rigorous process of presenting witnesses to show probable cause that terrorism is being committed or is about to be committed and that there is no other means available. The written order that will be given by the CA will also last for only a period of 30 days and can only be renewed for a non-extendible period of another 30 days. Clearly this is not enough time when it comes to the waiting game that these intelligence agencies are undergoing right now. It could take months or even years for them to catch a break when waiting for solid information to come through.

Going into the online arena now; development in online surveillance has resulted into numerous programs that serve the purpose of monitoring online activity. One such program was the Carnivore program created by the FBI. This program filters out traffic of online information from suspects which enable them to discriminate fairly only content of persons who are suspected of committing crimes. This would enable tracking to be done in a fair manner because leads would only go back to the suspects.

Legal online surveillance remains unresolved even up to today in foreign countries. Privacy is as dynamic as the changing times for it too has to evolve and change together with the development of new technology that could potentially endanger such right. The internet itself has set a new tone for being the best medium available to all those who want to exercise their right to free speech. However, those same users also expect to be protected when it comes to their right to privacy as well. The free trade of ideas is one that humankind naturally seeks to protect.

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Thus, attempts at regulating online informational privacy are considered as a big constitutional taboo: the dreaded “chilling effect�. However it is also dreaded the fact that anyone with access to internet can become whatever they want to be, which poses a real threat to the state.

Local Laws and the Future of Privacy in the Philippines The Human Security Act of 2007 was created to protect the state from all threats of terrorism. Section 7 of the law is important to note since it is an exception the Anti-Wiretapping law which prohibits the act of wiretapping.

The Anti-Wiretapping law states that such an action can only be done with the consent of all the parties to the communication. Law enforcement officials may be granted the ability to intercept private communication of individuals granted that they have a warrant and the persons involved have been judicially declared as terrorists. This is also backed by the Constitution itself in stating that only upon lawful order when the right to privacy as to communications and correspondence may be violated as well as the Anti-Wiretapping law itself under section 3 thereof.

I am not in agreement with this however since warrants cannot be easily procured without probable cause and if ever that probable cause does exist, it might not be there anymore when the warrant has already been given.

A provision under the same act that I do support can be found under section 9 where it is stated that persons monitored have the right to know of the actions of the law enforcement authorities and may challenge the same before the Court of Appeals. I believe that transparency is a key feature that we have to take into consideration in moving forward with my proposal since it would be quite unwise to empower intelligence agencies without providing remedies for civilians. Section 11 is also important in that it mandates the deposit of all evidence gathered to the court for safekeeping.

It is in my belief that the only kind of information that is truly inviolable are those that are in the mind of the person which no authority of the state can extract. To me, when thoughts are turned into actions or communications, especially ideas of illegal acts, they become vulnerable information which the government has the right to search and seize.

The recently approved The Data Privacy Act of 2012 two years ago was also a big step in the protection of the right to privacy here in the Philippines.

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It recognized the state’s policy to protect the fundamental right to privacy and also created the National privacy commission which shall be in charge of data protection.

As to the future of privacy laws in the Philippines, the future has just become the present with the passing of the Cybercrime Prevention Act of 2012 as constitutional at the moment I am writing this article. The act recognizes the coming of the new age in terms of the importance of cyberspace and the vital role that it plays in the development of our nation.

PROPOSALS A New Test of Determining Validity of Data-Gathering Actions In assessing the situation of which side should tilt the scales in their favor, there has to be a test of necessity applied by law enforcement agencies on which is more important; the asserted interest and protection of the privacy of the individual or the reasonable claim of the government to violate such a right in the name of national security without getting court confirmation.

This very idea of a test itself is reflected in the rule on the writ of habeas data. The respondent to the action taken by the private individual is given the chance to be heard as to why there was a violation of the right to privacy. Note that the writ allows for the violation of the right when national security demands it so.

The case of Kyllo created a test to determine whether a search is indeed a search by the government upon one’s informational privacy. This is with regard to the advancements of modern technology. This test declares that a search takes place when:

• Information is obtained through sense enhancing technology.

• The information could not have been obtained otherwise without

physical intrusion.

• The intrusion is into a constitutionally protected area, following the Katz test (with regard to an expectation of privacy).

• The technology used is not in general public use.

If we use this test to determine whether a search is in violation of the right to informational privacy, the results would be astounding as to how much intelligence agencies would fail if we base their actions on this criterion.

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In piercing the right to privacy in the name of national security, there is an inevitable debate which will arise. The right against self-incrimination will come into play when there is prosecution involved. Of the suspects that intelligence agencies have tagged, surely their right to privacy has been already been violated.

I am in the opinion that the tracking of an individual’s movements for an extended period of time, as in the case of Jones, is a requirement that meets the balance of being able to break the barriers of privacy. This idea is based on the mosaic theory that was laid down in the case of United States v. Maynard where it was explained that the mosaic theory supposes that tracking the whole of one’s movement over an extended period of time reveals significantly more about that person than each individual trip does.

There needs to be a new form in determining what such means are an encroachment on the right to privacy since new technologies have rendered the Katz test rather outdated. The Kyllo test is a step in the right direction to cater the needs of the information era however I will be attempting to create a test of my own.

This test will be called the “Sorge-Mata Hari Test” after Richard Sorge and Margaretha Macleod, two of the greatest intelligence officers/spies this world has ever seen.

• Why is the surveillance or information-gathering being conducted?

• Is the search active surveillance or passive collection of data?

• Is the information “vulnerable information” or “secured information”?

• How is the surveillance or information-gathering carried out? By what means or devices?

• How long will it take?

The first question is relatively easy enough to understand. This is not the question that would validate a warrantless surveillance though. This question just seeks to find out the validity of the search or data gathering being done by the intelligence officer. To qualify for a valid act which would not violate the right to privacy, the reason behind the action must constitution that a crime is happening, is about to happen or has happened and that the officer must have personal knowledge of such facts.

The second question is important because it is a factor that affects the need for a warrant for the data gathering activity. In the violation

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of informational privacy through passive data-gathering methods of collecting stored information, a warrant must always be procured by the officer doing it. I believe that stored data do not carry a sense of urgency the same way as those instances where there is a flow of real-time data. So to protect the rights of persons subject to the search or seizure, there must be a warrant that shows probable cause that there is imminent danger that would require such data to be in the hands of officers that can use it to avoid the effects of such danger. For those instances that call for active surveillance, the wisdom of carrying out the action must be left up to the agent who is the best person to decide if it is fit to monitor the actions or communications of the suspects involved. A warrant would ultimately sever the urgency of the situation so agents should be empowered to act on the situation if they think that the behavior or communication implies a threat to national security.

Third, distinguishing between vulnerable information and secure information is very important as well. This factor would also affect the need for a warrant in my opinion. Vulnerable information as I described before is information shared to third parties, natural or artificial by the suspects involved. This means that shared secrets between persons, data put into social media sites, conversations on the phone, movements in public and such are what I consider to be vulnerable information not subject to a warrant. If the intelligence agent assesses the situation or communication as being a threat to national security, he may commence carrying out surveillance and data-gathering even though they are invasive of the privacy of persons. However when it comes to secured information, a warrant will always be needed. The secured information I am talking about are physical contents written on physical material such as papers being hidden by the person for his own personal use.

The fourth question is rather important because it must be taken differently as to each one. Each way of carrying out the data gathering will also factor in if it is capable of being done without a warrant, with a warrant or it is wholly unconstitutional in my opinion. To differentiate each method, I have set two categories. One is surveillance and data-gathering in cyberspace while another is surveillance and data-gathering in the real world.

As to methods that can be carried out in cyber-space, I believe that monitoring traffic data in real time with due cause does not need a warrant like the stricken out section of the Cybercrime Prevention Act of 2012.

With regard to stored data or information, a warrant is required since it is in the same vein as passively stored data. There is no sense of urgency in acquiring the information thus there must be a warrant to uphold the right to privacy.

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The last question of the test calls for a similar one to the Jones case of the length of time the surveillance or data-gathering is done. In my opinion, for those that require a warrant and such data-gathering only involves a passive source of information, the number of days or length of time should be given the in the warrant. This will ensure that there is no perpetual violation of a person’s right to privacy. However, with regard to real-time surveillance, it should be different for every case since I adhere to the belief that studying the totality of the behavior and communications of a suspect will reveal more than just monitoring separate instances. Even for those that require a warrant, as long as the warrant is to carry out active surveillance, it will be left up to the reasonableness of the action which the judge will rule on.

What foreign jurisprudence has outlined for us is that it tells us that there has to be a new and broader conception of personal privacy. This is especially true in the Philippines setting because the public is in the dark as to what really goes when it comes to the state of the country’s political associations and defense situations. There needs to be a transparency when it comes for the people to know if they are in danger of getting bombed or attacked by foreign or local terrorist groups. In saying that, the only for the government to truly know is to resort to intelligence tactics and systems that would put a danger to the right of a person to his privacy.

A Unified Intelligence Agency A better intelligence agency is going to be my next proposal. This idea of mine has already seen some light as to how real it can happen. The Department of National Defense (DND) is rumored to be planning to create a new intelligence agency which will eventually replace the Intelligence Service of the Armed Forces of the Philippines (ISAFP).

My proposal is that there should be a national intelligence agency which will still be under the executive department. The agency will either abolish both the NICA and the ISAFP or if not, control and supervise their intelligence activities. The heads of both the NICA and ISAFP will report directly to the director of the new agency in case of integration by both agencies. The director will also be part of the National Security Council and will be mainly responsible for advising the president pertaining to policies on national security as well as implementing rules of engagement by its agents. The director shall also be assisted by a deputy in all of his functions. Both shall be appointed by the president with the consent of the Commission on Appointments.

This new intelligence agency will also ensure the transparency of its

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operations by declaring its partnerships with other agencies of its own kind to other people. However, the agency will not be required to disclose tactics or technology that will be used in surveillance and data gathering operations as that will give a heads up to would-be terrorists. Furthermore, there should be a quarterly assessment by the National Security Council as to the operations of this agency to give a clearer picture on the security situation of the country and to see whether the agency is functioning the way that it should be.

The mandate of this new agency is to collect data and integrate such into policies for the execution of better security protocols as well as to prepare estimates regarding the gathered information. Not only will my proposed agency be a data gathering entity but it shall also have counterintelligence, espionage and law enforcement capabilities like the CIA of the United States of America.

The Establishment of Better Laws and Procedure As I’ve stated before in my discussion on related laws to privacy vs. national security, there is a big void when it comes to giving more room for intelligence agencies to function and in giving more specific protection to an individual’s right to privacy. That is why my last proposal will be the establishment of new laws or amendments to current ones as well as better procedures in relation to the carrying out and effects of surveillance and data gathering operations by intelligence agents.

Let us talk about procedure first. The need for a warrant is always ever present when it comes to a valid search. However, some authors believe that the test of reasonableness at such moment action is required will vitiate the need for a warrant. As I’ve stated in my test, there are instances where I believe a warrant is not required. Informational Privacy, as earlier cited, is the very fabric that an intelligence agency seeks to pierce first and foremost. But a test of reasonableness should always be carried out in every instance.

In following the rules of procedure to have a valid inquiry in aid of legislation, it is imperative that the new national intelligence agency should be at the forefront of ensuring that the rules are followed at all times. We must remember that the point of mobilizing this new agency is to protect the country from all kinds of threats. With the help of new laws that might be brought about by legislative inquiries, we are bettering the chances of fighting off terrorism. However, due process should be given to suspects that will be subjected to this kind of inquiry.

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Whenever the right to privacy is violated, a private individual is not without recourse. The writ of habeas data is a remedy available to any person whose right to life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

This remedy shall be intact in my proposed framework because it is the bedrock in the protection of the privacy of the individual whose right was violated.

Further reading of the Jones case would also reveal the fact that the U.S. Supreme Court did not impose any limitations on the government with respect to devices that do not require attachment of physical installation.

This means that there is still a plethora of mystery as to what future cases could entail in terms of the right to privacy against internet surveillance, GPS signal tracking, camera recognition technology, cellphone data collection and the like. For me, there shouldn’t be a warrant required to monitor suspects in case of tracking devices already pre-installed if the urgency calls for it. However, under no circumstances should this be abused by intelligence agencies. There should be a required threshold for what pertains to “urgency’.

A situation can only be considered as urgent in my opinion if the inaction of the intelligence officer will result in the situation affecting the nature and stability of security. Therefore, the officer should ask himself if something negative will probably happen if he doesn’t act on such a matter.

As to the matter of tracking down suspects for an extended period of time, I feel that it should not be considered as an invalid violation as to the right of privacy because behavioral study would even out the balance as discussed in earlier portions with the use of the mosaic theory.

As to better laws, I believe that our lawmakers are capable in creating ones that are with the times like the recently passed cybercrime law. It is in fact why this matter should be given to the legislative body because they are best suited in terms of coming to conclusion on the trends in current society and to draw the line where there can be a balance between privacy and more government powers to monitor. It’s just that sometimes these Filipino lawmakers lose their way and become misguided as to their intentions.

One thing I am proposing is an implementation of RFID chips or radio

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frequency identification to all government officials if not all then those that have security-related positions that require some level of knowledge on national defense expertise. The RFID chips have already been implemented in foreign soil. Before the reader goes on to compare this to the proposed National ID system that was lobbied for a while back, the difference in this system is that the chips can only track the persons within the premises of where they should be working. Within those premises, the chips will be able to track the whereabouts of the persons tagged as well as keep count of the total number of people that are present in the vicinity.

A provision of law that I am supporting is the recently declared unconstitutional section 12 of the Cybercrime Prevention Act. I have a hope that someday our courts will come to see that there are instances when a due cause strong enough because of national security purposes will warrant a law enforcement officer to monitor without the use of a warrant. I am even proposing an expansion of the section itself to not only matters of cyberspace but to the real world as well as you have seen in my test.

Amendments to the Human Security Act of 2007 are also in order in my opinion since the provision regarding the authorization of law enforcement officers to use whatever means necessary to conduct surveillance is too broad and too much empowerment which is invasive of the right to privacy. It has to be outlined better as to what devices are acceptable and the length of time for which the surveillance will be carried out. There should also be a strict definition of vulnerable information as well as secured ones and also as between actively flowing information and passively stored ones. All of these I have discussed in my test earlier.

Lastly, a law creating the new intelligence agency should also be created and will contain all the necessary powers that I have proposed. It should outline the acceptable techniques and devices to use in carrying out surveillance and monitoring. The same law will also have to differentiate between a valid search in the real world and in cyberspace as well and it will seek to recognize the complexities of modern intelligence wars.

The same laws will also respect the right to privacy and will be as clear as possible in defining powers and limits of agents who are authorized to violate the right in certain instances. It shall also try to establish authorized intelligence agents and those that are not.

The law creating the national intelligence agency will also integrate the test I created to see if the surveillance or data gathering methods carried out are valid or not and which one would require a warrant. It shall create

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the general rules on engagement as well as the exceptions. It shall in no way give general powers to normal agents to prevent abuse. The law will also have to create a hierarchy of rank to create a system of supervision so that there will always be a check as to the operations of agents in every field.

What I am also seeking is that it shall contain provisions of transparency to the National Security Council so that its every move shall be known and the agency will not be clouded in mystery and fear like the former ones.

I believe that these will kickstart the path to a better balance between the right to piracy and the needs of the state in its fight for national security.

Specialty laws addressing the situations in the southern Philippines regarding insurgents will also have to be created by the legislative branch of government. I believe that ideas that have been set up in this article can help a bit in our mission for a better Philippines.

CONCLUSION “Concerns about security, crime, and terrorism ensure that the government will collect and analyze an increasing amount of personal information… This explosion of information collection, and the resulting potential for the government to outsource its data collection efforts, raise a number of concerns that challenge a simplistic individual versus government understanding” For any kind of action of intelligence agencies wherever, transparency is a key element that will have to be considered by our government. The need to collect any kind of information from innocent individuals should be coupled with a dire need to do so in the name of national security.

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The point of this article is to prevent that abuse which most of us are so afraid of.

By creating an agency with a system that has transparency and efficiency at its core, abuse will be deterred and the right to privacy will also be protected at the same time. The right to privacy should never be allowed if there is no reasonable cause for the intrusion. In the proposals created through this article, never have I forgotten the importance of what the right to privacy means to all persons. It’s just that modern times and

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current situations call for instances where we should be equipping our intelligence agencies with more authority to validly carry out defensive intelligence operations. The fear of having the government watching you may be quite scary, but it is not as terrorizing as the reality of being prone to terrorist attacks. “With each advance in technology, the courts and Congress are asked to balance a host of competing interests including privacy, property, technology, and the needs of law enforcement. It will take future cases and statutes to better delineate a proper balance.�

This quote concludes this article. The technology to protect ourselves from crime and terrorism is here and now. The dangers of outside forces trying to penetrate the fabric of our society are present here and now. So with the intensive discussion that has been processed in this article, I believe that the proposal and insights laid down here are ripe to be considered now as well.

Privacy is a sensitive issue. It is a right worth protecting because it is the foundation of so other many rights that we cherish. But so is national security. Our country and its laws need to be as dynamic as the world that we live in. Consequently, the debate of the right to privacy versus national security is an inevitable reality that we have to be prepared for.

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The Crime of Libel in the Cyber-era Rhodora P. Lo

“For speech concerning public affairs is more than just self-expression: it is the essence of self-government.”

—William Joseph Brennan1 When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.

—Samuel Warren and Louis Brandeis 2 I.INTRODUCTION A. The Cyber-Era “Cyber” is the prefix that indicates an association with the Internet3 – an international network of interconnected computers. There is no denying that the cyber-era is upon us. In the Philippines, there are more than 33 Million Internet users, 30 Million of whom are on Facebook. Filipinos spend an average of 21.5 hours a week on the Internet, making the Philippines the 2nd top user in Southeast Asia, 6th in Asia and 17th in the world.4 B. The Crime of Libel Libel is defined under the Revised Penal Code (RPC)5 as the public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status or circumstance tending to discredit or cause the dishonor or contempt of a natural or juridical person, or to blacken the memory of one who is dead.6 The Legislature, by recently enacting Republic Act 10175 or The Cybercrime Prevention Act, with a provision punishing libel, as defined in Art 355 of the RPC, as amended, committed through a computer system or any other

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similar means which may be devised in the future7, is saying that libel committed online is not yet punished under the RPC. Otherwise, there would have been no need to include such a provision in the new law.

C. Libel in the Cyber – Era The accumulation of jurisprudence interpreting libel law and the innovations of Internet technology made it timely to examine the application of the crime of libel in contemporary society and the propriety of its corresponding punishment.

II. LIBEL UNDER THE REVISED PENAL CODE Where better to find the justification for the punishment of libel than in the doctrinal article of Warren and Brandeis, “The Right to Privacy.”8 The paper explained the necessity of liability for libel in this wise: Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people.”

The justification for making libel criminal is that: “The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society that underlie the whole scheme of civilization.”9 In Garrison v. Louisiana,10 a case involving criminal libel, the US Supreme Court said: “In any event, where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth.”

A. Elements 1.Defamatory imputation Defamation means the offense of injuring a person’s character, fame or reputation through false and malicious statements. It is that which tends to injure reputation or diminish the esteem, respect, goodwill or confidence in the plaintiff or to excite derogatory feelings or opinions about the plaintiff.11 2.Malice Malice is the essence of libel. It connotes ill will or spite, and speaks not in response to duty but merely to injure the reputation of the person

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defamed, and implies an intention to do ulterior and unjustifiable harm.12 There are two types of malice: malice in law and malice in fact, or actual malice.

Presumption of malice is expressed in Article 354 of the RPC, which provides that “Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown.”

However, the presumption will not arise when it is a private communication made by any person to another in the performance of any legal, moral or social duty; or it is a fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. These exceptions constitute conditionally privileged communications.

Actual malice sets a very high standard and is difficult to prove. It is, however, required to overcome qualifiedly privileged communications. It is also required to charge a defendant for libel if the defamatory statement is aimed towards public officials, later expanded by jurisprudence to cover all public figures.

The landmark case of New York Times v. Sullivan13 established the actual malice standard, with regard to libel concerning public officials. Long before this decision though,14 Justice Malcolm of the Philippine Supreme Court already acknowledged in the case of U.S. v. Bustos15, that: “The interest of society and the maintenance of good government demand a full disclosure of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and the dignity of the individual be exalted.”

In New York Times, Sullivan, the Public Safety Commissioner of Montgomery, Alabama filed a libel case against the New York Times when it published a paid advertisement, which described the abuses of the police, soliciting funds to defend Martin Luther King Jr. against a perjury indictment. New York Times declared, quoting Mr. Justice Brandies’ opinion in Whitney v California (274 U.S. 357, 375-376), that: “… order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope

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and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones.

Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Moreover, the New York Times defined and applied the actual malice standard by enunciating that: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

In this jurisdiction, this ruling was unequivocally pronounced in Vasquez v.

Court of Appeals,16 and subsequently adopted in many other cases.

The actual malice requirement was expanded to include all public figures in the leading case of Curtis v. Butts.17 A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a ‘public personage.’ Three reasons are given: “that they had sought publicity and consented to it; that their personalities and their affairs had already become public; and that the press had a privilege to inform the public about those who have become legitimate matters of public interest.” 18 3. Publication Publication is the communication of a defamatory matter to some third person or persons.19 The law permits us to think as badly as we please of our neighbors so long as we keep our uncharitable thoughts to ourselves.

The communication of libelous matter to the person defamed alone does not amount to publication. A man’s reputation is the estimate in which others hold him; not the good opinion he has of himself.20 4. Identification To maintain a libel suit, it is essential that the victim be identifiable, even though not named. It is enough if by intrinsic reference the allusion is

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apparent, or if the publication contains matters of description or reference to facts and circumstances from which others reading the article may know the plaintiff was intended, or if he is pointed out by extraneous circumstances so that persons knowing him could and did understand that he was the person referred to.21 Furthermore, it is not sufficient that the offended party recognized himself as the person defamed; it must be shown that at least a third person could identify him as the object of the publication.22 The leading case of MVRS Publications, Inc. v. Islamic Da’wah Council of the Philippines23 pertains to a statement claimed to be insulting to Muslims.

In laying down the doctrine on group libel, the Court declared: “…the action must be brought by the person against whom the defamatory charge has been made. Even when a publication may be clearly defamatory as to somebody, if the words have no personal application to the plaintiff, they are not actionable by him. If no one is identified, there can be no libel because no one’s reputation has been injured.”

In the instant case, the Muslim community is too vast as to readily ascertain who among the Muslims were particularly defamed.24 B. Persons Responsible for Libel Article 360 (RPC) specifies that these people are criminally liable: (a) editor or business manager of a daily newspaper, magazine or serial publication; (b) the person who publishes, exhibits, or causes the publication or exhibition of any defamation in writing or similar means; and (c) the author or editor of a book or pamphlet.

In Vicario v. Court of Appeals,25 it was held that: “A person’s liability for libel need not, admittedly stem from the fact that he was the original publisher of the discreditable act. The maker of a libelous republication or repetition, although not liable for the results of the primary publication, is liable for the consequence of a subsequent publication which he makes or participates in making.”

C. Defenses in Libel The defenses available can either totally negate or only mitigate liability.

On one hand, absolutely privileged communications, qualifiedly privileged communications, and fair comment on public acts of public men are complete defenses. On the other hand, mitigating circumstances include apology or retraction, honest mistake, rectification and anger. Truth may or may not be an absolute defense depending on the nature of the imputation and the personality of the libeled party.26

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An absolutely privileged communication is not actionable, even if its author acted in bad faith. This class includes: 1. Statements made by members of Congress in the discharge of their functions as such, 27 2. Official communications made by public officers in the performance of their duties, and allegations or statements made by the parties or their counsel in their pleadings or motions or during the hearing of judicial proceedings, as well as the answers given by witnesses in reply to questions propounded to them, in the course of said proceedings, provided that said allegations or statements are relevant to the issues, and the answers are responsive or pertinent to the questions propounded to said witnesses.28 Conversely, jurisprudence gave rise to the doctrine of fair comment. The doctrine establishes that, while in general, every discreditable imputation publicly made is deemed false because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts.29 D. Truth and Proof of Truth Under Art. 361 of the RPC, proof of truth is admissible when the imputation constitutes a crime, regardless of the personality of the defamed party.

When the supposed victim is a government employee, even if the imputation does not constitute a crime, but is related to the discharge of his official duties, the defendant may offer proof of truth as a defense.

However, it may not be required to show that the accused, who proved the truth in relation to the discharge of official duties, published it with good motives and for justifiable ends. It is believed that since the accused did the public a service, proof of good motives and justifiable ends is not necessary.30 E. Venue and Jurisdiction The RPC lays down the rule on venue and jurisdiction in Article 360. The criminal and civil actions shall be filed with the Court of First Instance,31 and the court where the action is first filed acquires jurisdiction to the exclusion of other courts.

If the offended party is a private individual, the venue of the action is either

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in his place of residence at the time of the commission of the offense, or in the place where libelous article is printed and first published.

In case the complainant is a public officer, the alternative venues are the city or province where he holds office at the time of the commission of the offense, or in the place where libelous article is printed and first published.

In the Time32 case, the Court explained that the reason for the rule is: “… in order that the prosecution of the action should interfere as little as possible with the discharge of his official duties and labors.

The only alternative allowed him by law is to prosecute those responsible for the libel in the place where the offending article was printed and first published.”

II. LIBEL AS APPLIED IN THE INTERNET The Internet is a unique medium, a technology that was not around when the libel law was enacted. It is argued that the legislature could not have contemplated it to fall under the “similar means” phrase.

Nonetheless, it can be simply contended that what is defamatory and malicious in print, broadcast and in all the means already recognized is just as defamatory and malicious if made in the Internet.

A. Internet As A Means Of Publication As publication only requires that the defamatory imputation be communicated to a third person other than the defamed, one need not stretch his imagination in concluding that the Internet is a means of publication. In fact, through the Internet, a libelous imputation may be communicated to thousands, if not millions, of other persons, instantly and effortlessly.

B. Who Else May Be Held Liable The most pervasive platform for libel in the Internet is social media, where people interact freely, sharing and discussing information, using a multimedia mix of words, pictures, videos and audio.

On Facebook, a user may post anything in his status, and his friends may like, share or comment on such post. Any such action will result in the republication or redistribution of the same information. On Twitter, a user may tweet a message to his followers, who in turn can retweet, share, or favorite the tweet. These processes can be repeated millions of times by the simple click of a button.

Traditional mass media have also transferred to the Internet. Newsweek, one of the most internationally recognized magazines in the world, ceased publishing a print edition, after nearly 80 years. It went all - digital from there.34

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What online publications have achieved is to put an end to the one-way flow of opinion and ideas that has been the hallmark of the traditional mass media. Today, almost all online magazines and news websites encourage their readers to post comments and engage the author and other readers in a sustained discussion of the issues. Perhaps, more significantly, the Internet has given every member of the public a chance to publish or broadcast his/her own ideas. It is as if, with every purchase of a tablet or smart phone, a citizen also receives as a gift a television network and a printing press with global reach.

Prof. Harry Roque, in assailing Internet libel before the Supreme Court for over breadth and vagueness, posed the following questions: 1. “Is the person who retweeted a libelous tweet liable for libel?”

2. “Is the person who shared, liked or commented on a libelous status or comment liable for libel?”

3. “Is a blogger who reposted a link to a libelous article liable? Or is he liable for libelous comments in his blog?”

4. “Is an Internet Service Provider (ISP) liable for a libelous message? A cybercafé?” 35 III. DECRIMINALIZATION OF LIBEL A. PENDING BILLS IN CONGRESS

House Bill No. 132436 proposed a sweeping repeal of the provisions pertaining to libel. The bill insisted that: “The libel law is increasingly used by public officials as tool to cow and muzzle an independent press and has become the convenient and predominant way for those in power to harass and silence critical and opposing voices as highlighted by the growing number of cases filed against journalists.37 In the Senate, SB No. 21038 , aside from repealing the Chapter on libel, proposed the membership of media practitioners in a Securities and Exchange Commission (SEC) – registered professional organization which will prescribe ethical standards, rules and regulations in the practice of their profession.

SB No. 121839 and SB No. 138740 sought to abolish the penalty of imprisonment, limit the liability to the author alone or the person who caused the exhibition of the defamatory imputation, and decrease the prescription period from 1 year to 6 months.

Before the Senate Committee on Constitutional Amendments, Revision of Codes, Justice Vicente Mendoza , expressed his view that decriminalization of libel is not the way.42 His proposal is to make discussions of matters

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of public concern and criticism of official conduct privileged, defeasible only by proof of actual malice, which would reform the law with respect to political libel but preserve it with respect to private libel.

B. The International Covenant for Civil and Political Rights (ICCPR),43 The Human Rights Committee (HRC), and the Adonis Case 1. The ICCPR A recurring authority cited in support of the decriminalization of libel is the International Covenant for Civil and Political Rights (ICCPR). ICCPR is a key international human rights treaty providing a range of protections for civil and political rights. The Covenant compels governments to take measures to protect the rights enshrined in the treaty and to provide an effective remedy.44 Article 19 of the ICCPR provides that “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”.

However, the same instrument equally protects the right of persons to privacy, honour and reputation. Article 17 of the ICCPR provides that: “Article 17. 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.

2. The Human Rights Committee and the Case of Alexander Adonis The Human Rights Committee (HRC), the body of independent experts that monitors implementation of the ICCPR by its State parties, in its Communication No. 1815/2008,45 expressed its view on the complaint filed

by Filipino Radio Broadcaster Alexander Adonis versus the Philippines.

The Regional Trial Court convicted Adonis of the charge of libel, and sentenced him to a penalty of imprisonment, as well as payment of moral and exemplary damages.

After serving sentence, he brought the matter before the HRC. First, he claimed that his conviction was an unlawful restriction of his right to freedom of expression. Second, he pointed out that the sanction of imprisonment fails to meet the standards of necessity and reasonableness.

Finally, he questions the reasonableness of the rules on proof of truth as a defense, the presumption of malice, and reasonable publication.

The Committee agreed with Adonis and concluded that his conviction and

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imprisonment is an illegitimate restriction of his freedom of expression for the following reasons: “ (a) there are less severe sanctions available; (b) it admits no proof of truth as a defence except for very limited cases; (c) it does not take into account the public interest as a defence; or (d) it presumes malice in the allegedly defamatory statements placing the burden of proof on the accused.”

The Committee further declared the obligation of the state to compensate Adonis for his imprisonment and to review the relevant legislation to prevent future violations.

C. Preference on the Imposition of Fine As far back as 199646 or even earlier, the courts had been imposing fines alone in libel cases. Also, the Supreme Court’s Administrative Circular No. 08-200847 laid down the guidelines in the observance of a rule of preference in the imposition of penalties. The Circular provided that, firstly, it does not remove imprisonment as a penalty. Secondly, judges may exercise their sound discretion, taking into consideration the peculiar circumstances of each case, and determine whether fine alone would best serve the interest of justice, or would depreciate the seriousness of the offense, or work violence on the social order.

VI. ONLINE LIBEL IN THE UNITED STATES Defamation, in the United States, is a tort of common law origin. Defamatory communication is defined as one that tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.48 Those who publicize another’s libel may be treated in one of three ways: as primary publishers (such as book or newspaper publishers); as conduits (such as a telephone company); or as distributors (such as a book store, library, or news dealer). Because “they cooperate actively in the publication,” primary publishers, also known as “original publishers,” are generally held to a strict standard of liability comparable to that of authors. Conduits, which lack the ability to screen and control defamatory speech that may occur over their systems, are ordinarily immune from liability. In transmitting email, an ISP (Internet service provider), like a telephone company, is merely a conduit. Distributors (sometimes known as “secondary publishers”), are subject to an intermediate standard of responsibility and may only be held liable as publishers if they know or have reason to know of the defamatory nature of matter they disseminate.49 In an action against Compuserve, it was ruled that a computer service company that provided its subscribers with access to electronic library of

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news publications put together by independent third party and loaded onto the company’s computer banks was mere “distributor” of information, which could not be held liable for defamatory statements made in news publications, absent showing that it knew or had reason to know of the defamation.50 The Communication Decency Act (CDA)51 was enacted and Zeran v. America Online,52 put it into application. §230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”53 The Court, limited the liability for libel to the originator of the message, and immunized Internet service provider as the need for the protection of the freedom of thought and expression finds more reason in the Internet medium.54 The subsequent case of Barret recognized the immunity of a “user” for libelous messages authored by third parties.

VI. CONCLUSION Defamation law is complex, involving multiple factors. These include whether the statement at issue is true or false, factual or figurative, privileged or unprivileged; whether the matter is of public or private concern; and, whether the plaintiff is a public or private figure.55 Added to these are the opposing concepts of right to privacy and freedom of expression.

After much contemplation, this paper ventures the following propositions:

First. There is no need for a libel provision in the Cybercrime Prevention Law. Libel may well be punished under the Revised Penal Code by adding the Internet as an additional means of publication.

Second. Remove the penalty of imprisonment but increase the amounts of the fines. Libel, however, remains criminal, as it is an act, which the State has the power and duty to prevent and punish. An act punished as a crime sends a message that it is offensive to the State and society in general and not just the parties. In a criminal case, the government, through its prosecutors, takes up the cudgels for the offended party while civil libel requires that a party pursue his cause through private counsel, which involves costly litigation with the payment of docket and attorney’s fees.56 This is a balancing act that reconciles the freedom of expression and opinion with the right to honor and reputation, both guaranteed by the ICCPR, and consistent with compliance with treaty obligations in good

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faith or pacta sund survanda.

Third. The liability for libel is limited to the author, or to the one who caused the publication or exhibition, to the exclusion of all others.

This will set down the definitive rule that Internet Service Providers, Social Networking Sites, Websites, Internet Café’s and those who like, share, favorite, retweet, comment or provide links to a libelous material are not responsible for the same.

Fourth. Codify the actual malice requirement and the public figure doctrine.

Art. 354. Requirement of Publicity AND MALICE . -- Every defamatory imputation PUBLICLY MADE58 is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it be shown, except in the following cases: …

3. ANY DISCUSSION OF ANY MATTER OF PUBLIC CONCERN OR CRITICISM OF OFFFICIAL CONDUCT OR THE CONDUCT OF PUBLIC FIGURES, UNLESS SUCH MATTER IS SHOWN BY THE PROSECUTION TO BE FALSE OR TO HAVE BEEN MADE BY THE DEFENDANT KNOWING ITS FALSITY OR WITH RECKLESS DISREGARD OF WHETHER IT IS TRUE OR NOT.59 Finally. The burden of proving that the defamatory imputation was made with actual malice will be upon the prosecution. The defendant may give evidence to rebut the existence of the same. Art. 361 should now read: Art. 361. Proof of the Truth. — In every criminal prosecution for libel, the truth OF THE IMPUTATION OF THE ACTS OR OMISSION CONSTITUTING THE CRIME60 may be given in evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives and justifiable ends the defendant shall be acquitted.

Proof of the truth of an imputation of an act or omission WHETHER OR61 not constituting a crime [shall not be admitted unless the imputation is] IF made against Government employees with respect to facts related to the discharge of their official duties MAY BE GIVEN BY THE DEFENDANT TO REBUT EVIDENCE THAT THE DEFAMATORY IMPUTATION WAS MADE BY HIM WITH ACTUAL MALICE.62 In fine, the Internet is a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. There is no need to abandon the rights and freedoms fought hard for. There is simply the need to attune the law to the times.

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These proposals aim just that: to craft a law that is in harmony with this era, inspired by both logic and experience. *** * Candidate for Juris Doctor, University of St. La Salle College of Law Batch 2014 1 Garrison v. Louisiana, 379 U.S. 64 (1964).

2 The Right to Privacy, 4 HARV. L. REV. 193 (1890).

3 The Law Dictionary Featuring Black’s Law Dictionary Free Online Dictionary (2nd Ed), available at http://thelawdictionary.org/cyber/ (last accessed Nov. 27, 2013).

4 Asia Internet Use, Population Data and Facebook Statistics, Internet World Stats, available at http://www.internetworldstats.com/stats3. htm (last accessed Nov. 27, 2013).

5 Act. No. 3815 (1930).

6 Art. 353.

7 Rep. Act. No. 10175, §4 Para (c) No. (4) (2012) 8 Supra note 2.

9 Worcester v. Ocampo, 22 Phil. 42 (1912).

10 Garrison, supra note 1.

11 MVRS vs Islamic Da’wah Council, 396 SCRA 210 (2003).

12 US v. Canete, 38 Phil. 253 (1918).

13 376 U.S. 254, L.Ed.2d 686 (1964).

14 Oscar Franklin Tan, Articulating the Complete Philippine Right to Privacy in Constitutional and Civil Law: A Tribute to Chief Justice Fernando and Justice Carpio, 82 PHIL. L. J., (2008) 15 13 Phil. 690 (1918).

16 314 SCRA 460 (1999).

17 388 U.S. 130 (1967).

18 Ayer Productions Pty. Ltd v. Capulong, 160 SCRA 861 (1988), citing Prosser and Keeton on Torts, 5th ed at 859-861 (1984).

19 Vasquez, supra note 16.

20 People v. Atencio, CA G.R. Nos. 11351-R to 11353-R (1954).

21 Corpus v. Cuaderno, Sr., 16 SCRA 807 (1966).

22 Kunkle v. Cablenews American, 42 Phil. 757 (1922).

23 396 SCRA 210 (2003).

24 Ibid.

25 308 SCRA 25 (1999).

26 Leonardo P. Reyes, Fundamentals of Libel Law, 34-43 (2nd Ed., 2007).

27 CONST. art. VI, §11. No member shall be questioned nor be held liable for any speech or debate in Congress or in any committee thereof.

28 Brillante v. CA, 440 SCRA 541 (2004).

29 Borjal v. CA, 30 SCRA 1 (1991).

30 Luis B. Reyes, The Revised Penal Code Book Two, 1039 (18th Ed. 2012).

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The Courts of First Instance were replaced by the Regional Trial Court under Batas Pambansa Blg. 129, otherwise known as “The Judiciary Reorganization Act of 1980.�

32 Time v. Reyes, 39 SCRA 303 (1971).

33 The Brief History of Social Media, available at http://www2.uncp.edu/ home/acurtis/NewMedia/SocialMedia/SocialMediaHistory.html (last accessed Jan. 31, 2014).

34 Jennifer Saba and Peter Lauria, After 79 years in print, newsweek goes digital only, REUTERS, Oct. 18, 2012 available at http:// www.reuters.com/article/2012/10/18/us-newsweek-digitalidUSBRE89H0L020121018 (last accessed Jan. 21, 2014).

35 Audio Recording of Oral Arguments, Jan. 15, 2013, available at http:// sc.judiciary.gov.ph/microsite/cybercrime/index.php (last accessed Dec. 10, 2013).

36 An Act Decriminalizing Libel, 1st Regular Session, 16th Congress House of Representatives (2013), available at http://www.congress.gov.ph/ download/basic_16/HB01324.pdf (last accessed Jan. 7, 2014).

37 Ibid.

38 An Act To Decriminalize Libel, 1st Regular Session 16th Congress Senate of the Philippines (2013), available at http://www.senate.gov.ph/ lisdata/1604213279!.pdf (last accessed Jan. 7, 2014).

39 An Act Abolishing The Imprisonment Penalty For The Crime Of Libel, 1st Regular Session 16th Congress Senate of the Philippines (2013), available at http://www.senate.gov.ph/lisdata/1728514518!.pdf (last accessed Jan. 7, 2014).

40 An Act Abolishing The Penalty Of Imprisonment In Libel Cases, 1st Regular Session 16th Congress Senate of the Philippines (2013), available at http://www.senate.gov.ph/lisdata/1748114718!.pdf (last accessed Jan. 7, 2014).

41 Associate Justice of the Supreme Court (retired); Chair of the Editorial Board, PHIL. LAW JOURN., Editorial Term 1956-57; LL.B., College of Law, University of the Philippines (1957); LL. M., Yale University Law School (1971).

42 The Decriminalization of Libel is not the Way, 82 PHIL. L. J. 288-93 (2008).

43 United Nations Human Rights Office of the High Commissioner ICCPR, available at http://www.ohchr.org/en/professionalinterest/pages/ccpr. aspx (last accessed Jan. 5, 2014).

44 FAQ: The Covenant on Civil and Political Rights, American Civil Liberties Union, available at https://www.aclu.org/human-rights/faq-covenantcivil-political-rights-iccpr (last accessed Jan. 12, 2014).

45 United Nations Human Rights, Office of the High Commissioner for Human Rights, available at http:www.docstore.ohchr.org/SelfServices/ FilesHandler.x?enc=dtYoAzPhJ4NMy4Lu1TOebLPebmtMUFwELWiX 31

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zua5r3CS8R... - 2362k (last accessed Jan. 31, 2014).

Sazon v. Court of Appeals, 255 SCRA 692 (1996).

47 The Lawphil Project, available at http://www.lawphil.net/courts/ supreme/ac/ac_8_2008.html (last accessed Jan. 12, 2014).

48 Restatement of Torts, 2nd, ยง 559.

49 Barret v. Rosenthal, 40 Cal.4th 33 (2006).

50 Cubby v. CompuServe, 776 F Supp. 135 (S.D.N.Y. 1991) 51 Barret, supra note 49.

52 129 F.3d 327 (4th Cir. 1997), [1] cert. denied, 524 U.S. 937 (1998), 53 47 U.S.C. ยง 230(c)(1).

54 Zeran, supra note 52.

55 Barret, supra note 49.

56 Justice Marvic Leonen, Audio Recording of Oral Arguments, Jan. 29, 2013, available at http://sc.judiciary.gov.ph/microsite/cybercrime/ Index.php (last accessed Dec. 10, 2013).

57 Supra note 42.

58 Ibid.

59 Ibid.

60 Ibid.

61 Ibid.

62 Ibid.

63 Barret, supra note 49.

46

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5

ORGS/ CLASS PHOTOS

1st Year Juris Doctor 1 134 | Photos

2nd Year Juris Doctor 2 Photos | 135

3rd Year Juris Doctor 3 136 | Photos

4th Year Juris Doctor 4 Photos | 137

USLS College of Law Student Council 138 | Photos

USLS College of Law Law Journal Team Photos | 139

6 ANNEXES Full Text of the Cybercrime Law and RH Law

6

Cybercrime Law

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Republic of the Philippines Congress of the Philippines Metro Manila Fifteenth Congress Second Regular Session [ Republic Act No. 10175 ] AN ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION, SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: CHAPTER I PRELIMINARY PROVISIONS SECTION 1. Title. — This Act shall be known as the “Cybercrime Prevention Act of 2012 SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications industries such as content production, telecommunications, broadcasting electronic commerce, and data processing, in the nation’s overall social and economic development. The State also recognizes the importance of providing an environment conducive to the development, acceleration, and rational application and exploitation of information and communications technology (ICT) to attain free, easy, and intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the integrity of computer, computer and communications systems, networks, and databases, and the confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse, abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their detection, investigation, and prosecution at both the domestic and international levels, and by providing arrangements for fast and reliable international cooperation.

SEC. 3. Definition of Terms. — For purposes of this Act, the following terms are hereby defined as follows: (a) Access refers to the instruction, communication with, storing data in, retrieving data from, or otherwise making use of any resources of a computer system or communication network. (b) Alteration refers to the modification or change, in form or substance, of an existing computer data or program. (c) Communication refers to the transmission of information through ICT media, including voice, video and other forms of data. (d) Computer refers to an electronic, magnetic, optical, electrochemical, or other data processing or communications device, or grouping of such devices, capable of performing logical, arithmetic, routing, or storage functions and which includes any storage facility or equipment or communications facility or equipment directly related to or operating in conjunction with such device. It covers any type of computer device including devices with data processing capabilities like mobile phones, smart phones, computer networks and other devices connected to the

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internet. (e) Computer data refers to any representation of facts, information, or concepts in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function and includes electronic documents and/or electronic data messages whether stored in local computer systems or online. (f) Computer program refers to a set of instructions executed by the computer to achieve intended results. (g) Computer system refers to any device or group of interconnected or related devices, one or more of which, pursuant to a program, performs automated processing of data. It covers any type of device with data processing capabilities including, but not limited to, computers and mobile phones. The device consisting of hardware and software may include input, output and storage components which may stand alone or be connected in a network or other similar devices. It also includes computer data storage devices or media. (h) Without right refers to either: (i) conduct undertaken without or in excess of authority; or (ii) conduct not covered by established legal defenses, excuses, court orders, justifications, or relevant principles under the law. (i) Cyber refers to a computer or a computer network, the electronic medium in which online communication takes place. (j) Critical infrastructure refers to the computer systems, and/or networks, whether physical or virtual, and/or the computer programs, computer data and/or traffic data so vital to this country that the incapacity or destruction of or interference with such system and assets would have a debilitating impact on security, national or economic security, national public health and safety, or any combination of those matters. (k) Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best practices, assurance and technologies that can be used to protect the cyber environment and organization and user’s assets. (l) Database refers to a representation of information, knowledge, facts, concepts, or instructions which are being prepared, processed or stored or have been prepared, processed or stored in a formalized manner and which are intended for use in a computer system. (m) Interception refers to listening to, recording, monitoring or surveillance of the content of communications, including procuring of the content of data, either directly, through access and use of a computer system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the communication is occurring. (n) Service provider refers to: (1) Any public or private entity that provides to users of its service the ability to communicate by means of a computer system; and (2) Any other entity that processes or stores computer data on behalf of such communication service or users of such service. (o) Subscriber’s information refers to any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which identity can be established:

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(1) The type of communication service used, the technical provisions taken thereto and the period of service; (2) The subscriber’s identity, postal or geographic address, telephone and other access numbers, any assigned network address, billing and payment information, available on the basis of the service agreement or arrangement; and (3) Any other available information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement. (p) Traffic data or non-content data refers to any computer data other than the content of the communication including, but not limited to, the communication’s origin, destination, route, time, date, size, duration, or type of underlying service.

CHAPTER II PUNISHABLE ACTS SEC. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under this Act: (a) Offenses against the confidentiality, integrity and availability of computer data and systems: (1) Illegal Access. – The access to the whole or any part of a computer system without right.

(2) Illegal Interception. – The interception made by technical means without right of any non-public transmission of computer data to, from, or within a computer system including electromagnetic emissions from a computer system carrying such computer data.

(3) Data Interference. — The intentional or reckless alteration, damaging, deletion or deterioration of computer data, electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

(4) System Interference. — The intentional alteration or reckless hindering or interference with the functioning of a computer or computer network by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data or program, electronic document, or electronic data message, without right or authority, including the introduction or transmission of viruses.

(5) Misuse of Devices. (i) The use, production, sale, procurement, importation, distribution, or otherwise making available, without right, of: (aa) A device, including a computer program, designed or adapted primarily for the purpose of committing any of the offenses under this Act; or (bb) A computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed with intent that it be used for the purpose of committing any of the offenses under this Act. (ii) The possession of an item referred to in paragraphs 5(i)(aa) or (bb) above with intent to use said devices for the purpose of committing any of the offenses under this section.

(6) Cyber-squatting. – The acquisition of a domain name over the internet in bad faith to profit, mislead, destroy reputation, and deprive others from registering the same, if such a domain name is:

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(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate government agency at the time of the domain name registration: (ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal name; and (iii) Acquired without right or with intellectual property interests in it. (b) Computer-related Offenses: (1) Computer-related Forgery. — (i) The input, alteration, or deletion of any computer data without right resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible; or (ii) The act of knowingly using computer data which is the product of computerrelated forgery as defined herein, for the purpose of perpetuating a fraudulent or dishonest design.

(2) Computer-related Fraud. — The unauthorized input, alteration, or deletion of computer data or program or interference in the functioning of a computer system, causing damage thereby with fraudulent intent: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower.

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession, alteration or deletion of identifying information belonging to another, whether natural or juridical, without right: Provided, That if no damage has yet been caused, the penalty imposable shall be one (1) degree lower. (c) Content-related Offenses: (1) Cybersex. — The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable

by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

(3) Unsolicited Commercial Communications. — The transmission of commercial electronic communication with the use of computer system which seek to advertise, sell, or offer for sale products and services are prohibited unless: (i) There is prior affirmative consent from the recipient; or (ii) The primary intent of the communication is for service and/or administrative announcements from the sender to its existing users, subscribers or customers; or (iii) The following conditions are present: (aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient to reject. receipt of further commercial electronic messages (opt-out) from the same source; (bb) The commercial electronic communication does not purposely disguise the source of the electronic message; and (cc) The commercial electronic communication does not purposely include misleading information in any part of the message in order to induce the recipients

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to read the message.

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended, committed through a computer system or any other similar means which may be devised in the future.

SEC. 5. Other Offenses. — The following acts shall also constitute an offense: (a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the commission of any of the offenses enumerated in this Act shall be held liable. (b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the offenses enumerated in this Act shall be held liable.

SEC. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by, through and with the use of information and communications technologies shall be covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may be.

SEC. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability for violation of any provision of the Revised Penal Code, as amended, or special laws.

CHAPTER III PENALTIES SEC. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with the penalties as enumerated in Republic Act No. 9775 or the “Anti-Child Pornography Act of 2009: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c) (3) shall be punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section

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5 shall be punished with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

SEC. 9. Corporate Liability. — When any of the punishable acts herein defined are knowingly committed on behalf of or for the benefit of a juridical person, by a natural person acting either individually or as part of an organ of the juridical person, who has a leading position within, based on: (a) a power of representation of the juridical person provided the act committed falls within the scope of such authority; (b) an authority to take decisions on behalf of the juridical person: Provided, That the act committed falls within the scope of such authority; or (c) an authority to exercise control within the juridical person, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Ten million pesos (PhP10,000,000.00).

If the commission of any of the punishable acts herein defined was made possible due to the lack of supervision or control by a natural person referred to and described in the preceding paragraph, for the benefit of that juridical person by a natural person acting under its authority, the juridical person shall be held liable for a fine equivalent to at least double the fines imposable in Section 7 up to a maximum of Five million pesos (PhP5,000,000.00).

The liability imposed on the juridical person shall be without prejudice to the criminal liability of the natural person who has committed the offense.

CHAPTER IV ENFORCEMENT AND IMPLEMENTATION SEC. 10. Law Enforcement Authorities. — The National Bureau of Investigation (NBI) and the Philippine National Police (PNP) shall be responsible for the efficient and effective law enforcement of the provisions of this Act. The NBI and the PNP shall organize a cybercrime unit or center manned by special investigators to exclusively handle cases involving violations of this Act. SEC. 11. Duties of Law Enforcement Authorities. — To ensure that the technical nature of cybercrime and its prevention is given focus and considering the procedures involved for international cooperation, law enforcement authorities specifically the computer or technology crime divisions or units responsible for the investigation of cybercrimes are required to submit timely and regular reports including preoperation, post-operation and investigation results and such other documents as may be required to the Department of Justice (DOJ) for review and monitoring.

SEC. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be authorized to collect or record by technical or electronic means traffic data in real-time associated with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and the examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that there are reasonable

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grounds to believe that any of the crimes enumerated hereinabove has been committed, or is being committed, or is about to be committed: (2) that there are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily available for obtaining such evidence.

SEC. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating to communication services provided by a service provider shall be preserved for a minimum period of six (6) months from the date of the transaction.

Content data shall be similarly preserved for six (6) months from the date of receipt of the order from law enforcement authorities requiring its preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its compliance.

SEC. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant, shall issue an order requiring any person or service provider to disclose or submit subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the purpose of investigation.

SEC. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and: (a) To secure a computer system or a computer data storage medium; (b) To make and retain a copy of those computer data secured; (c) To maintain the integrity of the relevant stored computer data; (d) To conduct forensic analysis or examination of the computer data storage medium; and (e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

SEC. 16. Custody of Computer Data. — All computer data, including content and traffic data, examined under a proper warrant shall, within forty-eight (48) hours

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after the expiration of the period fixed therein, be deposited with the court in a sealed package, and shall be accompanied by an affidavit of the law enforcement authority executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. The law enforcement authority shall also certify that no duplicates or copies of the whole or any part thereof have been made, or if made, that all such duplicates or copies are included in the package deposited with the court. The package so deposited shall not be opened, or the recordings replayed, or used in evidence, or then contents revealed, except upon order of the court, which shall not be granted except upon motion, with due notice and opportunity to be heard to the person or persons whose conversation or communications have been recorded.

SEC. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and 15, service providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the computer data subject of a preservation and examination.

SEC. 18. Exclusionary Rule. — Any evidence procured without a valid warrant or beyond the authority of the same shall be inadmissible for any proceeding before any court or tribunal.

SEC. 19. Restricting or Blocking Access to Computer Data. — When a computer data is prima facie found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.

SEC. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement authorities.

CHAPTER V JURISDICTION SEC. 21. Jurisdiction. — The Regional Trial Court shall have jurisdiction over any violation of the provisions of this Act. including any violation committed by a Filipino national regardless of the place of commission. Jurisdiction shall lie if any of the elements was committed within the Philippines or committed with the use of any computer system wholly or partly situated in the country, or when by such commission any damage is caused to a natural or juridical person who, at the time the offense was committed, was in the Philippines.

There shall be designated special cybercrime courts manned by specially trained judges to handle cybercrime cases.

CHAPTER VI INTERNATIONAL COOPERATION Sec. 22. General Principles Relating to International Cooperation — All relevant international instruments on international cooperation in criminal matters, arrangements agreed on the basis of uniform or reciprocal legislation, and domestic laws, to the widest extent possible for the purposes of investigations or proceedings concerning criminal offenses related to computer systems and data, or for the collection of evidence in electronic form of a criminal, offense shall be given full force and effect.

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CHAPTER VII COMPETENT AUTHORITIES SEC 23. Department of Justice (DOJ). — There is hereby created an Office of Cybercrime within the DOJ designated as the central authority in all matters related to international mutual assistance and extradition.

SEC. 24. Cybercrime Investigation and Coordinating Center. — There is hereby created, within thirty (30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned agencies and for the formulation and enforcement of the national cybersecurity plan.

SEC. 25. Composition. — The CICC shall be headed by the Executive Director of the Information and Communications Technology Office under the Department of Science and Technology (ICTO-DOST) as Chairperson with the Director of the NBI as Vice Chairperson; the Chief of the PNP; Head of the DOJ Office of Cybercrime; and one (1) representative from the private sector and academe, as members. The CICC shall be manned by a secretariat of selected existing personnel and representatives from the different participating agencies.

SEC. 26. Powers and Functions. — The CICC shall have the following powers and functions: (a) To formulate a national cybersecurity plan and extend immediate assistance for the suppression of real-time commission of cybercrime offenses through a computer emergency response team (CERT); (b) To coordinate the preparation of appropriate and effective measures to prevent and suppress cybercrime activities as provided for in this Act; (c) To monitor cybercrime cases being bandied by participating law enforcement and prosecution agencies; (d) To facilitate international cooperation on intelligence, investigations, training and capacity building related to cybercrime prevention, suppression and prosecution; (e) To coordinate the support and participation of the business sector, local government units and nongovernment organizations in cybercrime prevention programs and other related projects; (f) To recommend the enactment of appropriate laws, issuances, measures and policies; (g) To call upon any government agency to render assistance in the accomplishment of the CICC’s mandated tasks and functions; and (h) To perform all other matters related to cybercrime prevention and suppression, including capacity building and such other functions and duties as may be necessary for the proper implementation of this Act. CHAPTER VIII FINAL PROVISIONS SEC. 27. Appropriations. — The amount of Fifty million pesos (PhP50,000,000.00) shall be appropriated annually for the implementation of this Act.

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SEC. 28. Implementing Rules and Regulations. — The ICTO-DOST, the DOJ and the Department of the Interior and Local Government (DILG) shall jointly formulate the necessary rules and regulations within ninety (90) days from approval of this Act, for its effective implementation.

SEC. 29. Separability Clause — If any provision of this Act is held invalid, the other provisions not affected shall remain in full force and effect.

SEC. 30. Repealing Clause. — All laws, decrees or rules inconsistent with this Act are hereby repealed or modified accordingly. Section 33(a) of Republic Act No. 8792 or the “Electronic Commerce Act” is hereby modified accordingly.

SEC. 31. Effectivity. — This Act shall take effect fifteen (15) days after the completion of its publication in the Official Gazette or in at least two (2) newspapers of general circulation.

Approved, (Sgd.) FELICIANO BELMONTE JR. Speaker of the House of Representatives

(Sgd.) JUAN PONCE ENRILE President of the Senate

This Act which is a consolidation of Senate Bill No. 2796 and House Bill No. 5808 was finally passed by the Senate and the House of Representatives on June 5, 2012 and June 4, 2012, respectively.

(Sgd.) MARILYN B. BARUA-YAP Secretary General House of Representatives

(Sgd.) EMMA LIRIO-REYES Secretary of the Senate

Approved: SEP 12 2012 (Sgd.) BENIGNO S. AQUINO III President of the Philippines

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Republic of the Philippines Congress of the Philippines Metro Manila Fifteenth Congress Third Regular Session Begun and held in Metro Manila, on Monday, the twenty-third day of July, two thousand twelve. [ REPUBLIC ACT NO. 10354 ] AN ACT PROVIDING FOR A NATIONAL POLICY ON RESPONSIBLE PARENTHOOD AND REPRODUCTIVE HEALTH Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Title. – This Act shall be known as “The Responsible Parenthood and Reproductive Health Act of 2012 SEC. 2. Declaration of Policy. – The State recognizes and guarantees the human rights of all persons including their right to equality and nondiscrimination of these rights, the right to sustainable human development, the right to health which includes reproductive health, the right to education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

Pursuant to the declaration of State policies under Section 12, Article II of the 1987 Philippine Constitution, it is the duty of the State to protect and strengthen the family as a basic autonomous social institution and equally protect the life of the mother and the life of the unborn from conception. The State shall protect and promote the right to health of women especially mothers in particular and of the people in general and instill health consciousness among them. The family is the natural and fundamental unit of society. The State shall likewise protect and advance the right of families in particular and the people in general to a balanced and healthful environment in accord with the rhythm and harmony of nature. The State also recognizes and guarantees the promotion and equal protection of the welfare and rights of children, the youth, and the unborn.

Moreover, the State recognizes and guarantees the promotion of gender equality, gender equity, women empowerment and dignity as a health and human rights concern and as a social responsibility. The advancement and protection of women’s human rights shall be central to the efforts of the State to address reproductive health care.

The State recognizes marriage as an inviolable social institution and the foundation of the family which in turn is the foundation of the nation. Pursuant thereto, the State shall defend: (a) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; (b) The right of children to assistance, including proper care and nutrition, and

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special protection from all forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development; (c) The right of the family to a family living wage and income; and (d) The right of families or family associations to participate in the planning and implementation of policies and programs The State likewise guarantees universal access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care services, methods, devices, supplies which do not prevent the implantation of a fertilized ovum as determined by the Food and Drug Administration (FDA) and relevant information and education thereon according to the priority needs of women, children and other underprivileged sectors, giving preferential access to those identified through the National Household Targeting System for Poverty Reduction (NHTS-PR) and other government measures of identifying marginalization, who shall be voluntary beneficiaries of reproductive health care, services and supplies for free.

The State shall eradicate discriminatory practices, laws and policies that infringe on a person’s exercise of reproductive health rights.

The State shall also promote openness to life; Provided, That parents bring forth to the world only those children whom they can raise in a truly humane way.

SEC. 3. Guiding Principles for Implementation. – This Act declares the following as guiding principles: (a) The right to make free and informed decisions, which is central to the exercise of any right, shall not be subjected to any form of coercion and must be fully guaranteed by the State, like the right itself; (b) Respect for protection and fulfillment of reproductive health and rights which seek to promote the rights and welfare of every person particularly couples, adult individuals, women and adolescents; (c) Since human resource is among the principal assets of the country, effective and quality reproductive health care services must be given primacy to ensure maternal and child health, the health of the unborn, safe delivery and birth of healthy children, and sound replacement rate, in line with the State’s duty to promote the right to health, responsible parenthood, social justice and full human development; (d) The provision of ethical and medically safe, legal, accessible, affordable, nonabortifacient, effective and quality reproductive health care services and supplies is essential in the promotion of people’s right to health, especially those of women, the poor, and the marginalized, and shall be incorporated as a component of basic health care; (e) The State shall promote and provide information and access, without bias, to all methods of family planning, including effective natural and modern methods which have been proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical research standards such as those registered and approved by the FDA for the poor and marginalized as identified through the NHTS-PR and other government measures of identifying marginalization: Provided, That the State shall also provide funding support to

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promote modern natural methods of family planning, especially the Billings Ovulation Method, consistent with the needs of acceptors and their religious convictions; (f) The State shall promote programs that: (1) enable individuals and couples to have the number of children they desire with due consideration to the health, particularly of women, and the resources available and affordable to them and in accordance with existing laws, public morals and their religious convictions: Provided, That no one shall be deprived, for economic reasons, of the rights to have children; (2) achieve equitable allocation and utilization of resources; (3) ensure effective partnership among national government, local government units (LGUs) and the private sector in the design, implementation, coordination, integration, monitoring and evaluation of people-centered programs to enhance the quality of life and environmental protection; (4) conduct studies to analyze demographic trends including demographic dividends from sound population policies towards sustainable human development in keeping with the principles of gender equality, protection of mothers and children, born and unborn and the promotion and protection of women’s reproductive rights and health; and (5) conduct scientific studies to determine the safety and efficacy of alternative medicines and methods for reproductive health care development; (g) The provision of reproductive health care, information and supplies giving priority to poor beneficiaries as identified through the NHTS-PR and other government measures of identifying marginalization must be the primary responsibility of the national government consistent with its obligation to respect, protect and promote the right to health and the right to life; (h) The State shall respect individuals’ preferences and choice of family planning methods that are in accordance with their religious convictions and cultural beliefs, taking into consideration the State’s obligations under various human rights instruments; (i) Active participation by nongovernment organizations (NGOs), women’s and people’s organizations, civil society, faith-based organizations, the religious sector and communities is crucial to ensure that reproductive health and population and development policies, plans, and programs will address the priority needs of women, the poor, and the marginalized; (j) While this Act recognizes that abortion is illegal and punishable by law, the government shall ensure that all women needing care for post-abortive complications and all other complications arising from pregnancy, labor and delivery and related issues shall be treated and counseled in a humane, nonjudgmental and compassionate manner in accordance with law and medical ethics; (k) Each family shall have the right to determine its ideal family size: Provided, however, That the State shall equip each parent with the necessary information on all aspects of family life, including reproductive health and responsible parenthood, in order to make that determination; (l) There shall be no demographic or population targets and the mitigation, promotion and/or stabilization of the population growth rate is incidental to the advancement of reproductive health;

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(m) Gender equality and women empowerment are central elements of reproductive health and population and development; (n) The resources of the country must be made to serve the entire population, especially the poor, and allocations thereof must be adequate and effective: Provided, That the life of the unborn is protected; (o) Development is a multi-faceted process that calls for the harmonization and integration of policies, plans, programs and projects that seek to uplift the quality of life of the people, more particularly the poor, the needy and the marginalized; and (p) That a comprehensive reproductive health program addresses the needs of people throughout their life cycle.

SEC. 4. Definition of Terms. – For the purpose of this Act, the following terms shall be defined as follows: (a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb upon determination of the FDA. (b) Adolescent refers to young people between the ages of ten (10) to nineteen (19) years who are in transition from childhood to adulthood. (c) Basic Emergency Obstetric and Newborn Care (BEMONC) refers to lifesaving services for emergency maternal and newborn conditions/complications being provided by a health facility or professional to include the following services: administration of parenteral oxytocic drugs, administration of dose of parenteral anticonvulsants, administration of parenteral antibiotics, administration of maternal steroids for preterm labor, performance of assisted vaginal deliveries, removal of retained placental products, and manual removal of retained placenta. It also includes neonatal interventions which include at the minimum: newborn resuscitation, provision of warmth, and referral, blood transfusion where possible. (d) Comprehensive Emergency Obstetric and Newborn Care (CEMONC) refers to lifesaving services for emergency maternal and newborn conditions/complications as in Basic Emergency Obstetric and Newborn Care plus the provision of surgical delivery (caesarian section) and blood bank services, and other highly specialized obstetric interventions. It also includes emergency neonatal care which includes at the minimum: newborn resuscitation, treatment of neonatal sepsis infection, oxygen support, and antenatal administration of (maternal) steroids for threatened premature delivery. (e) Family planning refers to a program which enables couples and individuals to decide freely and responsibly the number and spacing of their children and to have the information and means to do so, and to have access to a full range of safe, affordable, effective, non-abortifacient modem natural and artificial methods of planning pregnancy. (f) Fetal and infant death review refers to a qualitative and in-depth study of the causes of fetal and infant death with the primary purpose of preventing future deaths through changes or additions to programs, plans and policies. (g) Gender equality refers to the principle of equality between women and men and equal rights to enjoy conditions in realizing their full human potentials to contribute

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to, and benefit from, the results of development, with the State recognizing that all human beings are free and equal in dignity and rights. It entails equality in opportunities, in the allocation of resources or benefits, or in access to services in furtherance of the rights to health and sustainable human development among others, without discrimination. (h) Gender equity refers to the policies, instruments, programs and actions that address the disadvantaged position of women in society by providing preferential treatment and affirmative action. It entails fairness and justice in the distribution of benefits and responsibilities between women and men, and often requires womenspecific projects and programs to end existing inequalities. This concept recognizes that while reproductive health involves women and men, it is more critical for women’s health. (i) Male responsibility refers to the involvement, commitment, accountability and responsibility of males in all areas of sexual health and reproductive health, as well as the care of reproductive health concerns specific to men. (j) Maternal death review refers to a qualitative and in-depth study of the causes of maternal death with the primary purpose of preventing future deaths through changes or additions to programs, plans and policies. (k) Maternal health refers to the health of a woman of reproductive age including, but not limited to, during pregnancy, childbirth and the postpartum period. (l) Modern methods of family planning refers to safe, effective, non-abortifacient and legal methods, whether natural or artificial, that are registered with the FDA, to plan pregnancy. (m) Natural family planning refers to a variety of methods used to plan or prevent pregnancy based on identifying the woman’s fertile days. (n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and accredited and devoted primarily to the maintenance and operation of facilities for health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing care; (2) public health care professional, who is a doctor of medicine, a nurse or a midwife; (3) public health worker engaged in the delivery of health care services; or (4) barangay health worker who has undergone training programs under any accredited government and NGO and who voluntarily renders primarily health care services in the community after having been accredited to function as such by the local health board in accordance with the guideline’s promulgated by the Department of Health (DOH). (o) Poor refers to members of households identified as poor through the NHTS-PR by the Department of Social Welfare and Development (DSWD) or any subsequent system used by the national government in identifying the poor. (p) Reproductive Health (RH) refers to the state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. This implies that people are able to have a responsible, safe, consensual and satisfying sex life, that they have the capability to reproduce and the freedom to decide if, when, and how

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often to do so. This further implies that women and men attain equal relationships in matters related to sexual relations and reproduction. (q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that contribute to reproductive health and well-being by addressing reproductive health-related problems. It also includes sexual health, the purpose of which is the enhancement of life and personal relations. The elements of reproductive health care include the following: (1) Family planning information and services which shall include as a first priority making women of reproductive age fully aware of their respective cycles to make them aware of when fertilization is highly probable, as well as highly improbable; (2) Maternal, infant and child health and nutrition, including breastfeeding; (3) Proscription of abortion and management of abortion complications; (4) Adolescent and youth reproductive health guidance and counseling; (5) Prevention, treatment and management of reproductive tract infections (RTIs), HIV and AIDS and other sexually transmittable infections (STIs); (6) Elimination of violence against women and children and other forms of sexual and gender-based violence; (7) Education and counseling on sexuality and reproductive health; (8) Treatment of breast and reproductive tract cancers and other gynecological conditions and disorders; (9) Male responsibility and involvement and men’s reproductive health; (10) Prevention, treatment and management of infertility and sexual dysfunction; (11) Reproductive health education for the adolescents; and (12) Mental health aspect of reproductive health care. (r) Reproductive health care program refers to the systematic and integrated provision of reproductive health care to all citizens prioritizing women, the poor, marginalized and those invulnerable or crisis situations. (s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly whether or not to have children; the number, spacing and timing of their children; to make other decisions concerning reproduction, free of discrimination, coercion and violence; to have the information and means to do so; and to attain the highest standard of sexual health and reproductive health: Provided, however, That reproductive health rights do not include abortion, and access to abortifacients. (t) Reproductive health and sexuality education refers to a lifelong learning process of providing and acquiring complete, accurate and relevant age- and developmentappropriate information and education on reproductive health and sexuality through life skills education and other approaches. (u) Reproductive Tract Infection (RTI) refers to sexually transmitted infections (STIs), and other types of infections affecting the reproductive system. (v) Responsible parenthood refers to the will and ability of a parent to respond to the

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needs and aspirations of the family and children. It is likewise a shared responsibility between parents to determine and achieve the desired number of children, spacing and timing of their children according to their own family life aspirations, taking into account psychological preparedness, health status, sociocultural and economic concerns consistent with their religious convictions. (w) Sexual health refers to a state of physical, mental and social well-being in relation to sexuality. It requires a positive and respectful approach to sexuality and sexual relationships, as well as the possibility of having pleasurable and safe sexual experiences, free from coercion, discrimination and violence. (x) Sexually Transmitted Infection (STI) refers to any infection that may be acquired or passed on through sexual contact, use of IV, intravenous drug needles, childbirth and breastfeeding. (y) Skilled birth attendance refers to childbirth managed by a skilled health professional including the enabling conditions of necessary equipment and support of a functioning health system, including transport and referral faculties for emergency obstetric care. (z) Skilled health professional refers to a midwife, doctor or nurse, who has been educated and trained in the skills needed to manage normal and complicated pregnancies, childbirth and the immediate postnatal period, and in the identification, management and referral of complications in women and newborns. (aa) Sustainable human development refers to bringing people, particularly the poor and vulnerable, to the center of development process, the central purpose of which is the creation of an enabling environment in which all can enjoy long, healthy and productive lives, done in the manner that promotes their rights and protects the life opportunities of future generations and the natural ecosystem on which all life depends.

SEC. 5. Hiring of Skilled Health Professionals for Maternal Health Care and Skilled Birth Attendance. – The LGUs shall endeavor to hire an adequate number of nurses, midwives and other skilled health professionals for maternal health care and skilled birth attendance to achieve an ideal skilled health professional-to-patient ratio taking into consideration DOH targets: Provided, That people in geographically isolated or highly populated and depressed areas shall be provided the same level of access to health care: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision.

For the purposes of this Act, midwives and nurses shall be allowed to administer lifesaving drugs such as, but not limited to, oxytocin and magnesium sulfate, in accordance with the guidelines set by the DOH, under emergency conditions and when there are no physicians available: Provided, That they are properly trained and certified to administer these lifesaving drugs.

SEC. 6. Health Care Facilities. – Each LGU, upon its determination of the necessity based on well-supported data provided by its local health office shall endeavor to establish or upgrade hospitals and facilities with adequate and qualified personnel, equipment and supplies to be able to provide emergency obstetric and newborn care: Provided, That people in geographically isolated or highly populated and depressed areas shall

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have the same level of access and shall not be neglected by providing other means such as home visits or mobile health care clinics as needed: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision.

SEC. 7. Access to Family Planning. – All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, supplies and necessary and reasonable procedures for poor and marginalized couples having infertility issues who desire to have children: Provided, That family planning services shall likewise be extended by private health facilities to paying patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods: Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage.

SEC. 8. Maternal Death Review and Fetal and Infant Death Review. – All LGUs, national and local government hospitals, and other public health units shall conduct an annual Maternal Death Review and Fetal and Infant Death Review in accordance with the guidelines set by the DOH. Such review should result in an evidence-based programming and budgeting process that would contribute to the development of more responsive reproductive health services to promote women’s health and safe motherhood.

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies.

– The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals:Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.

SEC. 10. Procurement and Distribution of Family Planning Supplies. – The DOH shall procure, distribute to LGUs and monitor the usage of family planning supplies for the whole country. The DOH shall coordinate with all appropriate local government bodies to plan and implement this procurement and distribution program. The

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supply and budget allotments shall be based on, among others, the current levels and projections of the following: (a) Number of women of reproductive age and couples who want to space or limit their children; (b) Contraceptive prevalence rate, by type of method used; and (c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the overall provisions of this Act and the guidelines of the DOH. SEC. 11. Integration of Responsible Parenthood and Family Planning Component in Anti-Poverty Programs. – A multidimensional approach shall be adopted in the implementation of policies and programs to fight poverty. Towards this end, the DOH shall implement programs prioritizing full access of poor and marginalized women as identified through the NHTS-PR and other government measures of identifying marginalization to reproductive health care, services, products and programs. The DOH shall provide such programs, technical support, including capacity building and monitoring.

SEC. 12. PhilHealth Benefits for Serious .and Life-Threatening Reproductive Health Conditions. – All serious and life-threatening reproductive health conditions such as HIV and AIDS, breast and reproductive tract cancers, and obstetric complications, and menopausal and post-menopausal-related conditions shall be given the maximum benefits, including the provision of Anti-Retroviral Medicines (ARVs), as provided in the guidelines set by the Philippine Health Insurance Corporation (PHIC).

SEC. 13. Mobile Health Care Service. – The national or the local government may provide each provincial, city, municipal and district hospital with a Mobile Health Care Service (MHCS) in the form of a van or other means of transportation appropriate to its terrain, taking into consideration the health care needs of each LGU. The MHCS shall deliver health care goods and services to its constituents, more particularly to the poor and needy, as well as disseminate knowledge and information on reproductive health.

The MHCS shall be operated by skilled health providers and adequately equipped with a wide range of health care materials and information dissemination devices and equipment, the latter including, but not limited to, a television set for audiovisual presentations. All MHCS shall be operated by LGUs of provinces and highly urbanized cities.

SEC. 14. Age- and Development-Appropriate Reproductive Health Education. – The State shall provide age- and development-appropriate reproductive health education to adolescents which shall be taught by adequately trained teachers informal and nonformal educational system and integrated in relevant subjects such as, but not limited to, values formation; knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women’s rights and children’s rights; responsible teenage behavior; gender and development; and responsible parenthood: Provided, That flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only

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after consultations with parents-teachers-community associations, school officials and other interest groups. The Department of Education (DepED) shall formulate a curriculum which shall be used by public schools and may be adopted by private schools.

SEC. 15. Certificate of Compliance. – No marriage license shall be issued by the Local Civil Registrar unless the applicants present a Certificate of Compliance issued for free by the local Family Planning Office certifying that they had duly received adequate instructions and information on responsible parenthood, family planning, breastfeeding and infant nutrition.

SEC. 16. Capacity Building of Barangay Health Workers (BHWs). – The DOH shall be responsible for disseminating information and providing training programs to the LGUs. The LGUs, with the technical assistance of the DOH, shall be responsible for the training of BHWs and other barangay volunteers on the promotion of reproductive health. The DOH shall provide the LGUs with medical supplies and equipment needed

by BHWs to carry out their functions effectively: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision including the possible provision of additional honoraria for BHWs. SEC. 17. Pro Bono Services for Indigent Women. – Private and nongovernment reproductive healthcare service providers including, but not limited to, gynecologists and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of reproductive health services, ranging from providing information and education to rendering medical services, free of charge to indigent and low-income patients as identified through the NHTS-PR and other government measures of identifying marginalization, especially to pregnant adolescents. The forty-eight (48) hours annual pro bono services shall be included as a prerequisite in the accreditation under the PhilHealth.

SEC. 18. Sexual and Reproductive Health Programs for Persons with Disabilities (PWDs).

– The cities and municipalities shall endeavor that barriers to reproductive health services for PWDs are obliterated by the following: (a) Providing physical access, and resolving transportation and proximity issues to clinics, hospitals and places where public health education is provided, contraceptives are sold or distributed or other places where reproductive health services are provided; (b) Adapting examination tables and other laboratory procedures to the needs and conditions of PWDs; (c) Increasing access to information and communication materials on sexual and reproductive health in braille, large print, simple language, sign language and pictures; (d) Providing continuing education and inclusion of rights of PWDs among health care providers; and (e) Undertaking activities to raise awareness and address misconceptions among the general public on the stigma and their lack of knowledge on the sexual and reproductive health needs and rights of PWDs.

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SEC. 19. Duties and Responsibilities. – (a) Pursuant to the herein declared policy, the DOH shall serve as the lead agency for the implementation of this Act and shall integrate in their regular operations the following functions: (1) Fully and efficiently implement the reproductive health care program; (2) Ensure people’s access to medically safe, non-abortifacient, legal, quality and affordable reproductive health goods and services; and (3) Perform such other functions necessary to attain the purposes of this Act. (b) The DOH, in coordination with the PHIC, as may be applicable, shall: (1) Strengthen the capacities of health regulatory agencies to ensure safe, high quality, accessible and affordable reproductive health services and commodities with the concurrent strengthening and enforcement of regulatory mandates and mechanisms; (2) Facilitate the involvement and participation of NGOs and the private sector in reproductive health care service delivery and in the production, distribution and delivery of quality reproductive health and family planning supplies and commodities to make them accessible and affordable to ordinary citizens; (3) Engage the services, skills and proficiencies of experts in natural family planning who shall provide the necessary training for all BHWs; (4) Supervise and provide assistance to LGUs in the delivery of reproductive health care services and in the purchase of family planning goods and supplies; and (5) Furnish LGUs, through their respective local health offices, appropriate information and resources to keep the latter updated on current studies and researches relating to family planning, responsible parenthood, breastfeeding and infant nutrition. (c) The FDA shall issue strict guidelines with respect to the use of contraceptives, taking into consideration the side effects or other harmful effects of their use. (d) Corporate citizens shall exercise prudence in advertising its products or services through all forms of media, especially on matters relating to sexuality, further taking into consideration its influence on children and the youth.

SEC. 20. Public Awareness. – The DOH and the LGUs shall initiate and sustain a heightened nationwide multimedia-campaign to raise the level of public awareness on the protection and promotion of reproductive health and rights including, but not limited to, maternal health and nutrition, family planning and responsible parenthood information and services, adolescent and youth reproductive health, guidance and counseling and other elements of reproductive health care under Section 4(q).

Education and information materials to be developed and disseminated for this purpose shall be reviewed regularly to ensure their effectiveness and relevance.

SEC. 21. Reporting Requirements. – Before the end of April each year, the DOH shall submit to the President of the Philippines and Congress an annual consolidated report, which shall provide a definitive and comprehensive assessment of the implementation of its programs and those of other government agencies and instrumentalities and recommend priorities for executive and legislative actions. The report shall be printed and distributed to all national agencies, the LGUs, NGOs and private sector organizations involved in said programs.

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The annual report shall evaluate the content, implementation, and impact of all policies related to reproductive health and family planning to ensure that such policies promote, protect and fulfill women’s reproductive health and rights.

SEC. 22. Congressional Oversight Committee on Reproductive Health Act. – There is hereby created a Congressional Oversight Committee (COC) composed of five (5) members each from the Senate and the House of Representatives. The members from the Senate and the House of Representatives shall be appointed by the Senate President and the Speaker, respectively, with at least one (1) member representing the Minority.

The COC shall be headed by the respective Chairs of the Committee on Health and Demography of the Senate and the Committee on Population and Family Relations of the House of Representatives. The Secretariat of the COC shall come from the existing Secretariat personnel of the Senate and the House of Representatives committees concerned.

The COC shall monitor and ensure the effective implementation of this Act, recommend the necessary remedial legislation or administrative measures, and shall conduct a review of this Act every five (5) years from its effectivity. The COC shall perform such other duties and functions as may be necessary to attain the objectives of tins Act. SEC. 23. Prohibited Acts. – The following acts are prohibited: (a) Any health care service provider, whether public or private, who shall: (1) Knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services on reproductive health including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods; (2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances: (i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; and (ii) Parental consent or that of the person exercising parental authority in the case of abused minors, where the parent or the person exercising parental authority is the respondent, accused or convicted perpetrator as certified by the proper prosecutorial office of the court. In the case of minors, the written consent of parents or legal guardian or, in their absence, persons exercising parental authority or next-of-kin shall be required only in elective surgical procedures and in no case shall consent be required in emergency or serious cases as defined in Republic Act No. 8344; and (3) Refuse to extend quality health care services and information on account of the person’s marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, further, That the person is not in an emergency

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condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases; (b) Any public officer, elected or appointed, specifically charged with the duty to implement the provisions hereof, who, personally or through a subordinate, prohibits or restricts the delivery of legal and medically-safe reproductive health care services, including family planning; or forces, coerces or induces any person to use such services; or refuses to allocate, approve or release any budget for reproductive health care services, or to support reproductive health programs; or shall do any act that hinders the full implementation of a reproductive health program as mandated by this Act; (c) Any employer who shall suggest, require, unduly influence or cause any applicant for employment or an employee to submit himself/herself to sterilization, use any modern methods of family planning, or not use such methods as a condition for employment, continued employment, promotion or the provision of employment benefits. Further, pregnancy or the number of children shall not be a ground for nonhiring or termination from employment; (d) Any person who shall falsify a Certificate of Compliance as required in Section 15 of this Act; and (e) Any pharmaceutical company, whether domestic or multinational, or its agents or distributors, which directly or indirectly colludes with government officials, whether appointed or elected, in the distribution, procurement and/or sale by the national government and LGUs of modern family planning supplies, products and devices.

SEC. 24. Penalties. – Any violation of this Act or commission of the foregoing prohibited acts shall be penalized by imprisonment ranging from one (1) month to six (6) months or a fine of Ten thousand pesos (P10,000.00) to One hundred thousand pesos (P100,000.00), or both such fine and imprisonment at the discretion of the competent court: Provided, That, if the offender is a public officer, elected or appointed, he/she shall also suffer the penalty of suspension not exceeding one (1) year or removal and forfeiture of retirement benefits depending on the gravity of the offense after due notice and hearing by the appropriate body or agency.

If the offender is a juridical person, the penalty shall be imposed upon the president or any responsible officer. An offender who is an alien shall, after service of sentence, be deported immediately without further proceedings by the Bureau of Immigration.

If the offender is a pharmaceutical company, its agent and/or distributor, their license or permit to operate or conduct business in the Philippines shall be perpetually revoked, and a fine triple the amount involved in the violation shall be imposed.

SEC. 25. Appropriations. – The amounts appropriated in the current annual General Appropriations Act (GAA) for reproductive health and natural and artificial family planning and responsible parenthood under the DOH and other concerned agencies shall be allocated and utilized for the implementation of this Act. Such additional sums necessary to provide for the upgrading of faculties necessary to meet BEMONC and CEMONC standards; the training and deployment of skilled health providers; natural and artificial family planning commodity requirements as outlined in Section 10, and for other reproductive health and responsible parenthood services,

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shall be included in the subsequent years’ general appropriations. The Gender and Development (GAD) funds of LGUs and national agencies may be a source of funding for the implementation of this Act. SEC. 26. Implementing Rules and Regulations (IRR). – Within sixty (60) days from the effectivity of this Act, the DOH Secretary or his/her designated representative as Chairperson, the authorized representative/s of DepED, DSWD, Philippine Commission on Women, PHIC, Department of the Interior and Local Government, National Economic and Development Authority, League of Provinces, League of Cities, and League of Municipalities, together with NGOs, faith-based organizations, people’s, women’s and young people’s organizations, shall jointly promulgate the rules and regulations for the effective implementation of this Act. At least four (4) members of the IRR drafting committee, to be selected by the DOH Secretary, shall come from NGOs. SEC. 27. Interpretation Clause. – This Act shall be liberally construed to ensure the provision, delivery and access to reproductive health care services, and to promote, protect and fulfill women’s reproductive health and rights.

SEC. 28. Separability Clause. – If any part or provision of this Act is held invalid or unconstitutional, the other provisions not affected thereby shall remain in force and effect.

SEC. 29. Repealing Clause. – Except for prevailing laws against abortion, any law, presidential decree or issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.

SEC 30. Effectivity. – This Act shall take effect fifteen (15) days after its publication in at least two (2) newspapers of general circulation.

(Sgd.) FELICIANO BELMONTE JR. Speaker of the House of Representatives

(Sgd.) JUAN PONCE ENRILE President of the Senate

This Act which is a consolidation of Senate Bill No. 2865 and House Bill No. 4244 was finally passed by the Senate and the House of Representatives on December 19, 2012 .

(Sgd.) MARILYN B. BARUA-YAP

(Sgd.) EMMA LIRIO-REYES

Secretary General House of Representatives Approved: DEC 21 2012 (Sgd.) BENIGNO S. AQUINO III President of the Philippines

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University of St. La Salle College of Law Student Council La Salle Avenue, Bacolod City 6100 Tel. no: (034) 432-1189 http://facebook.com/uslslaw.studentcouncil Student Council Officers AY 2014-2015 Johnnil Fatima Acero President Joshua William Su Vice President Leanne Marie Torrato Secretary Hazelmer Fernandez Treasurer Kim Andaya Auditor Anna Lydia Ibonia P.I.O Soltan Michael Alisan 4th yr Batch Representative Chrisitine Yusingco 3rd yr Batch Representative Maria Reylan Garcia 2nd yr Batch Representative Alexandra Soledad 1st yr Batch Representative Atty. Ralph Sarmiento Dean

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