TOPICAL BAR QUESTIONS AND ANSWERS
MOST FREQUENTY ASKED TOPICS 1987 - 2021 BAR EXAMINATIONS
POLITICAL LAW
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1987 CONSTITUTION OF THE PHILIPPINES
(2019)
Under
the
1987
Constitution,
to
whom
does
each
duty/power/privilege/prohibition/disqualification apply: The authority to keep the general
accounts of the Government and for such period provided by law, preserve the vouchers
and other supporting documents pertaining thereto. (1%)
2
To the Commission on Audit (Art. IX-D, Sec. 2 (d), Const.)
The power to allow small-scale utilization of natural resources by Filipino
citizens, as well as cooperative fish farming, with priority to subsistence fishermen
and fish workers in rivers, lakes, bays, and lagoons. (1%)
To the Congress ((Art. XII, Sec. 2, Const.)
The authority to provide for the standardization of compensation of government
officials and employees.
To the Congress (Art. IX, Sec. 5, Const.)
The sole power to declare the existence of state of war. (1%)
The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of War (Art.
VI, Sec. 23, Const.)
The power to ratify treaties and international agreements. (1%)
To the President (Pimentel v. Executive Secretary, G.R. No. 158088, July 6, 2005
(2004) BNN Republic has a defense treaty with EVA Federation. According to the Republic's
Secretary of Defense, the treaty allows temporary basing of friendly foreign troops in case of
training exercises for the war on terrorism. The Majority Leader of the Senate contends that
whether temporary or not, the basing of foreign troops however friendly is prohibited by the
Constitution of BNN which provides that, "No foreign military bases shall be allowed in BNN
territory." In case there is indeed an irreconcilable conflict between a provision of the treaty and a
provision of the Constitution, in a jurisdiction and legal system like ours, which should prevail:
the provision of the treaty or of the Constitution? Why? Explain with reasons, briefly. (5%)
In case of conflict between a provision of a treaty and a provision of the Constitution, the provision
of the Constitution should prevail. Section 5(2)(a), Article VIII of the 1987 Constitution authorizes the
nullification of a treaty when it conflicts with the Constitution. (Gonzales v. Hechanova, 9 SCRA 230
[1963]).
(2006) What is the principal identifying feature of a presidential form of government?
Explain. (2.5%)
The principal identifying feature of a presidential form of government is embodied in the
separation of powers doctrine. Each department of government exercises powers granted to it by the
Constitution and may not control, interfere with or encroach upon the acts done within the constitutional
competence of the others. However, the Constitution also gives each department certain powers by which
it may definitely restrain the others from improvident action, thereby maintaining a system of checks and
balances among them, thus, preserving the will of the sovereign expressed in the Constitution.
b) What are the essential characteristics of a parliamentary form of government? (2.5%)
The essential characteristics of a parliamentary form of government are: the fusion of the
legislative and executive branches in parliament; the prime minister, who is the head of government, and
the members of the cabinet, are chosen from among the members of parliament and as such are
accountable to the latter; and the prime minister may be removed from office by a vote of loss of confidence
of parliament. There may be a head of state who may or may not be elected.
(1999) No XIV - Discuss the merits and demerits of the multi-party system. (2%)
A multi-party system provides voters with a greater choice of candidates, ideas, and platforms 3
instead of limiting their choice to two parties, whose ideas may be sterile. It also leaves room for deserving
candidates who are not acceptable to those who control the two dominant parties to seek public office. On
the other hand, a multi-party system may make it difficult to obtain a stable and workable majority, since
probably no party will get a majority. Likewise, the opposition will be weakened if there are several minority
parties.
ARTICLE I: NATIONAL TERRITORY
[2016] A. Define the archipelagic doctrine of national territory, state its rationale; and
explain how it is implemented through the straight baseline method. (2.5%)
A. By the term “archipelagic doctrine of national territory” is meant that the islands and waters of
the Philippine archipelago are unified in sovereignty, together with “all the territories over which the
Philippines has sovereignty or jurisdiction. This archipelagic doctrine, so described under Article I of the
Constitution, draws its rationale from the status of the whole archipelago in sovereignty by which under
Part IV of the UNCLOS the Philippines is defined as an Archipelagic State in Article 46, thus:
(a) “Archipelagic state” means a state constituted wholly nu one or more archipelagos and may
include other islands;
(b) “Archipelago” means group of islands including parts of islands interconnecting waters and
other natural features which are so closely interrelated that such islands waters and other natural features
form an intrinsic geographic, economic and political entity, or which historically have been regarded as
such.
As an archipelagic state, the national territory is implemented by drawing its “straight archipelagic
baselines” pursuant to Article 47 of UNCLOS which prescribes among its main elements, as follows:
1. By “joining the outermost points of the outermost islands and drying reefs of the archipelago”,
including the main islands and an area in which the ratio of the area of the water to the land including
atolls, is between 1 to 1 and 9 to 1.
2. Mainly, the length of such baselines “shall not exceed 100 nautical miles…”
3. “The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago.”
B. Section 2 of RA 9522 declared the Kalayaan Island Group (KIG) and Scarborough Shoal
as "Regimes of Islands." Professor Agaton contends that since the law did not enclose said islands,
then the Philippines lost its sovereignty and jurisdiction over them. Is his contention correct?
Explain. (2.5%)
The contention of Prof. Agaton is not correct at all. “Regime of islands” is a concept provided in
Article 121 of the UNCLOS. It is a definition of the island as “a naturally formed area of land, surrounded
by water which is above water at high tide.” On the other hand, this provision is differentiated from “rocks”
which cannot sustain human habitation of their own. The importance of the difference between a natural
island and rock is that an island is provided with territorial sea, exclusive economic zone and continental
shelf. This is the difference by which RA 9522 introduced into the KIG and separately Panatag or
Scarborough Shoal is an island. “Regime of Islands”, has no relevance to acquisition or loss of sovereignty.
RA 9522 has the effect of possibility dividing the area in question into island and rocks, apparently to
make clear for each the maritime zones involved in the definition of island or of rocks.
(2013) Congress passed Republic Act No. 7711 to comply with the United Nations
Convention on the Law of the Sea. In a petition filed with the Supreme Court, Anak Ti Ilocos, an
association of Ilocano professionals, argued that Republic Act No. 7711 discarded the definition of
the Philippine territory under the Treaty of Paris and in related treaties; excluded the Kalayaan
Islands and the Scarborough Shoals from the Philippine Archipelagic baselines; and converted
internal waters into archipelagic waters. Is the petition meritorious? (6%)
No, the petition is not meritorious. UNCLOS has nothing to do with the acquisition (or loss) of
territory. It merely regulates sea-use rights over maritime zones, contiguous zones, exclusive economic
zones, and continental shelves which it delimits. The Kalayaan Islands and the Scarborough Shoals are
located at an appreciable distance from the nearest shoreline of the Philippine archipelago. A straight
baseline loped around them from the nearest baseline will violate Article 47(3) and Article 47(2) of the
United Nations Convention on the Law of the Sea III. Whether the bodies of water lying landward of the
baselines of the Philippines are internal waters or archipelagic waters, the Philippines retains jurisdiction
over them (Magallona vs. Ermita, 655 SCRA 476).
ALTERNATIVE ANSWER
No, the petition is not meritorious. UNCLOS has nothing to do with the acquisition (or loss) of
territory. It is a multilateral treaty regulating, among others, sea-use rights among maritime zones and
continental shelves that UNCLOS III delimits. The court finds RA No. 7711 constitutional and is consistent
with the Philippines’ national interest. Aside from being the vital step in safeguarding the country’s
maritime zones, the law also allows an internationally-recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf.
The court also finds that the conversion of internal waters to archipelagic waters will not risk the
Philippines as affirmed in the Article 49 of the UNCLOS III, an archipelagic state has sovereign power that
extends to the waters enclosed by the archipelagic baselines, regardless of their depth or distance from
the coast. It is further stated that the regime of archipelagic sea lanes passage will not affect the status of
its archipelagic waters or the exercise of sovereignty over waters and air space, bed and subsoil and the
resources therein (Prof. Merlin Magallona, et al v. Hon. Eduardo Ermita, in his capacity as Executive
Secretary, et al, G.R. No. 187167, 16 July 2011)
(2009) Under the archipelago doctrine, the waters around, between, and connecting the
islands of the archipelago form part of the territorial sea of the archipelagic state.
FALSE. Under Article I of the Constitution, the waters around, between and connecting the islands
of the archipelago form part of the INTERNAL WATERS. Under Article 49 (1) of the U.N. Convention on the
U.N. Convention on the Law of the Sea, these waters do not form part of the territorial sea but are described
as archipelagic waters.
(1989) What do you understand by the archipelagic doctrine?
The ARCHIPELAGIC DOCTRINE emphasizes the unity of land and waters by defining an
archipelago either as a group of islands surrounded by waters or a body of waters studded with islands.
For this purpose, it requires that baselines be drawn by connecting the appropriate points of the
"outermost islands to encircle the islands within the archipelago. The waters on the landward side of the
baselines regardless of breadth or dimensions are merely internal waters.
Is this reflected in the 1987 Constitution?
Yes, the archipelagic doctrine is reflected in the 1987 Constitution. Article I, Section 1 provides
that the national territory of the Philippines includes the Philippine archipelago, with all the islands and
waters embraced therein; and the waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of the Philippines.
(2004) Distinguish: The contiguous zone and the exclusive economic zone.
CONTIGUOUS ZONE is a zone contiguous to the territorial sea and extends up to 12 nautical
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miles from the territorial sea and over which the coastal state may exercise control necessary to prevent
infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea. (Article 33 of the Convention on the Law of the Sea.) The EXCLUSIVE ECONOMIC ZONE is
a zone extending up to 200 nautical miles from the baselines of a state over which the coastal state has
sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural
resources, whether living or nonliving, of the waters superjacent to the seabed and of the seabed and
subsoil, and with regard to other activities for the economic exploitation and exploration of the zone. 5
(Articles 56 and 57 of the Convention on the Law of the Sea.)
(1994) In the desire to improve the fishing methods of the fishermen, the Bureau of
Fisheries, with the approval of the President, entered into a memorandum of agreement to allow
Thai fishermen to fish within 200 miles from the Philippine sea coasts on the condition that
Filipino fishermen be allowed to use Thai fishing equipment and vessels, and to learn modern
technology in fishing and canning. 1) Is the agreement valid?
1) No. the President cannot authorize the Bureau of Fisheries to enter into a memorandum of
agreement allowing Thai fishermen to fish within the exclusive economic zone of the Philippines, because
the Constitution reserves to Filipino citizens the use and enjoyment of the exclusive economic zone of the
Philippines. Section 2. Article XII of the Constitution provides: “The State shall protect the nation's marine
part in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and
enjoyment to Filipino citizens."
Section 7, Article XIII of the Constitution provides: "The State shall protect the rights of
subsistence fishermen, especially of local communities, to the preferential use of the communal marine
and fishing resources, both inland and offshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial, production, and marketing assistance, and other
services. The State shall also protect, develop, and conserve such resources. The protection shall extend
to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fish workers shall receive
a just share from their labor in the utilization of marine and fishing resources.
(2005) Enumerate the rights of the coastal state in the exclusive economic zone. (3%)
In the EXCLUSIVE ECONOMIC ZONE, the coastal State has sovereign rights for the purpose of
exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of
the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities
for the economic exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds in an area not extending more than 200 nautical miles beyond the baseline from
which the territorial sea is measured. Other rights include the production of energy from the water,
currents and winds, the establishment and use of artificial islands, installations and structures, marine
scientific research and the protection and preservation of the marine environment. (Art. 56, U.N.
Convention on the Law of the Sea)
ALTERNATIVE ANSWER:
SOVEREIGN RIGHTS — for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the seabed and subsoil and the superjacent waters, and
with regard to other activities such as the production of energy from the water, currents and winds in an
area not extending more than 200 nautical miles beyond the baseline from which the territorial sea is
measured. (See Art. 56, UNCLOS) Jurisdiction, inter alia, with regard to: (1) the establishment and use of
artificial islands, installations and structures; (2) marine scientific research; and (3) the protection and
preservation of the marine environment.
(2015) A bill was introduced in the House of Representatives in order to implement
faithfully the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) to which
the Philippines is a signatory. Congressman Pat Rio Tek questioned the constitutionality of the bill
on the ground that the provisions of UNCLOS are violative of the provisions of the Constitution
defining the Philippine internal waters and territorial sea. Do you agree or not with the said
objection? Explain. (3%)
No, the objection is not tenable. UNCLOS has nothing to do with the redefinition of our territory.
It merely regulates sea-use rights over maritime zones, contiguous zones, exclusive economic zones, and
continental shelves which it delimits. Whether the bodies of water lying landward of the baselines of the
Philippines are internal waters or archipelagic waters, the Philippines retains jurisdiction over them
(Magallona v. Ermita, GR No. 187167, July 16, 2011, 655 SCRA 476).
(2015) Describe the following maritime regimes under UNCLOS: (1) Territorial sea (2) 6
Contiguous zone (3) Exclusive economic zone and (4) Continental shelf
A. Territorial sea – is the belt of waters adjacent to the coasts of the State, excluding internal
waters in bays and gulfs, over which the state claims sovereignty and jurisdiction and which is 12 nautical
miles from the baseline.
B. Contiguous zone – is that belt of waters measured 24 nautical miles from the same baseline
used to measure the breadth of the territorial sea. In this zone, the coastal state may exercise the control
necessary to:
1. Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within
its territory or territorial sea.
2. Punish infringement of the above laws and regulations committed within its territory or
territorial sea (Article 53, UNCLOS)
C. Exclusive Economic Zone is an area beyond and adjacent to the territorial sea, over which a
state has special rights over the exploration and utilization of marine resources. It shall not extend beyond
200 nautical miles from the baselines from which the breadth of the territorial sea is measured. In case of
archipelagic states, its breadth shall be measured from the archipelagic baseline (Article 57, 58, 48,
UNCLOS)
D. Continental shelf - The continental shelf of a coastal State comprises the seabed and subsoil
of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its
land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance (Article 76, UNCLOS).
(2004) Distinguish: The territorial sea and the internal waters of the Philippines.
TERRITORIAL SEA is an adjacent belt of sea with a breadth of 12 nautical miles measured from
the baselines of a state and over which the state has sovereignty. (Articles 2 and 3 of the Convention on
the Law of the Sea.) Ship of all states enjoy the right of innocent passage through the territorial sea. (Article
14 of the Convention on the Law of the Sea.) Under Section 1, Article I of the 1987 Constitution, the
INTERNAL WATERS of the Philippines consist of the waters around, between and connecting the islands
of the Philippine Archipelago, regardless of their breadth and dimensions, including the waters in bays,
rivers and lakes. No right of innocent passage for foreign vessels exists in the case of internal waters.
(Harris, Cases and Materials on International Law, 5th ed., 1998, p. 407.) Internal waters are the waters
on the landward side of baselines from which the breadth of the territorial sea is calculated. (Brownlie,
Principles of Public International Law, 4th ed., 1990, p. 120.)
(1996) A law was passed dividing the Philippines into three regions (Luzon, Visayas, and
Mindanao), each constituting an independent state except on matters of foreign relations, national
defense and national taxation, which are vested in the Central government. Is the law valid?
Explain.
The law dividing the Philippines into three regions, each constituting an independent state and
vesting in a central government matters of foreign relations, national defense, and national taxation, is
unconstitutional. First, it violates Article I, which guarantees the integrity of the national territory of the
Philippines because it divided the Philippines into three states. Second, it violates Section 1, Article II of
the Constitution, which provides for the establishment of democratic and republic States by replacing it
with three States organized as a confederation. Third, it violates Section 22, Article II of the Constitution,
which, while recognizing and promoting the rights of indigenous cultural communities, provides for
national unity and development. Fourth, it violates Section 15, Article X of the Constitution, which,
provides for autonomous regions in Muslim Mindanao and in the Cordilleras within the framework of
national sovereignty as well as territorial integrity of the Republic of the Philippines. Fifth, it violates the
sovereignty of the Republic of the Philippines.
ARTICLE II: DECLARATION OF PRINCIPLES AND STATE POLICIES
(2016) Several concerned residents of the areas fronting Manila Bay, among them a group
of students who are minors, filed a suit against the Metro Manila Development · Authority (MMDA),
the Department of Environment and Natural Resources (DENR), the Department of Health (DOH),
the Department of Agriculture (DA), the Department of Education (DepEd), the Department of
Interior and Local Government (DILG), and a number of other executive agencies, asking the court
to order them to perform their duties relating to the cleanup, rehabilitation and protection of
Manila Bay. The complaint alleges that the continued neglect by defendants and their failure to
prevent and abate pollution in Manila Bay constitute a violation of the petitioners' constitutional
right to life, health and a balanced ecology. A. If the defendants assert that the students/petitioners
who are minors do not have locus standi to file the action, is the assertion correct? Explain your
answer.
A. The assertion that the students/ petitioners who are minors have no locus standi is erroneous.
Pursuant to the obligation of the State under Section 16, Article II if the Constitution to protect and
advance the right of the people to a balanced and healthful ecology in accord with the rhythm and
harmony of nature, minor have standing to sue based on the concept of intergenerational responsibility
(Oposa v. Factoran, 224 SCRA 792 [1993]).
B. In its decision which attained finality, the Court ordered the defendants to clean up,
rehabilitate and sanitize Manila Bay within eighteen (18) months, and to submit to the Court
periodic reports of their accomplishment, so that the Court can monitor and oversee the activities
undertaken by the agencies in compliance with the Court's directives. Subsequently, a resolution
was issued extending the time periods within which the agencies should comply with the directives
covered by the final decision. A view was raised that the Court's continued intervention after the
case has been decided violates the doctrine of separation of powers considering that the
government agencies all belong to the Executive Department and are under the control of the
President. Is this contention correct? Why or why not?
The order of the Supreme Court to the defendants to clean up, rehabilitate and sanitize Manila
Bay is an exercise of judicial power, because the execution of its decision is an integral part of its
adjudicative function. Since the submission of periodic reports is needed to fully implement the decision,
the Supreme Court can issue writ of mandamus to the Metropolitan Manila Development Authority until
full compliance with its order is shown. (Metropolitan Manila Development Authority V. Concerned
Residents of Manila Bay, 643 SCRA 90 [2011])
(2009) A law that makes military service for women merely voluntary is constitutional.
FALSE. In the defense of the state, all citizens may be required by law to render personal, military
or civil service (Section 4, Article II of the Constitution). The duty is imposed on all citizens without
distinction as to gender.
ALTERNATIVE ANSWER:
TRUE. 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. What is mandatory is the
calling out of the people to defend the state. But the citizens including woman may render personal or
military service.
(2003) Article II. Section 3, of the 1987 Constitution expresses, in part, that the "Armed
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Forces of the Philippines is the protector of the people and (of) the State." Describe briefly what
this provision means. Is the Philippine National Police covered by the same mandate?
Article II, Section 3 of the 1987 Constitution means that the Armed Forces of the Philippines
should not serve the interest of the President but of the people and should not commit abuses against the
people. (Record of the Constitutional Commission, Vol. V, p. 133.) This provision is specifically addressed
to the Armed Forces of the Philippines and not to the Philippine National Police, because the latter is 8
separate and distinct from the former. (Record of the Constitutional Commission, Vol. V, p. 296; Manalo
v. Sistoza. 312 SCR A 239 [1999].)
ALTERNATIVE ANSWER
Article II, Section 3 of the 1987 Constitution can be interpreted to mean that the Armed Forces of
the Philippines can be a legitimate instrument for the overthrow of the civilian government if it has ceased
to be the servant of the people. (Bernas, The 1987 Constitution of the Philippines: A Commentary, 2003
ed., p. 66.) This provision does not apply to the Philippine National Police, because it is separate and
distinct from the Armed Forces of the Philippines. (Record of the Constitutional Commission, Vol. V, p.
296, Manalo v. Sistoza. 312 SCRA 239 [1999].)
(1997) What do you understand by the "Doctrine of Incorporation" in Constitutional Law?
The DOCTRINE OF INCORPORATION means that the rules of International law form part of the
law of the land and no legislative action is required to make them applicable to a country. The Philippines
follows this doctrine, because Section 2. Article II of the Constitution states that the Philippines adopts
the generally accepted principles of international law as part of the law of the land.
(2000) The Philippines has become a member of the World Trade Organization (WTO) and
resultantly agreed that it "shall ensure the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed Agreements." This is assailed as
unconstitutional because this undertaking unduly limits, restricts and impairs Philippine
sovereignty and means among others that Congress could not pass legislation that will be good for
our national interest and general welfare if such legislation will not conform with the WTO
Agreements. Refute this argument. (5%)
According to Tanada v. Angara, 272 SCRA 18 (1997), the sovereignty of the Philippines is subject
to restriction by its membership in the family of nations and the limitations imposed of treaty limitations.
Section 2. Article II of the Constitution adopts the generally accepted principles of international law as
part of the law of the land. One of such principles is pacta sunt servanda. The Constitution did not envision
a hermit-like isolation of the country from the rest of the world.
(1988) The Secretary of Justice had recently ruled that the President may negotiate for a
modification or extension of military bases agreement with the United States regardless of the "no
nukes" provisions in the 1987 Constitution. The President forthwith announced that she finds the
same opinion "acceptable" and will adopt it. The Senators on the other hand, led by the Senate
President, are skeptical, and had even warned that no treaty or international agreement may go
into effect without the concurrence of two-thirds of all members of the Senate.
A former senator had said, "it is completely wrong, if not erroneous," and "is an amendment
of the Constitution by misinterpretation." Some members of the Lower House agree with Secretary
Ordonez, while others lament the latter's opinion as "questionable, unfortunate, and without any
basis at all." Do you or do you not agree with the aforementioned ruling of the Department of
Justice? Why?
No. The Constitution provides that if foreign military bases, troops or facilities are to be allowed
after the expiration of the present Philippine-American Military Bases Agreement in 1991, it must be
"under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority
of the votes cast by the people in a national referendum." (Art. XVIII, sec. 25) A mere agreement, therefore,
not a treaty, without the concurrence of at least 2/3 of all the members of the Senate will not be valid (Art.
VII, sec. 21, Art. XVIII, sec. 4). With respect to the provision allowing nuclear weapons within the bases,
the Constitution appears to ban such weapons from the Philippine territory. It declares as a state policy
that "the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from
nuclear weapons in its territory." (Art, II, sec. 8) However, the deliberations of the Constitutional
Commission would seem to indicate that this provision of the Constitution is "not something absolute nor
100 percent without exception." It may therefore be that circumstances may justify a provision on nuclear
weapons.
(2006) What Constitutional provisions institutionalize the principle of civilian supremacy?
(2.5%)
The following constitutional provisions institutionalize the principle of civilian supremacy: (1)
Civilian authority is at all times supreme over the military. [Article II, Section 3]; (2) The installation of the
President, the highest civilian authority, as the Commander-in-Chief of the military. [Article VII, Section
18]; (3) The requirement that members of the AFP swear to uphold and defend the Constitution, which is
the fundamental law of the civil government. [Article XVI, Section 5(1)]; (4) The requirement that members
of the AFP shall have respect for people's rights in the performance of their duty. [Article XVI, Section
5(2)]; (5) Professionalism in the armed forces. [Article XVI, Section 5(3)]; (6) Insulation of the AFP from
partisan politics. [Article XVI, Section 5(3)]; (7) Prohibition against the appointment of an AFP member in
the active service to a civilian position. [Article XVI, Section 5(4)]; (8) Compulsory retirement of officers
without extension of service. [Article XVI, Section 5(5)]; (9) Requirement of proportional recruitment from
all provinces and cities, so as to avoid any regional clique from forming within the AFP. [Article XVI, Section
5(7)]; (10) A 3-year limitation on the tour of duty of the Chief of Staff, which although extendible in case
of emergency by the President, depends on Congressional declaration of emergency. [Article XVI, Section
5(6)]; and (11) The establishment of a police force that is not only civilian in character but also under the
local executives. [Article XVI, Section 5(7)]
ARTICLE III: BILL OF RIGHTS
(2021) As a car driver was getting into their car inside the parking area of a mall in Makati,
two individuals suddenly came from behind them. One pointed a gun to the car driver's head while
the other grabbed the car keys in the driver's hand. The two then sped away with the car. After
recovering from the initial shock, the driver took their smartphone and opened the app "Find My
Car." "Find My Car" is an app that tracks in real time the movement and location of a car through
a Global Positioning System (GPS) device installed in the car. The driver then went to the nearest
police station and showed the officers the current location of the car as shown on their smartphone.
The car appeared to stop at a spot in Novaliches, Quezon City. Six hours after the car had been
stolen, a combined team of elite police officers from the Highway Patrol Group and the Criminal
Investigation Detection Group, by force and without a warrant, searched a private home in
Novaliches, Quezon City. The private home was pinpointed by the car's GPS tracker as displayed
on the driver's phone. The private home is enclosed by a gate and is equipped with security
cameras. In the private home's garage, the police officers found the driver's car, along with two
other cars which matched police records of previously stolen motor vehicles. The officers seized
and impounded all three cars. Right then and there, they also arrested the owner of the private
home, who was subsequently charged with carnapping. Are the seized cars admissible in evidence?
Explain briefly.
The seized cars are admissible in evidence. In People v Lagman, one of the recognized exceptions
to the need of a search warrant may be effected is when the “plain view doctrine is applicable. The 'plain
view' doctrine applies when the following requisites concur: (a) the law enforcement officer in search of the
evidence has a prior justification for an intrusion or is in a position from which he can view a particular
area; (b) the discovery of evidence in plain view is inadvertent; (c) it is immediately apparent to the officer
that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.
Here, the car driver immediately reported the incidence to the nearest police station, and a
combined team of police officers went to, and searched the private home when they discovered the two
stolen cars parked alongside the carnapped vehicle. This is within the purview of the plain view doctrine
for the police officers were doing a lawful duty, the discovery of the stolen cars in plain view is inadvertent,
and the cars are apparently the same cars reportedly missing. (Take note that the first sentence is the
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narrative of material facts in agreement with, or in conflict of, the legal basis. The second sentence is
the application of the legal basis to the material facts of the case. So when answering a bar question, do
this pattern by limiting your paragraph into two sentences) Hence, the seized cars are admissible in
evidence.
(2021) The Executive Judge of a Regional Trial Court prohibited the conduct of daily
prayers for Muslims inside any room of the Hall of Justice even during break time. Among Muslims, 10
five daily prayers (salah) are mandatory. In all these daily prayers, Muslims need to face the qiblah.
There is a noontime prayer (Zhuhr) and an afternoon prayer (Asr). But unlike the other three
prayers, these two can be recited silently, but still on a prayer mat and with body movements.
There is a Supreme Court Resolution that allows Catholic masses to be held during break time
inside Halls of Justice. There was only one dissent to this Resolution on the ground of strict
separation of Church and State in relation to acts of worship. The Executive Judge is a member of
a Catholic institution perceived to be conservative. Did the Executive Judge violate the equal
protection clause of the Constitution? Explain briefly.
The judge violated the equal protection clause of the Constitution. Under Article 3, Section 5 of
the 1987 Constitution, no law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise
of civil or political rights.
Here, the judge prohibited the conduct of daily prayers of Muslims inside any room of the Hall of
Justice at any time, but allows Catholic mass to be celebrated during break time. This is an obvious
violation of equal protection clause for it discriminates the free exercise of religious profession and worship
of the Muslims but prefers the Catholics worship. Hence, the judge violated the equal protection of the
Constitution.
(2021) A law is passed penalizing any criticism of any sitting Member of the Supreme Court
on any media platform. The penalty is higher when the criticism is made through social media. Is
this law constitutional? Explain briefly.
The law is unconstitutional. Under Article 3, Section 4 of the 1987 Constitution, 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. Here, the law penalizes any
criticism of any sitting Member of the SC which abridges the freedom of speech, of expression, or of the
press. Hence, the law is unconstitutional.
(2021) A law is passed which provides that when the Department of Public Works and
Highways expropriates property for government infrastructure projects, it will have the sole and
exclusive authority to determine the price to be paid as compensation to the landowner, which
amount shall be no more than the assessed value of the property used for real property taxation.
Is this provision of law valid? Explain briefly.
The provision of the law is invalid. Under Article 3, Section 9 of the 1987 Constitution, Private
property shall not be taken for public use without just compensation.
Here, the law provides that only DPWH will be the sole and exclusive authority to determine the
price to be paid as compensation to the land owner in violation of the right of property owners for just
compensation. Also, just compensation can only be determined by mutual agreement of the parties, and
in case of disagreement, just compensation can be determined in an expropriation proceeding. Hence, the
provision is invalid.
(2019) Information for Estafa was filed against the accused, Mr. D. During the
course of the trial, Mr. D filed a motion to dismiss for failure to prosecute the case
for a reasonable length of time. Opposing the motion, the prosecution argued that its
failure to present its witnesses was due to circumstances beyond its control.
Eventually, the trial court dismissed the case with finality on the ground that Mr. D
‘s right to speedy trial was violated. A month after, the same criminal case for Estafa
was refilled against Mr. D, prompting him to file a motion to dismiss invoking his
right against double jeopardy. The prosecution opposed the motion, arguing that the
first criminal case for Estafa was dismissed with the express consent of the accused
as it was, in fact, upon his own motion. Moreover, it was already able to secure the
commitments of its witnesses to appear; hence, it would be prejudicial for the State
if the case were to be dismissed without trial. For double jeopardy to attach, what
requisites must exist? (2%)
To raise the defense of double jeopardy, three requisites must be present: (1) a first
jeopardy must have attached prior to the second; (2) the first jeopardy must have been
validly terminated; and (3) the second jeopardy must be for the same offense as that in the
first. In relation to this, the first jeopardy attaches only (a) upon a valid complaint or
information, (b) before a competent court, (c) after arraignment and a valid plea has been
entered; and (d) the accused was previously acquitted, convicted or the case was dismissed
or otherwise terminated without his express consent.
Rule on Mr. D ‘s present motion. (3%)
The motion to dismiss of Mr. D should be granted. While it is true that the right
against double jeopardy cannot be invoked if the dismissal of the original case was with
the express consent of the accused, this rule, however, admits of two exceptions, namely:
insufficiency of evidence and denial of the right to speedy trial (Philippine Savings Bank v.
Bermoy, G.R. No. 151912, 26 September 2005). Hence, Mr. D may invoke right against
double jeopardy.
(2019) Mrs. W supplies the Philippine National Police (PNP) with uniforms every
year. Last month, he and two (2) other officers of the PNP conspired to execute a
"ghost purchase', covered by five (5) checks amounting to P200,000 00 each, or a
total of P 1,000,000.00. An investigating committee within the PNP, which was
constituted to look into it, invited Mrs. W, among others, for an inquiry regarding
the anomalous transaction. Mrs. W accepted the invitation but during the committee
hearing, she stated that she will not answer any question unless she be provided with
the assistance of a counsel. The PNP officials denied her request; hence, she no longer
participated in the investigation. What is a custodial investigation? Under the 1987
Constitution, what are the rights of a person during custodial investigation? (3%)
Custodial investigation is the stage where an investigation ceases to be a general
inquiry into an unsolved crime, and direction is then aimed upon a particular suspect who
has been taken into custody and to whom the police would then direct interrogatory
questions which tend to elicit incriminating statements (People v. Dela Cruz, G.R. No.
118866-68, September 17, 1997). Custodial investigation also includes the practice of
issuing an "invitation" to a person who is investigated in connection with an offense he is
suspected to have committed, without prejudice to the liability of the "inviting" officer for
any violation of law (RA 7438).
A person under custodial investigation bas the following rights, to wit: (1) to remain
silent; (2) to have competent and independent counsel preferably of his own choice and if
he cannot afford the services of counsel, he must be provided with one; (3) to be informed
of such rights; (4) waiver of these rights not allowed except in writing and in the presence
of counsel; (5) no torture, force, violence, threat, intimidation, or any other means which
vitiate the free will can be used against him; (6) secret detention places, solitary,
incommunicado, or other similar forms of detention are prohibited; and (7) Any confession
or admission obtained in violation of these rights are inadmissible in evidence against him.
Was the PNP's denial of Mrs. W ‘s request violative of her right to counsel in the
proceedings conducted before the PNP'? Explain. (2%)
Yes, because Mrs. W was under custodial investigation. Hence, she should have
been afforded right to counsel. Custodial investigation includes the "invitation'' to a person
11
who is investigated in connection with an offense he or she is suspected to have committed.
(2019) At about 5:30 A.M. of September 15, 2019 Police Senior Inspector
Officer A of the Manila Police District Station received a text message from an
unidentified civilian informer that one Mr. Z would be meeting up later that morning
with two (2) potential sellers of drugs at a nearby restaurant. As such, Officer A
decided to hang around the said place immediately. At about 9:15 A.M., two (2) male
passengers. Named A and Y, who were each carrying a traveling bag, alighted from a
bus in front of the restaurant. A transport barker, serving as a lookout for Officer A,
signaled to the latter that X and Y were "suspicious-looking." As the two were about
to enter the restaurant, Officer A stopped them and asked about the contents of their
bags. Dissatisfied with their response that the bags contained only clothes, Officer A
proceeded to search the bags and found packs of shabu therein. Thus, X and Y were
arrested, and the drugs were seized from them. According to Officer A, a warrantless
search was validly made pursuant to the stop and frisk rule; hence, the consequent
seizure of the drugs was likewise valid. What is the stop and frisk rule? (2.5%)
Stop and frisk rule is a vernacular designation of the right of a police officer to
stop a citizen on the street, interrogate him, and pat him for weapons (Manalili v. CA,
G.R. No. 113447, October 9, 1997)
Was the stop and frisk rule validly invoked by Officer A? If not, what is the effect
on the drugs seized as evidence? Explain. (2.5%)
It was not valid. Stop and frisk serves a two-fold interest: (I) crime prevention and
detection; and (2) safety and self-preservation of the police officer. While probable cause is not
required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch
will not validate a “stop and frisk." A genuine reason must exist, in light of the police officer's
experience and surrounding conditions, to warrant the belief that the person has weapons
concealed about him. (Malacat v. CA, 283 SCRA 159 [1997). Since the drug seized was a
product of unlawful search and seizure, the same is inadmissible in evidence against X and Y
(Art. III, Sec. 3(2). Const.)
[2018] Two police teams monitored the payment of ransom in a kidnapping case. The bag
containing the ransom money was placed inside an unlocked trunk of a car which was parked at
the Angola Commercial Center in Mandaluyong City. The first police team, stationed in an area
near where the car was parked, witnessed the retrieval by the kidnappers of the bag from the
unlocked trunk. The kidnappers thereafter boarded their car and proceeded towards the direction
of Amorsolo St. in Makati City where the second police team was waiting. Upon confirmation by
the radio report from the first police team that the kidnappers were heading towards their
direction, the second police team proceeded to conduct surveillance on the car of the kidnappers,
eventually saw it enter Ayala Commercial Center in Makati City, and the police team finally blocked
it when it slowed down. The members of the second police team approached the vehicle and
proceeded to arrest the kidnappers. Is the warrantless arrest of the kidnappers by the second police
team lawful? (5%)
The warrantless arrested is lawful. There are two requirements before a warrantless arrest can be
effected under Section 5(b), Rule 113, Rules of Court: (1) an offense has just been committed, and (2) the
person making the arrest has committed it. Both requirements are present in the instant case. The first
police team present in the Angola Commercial Center was able to witness the pay-off which effectively
consummated the crime of kidnapping. Its team members all saw the kidnappers take the money from
the car trunk. Such knowledge was then relayed to the other police officers comprising the second police
team stationed in Amorsolo St. Where the kidnappers were expected to pass. It is sufficient for the
arresting team that they were monitoring the pay-off for a number of hours long enough for them to be
informed as to who the kidnappers were. This is equivalent to the personal knowledge based on probable
cause (People v. Uyboco, G.R. No. 178039, January 19, 2011).
(2016) Ernesto, a minor, while driving a motor vehicle, was stopped at a mobile checkpoint.
12
Noticing that Ernesto is a minor, SPO1 Jojo asked Ernesto to exhibit his driver's license but Ernesto
failed to produce it. SPO1 Jojo requested Ernesto to alight from the vehicle and the latter acceded.
Upon observing a bulge in the pants of Ernesto, the policeman frisked him and found an unlicensed
.22-caliber pistol inside Ernesto's right pocket. Ernesto was arrested, detained and charged. At the
trial, Ernesto, through his lawyer, argued that, policemen at mobile checkpoints are empowered to
conduct nothing more than a ''visual search". They cannot order the persons riding the vehicle to
alight. They cannot frisk, or conduct a body search of the driver or the passengers of the vehicle. 13
Ernesto's lawyer thus posited that: A. The search conducted in violation of the Constitution and
established jurisprudence was an illegal search; thus, the gun which was seized in the course of an
illegal search is the "fruit of the poisonous tree" and is inadmissible in evidence. B. The arrest made
as a consequence of the invalid search was likewise illegal, because an unlawful act (the search)
cannot be made the basis of a lawful arrest. Rule on the correctness of the foregoing arguments,
with reasons.
A. The warrantless search of the motor vehicles at checkpoints should be limited to a visual
search. Its occupants should not be subjected to a body search (Aniag, Jr. v. Commission on Elections,
237 SCRA 424 [1994]). The “stop and frisk rule” applies when a police officer observes suspicious activity
or unusual activity which may lead him to believe that a criminal act may be afoot. The “stop and frisk”
is merely a limited protected search of outer clothing for weapons. (Luz v. People, 667 SCRA 421 [2012]).
B. Since there was no valid warrantless search the warrantless search was also illegal. The
unlicensed .22 caliber pistol is inadmissible in evidence. (Luz v. People, 667 SCRA 421 [2012]).
(2016) Pornographic materials in the form of tabloids, magazines and other printed
materials, proliferate and are being sold openly in the streets of Masaya City. The City Mayor
organized a task force which confiscated these materials. He then ordered that the materials be
burned in public. Dominador, publisher of the magazine, "Plaything", filed a suit, raising the
following constitutional issues: (a) the confiscation of the materials constituted an illegal search
and seizure, because the same was done without a valid search warrant; and (b) the confiscation,
as well as the proposed destruction of the materials, is a denial of the right to disseminate
information, and thus, violates the constitutional right to freedom of expression. Is either or both
contentions proper? Explain your answer. (5%)
The confiscation of the materials constituted an illegal search and seizure, because it was done
without a valid warrant. It cannot be justified as a valid warrantless search and seizure, because such
search and seizure must have been an incident of a lawful arrest. There was no lawful arrest (Pita v. Court
of Appeals, 178 SCRA 362 [1989]) The argument of Dominador that pornographic materials are protected
by the constitutional right to freedom of expression is erroneous. Obscenity is not a protected expression
(Fernando v. Court of Appeals, 510 SCRA 351 [2006]). Section 2 of Presidential Decree No. 969 requires
the forfeiture and destruction of pornographic materials (Nograles v. People, 660 SCRA 475 [2011]).
(2015) Around 12:00 midnight, a team of police officers was on routine patrol in Barangay
Makatarungan when it noticed an open delivery van neatly covered with banana leaves. Believing
that the van was loaded with contraband, the team leader flagged down the vehicle which was
driven by Hades. He inquired from Hades what was loaded on the van. Hades just gave the police
officer a blank stare and started to perspire profusely. The police officers then told Hades that they
will look inside the vehicle. Hades did not make any reply. The police officers then lifted the banana
leaves and saw several boxes. They opened the boxes and discovered several kilos of shabu inside.
Hades was charged with illegal possession of illegal drugs. After due proceedings, he was convicted
by the trial court. On appeal, the Court of Appeals affirmed his conviction. In his final bid for
exoneration, Hades went to the Supreme Court claiming that his constitutional right against
unreasonable searches and seizures was violated when the police officers searched his vehicle
without a warrant; that the shabu confiscated from him is thus inadmissible in evidence; and that
there being no evidence against him, he is entitled to an acquittal. For its part, the People of the
Philippines maintains that the case of Hades involved a consented warrantless search which is
legally recognized. The People adverts to the fact that Hades did not offer any protest when the
police officers asked him if they could look inside the vehicle. Thus, any evidence obtained in the
course thereof is admissible in evidence. Whose claim is correct? Explain. (5%)
Hades’ claim is correct. The evidence obtained was illegally seized and is thus inadmissible in
evidence. A consented warrantless search, if it exists or whether it was in fact voluntary is a question of
fact to be determined from the totality of all the circumstances. Hades’ mere silence does not amount to
consent. In the absence of such consent, evidence obtained thereof shall be inadmissible in evidence, in
which case precludes conviction and calls for the acquittal of the accused (Ong v. People, GR No. 197788,
Feb. 29, 2012).
(2009) Crack agents of the Manila Police Anti-Narcotics unit were on surveillance of a
cemetery where the sale and use of prohibited drugs were rumored to be rampant. The team saw a
man with reddish and glassy eyes walking unsteadily towards them, but he immediately veered
away upon seeing the policemen. The team approached the man, introduced themselves as peace
officers, then asked what he had in his clenched fist. Because the man refused to answer, a
policeman pried the fist open and saw a plastic sachet with crystalline substance. The team then
took the man into custody and submitted the contents of the sachet to forensic examination. The
Crystalline substance in the sachet turned out to be shabu. The man was accordingly charged in
court. Challenged the validity of his arrest; (2%)
The arrest is valid. The law enforcer has sufficient reason to accost the accused because of his
suspicious actuations, coupled with the fact that based on reliable information the area was a haven for
drug addicts. (Manalili vs. Court of Appeals, 280 SCRA 400 [1997]).
ALTERNATIVE ANSWER:
The warrantless arrest of the accused was void. There was no overt act or suspicious
circumstances that would indicate that he was committing a crime. The search preceded his arrest (People
vs. Tudtud, 412 SCRA 142 [2003]).
Objected to the admission in evidence of the prohibited drug, claiming that it was obtained
in an illegal search and seizure.
The objection should be denied. The evidence is admissible because the search and seizure was
made incidental to a lawful warrantless arrest (Manalili vs. Court of Appeals, 280 SCRA 400 [1997]).
(2008) Having received tips the accused was selling narcotics, two police officers forced
open the door of his room. Finding him sitting party dressed on the side of the bed, the officers
spied two capsules on a night stand beside the bed. When asked, “Are these yours?”, the
accused seized the capsules and put them in his mouth. A struggle ensued, in the course of
which the officer pounced on the accused, took him to a hospital where at their direction, a doctor
forced an emetic solution though a tube into the accused’s stomach against his will. This process
induced vomiting. In the vomited matter were found two capsules which proved to contain heroin.
In the criminal case, the chief evidence against the accused was the two capsules. As counsel for
the accused, what constitutional rights will you invoke in his defense? (4%)
As counsel for the accused I would invoke the constitutional right to be secured against
unreasonable searches and seizures (Art. III, Sec. 2 of the Constitution) which guarantees: (1) sanctity of
the home, (2) inadmissibility of the capsules seized, (3) and inviolability of the person. A mere tip from a
reliable source is not sufficient to justify warrantless arrest or search (Peo vs. Nuevas, G.R. No. 170233
Feb. 22,2007).
How should the court decide the case? (3%)
The court should declare the search and seizure illegal: (1) The entry into the accused’s home
was not a permissible warrantless action because the police had no personal knowledge that any crime
was taking place; (2) Due to the invalid entry whatever evidence the police gathered would be inadmissible;
(3) The arrest of the accused was already invalid and causing him to vomit while under custody was an
unreasonable invasion of personal privacy (U.S. vs. Montoya, 473 US 531 [1985])
(2010) A witnessed two hooded men with baseball bats enter the house of their next door
neighbor B. after a few seconds, he heard B shouting, “Huwag Pilo babayaran kita agad.” Then A
14
saw the two hooded men hitting B until the latter fell lifeless. The assailants escaped using a yellow
motorcycle with a fireball sticker on it toward the direction of an exclusive village nearby. A
reported the incident to PO1 Nuval. The following day, PO1 Nuval saw the motorcycle parked in the
garage of a house at Sta. Ines Street inside the exclusive village. He inquired with the caretaker as
to who owned the motorcycle. The caretaker named the brothers Pilo and Ramon Maradona who
were then outside the country. PO1 Nuval insisted on getting inside the garage. Out of fear, the
caretaker allowed him. PO1 Nuval took 2 ski masks and 2 bats beside the motorcycle. Was the 15
search valid? What about the seizure? Decide with reasons. (4%)
The warrantless search and seizure was not valid. It was not made as an incident to a lawful
warrantless arrest. (People vs. Baula, 344 SCRA 663 [2000]). The caretaker had no authority to waive
the right of the brothers Pilo and Ramon Maradona to waive their right against unreasonable search and
seizure. (People vs. Damaso, 212 SCRA 547 [1992].) the warrantless seizure of the ski masks and bats
cannot be justified under the plain view doctrine, because they were seized after invalid intrusion in to
the house. (People vs. Bolasa, 321 SCRA 459 [1999]).
ALTERNATIVE ANSWER:
No. the search and the seizure are invalid because there was no search warrant and it cannot be
said to be a search incidental to a lawful arrest. It is the right of all individual to be secured against
unreasonable searches and seizure by the government.
(2005) (2) Emilio had long suspected that Alvin, his employee, had been passing trade
secrets to his competitor, Randy, but he had no proof. One day, Emilio broke open the desk of
Alvin and discovered a letter wherein Randy thanked Alvin for having passed on to him vital trade
secrets of Emilio. Enclosed in the letter was a check for P50,000.00 drawn against the account of
Randy and payable to Alvin. Emilio then dismissed Alvin from his employment. Emilio's proof of
Alvin's perfidy is the said letter and check which are objected to as inadmissible for having been
obtained through an illegal search. Alvin filed a suit assailing his dismissal. Rule on the
admissibility of the letter and check. (5%)
As held in People v. Marti (G.R. No. 81561, January 18, 1991), the constitution, in laying down
the principles of the government and fundamental liberties of the people, does not govern relationships
between individuals. Thus, if the search is made at the behest or initiative of the proprietor of a private
establishment for its own and private purposes and without the intervention of police authorities, the right
against unreasonable search and seizure cannot be invoked for only the act of private individuals, not the
law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by PRIVATE INDIVIDUALS so as to bring it within the ambit of alleged unlawful
intrusion by the government. Accordingly, the letter and check are admissible in evidence. (Waterous Drug
Corp. v. NLRC, G.R. No. 113271, October 16, 1997)
ALTERNATIVE ANSWER
The letter is inadmissible in evidence. The constitutional injunction declaring the privacy of
communication and correspondence to be inviolable is no less applicable simply because it is the employer
who is the party against whom the constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a lawful order from the court or when public safety or order
requires otherwise, as prescribed by law. Any violation of this provision renders the evidence obtained
inadmissible for any purpose in any proceeding. (Zulueta v. Court of Appeals, G.R. No. 107383, February
20, 1996)
(2001) A is an alien. State whether, in the Philippines, he: Is entitled to the right against
illegal searches and seizures and against illegal arrests. (2%)
Aliens are entitled to the right against illegal searches and seizures and illegal arrests. As applied
in People v. Chua Ho San, 307 SCRA 432 (1999), these rights are available to all persons, including aliens.
(1992) Congress is considering a law against drunken driving. Under the legislation, police
authorities may ask any driver to take a "breathalyzer test", wherein the driver exhales several
times into a device which can determine whether he has been driving under the influence of
alcohol. The results of the test can be used, in any legal proceeding against him. Furthermore,
declaring that the issuance of a driver's license gives rise only to a privilege to drive motor vehicles
on public roads, the law provides that a driver who refuses to take the test shall be automatically
subject to a 90-day suspension of his driver's license. Cite two [2] possible constitutional objections
to this law. Resolve the objections and explain whether any such infirmities can be cured.
Possible objections to the law are that requiring a driver to take the breathalyzer test will violate
his right against self-incrimination, that providing for the suspension of his driver's license without any
hearing violates due process, and that the proposed law will violate the right against unreasonable
searches and seizures, because it allows police authorities to require a driver to take the breathalyzer test
even if there is no probable cause.
ALTERNATIVE ANSWER
Requiring a driver to take a breathalyzer test does not violate his right against self- incrimination,
because he is not being compelled to give testimonial evidence. He is merely being asked to submit to a
physical test. This is not covered by the constitutional guarantee against self-incrimination. Thus, in
South Dakota vs. Neville, 459 U.S. 553, it was held for this reason that requiring a driver to take a bloodalcohol test is valid. As held in Mackey vs. Afontrya 443 U.S. 1, because of compelling government interest
in safety along the streets, the license of a driver who refuses to take the breathalyzer test may be
suspended immediately pending a post- suspension hearing, but there must be a provision for a postsuspension hearing. Thus, to save the proposed law from unconstitutionally on the ground of denial of
due process, it should provide for an immediate hearing upon suspension of the driver's license. The
proposed law violates the right against unreasonable searches and seizures. It will authorize police
authorities to stop any driver and ask him to take the breathalyzer test even in the absence of a probable
cause.
(1987) "X" a Constabulary Officer, was arrested pursuant to a lawful court order in Baguio
City for murder. He was brought to Manila where a warrantless search was conducted in his official
quarters at Camp Crame. The search team found and seized the murder weapon in a drawer of "X".
Can "X" claim that the search and seizure were illegal and move for exclusion from evidence of the
weapon seized? Explain.
Yes, "X" can do so. The warrantless search cannot be justified as an incident of a valid arrest,
because considerable time had elapsed after his arrest in Baguio before the search of his quarters in Camp
Crame, Quezon City was made, and because the distance between the place of arrest and the place of
search negates any claim that the place searched is within his "immediate control" so as to justify the
apprehension that he might destroy or conceal evidence of crime before a warrant can be obtained. (Chimel
v. California, 395 U.S. 752 (1969)) in Nolasco v. Cruz Pano, 147 SCRA 509 (1987), the Supreme Court
reconsidered its previous decision holding that a warrantless search, made after 30 minutes from the time
of arrest, and, in a place several blocks away from the place of arrest, was valid. It held that a warrantless
search is limited to the search of the person of the arrestee at the time and incident to his arrest and for
dangerous weapons or anything which may be used as proof of the offense. A contrary rule would justify
the police in procuring a warrant of arrest and, by virtue thereof, not only arrest the person but also
search his dwelling. A warrant requires that all facts as to the condition of the property and its
surroundings and its improvements and capabilities must be considered, and this can only be done in a
judicial proceeding.
(1990) Some police operatives, acting under a lawfully issued warrant for the purpose of
searching for firearms in the House of X located at No. 10 Shaw Boulevard, Pasig, Metro Manila,
found, instead of firearms, ten kilograms of cocaine. May the said police operatives lawfully seize
the cocaine? Explain your answer.
Yes, the police operatives may lawfully seize the cocaine, because it is an item whose possession
is prohibited by law, it was in plain view and it was only inadvertently discovered in the course of a lawful
search. The possession of cocaine is prohibited by Section 8 of the Dangerous Drugs Act. As held in
Magoncia v. Palacio, 80 Phil. 770, an article whose possession is prohibited by law may be seized without
16
the need of any search warrant if it was discovered during a lawful search. The additional requirement
laid down in Roan v. Gonzales, 145 SCRA 687 that the discovery of the article must have been made
inadvertently was also satisfied in this case.
May X successfully challenge the legality of the search on the ground that the peace officers
did not inform him about his right to remain silent and his right to counsel? Explain your answer.
No, X cannot successfully challenge the legality of the search simply because the peace officers
did not inform him about his right to remain silent and his right to counsel. Section 12(1), Article III of
the 1987 Constitution provides: "Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice." As held in People v. Dy, 158 SCRA 111. for this provision to apply, a suspect
must be under investigation. There was no investigation involved in this case.
Suppose the peace officers were able to find unlicensed firearms in the house in an adjacent
lot, that is. No, 12 Shaw Boulevard, which is also owned by X. May they lawfully seize the said
unlicensed firearms? Explain your answer.
The unlicensed firearms stored at 12 Shaw Boulevard may lawfully be seized since their
possession is illegal. As held in Magoncia a Palacio, 80 Phil. 770, when an individual possesses contraband
(unlicensed firearms belong to this category), he is committing a crime and he can be arrested without a
warrant and the contraband can be seized.
ALTERNATIVE ANSWER
In accordance with the rulings in Uy Keytin v, Villareal, 42 Phil. 886 and People v. Sy Juco, 64
Phil. 667, the unlicensed firearms found in the house at 12 Shaw Boulevard may not be lawfully seized,
since they were not included in the description of the articles to be seized by virtue of the search warrant.
The search warrant described the articles to be seized as firearms in the house of X located at 10 Shaw
Boulevard.
(2001) Armed with a search and seizure warrant, a team of policemen led by Inspector Trias
entered a compound and searched the house described therein as No. 17 Speaker Perez St., Sta.
Mesa Heights, Quezon City, owned by Mr. Ernani Pelets, for a reported cache of firearms and
ammunition. However, upon thorough search of the house, the police found nothing. Then, acting
on a hunch, the policemen proceeded to a smaller house inside the same compound with address
at No. 17-A Speaker Perez St., entered it, and conducted a search therein over the objection of Mr.
Pelets who happened to be the same owner of the first house. There, the police found the unlicensed
firearms and ammunition they were looking for. As a result, Mr. Ernani Pelets was criminally
charged in court with Illegal possession of firearms and ammunition as penalized under P.D. 1866,
as amended by RA. 8294. At the trial, he vehemently objected to the presentation of the evidence
against him for being inadmissible. Is Mr. Emani Pelet's contention valid or not? Why? (5%)
The contention of Ernani Pelet is valid. As held in People vs. Court of Appeals, 291 SCRA 400
(1993), if the place searched is different from that stated in the search warrant, the evidence seized is
inadmissible. The policeman cannot modify the place to be searched as set out in the search warrant.
(1993) Larry was an overnight guest in a motel. After he checked out the following day, the
chambermaid found an attache case which she surmised was left behind by Larry. She turned it
over to the manager who, to determine the name and address of the owner, opened the attache
case and saw packages which had a peculiar smell and upon squeezing felt like dried leaves. His
curiosity aroused, the manager made an opening on one of the packages and took several grams of
the contents thereof. He took the packages to the NBI, and in the presence of agents, opened the
packages, the contents of which upon laboratory examination, turned out to be marijuana flowering
tops, Larry was subsequently found, brought to the NBI Office where he admitted ownership of the
attache case and the packages. He was made to sign a receipt for the packages. Larry was charged
in court for possession of prohibited drugs. He was convicted. On appeal, he now poses the following
issues: The packages are inadmissible in evidence being the product of an illegal search and seizure;
Neither is the receipt he signed admissible, his rights under custodial investigation not having been
17
observed. Decide.
On the assumption that the issues were timely raised the answers are as follows: (1) The packages
are admissible in evidence. The one who opened the packages was the manager of the motel without any
interference of the agents of the National Bureau of Investigation. As held in People vs. Marti, 193 SCRA
57, the constitutional right against unreasonable searches and seizures refers to unwarranted intrusion
by the government and does not operate as a restraint upon private individuals; (2) The receipt is not 18
admissible in evidence.
(2002) One day a passenger bus conductor found a man's handbag left in the bus. When the
conductor opened the bag, he found inside a catling card with the owner's name (Dante Galang) and
address, a few hundred peso bills, and a small plastic bag containing a white powdery substance.
He brought the powdery substance to the National Bureau of Investigation for laboratory
examination and it was determined to be methamphetamine hydrochloride or shabu, a prohibited
drug. Dante Galang was subsequently traced and found and brought to the NBI Office where he
admitted ownership of the handbag and its contents. In the course of the interrogation by NBI
agents, and without the presence and assistance of counsel, Galang was made to sign a receipt for
the plastic bag and its shabu contents. Galang was charged with illegal possession of prohibited
drugs and was convicted. On appeal he contends that - The plastic bag and its contents are
inadmissible in evidence being the product of an illegal search and seizure; and the receipt he
signed is also inadmissible as his rights under custodial investigation were not observed. Decide
the case with reasons.
The plastic bag and its contents are admissible in evidence, since it was not the National Bureau
of Investigation but the bus conductor who opened the bag and brought it to the National Bureau of
Investigation. As held in People v. Marti, 193 SCRA 57 (1991), the constitutional right against
unreasonable search and seizure is a restraint upon the government. It does not apply so as to require
exclusion of evidence which came into the possession of the Government through a search made by a
private citizen.
(2000) A. Crack officers of the Anti-Narcotics Unit were assigned on surveillance of the
environs of a cemetery where the sale and use of dangerous drugs are rampant. A man with reddish
and glassy eyes was walking unsteadily moving towards them but veered away when he sensed the
presence of policemen. They approached him, introduced themselves as police officers and asked
him what he had clenched in his hand. As he kept mum, the policemen pried his hand open and
found a sachet of shabu, a dangerous drug. Accordingly charged in court, the accused objected to
the admission in evidence of the dangerous drug because it was the result of an illegal search and
seizure. Rule on the objection. (3%)
The objection is not tenable. In accordance with Manalili v. Court of Appeals, 280 SCRA 400
(1997). since the accused had red eyes and was walking unsteadily and the place is a known hang-out of
drug addicts, the police officers had sufficient reason to stop the accused and to frisk him. Since shabu
was actually found during the investigation, it could be seized without the need for a search warrant.
What are the instances when warrantless searches may be effected? (2%)
A warrantless search may be effected in the following cases: (1) Searches incidental to a lawful
arrest: (2) Searches of moving vehicles; (3) Searches of prohibited articles in plain view: (4) Enforcement
of customs law; (5) Consented searches; (6) Stop and frisk (People v. Monaco, 285 SCRA 703 [1998]); (7)
Routine searches at borders and ports of entry (United States v. Ramsey, 431 U.S. 606 [1977]); and (8)
Searches of businesses in the exercise of visitorial powers to enforce police regulations (New York v.
Burger, 482 U.S. 691 (1987]).
(1992) During the recent elections, checkpoints were set up to enforce the election period
ban on firearms. During one such routine search one night, while looking through an open window
with a flashlight, the police saw firearms at the backseat of a car partially covered by papers and
clothes. Antonio, owner and driver of the car in question, was charged for violation of the firearms
ban. Are the firearms admissible in evidence against him? Explain.
Yes, the firearms are admissible in evidence, because they were validly seized. In Valmonte vs. De
Villa, 178 SCRA 211 and 185 SCRA 665, the Supreme Court held that checkpoints may be set up to
maintain peace and order for the benefit of the public and checkpoints are a security measure against
unauthorized firearms. Since the search which resulted in the discovery of the firearms was limited to a
visual search of the car, it was reasonable. Because of the ban on firearms, the possession of the firearms
was prohibited. Since they were found in plain view in the course of a lawful search, in accordance with
the decision in Magancia vs. Palacio, 80 Phil. 770, they are admissible in evidence.
19
If, upon further inspection by the police, prohibited drugs were found inside the various
compartments of Antonio's car, can the drugs be used in evidence against Antonio if he is
prosecuted for possession of prohibited drugs? Explain.
No, the drugs cannot be used in evidence against Antonio if he is prosecuted for possession of
prohibited drugs. The drugs were found after a more extensive search of the various compartments of the
car. As held in Valmonte vs. De Villa, 185 SCRA 665, for such a search to be valid, there must be a
probable cause. In this case, there was no probable cause, as there was nothing to indicate that Antonio
had prohibited drugs inside the compartments of his car.
(1989) Pursuing reports that great quantities of prohibited drugs are being smuggled at
nighttime through the shores of Cavite, the Southern Luzon Command set up checkpoints at the
end of the Cavite coastal road to search passing motor vehicles. A 19-year old boy, who finished
fifth grade, while driving, was stopped by the authorities at the checkpoint. Without any objection
from him, his car was inspected, and the search yielded marijuana leaves hidden in the trunk
compartment of the car. The prohibited drug was promptly seized, and the boy was brought to the
police station for questioning. Was the search without warrant legal?
No, the search was not valid, because there was no probable cause for conducting the search. As
held in Almeda Sanchez vs. United States, 413 U.S. 266, while a moving vehicle can be searched without
a warrant, there must still be probable cause. In the case in question, there was nothing to indicate that
marijuana leaves were hidden in the trunk of the car. The mere fact that the boy did not object to the
inspection of the car does not constitute consent to the search. As ruled in People vs. Burgos, 144 SCRA
1, the failure to object to a warrantless search does not constitute consent, especially in the light of the
fact.
ALTERNATIVE ANSWER:
Yes. The requirement of probable cause differs from case to case. In this one, since the police
agents are confronted with large-scale smuggling of prohibited drugs, existence of which is of public
knowledge, they can set up checkpoints at strategic places, in the same way that of in a neighborhood a
child is kidnapped, it is lawful to search cars and vehicles leaving the neighborhood or village: This
situation is also similar to warrantless searches of moving vehicles in customs area, which searches have
been upheld. (Papa vs. Mago, 22 SCRA 857 (1968). The rule is based on practical necessity.
(1993) Johann learned that the police were looking for him in connection with the rape of
an 18-year old girl, a neighbor. He went to the police station a week later and presented himself to
the desk sergeant. Coincidentally. the rape victim was in the premises executing an extrajudicial
statement. Johann, along with six (6) other suspects, were placed in a police line-up and the girl
pointed to him as the rapist. Johann was arrested and locked up in a cell. Johann was charged with
rape in court but prior to arraignment invoked his right to preliminary investigation. This was
denied by the judge, and thus, trial proceeded. After the prosecution presented several witnesses,
Johann through counsel, invoked the right to bail and filed a motion therefor, which was denied
outright by the Judge. Johann now files a petition for certiorari before the Court of Appeals arguing
that: His arrest was not in accordance with law. Decide.
Yes, the warrantless arrest of Johann was not in accordance with law. As held in Go v. Court of
Appeals, 206 SCRA 138, his case does not fall under the instances in Rule 113, sec. 5 (a) of the 1985
Rules of Criminal Procedure authorizing warrantless arrests. It cannot be considered a valid warrantless
arrest because Johann did not commit a crime in the presence of the police officers, since they were not
present when Johann had allegedly raped his neighbor. Neither can It be considered an arrest under Rule
113 sec. 5 (b) which allows an arrest without a warrant to be made when a crime has in fact just been
committed and the person making the arrest has personal knowledge offsets indicating that the person to
be arrested committed it. Since Johann was arrested a week after the alleged rape, it cannot be deemed
to be a crime which "has just been committed". Nor did the police officers who arrested him have personal
knowledge of facts indicating that Johann raped his neighbor.
(1991) On the basis of a verified report and confidential information that various electronic 20
equipment, which were illegally imported into the Philippines, were found in the bodega of the
Tikasan Corporation located at 1002 Binakayan St., Cebu City, the Collector of Customs of Cebu
issued, in the morning of 2 January 1988, a Warrant of Seizure and Detention against the
corporation for the seizure of the electronic equipment. The warrant particularly describes the
electronic equipment and specifies the provisions of the Tariff and Customs Code which were
violated by the importation. The warrant was served and implemented in the afternoon of 2 January
1988 by Customs policemen who then seized the described equipment. The inventory of the seized
articles was signed by the Secretary of the Tikasan Corporation. The following day, a hearing officer
in the Office of the Collector of Customs conducted a hearing on the confiscation of the equipment.
Two days thereafter, the corporation filed with the Supreme Court a petition for certiorari,
prohibition and mandamus to set aside the warrant, enjoin the Collector and his agents from
further proceeding with the forfeiture hearing and to secure the return of the confiscated
equipment, alleging therein that the warrant issued is null and void for the reason that, pursuant
to Section 2 of Article III of the 1987 Constitution, only a judge may issue a search warrant. In his
comment to the petition, the Collector of Customs, through the Office of the Solicitor General,
contends that he is authorized under the Tariff and Custom Code to order the seizure of the
equipment whose duties and taxes were not paid and that the corporation did not exhaust
administrative remedies. Should the petition be granted? Decide.
The petition should not be granted. Under Secs. 2205 and 2208 of the Tariff and Customs Code,
customs officials are authorized to enter any warehouse, not used as dwelling, for the purpose of seizing
any article which is subject to forfeiture. For this purpose, they need no warrant issued by a court. As
stated in Viduya vs. Berdiago, 73 SCRA 553. for centuries the seizure of goods by customs officials to
enforce the customs laws without need of a search warrant has been recognized.
[2018] The police served a warrant of arrest on Ariston who was suspected of raping and
killing a female high school student. While on the way to the police station, one of the officers who
served the warrant asked Ariston in the local dialect if he really raped and killed the student, and
Ariston nodded and said, “Opo”.
Upon arriving at the police station, Ariston saw the City Mayor, whom he approached and
asked if they could talk privately. The Mayor led Ariston to his office and, while there in
conversation with the Mayor, Ariston broke down and admitted that he raped and killed the
student. The Mayor thereafter opened the door of the room to let the public and media
representatives witness Ariston’s confession . In the presence of the Mayor, the police and the
media., and in response to questions asked by some members of the media, Ariston sorrowfully
confessed his guilt and sought forgiveness for his actions.Which of these extrajudicial confessions,
if any, would you consider as admissible in evidence against Ariston? (5%)
Ariston was already under custodial investigation when he confessed to the police. It is admitted
that the police failed to inform him of his constitutional rights when he was investigated and interrogated.
His confession to the police is therefore inadmissible in evidence. His confession before the mayor, however
is admissible. While it may be true that a mayor has “operational supervision and control” over the local
police and may arguably be deemed a law enforcement officer for purposes of applying Section 12(1) and
(3) of Article III of the Constitution, Ariston’s confession to the mayor, as described in the problem, was
not made in response to any interrogation by the latter. In fact, the mayor did not appear as having
questioned Ariston at all. No police authority ordered Ariston to talk to the mayor. It was he himself who
spontaneously, free and voluntarily sought the mayor for a private meeting. The mayor did not know that
he was going to confess his guilt to him. When he talked with the mayor as a confidant and not as a law
enforcement officer, his uncounselled confession to the Mayor did not violate his constitutional rights.
His confession to the media can likewise be properly admitted. The confessions were made in
response to questions by news reporters, not by the police or any other investigating officer. Statements
spontaneously made by suspects to news reporters during televised interviews are deemed voluntary and
are admissible in evidence (People v. Andan, G.R. No. 116437, March 3, 1997).
[2018] Five foreign nationals arrived at NAIA from Hong Kong. After retrieving their checkin luggage, they placed all their bags in one pushcart and proceeded to Express Lane 5. They were 21
instructed to place their luggage on the examiner’s table for inspection. The examiner found browncolored boxes, similar in size to powdered milk boxes, underneath the clothes inside the foreigners’
bags. The examiner discovered white crystaline substance inside the boxes that he inspected and
proceeded to bundle all of the boxes by putting masking tape around them. He thereafter handed
the boxes over to Bureau of Customs agents. The agents called out the names of the foreigner one
by one and ordered them to sign their names on the masking tapes placed on the boxes recovered
from their respective bags. The contents of the boxes were thereafter subjected to tests which
confirmed that the substance was shabu. Can the shabu found inside the boxes be admitted in
evidence against the five foreigners from the charge of illegal possession of drugs in violation of
the Comprehensive Dangerous Drugs Act of 2002? (2.5%)
Yes, shabu obtained in ordinary customs searches such as those done in an airport, which are a
valid warrantless search, are admissible in evidence. (Dela Cruz v. People G.R. 209387, January 11, 2016).
ALTERNATIVE ANSWER
No, those boxes containing the shabu are inadmissible in evidence against them. The signature
of the accused on the boxes consitute a tacit admission of the crime charged and are tantamount to an
uncounselled extra-judicial confession which is sanctioned by the Bill of Rights (Section 12[1] and [3],
Article III, 1987 Constitution). They are therefore, inadmissible as evidence for any admission wrung from
them in violation of their constitutional rights is admissible against them. The fact that all accused were
foreign nationals does not preclude application of the exclusionary rule because the constitutional
guarantees embodied in the Bill of Rights are given and extend to all persons, both aliens and citizens
(People v. Wong Chuen Ming, G.R. Nos. 112801-11, April 12, 1996).
[2018] Amoroso was charged with treason before a military court martial. He was acquitted.
He was later charged with the same offense before a Regional Trial Court. He asks that the
information be quashed on the ground of double jeopardy, The prosecution objects, contending
that for purposes of double jeopardy, the military court martial cannot be considered as a
“competent court”. Should the Regional Trial Court grant Amoroso’s motion to quash on the ground
of double jeopardy? (2.5%)
Yes, the Motion to Dismiss should be granted. A defendant, having been acquitted of a crime by
a court martial of competent jurisdiction proceeding under lawful authority, cannot be subsequently tried
for the same offense in a civil court. It appearing that the offense charged in the Court Martial and in the
Regional Trial Court is the same, that the military court had jurisdiction to try the case and that both
courts derive their powers from one sovereignty, the acquittal by the military court should be a bar to
Amoroso’s further prosecution for the same offense in the Regional Trial Court (Crisologo v. People, (G.R.
No. L-6277, February 26, 1954); Marcos v. Chief of Staff (G.R. No. L-4663, May 30, 1951); Garcia v.
Executive Secretary (G.R. 198554, July 30, 2012).
[2018] PO1 Adrian Andal is known to have taken bribes from apprehended motorist who
have violated traffic rules. The National Bureau of Investigation conducted an entrapment
operation where PO1 Adrian was caught red-handed demanding an taking PhP500 from a motorist
who supposedly beat a red light. After he was apprehended, PO1 Adrian was required to submit a
sample of his urine. The drug test showed that he was positive for dangerous drugs. Hence, PO1
Adrian was charged with violation of Section 15, Article II of R.A No. 9165 or the Comprehensive
Dangerous Drugs Act of 2002. PO1 Adrian argues against the admissibility of the urine test results
and seeks its exclusion. He claims that the mandatory drug test under R.A No. 9165 is a violation
of the accused’s right to privacy and right against self-incrimination. Are PO1 Adrian’s contentions
correct? (2.5%)
PO1 Adrian is correct that his rights to privacy and against self-incrimination have been violated.
The results of the “confirmatory” urine test should therefore be rejected as evidence against him. It should
be noted that RA 9165 allows the conduct of urine tests only for persons arrested for acts prohibited under
said law, such as, among others, the manufacturing, sale, use or possession of illegal drugs, and not for
any unlawful act, like extortion, for which PO1 Adrain was arrested (De La Cruz v. People, G.R. No. 200748,
July 23, 2014).
(2016) Paragraphs c, d and f of Section 36 of Republic Act No. 9165 provide: "Sec. 36.
Authorized drug testing. xx x The following shall be subjected to undergo drug testing: xx x c.
Students of secondary and tertiary schools x x x; d. Officers and employees of public and private
offices x x x; f. All persons charged before the prosecutor's office with a criminal offense having an
imposable imprisonment of not less than 6 years and 1 day;" Petitioners contend that the assailed
portions of Sec. 36 are unconstitutional for violating the right to privacy, the right against
unreasonable searches and seizures and the equal protection clause. Decide if the assailed
provisions are unconstitutional. (5%)
The drug testing of students of secondary and tertiary schools is valid. Deterring their use of drugs
by random drug testing is as important as enhancing efficient enforcement. Random drug testing of officers
and employees of public and private is justifiable. Their expectation of privacy in office is reduced. The
drug tests and results are kept confidential. Random drug testing is an effective way of deterring drug use
and is reasonable. Public officials and employees are required by the Constitution to be accountable at all
times to the people and to serve them with utmost responsibility and efficiency. The mandatory testing of
all persons charged before the prosecutor’s office of a criminal offense punishable with imprisonment of
at least six years and one day is void. They are not randomly picked and are not beyond suspicions. They
do not consent to the procedure or waive their right to privacy. (Social Justice Society V. Dangerous Drugs
Board, 570 SCRA 410 [2008])
(2016) The contents of the vault of ABC company consisting of cash and documents were
stolen. Paulyn, the treasurer of ABC, was invited by the Makati City Police Department to shed
light on the amount of cash stolen and the details of the missing documents. Paulyn obliged and
volunteered the information asked. Later, Paulyn was charged with qualified theft together with
other suspects. Paulyn claims her rights under the Constitution and pertinent laws were blatantly
violated. The police explained that they were just gathering evidence when Paulyn was invited for
a conference and she was not a suspect at that time. Rule on her defense. (5%)
No, the defense of Paulyn is not valid. When she was invited for questioning by the Makati City
Police Department and she volunteered information, she was not yet a suspect. Her constitutional rights
of a person under investigation for the commission of an offense under Section 12(1), Article III of the
Constitution begins to operate when the investigation ceases to be a general inquiry upon an unsolved
crime and begins to be aimed upon a particular suspect who has been taken into custody and the
questions tend to elicit incriminating statements. (People v. Marra, 236 SCRA 565 [1994]).
(2014) The police got a report about a shooting incident during a town fiesta. One person
was killed. The police immediately went to the scene and started asking the people about what
they witnessed. In due time, they were pointed to Edward Gunman, a security guard, as the possible
malefactor. Edward was then having refreshment in one of the eateries when the police approached
him. They asked him if he had a gun to which question he answered yes. Then they asked if he had
seen anybody shot in the vicinity just a few minutes earlier and this time he said he did not know
about it. After a few more questions, one of the policemen asked Edward if he was the shooter. He
said no, but then the policeman who asked him told him that several witnesses pointed to hi m as
the shooter. Whereupon Edward broke down and started explaining that it was a matter of selfdefense. Edward was eventually charged with murder. During his trial, the statements he made to
the police were introduced as evidence against him. He objected claiming that they were
inadmissible since he was not given his Miranda rights. On the other hand, the prosecution
countered that there was no need for such rights to be given since he was not yet arrested at the
time of the questioning. If you were the judge, how would you rule on the issue? (4%)
If I were the judge, I would rule that the confession is inadmissible. First, the rights under
22
investigation in Section 12, Article III of the Constitution are applicable to any person under investigation
for the commission of an offense. The investigation began when a policeman told Edward that several
witnesses pointed to him as the shooter, because it started to focus on him as a suspect (People vs Bariquit,
341 SCRA 600 (2000). Second, under Section 2 of RA 7438, for a confession to be admissible, it must be
in writing (People vs Labtan, 320 SCRA 140 (1999))
(2014) Alienmae is a foreign tourist. She was asked certain questions in regard to a 23
complaint that was filed against her by someone who claimed to have been defrauded by her.
Alienmae answered all the questions asked, except in regard to some matters in which she invoked
her right against self-incrimination. When she was pressed to elucidate, she said that the questions
being asked might tend to elicit incriminating answers insofar as her home state is concerned.
Could Alienmae invoke the right against self-incrimination if the fear of incrimination is in regard
to her foreign law? (4%)
Alienmäe can invoke her right against self-incrimination even if it is in regard to her foreign law,
if her home is a party to the International Covenant on Civil and Political Rights. Article 14(3)(g) of the
said Covenant provides: “In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality: (g) Not to be compelled to testify against
himself or to confess guilt.
(2009) William, a private American Citizen, a university graduate and frequent visitor to
the Philippines, was inside the US embassy when he got into a heated argument with a private
Filipino citizen. Then, in front of many shocked witnesses, he killed the person he was arguing
with. The police came, and brought him to the nearest police station. Upon reaching the station,
the police investigator, in halting English, informed William of his Miranda rights, and assigned
him an independent local counsel. William refused the services of the lawyer, and insisted that he
be assisted by a Filipino lawyer currently based in the US. The request was denied, and the counsel
assigned by the police stayed for the duration of the investigation. William protested his arrest. He
also claimed that his Miranda Rights were violated because he was not given the lawyer of his
choice; that being an American, he should have been informed of his rights in proper English; and
that he should have been informed of his rights as soon as he was taken into custody, not when he
was already at the police station. Was William denied his Miranda rights? Why or why not?
William was not denied with his Miranda rights. True that he has the right to counsel preferably
of his choice. But if he cannot afford the services of a counsel, he should be provided with one. Moreover,
the Miranda rights are available only during custodial investigation that is, from the moment the
investigating officer begins to ask questions for the purpose of eliciting admissions, confessions or any
information from the accused. therefore, it is proper that he was only informed of his right at the police
station.
ALTERNATIVE ANSWER:
The fact that the police officer gave him the Miranda warning in halting English does not detract
from its validity. Under Section 2(b) of Republic Act No. 7438, it is sufficient that the language used was
known to and understood by him. William need not be given the Miranda warning before the investigation
started. William was not denied his Miranda rights. It is not practical to require the police officer to provide
a lawyer of his own choice from the United States (Gamboa vs. Cruz, 162 SCAR 642, [1998]).
If William applies for bail, claiming that he is entitled thereto under the international
standard of justice and that he comes from a US State that has outlawed capital punishment, should
William be granted bail as a matter of right? Reasons.
William is not entitled to bail as a matter of right. His contention is not tenable. Observing the
territorial jurisdiction of commission of the offense, the applicable law in the case is Philippine laws not
the law of the country to where he is a national (Section 13, Art. III of the Constitution). Under our law,
bail is not a matter of right if the felony or offense committed has an imposable penalty of reclusion
perpetua or higher and the evidence of guilt is strong.
(2008) JC, a major in the Armed Forces of the Philippine, is facing prosecution before the
Regional Trial Court of Quezon City for the murder of his neighbor whom he suspected to
have molested his (JC’s) 15-year-old daughter. Is JC entitled to bail? Why or why not? (3%)
As a general rule, bail is not a matter of right when the offense charged carries with an imposable
penalty of reclusion perpetua or higher. In the present case, JC is charged with murder which has a
penalty of reclusion perpetua, hence he cannot be allowed bail. However, should the evidence of guilt be
found weak after hearing, the court may in its discretion, fix bail for temporary liberty.
24
Assume that upon being arraigned, JC entered a plea of guilty and was allowed to present
evidence to prove mitigating circumstances. JC then testified to the effect that he stabbed the
deceased in self- defense because the latter was strangling him and that he voluntarily surrendered
to the authorities. Subsequently, the trial court rendered a decision of acquittal. If the prosecution
were to appeal the decision, would it violate JC’s right against double jeopardy? Why or why not?
(3%)
Double jeopardy sets in when the first jeopardy has attached. There is already first jeopardy when
the accused has validly entered his plea before the appropriate court having jurisdiction over the subject
matter and his person and that he has been convicted or acquitted or that the case against him has been
terminated without his express consent. In the present case, JC validly entered his plea of guilty but
during the presentation of evidence he submits evidence of self-defense. the consequence thereof is for
the court to withdraw the plea of guilty and enter a plea of not guilty. The validity of entering his plea is
not affected. Therefore, his acquittal shall bar any similar indictment that may be filed against him because
of double jeopardy.
(2012) Mr. Brown, a cigarette vendor, was invited by PO1 White to a nearby police station.
Upon arriving at the police station, Brown was asked to stand side-by-side with five (5) other
cigarette vendors in a police line-up. PO1 White informed them that they were looking for a certain
cigarette vendor who snatched the purse of a passer-by and the line-up was to allow the victim to
point at the vendor who snatched her purse. No questions were to be asked from the vendors.
Brown, afraid of a "set up" against him, demanded that he be allowed to secure his lawyer and for
him to be present during the police line-up. Is Brown entitled to counsel? Explain (5%)
Brown is not entitled to counsel during the police line-up. He was not yet being asked to answer
for a criminal offense. (Gamboa vs. Cruz, 162 SCRA 642.)
Would the answer in (a.) be the same if Brown was specifically invited by White because an
eyewitness to the crime identified him as the perpetrator? Explain. (3%)
Brown would be entitled to the assistance of a lawyer. He was already considered as a suspect
and was therefore entitled to the rights under custodial investigation. (People vs. Legaspi, 331 SCRA 95.)
Briefly enumerate the so-called "Miranda Rights". (2%)
The Miranda warning means that a person in custody who will be interrogated must be informed
of the following: (1) He has the right to remain silent; (2) Anything said can be used as evidenced against
him; (3) He has the right to have counsel during the investigation; and (4) He must be informed that if he
is indigent, a lawyer will be appointed to represent him. (Miranda vs. Arizona, 384 U.S. 436.)
(2013) As he was entering a bar, Arnold - who was holding an unlit cigarette in his right
hand -was handed a match box by someone standing near the doorway. Arnold unthinkingly opened
the matchbox to light his cigarette and as he did so, a sprinkle of dried leaves fell out, which the
guard noticed. The guard immediately frisked Arnold, grabbed the matchbox, and sniffed its
contents. After confirming that the matchbox contained marijuana, he immediately arrested
Arnold and called in the police.
At the police station, the guard narrated to the police that he personally caught Arnold in
possession of dried marijuana leaves. Arnold did not contest the guard's statement; he steadfastly
remained silent and refused to give any written statement. Later in court, the guard testified and
narrated the statements he gave the police over Arnold's counsel's objections. While Arnold
presented his own witnesses to prove that his possession and apprehension had been set-up, he
himself did not testify. The court convicted Arnold, relying largely on his admission of the charge
by silence at the police investigation and during trial. From the constitutional law perspective, was
the court correct in its ruling? (6%)
The court was wrong in relying on the silence of Arnold during the police investigation and during
the trial. Under Article III, Section 12 of the 1987 Constitution, he had the right to remain silent. His 25
silence cannot be taken as a tacit admission, otherwise, his right to remain silent would be rendered
nugatory. Considering that his right against self-incrimination protects his right to remain silent, he
cannot be penalized for exercising it (People vs. Galvez, 519 SCRA 521).
ALTERNATIVE ANSWER:
No, the court has erred in its ruling of convicting Arnold relying solely on his admission of the
charge by silence at the police investigation and during trial. The duty of the lawyer includes ensuring
that the suspect under custodial investigation is aware that the right of an accused to remain silent may
be invoked at any time (People v. Sayaboc, G.R. No. 147201, January 15, 2004).
ALTERNATIVE ANSWER:
The court correctly convicted Arnold. There is no showing that the evidence for the prosecution
was insufficient. When Arnold remained silent, he run the risk of an inference of guilt from nonproduction of evidence in his behalf (People vs. Solis, 128 SCRA 217).
(2010) A, the wife of an alleged victim of enforced disappearance, applied for the issuance
of a writ of amparo before a Regional Trial Court in Tarlac. Upon motion of A, the court issued
inspection and production orders addressed to the AFP chief of Staff to allow entry at Camp Aquino
and permit the copying of relevant documents, including the list of detainees, if any. Accompanied
by court-designated Commission on Human Rights (CHR) lawyers, A took photographs of a
suspected isolation cell where her husband was allegedly seen being held for three days and tortured
before he finally disappeared. The CHR lawyers requested one Lt. Valdez for a photocopy of the
master plan of Camp Aquino and to confirm in writing that he had custody of the master plan. Lt.
Valdez objected on the ground that it may violate his right against self-incrimination. Decide with
reasons. (4%).
The objection of Lt. Valdez is not valid. The right against self-incrimination refers to testimonial
evidence and does not apply to the production of a photocopy of the master plan of Camp Aquino, because
it is a public record. He cannot object to the request for him to confirm his custody of the master plan,
because he is the public officer who had custody of it. (Almonte vs. Vasquez, 244 SCRA 286 [1995]).
ALTERNATIVE ANSWER:
The objection is without merit. Right against self-incrimination is not violated because the right
is simply against testimonial compulsion. But the prohibition also extends to the compulsion for the
production of documents, papers and chattels that may be used as evidence against the witness, except
where the State has a right to inspect the same such as in this case. Pursuant to the production order
issued by the court, there can be compulsion for the production of documents sought in the order.
(2005) Mariano was arrested by the NBI as a suspect in the shopping mall bombings. Advised
of his rights, Mariano asked for the assistance of his relative, Atty. Santos. The NBI noticed that
Atty. Santos was inexperienced, incompetent and inattentive. Deeming him unsuited to protect
the rights of Mariano, the NBI dismissed Atty. Santos. Appointed in his place was Atty. Barroso, a
bar topnotcher who was in the premises visiting a relative. Atty. Barroso ably assisted Mariano
when the latter gave a statement. However, Mariano assailed the investigation claiming that he
was deprived of counsel of his choice. Was the NBI correct in dismissing Atty. Santos and
appointing Atty. Barroso in his stead? Is Mariano's statement, made with the assistance of Atty.
Barroso, admissible in evidence? (5%)
The NBI was not correct in dismissing Atty. Santos and appointing Atty. Barroso in his stead.
Article III, Section 12(1) of the 1987 Constitution requires that a person under investigation for the
commission of an offense shall have no less than "competent and independent counsel preferably of his
own choice " This is meant to stress the primacy accorded to the voluntariness of the choice under the
uniquely stressful conditions of a custodial investigation' Thus, the lawyer called to be present during
such investigation should be as far as reasonably possible, the choice of the individual undergoing
questioning. The appointment of Atty. Barroso is questionable because he was visiting a relative working
in the NBI and thus his independence is doubtful. Lawyers engaged by the police, whatever testimonials 26
are given as proof of their probity and supposed independence, are generally suspect, as in many areas,
the relationship between lawyers and law enforcement authorities can be symbiotic. Considering that
Mariano was deprived of counsel of his own choice, the statement is inadmissible in evidence. (People v.
Januario, G.R. No. 98252, February 7, 1997)
ALTERNATIVE ANSWER
The NBI was correct in dismissing Atty. Santos as he was incompetent. The 1987 Constitution
requires counsel to be competent and independent. Atty. Barroso, being a bar topnotcher ably assisted
Mariano and there is no showing that his having a relative in the NBI affected his independence. Moreover,
the accused has the final choice of counsel as he may reject the one chosen for him and ask for another.
A lawyer provided by the investigators is deemed engaged by the accused where he raises no objection
against the lawyer during the course of the investigation, and the accused thereafter subscribes to the
truth of his statement before the swearing officer. Thus, once the prosecution shows there was compliance
with the constitutional requirement on pre-interrogation advisories, a confession is presumed to be
voluntary and the declarant bears the burden of proving that his confession is involuntary and untrue. A
confession is admissible until the accused successfully proves that it was given as a result of violence,
intimidation, threat or promise of reward or leniency which are not present in this case. Accordingly, the
statement is admissible. (People v. Jerez, G.R. No. 114385, January 29, 1998)
(2004) OZ lost five head of cattle which he reported to the police as stolen from his barn.
He requested several neighbors, including RR, for help in looking for the missing animals. After an
extensive search, the police found two head in RR's farm. RR could not explain to the police how
they got hidden in a remote area of his farm. Insisting on his innocence, RR consulted a lawyer
who told him he has a right to be presumed innocent under the Bill of Rights. But there is another
presumption of theft arising from his unexplained possession of stolen cattle— under the penal
law. Are the two presumptions capable of reconciliation in this case? If so, how can they be
reconciled? If not, which should prevail? (5%)
The two presumptions can be reconciled. The presumption of innocence stands until the contrary
is proved. It may be overcome by a contrary presumption founded upon human experience. The
presumption that RR is the one who stole the cattle of OZ is logical, since he was found in possession of
the stolen cattle. RR can prove his innocence by presenting evidence to rebut the presumption. The burden
of evidence is shifted to RR, because how he came into possession of the cattle is peculiarly within his
knowledge. (Dizon-Pamintuan v. People, 234 SCRA 63 (1994)).
(1993) Johann learned that the police were looking for him in connection with the rape of
an 18-year old girl, a neighbor. He went to the police station a week later and presented himself to
the desk sergeant. Coincidentally. the rape victim was in the premises executing an extrajudicial
statement. Johann, along with six (6) other suspects, were placed in a police line- up and the girl
pointed to him as the rapist. Johann was arrested and locked up in a cell. Johann was charged
with rape in court but prior to arraignment invoked his right to preliminary investigation. This was
denied by the judge, and thus, trial proceeded. After the prosecution presented several witnesses,
Johann through counsel, invoked the right to ball and filed a motion therefor, which was denied
outright by the Judge. Johann now files a petition for certiorari before the Court of Appeals arguing
that he is entitled to bail as a matter of right, thus the Judge should not have denied his motion
to fix ball outright. Decide.
In accordance with Art. III. sec. 13 of the Constitution, Johann may be denied bail if the evidence
of his guilt is strong considering that the crime with which he is charged is punishable by reclusion
perpetua. It is thus not a matter of right for him to be released on bail in such case. The court must first
make a determination of the strength of the evidence on the basis of evidence already presented by the
prosecution, unless it desires to present some more, and give the accused the opportunity to present
countervailing evidence. If having done this the court finds the evidence not to be strong, then it becomes
the right of Johann to be admitted to bail. The error of the trial court lies in outrightly denying the motion
for bail of Johann.
(2006) State whether or not the law is constitutional. Explain briefly. A law denying persons 27
charged with crimes punishable by reclusion perpetua or death the right to bail. (2%)
The law is invalid as it contravenes Section 13, Article III of the 1987 Constitution which provides
that "all persons, except those charged with offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law." The accused may not be deprived of his constitutional right to bail even if
charged with a capital offense where the evidence of guilt is not strong.
(1989) May an alien invoke the constitutional right to bail during the pendency of
deportation proceedings?
No. an alien may not invoke the constitutional right to bail during the pendency of deportation
proceedings. In Harvey vs Santiago, 162 SCRA 840, it was held that the constitutional guarantee to bail
may not be invoked in deportation proceedings, because they do not partake of the nature of a criminal
action.
(2000) Charged by Francisco with libel, Pablo was arraigned on January 3, 2000, Pre-trial
was dispensed with and continuous trial was set for March 7, 8 and 9, 2000. On the first setting,
the prosecution moved for its postponement and cancellation of the other settings because its
principal and probably only witness, the private complainant Francisco, suddenly had to go abroad
to fulfill a professional commitment. The judge instead dismissed the case for failure to prosecute.
Would the grant of the motion for postponement have violated the accused's right to speedy trial?
(2%)
The grant of the motion for postponement would not have violated the right of the accused to
speedy trial. As held in People v. Leviste, 255 SCRA 238 (1996). since the motion for postponement
was the first one requested, the need for the offended party to attend to a professional commitment is a
valid reason, no substantial right of the accused would be prejudiced, and the prosecution should be
afforded a fair opportunity to prosecute its case, the motion should be granted.
ALTERNATIVE ANSWER:
Since continuous trial of cases is required and since the date of the initial hearing was set upon
agreement of all parties, including the private complainant, the judge properly dismissed the case for
failure to prosecute.
(1988) Dr. Juan Sto. Tomas is a practicing dentist in Marikina, Metro Manila. He was
charged with immorality before the Board of Dentistry by a lady patient, who claims that Dr. Sto.
Tomas took liberties with her person and kissed her while she was under the treatment at the
latter's clinic. At the initial hearing of the administrative complaint, the complainant's counsel
called the respondent as his first witness. The respondent through counsel, objected vigorously,
claiming his constitutional right to be exempt from being a witness against himself. The Board
noted the objection, but ruled that in the next scheduled hearing, a month and a half later, the
respondent would be called to testify as a witness, as the right he claims is not available in
administrative investigations, but only in criminal prosecutions. Dr. Sto. Tomas is decided not to
testify. As his lawyer, what would you do? Why?
I will file a petition for prohibition with prayer for preliminary injunction with the Regional Trial
Court. The privilege against self-incrimination is available not only in judicial proceedings but also in
administrative investigations. In Pascual v. Board of Medical Examiners, 28 SCRA 344 (1969), it was held
that the revocation of a license as a medical practitioner can be an even greater deprivation than mere
forfeiture of property. In some aspects it is similar to criminal proceedings and, therefore, the respondent
cannot be made to testify as a witness for the complainant.
(1990) The privilege of self-incrimination must be timely invoked, otherwise it is deemed
waived. 1. In a CIVIL CASE, the plaintiff called the defendant a hostile witness and announced that
the defendant would be asked incriminating questions in the direct examination. When should the
defendant invoke the privilege against self- incrimination?
As held in Bagadiong v, De Guzman, 94 SCRA 906, the defendant should take the witness stand
and object when a question calling for an incriminating question is propounded. Unlike in proceedings
which are criminal in character in which the accused can refuse to testify, the defendant must wait until
a question calling for an incriminatory answer is actually asked. (Suarez v. Tongco, 2 SCRA 71)
2. In a CRIMINAL CASE, the prosecution called the accused to the witness stand as the first
witness in view of certain facts admitted by the accused at the pre-trial. When should the accused
invoke the privilege against self-incrimination?
As held in Chavez v. Court of Appeals, 24 SCRA 663, in a criminal case the accused may altogether
refuse to take the witness and refuse to answer any question, because the purpose of calling him as a
witness for the prosecution has no other purpose but to incriminate him.
3. In an administrative case for malpractice and the cancellation of license to practice
medicine filed against C, the complainant called C to the witness stand. When should C invoke the
privilege against self- incrimination?
As in a criminal case, C can refuse to take the witness stand and refuse to answer any question.
In Pascual v. Board of Medical Examiners, 28 SCRA 344, it was held that an administrative case for
malpractice and cancellation of the license to practice medicine is penal in character, because an
unfavorable decision would result in the revocation of the license of the respondent to practice medicine.
Consequently, he can refuse to take the witness stand.
(1992) Congress is considering a law against drunken driving. Under the legislation, police
authorities may ask any driver to take a "breathalyzer test", wherein the driver exhales several
times into a device which can determine whether he has been driving under the influence of
alcohol. The results of the test can be used, in any legal proceeding against him. Furthermore,
declaring that the issuance of a driver's license gives rise only to a privilege to drive motor vehicles
on public roads, the law provides that a driver who refuses to take the test shall be automatically
subject to a 90-day suspension of his driver's license. Cite two [2] possible constitutional objections
to this law. Resolve the objections and explain whether any such infirmities can be cured.
Possible objections to the law are that requiring a driver to take the breathalyzer test will violate
his right against self-incrimination, that providing for the suspension of his driver's license without any
hearing violates due process, and that the proposed law will violate the right against unreasonable
searches and seizures, because it allows police authorities to require a drive to take the breathalyzer test
even if there is no probable cause. Requiring a driver to take a BREATHALYZER TEST does not violate his
right against self- incrimination, because he is not being compelled to give testimonial evidence. He is
merely being asked to submit to a physical test. This is not covered by the constitutional guarantee against
self-incrimination. Thus, in South Dakota vs. Neville, 459 U.S. 553, it was held for this reason that
requiring a driver to take a blood-alcohol test is valid.
As held in Mackey vs. Afontrya 443 U.S. 1, because of compelling government interest in safety
along the streets, the license of a driver who refuses to take the breathalyzer test may be suspended
immediately pending a post- suspension hearing, but there must be a provision for a post-suspension
hearing. Thus, to save the proposed law from unconstitutionally on the ground of denial of due process,
it should provide for an immediate hearing upon suspension of the driver's license. The proposed law
violates the right against unreasonable searches and seizures. It will authorize police authorities to stop
any driver and ask him to take the breathalyzer test even in the absence of a probable cause.
(2000) A man was shot and killed and his killer fled. Moments after the shooting, an
eyewitness described to the police that the slayer wore white pants, a shirt with floral design, had
28
boots and was about 70 kilos and 1.65 meters. Borja, who fit the description given, was seen
nearby. He was taken into custody and brought to the police precinct where his pants, shirt and
boots were forcibly taken and he was weighed, measured, photographed, fingerprinted and
subjected to paraffin testing. At his trial, Borja objected to the admission in evidence of the
apparel, his height and weight, his photographs, fingerprints comparison and the results of the
paraffin test, asserting that these were taken in violation of his right against self-incrimination.
Rule on the objection. (2%)
29
The objection of Borja is not tenable. As held in People v. Paynor, 261 SCRA 615 (1996), the rights
guaranteed by Section 12, Article in of the Constitution applies only against testimonial evidence. An
accused may be compelled to be photographed or measured, his garments may be removed, and his body
may be examined.
(2006) Select the best answer and explain. (1) An accused's right against self-incrimination
is violated in the following cases: (A) When he is ordered by the trial court to undergo a paraffin
test to prove he is guilty of murder; (B) When he is compelled to produce his bankbooks to be used
as evidence against his father charged with plunder; (C) When he is ordered to produce a sample of
his handwriting to be used as evidence that he is the author of a letter wherein he agreed to kill
the victim; (D) When the president of a corporation is subpoenaed to produce certain documents
as proofs he is guilty of illegal recruitment.
The best answer is c) when he is ordered to produce a sample of his handwriting to be used as
evidence that he is the author of a letter wherein he agreed to kill the victim. Under Article HI, Section 17
of the 1987 Constitution, "no person shall be compelled to be a witness against himself." Since the
provision prohibits compulsory testimonial incrimination, it does not matter whether the testimony is
taken by oral or written means as either way it involves the USE OF INTELLECTUAL FACULTIES. The
purpose of the privilege is to avoid and prohibit thereby the repetition and recurrence of compelling a
person, in a criminal or any other case, to furnish the missing evidence necessary for his conviction
(Bermudez v. Castillo, Per Rec. No. 714-A, July 26, 1937; Beltran v. Samson, G.R. No. 32025, September
23,1929).
(2013) A robbery with homicide had taken place and Lito, Badong and Rollie were invited
for questioning based on the information furnished by a neighbor that he saw them come out of
the victim's house at about the time of the robbery/killing. The police confronted the three with
this and other information they had gathered, and pointedly accused them of committing the
crime. Lito initially resisted, but eventually broke down and admitted his participation in the
crime. Elated by this break and desirous of securing a written confession soonest, the police called
City Attorney Juan Buan to serve as the trio's counsel and to advise them about their rights during
the investigation. Badong and Rollie, weakened in spirit by Lito's early admission, likewise
admitted their participation. The trio thus signed a joint extra-judicial confession which served as
the main evidence against them at their trial. They were convicted based on their confession.
Should the judgment of conviction be affirmed or reversed on appeal? (5%)
The judgment of conviction should be reversed on appeal. It relied mainly on the extrajudicial
confession of the accused. The lawyer assisting them must be independent. City Attorney Juan Buan is
not independent. As City Attorney, he provided legal support to the City Mayor in performing his duties,
which include the maintenance of peace and order (People vs. Sunga, 399 SCRA 624).
ALTERNATIVE ANSWER
The judgment of conviction should be reversed. The police officers committed an offense by
confronting the three accused. This is a violation to Section 12, Article III of the 1987 Constitution, which
states that any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have a competent and independent counsel preferably of his
own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
ALTERNATIVE ANSWER
The Judgment of conviction should be affirmed if the accused failed to object when their
extrajudicial confession was offered in evidence, which was rendered it admissible (People vs. Samus, 389
SCRA 93).
(2001) Rafael, Carlos and Joseph were accused of murder before the Regional Trial Court
of Manila. Accused Joseph turned state witness against his co-accused Rafael and Carlos, and was
accordingly discharged from the information. Among the evidence presented by the prosecution 30
was an extrajudicial confession made by Joseph during the custodial Investigation, implicating
Rafael and Carlos who, he said, together with him (Joseph), committed the crime. The extrajudicial
confession was executed without the assistance of counsel. Accused Rafael and Carlos vehemently
objected on the ground that said extrajudicial confession was inadmissible in evidence against
them. Rule on whether the said extrajudicial confession is admissible in evidence or not. (5%)
According to People vs. Balisteros, 237 SCRA 499 (1994), the confession is admissible. Under
Section 12, Article III of the Constitution, the confession is inadmissible only against the one who
confessed. Only the one whose rights were violated can raise the objection as his right is personal.
ALTERNATIVE ANSWER
According to People us. Jara, 144 SCRA 516(1986), the confession is inadmissible. If it is
inadmissible against the one who confessed, with more reason it should be inadmissible against others.
(1994) An information for parricide was filed against Danny. After the NBI found an
eyewitness to the commission of the crime. Danny was placed in a police line-up where he was
identified as the one who shot the victim. After the line-up, Danny made a confession to a
newspaper reporter who interviewed him. Can Danny claim that his identification by the
eyewitness be excluded on the ground that the line-up was made without benefit of his counsel?
No, the identification of Danny, a private person, by an eyewitness during the line-up cannot be
excluded in evidence. In accordance with the ruling in People vs. Hatton, 210 SCRA 1, the accused is not
entitled to be assisted by counsel during a police line-up, because it is not part of custodial investigation.
ALTERNATIVE ANSWER
Yes, in United States V. Wade, 338 U.S. 218 (1967) and Gilbert v. California, 338 U.S. 263 (1967).
it was held that on the basis of the Sixth, rather than the Fifth Amendment (equivalent to Art. III, Sec. 14
(2) rather than Sec. 12(1)), the police line-up is such a critical stage that it carries "potential substantial
prejudice" for which reason the accused is entitled to the assistance of Counsel.
Can Danny claim that his confession be excluded on the ground that he was not afforded
his "Miranda" rights?
No. Danny cannot ask that his confession to a newspaper reporter should be excluded in evidence.
As held in People vs. Bernardo, 220 SCRA 31, such an admission was not made during a custodial
interrogation but a voluntary statement made to the media.
(1997) A, while on board a passenger jeep one night, was held up by a group of three
teenagers who forcibly divested her of her watch, necklace and wallet containing P100.00. That
done, the trio jumped off the passenger jeep and fled. B, the jeep driver, and A complained to the
police to whom they gave description of the culprits. According to the jeep driver, he would be able
to identify the culprits if presented to him. Next morning A and B were summoned to the police
station where five persons were lined up before them for identification. A and B positively identified
C and D as the culprits. After preliminary investigation. C and D and one John Doe were charged
with robbery in an information filed against them in court. C and D set up, in defense, the illegality
of their apprehension, arrest and confinement based on the identification made of them by A and
B at a police line-up at which they were not assisted by counsel. How would you resolve the issues
raised by C and D?
The arguments of the accused are untenable. As held in People vs. Acot, 232 SCRA 406, the
warrantless arrest of accused robbers Immediately after their commission of the crime by police officers
sent to look for them on the basis of the information related by the victims is valid under Section 5(b).
Rule 113 of the Rules on Criminal Procedure. According to People vs. Lamsing, 248 SCRA 471, the right
to counsel does not extend to police line-ups, because they are not part of custodial investigations.
However, according to People vs. Macan 238 SCRA 306, after the start of custodial investigation, if the
accused was not assisted by counsel, any identification of the accused in a police line-up is inadmissible.
(1988) Armando Salamanca, a notorious police character, came under custodial
investigation for a robbery in Caloocan City. From the outset, the police officers informed him of
his right to remain silent, and also his right to have a counsel of his choice, if he could afford one
or if not, the government would provide him with such counsel. He thanked the police
investigators, and declared that he fully understands the rights enumerated to him, but that, he is
voluntarily waiving them. Claiming that he sincerely desires to atone for his misdeeds, he gave a
written statement on his participation in the crime under investigation. In the course of the trial
of the criminal case for the same robbery, the written admission of Salamanca which he gave during
the custodial investigation, was presented as the only evidence of his guilt. If you were his counsel,
what would you do? Explain your answer.
I would object to it on the ground that the waiver of the rights to silence and to counsel is void,
having been made without the presence of counsel. (Art. III, sec. 12(1); People v. Galit, 135 SCRA 465
(1980). The waiver must also be in writing, although this requirement might possibly have been complied
with in this case by embodying the waiver in the written confession. It should also be noted that under
Rule 134, sec. 3, even if the extrajudicial confession is valid, it is not a sufficient ground for conviction if
it is not corroborated by evidence of corpus delicti.
(1993) In his extrajudicial confession executed before the police authorities, Jose
Walangtakot admitted killing his girlfriend in a fit of jealousy. This admission was made after the
following answer and question to wit:
T - Ikaw ay may karapatan pa rin kumuha ng serbisyo ng isang abogado para makatulong
mo sa imbestigasyong ito at kung wala kang makuha, ikaw ay aming bibigyan ng libreng abogado,
ano ngayon ang iyong masasabi?"
S - Nandiyan naman po si Fiscal (point to Assistant Fiscal Aniceto Malaputo) kaya hindi ko
na kinakailanganang abogado."
During the trial. Jose Walangtakot repudiated his confession contending that it was made
without the assistance of counsel and therefore Inadmissible in evidence. Decide.
The confession of Jose Walangtakot is inadmissible in evidence. The warning given to him is
insufficient in accordance with the ruling in People v. Duero, 104 SCRA 379, he should have been warned
also that he has the right to remain silent and that any statement he makes may be used as evidence
against him. Besides, under Art. III, Sec. 12(1) of the Constitution, the counsel assisting a person being
investigated must be independent. Assistant Fiscal Aniceto Malaputo could not assist Jose Walangtakot.
As held in People v. Viduya, 189 SCRA 403, his function is to prosecute criminal cases. To allow him to
act as defense counsel during custodial investigations would render nugatory the constitutional rights of
the accused during custodial investigation. What the Constitution requires is a counsel who will effectively
undertake the defense of his client without any conflict of interest. The answer of Jose Walangtakot
indicates that he did not fully understand his rights. Hence, it cannot be said that he knowingly and
intelligently waived those rights.
(2000) On October 1, 1985, Ramos was arrested by a security guard because he appeared
to be "suspicious" and brought to a police precinct where in the course of the investigation he
admitted he was the killer in an unsolved homicide committed a week earlier. The proceedings of
his investigation were put in writing and dated October 1, 1985, and the only participation of
counsel assigned to him was his mere presence and signature on the statement. The admissibility
of the statement of Ramos was placed in issue but the prosecution claims that the confession was
taken on October 1, 1985 and the 1987 Constitution providing for the right to counsel of choice
and opportunity to retain, took effect only on February 2, 1987 and cannot be given retroactive
31
effect. Rule on this. (3%)
The confession of Ramos is not admissible, since the counsel assigned to him did not advise him
of his rights. The fact that his confession was taken before the effectivity of the 1987 Constitution is of no
moment. Even prior to the effectivity of the 1987 Constitution, the Supreme Court already laid down strict
rules on waiver of the rights during investigation in the case of People v. Galit, 135 SCRA 465 (1985).
(2002) One day a passenger bus conductor found a man's handbag left in the bus. When the
conductor opened the bag, he found inside a catling card with the owner's name (Dante Galang) and
address, a few hundred peso bills, and a small plastic bag containing a white powdery substance.
He brought the powdery substance to the National Bureau of Investigation for laboratory
examination and it was determined to be methamphetamine hydrochloride or shabu, a prohibited
drug. Dante Galang was subsequently traced and found and brought to the NBI Office where he
admitted ownership of the handbag and its contents. In the course of the interrogation by NBI
agents, and without the presence and assistance of counsel, Galang was made to sign a receipt for
the plastic bag and its shabu contents. Galang was charged with illegal possession of prohibited
drugs and was convicted. On appeal he contends that - The plastic bag and its contents are
inadmissible in evidence being the product of an illegal search and seizure; (3%) and The receipt
he signed is also inadmissible as his rights under custodial investigation were not observed. (2%)
Decide the case with reasons.
The receipt which Galang signed without the assistance of counsel is not admissible in evidence.
As held in People v. Castro, 274 SCRA 115 {1997), since the receipt is a document admitting the offense
charged, Galang should have been assisted by counsel as required by Article III, Section 11 of the
Constitution.
(1993) Johann learned that the police were looking for him in connection with the rape of
an 18-year old girl, a neighbor. He went to the police station a week later and presented himself to
the desk sergeant. Coincidentally, the rape victim was in the premises executing an extrajudicial
statement. Johann, along with six (6) other suspects, were placed in a police line- up and the girl
pointed to him as the rapist. Johann was arrested and locked up in a cell. Johann was charged with
rape in court but prior to arraignment invoked his right to preliminary investigation. This was
denied by the judge, and thus, trial proceeded. After the prosecution presented several witnesses,
Johann through counsel, invoked the right to bail and filed a motion therefor, which was denied
outright by the Judge. Johann now files a petition for certiorari before the Court of Appeals arguing
that: He should have been informed of his right to be represented by counsel prior to his
identification via the police lineup. Decide.
Pursuant to the decision in People us. Castmillo. 213. SCRA 777, Johann need not be informed
of his right to counsel prior to his identification during the police line-up. The police line-up is not part of
custodial investigation, since Johann was not being questioned but was merely being asked to exhibit his
body for identification by a witness.
ALTERNATIVE ANSWER
It may be argued that in United States vs. Wade. 388 U.S. 218 (1967) and Gilbert vs. California.
388 U.S. 263 (1967) It was held that on the basis of the Sixth, rather than the Fifth Amendment (equivalent
to Art. III. sec. 14 (2) rather than sec. 12 (1)), the police lineup is such a "critical stage" that it carries
"potential substantial prejudice" for which reason the accused is entitled to the assistance of counsel.
(1990) Some police operatives, acting under a lawfully issued warrant for the purpose of
searching for firearms in the House of X located at No. 10 Shaw Boulevard, Pasig, Metro Manila,
found, instead of firearms, ten kilograms of cocaine. May the said police operatives lawfully seize
the cocaine? Explain your answer. May X successfully challenge the legality of the search on the
ground that the peace officers did not inform him about his right to remain silent and his right to
counsel? Explain your answer. Suppose the peace officers were able to find unlicensed firearms in
the house in an adjacent lot, that is. No, 12 Shaw Boulevard, which is also owned by X. May they
lawfully seize the said unlicensed firearms? Explain your answer.
32
No, X cannot successfully challenge the legality of the search simply because the peace officers
did not inform him about his right to remain silent and his right to counsel. Section 12(1), Article III of
the 1987 Constitution provides: “Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. “As held in People v. Dy, 158 SCRA 111. for this provision to apply, a suspect
must be under investigation. There was no investigation involved in this case.
(1993) Larry was an overnight guest in a motel. After he checked out the following day, the
chambermaid found an attache case which she surmised was left behind by Larry. She turned it
over to the manager who, to determine the name and address of the owner, opened the attache
case and saw packages which had a peculiar smell and upon squeezing felt like dried leaves. His
curiosity aroused, the manager made an opening on one of the packages and took several grams of
the contents thereof. He took the packages to the NBI, and in the presence of agents, opened the
packages, the contents of which upon laboratory examination, turned out to be marijuana flowering
tops, Larry was subsequently found, brought to the NBI Office where he admitted ownership of the
attache case and the packages. He was made to sign a receipt for the packages. Larry was charged
in court for possession of prohibited drugs. He was convicted. On appeal, he now poses the following
issues: The packages are inadmissible in evidence being the product of an illegal search and seizure;
Neither is the receipt he signed admissible, his rights under custodial investigation not having been
observed. Decide.
On the assumption that the issues were timely raised the answers are as follows: The packages
are admissible in evidence. The receipt is not admissible in evidence. According to the ruling in People
vs. Mirantes, 209 SCRA 179, such receipt is in effect an extrajudicial confession of the commission of an
offense. Hence, if it was signed without the assistance of counsel, in accordance with Section 12(3), Article
IV of the Constitution, it is inadmissible in evidence. [People v. Duhan, 142 SCRA 100 (1986)].
(1996) A, who was arrested as a suspect in a murder case was not represented by counsel
during the "question and answer" stage. However, before he was asked to sign his statements to
the police investigator, the latter provided A with a counsel, who happened to be at the police
station. After conferring with A, the counsel told the police investigator that A was ready to sign
the statements. Can the statements of A be presented in court as his confession? Explain.
No, the statements of A cannot be presented in court as his confession. He was not assisted by
counsel during the actual questioning. There is no showing that the lawyer who belatedly conferred with
him fully explained to him the nature and consequences of his confession. In People vs. Compil 244 SCRA
135, the Supreme Court held that the accused must be assisted by counsel during the actual questioning
and the belated assistance of counsel before he signed the confession does not cure the defect.
ALTERNATIVE ANSWER:
Yes, the statements of A can be presented in court as his confession. As held in People vs. Rous,
242 SCRA 732, even if the accused was not assisted by counsel during the questioning, his confession is
admissible if he was able to consult a lawyer before he signed.
(1989) Pursuing reports that great quantities of prohibited drugs are being smuggled at
nighttime through the shores of Cavite, the Southern Luzon Command set up checkpoints at the
end of the Cavite coastal road to search passing motor vehicles. A 19-year old boy, who finished
fifth grade, while driving, was stopped by the authorities at the checkpoint. Without any objection
from him, his car was inspected, and the search yielded marijuana leaves hidden in the trunk
compartment of the car. The prohibited drug was promptly seized, and the boy was brought to the
police station for questioning. Was the search without warrant legal?
No, the search was not valid, because there was no probable cause.
Before interrogation, the policeman on duty informed the boy in English that he does "have
a right to remain silent and the right to counsel." However, there was no counsel available as it was
midnight. He declared orally that he did not need any lawyer as he was innocent, since he was only
bringing the marijuana leaves to his employer in Quezon City and was not a drug user. He was
33
charged with illegal possession of prohibited drugs. Is his waiver of the right to counsel valid?
No, the waiver of the right to counsel is not valid, since it was not reduced in writing and made in
the presence of counsel. Under Section 12(1), Article III of the 1987 Constitution to be valid, the waiver
must be made in writing and in the presence of counsel.
(1988) The Filipino seamen detained at Kota Kinabalu, allegedly fishing in Malaysian 34
territorial waters, had been acquitted, after trial, by the sessions court in the same city. They could
not be released and returned to the Philippines, because the prosecution had appealed the
judgment of acquittal to the Supreme Court of Malaysia. Assume the situations had been reversed
and a Malaysian had been apprehended in Shasi, Sulu, for an alleged offense, charged before the
Regional Trial Court and after trial acquitted. May the Provincial Fiscal of Sulu appeal such
judgment of acquittal to the Supreme Court, like what the Malaysians did in the case of the Filipino
fishermen at Kota Kinabalu? Explain your answer.
No, because it would place the accused in double jeopardy, contrary to Art. III, sec. 21 of our
Constitution. PD No. 1599 prohibits any person not a citizen to explore or exploit any of the resources of
the exclusive economic zone and makes violation of the prohibition a crime punishable by a fine of
P2,000.00 to P100,000.00 and/or imprisonment of not less than 6 months nor more than 10 years. If
aliens are arrested for fishing within this zone but for some reason are acquitted, the decision against
them cannot be appealed to the Court of Appeals because that would place them in double jeopardy. This
is so well established that the Supreme Court turned down many pleas for re-examination of the doctrine
first announced in Kepner v. United States. 11 Phil. 669 (1904). The doctrine is said to be part and parcel
not only of settled jurisprudence but also of constitutional law. Nor does it matter that the accused are
aliens. This guarantee has been applied even to aliens without thought of their citizenship. (See e.g.,
People v. Ang Chio Kio, 95 Phil. 475 (1954) (Chinese previously convicted of murder); People v. Pomeroy,
97 Phil 927 (1955) (American previously convicted of rebellion with murder, arson and robbery).
(1993) A Pajero driven by Joe sideswiped a motorcycle driven by Nelson resulting in damage
to the motorcycle and injuries to Nelson. Joe sped on without giving assistance to Nelson. The
Fiscal filed two informations against Joe, to wit: (1) reckless imprudence resulting in damage to
property with physical injuries under Art. 365, RPC, before the RTC; and (2) abandonment of one's
victim under par. 2 Art 275, before the MTC. Joe was arraigned, tried and convicted for
abandonment of one's victim in the MTC. He appealed to the RTC. It was only a year later that he
was arraigned in the reckless imprudence charge before the RTC. He pleaded not guilty.
Subsequently, the RTC affirmed the decision of the MTC relative to the abandonment of one's
victim charge. Joe filed a petition for review before the Court of Appeals, invoking his right to
double Jeopardy, contending that the prosecution for abandonment under Art. 275 of the Revised
Penal Code is a bar to the prosecution for negligence under Article 365 of the same Code. Decide.
Joe cannot claim that his conviction for abandoning his victim in violation of Article 275 of the
Revised Penal Code is a bar to his prosecution for negligence under Article 365 of the Revised Penal Code.
As held in Lamera v. Court of Appeals, 198 SCRA 186, there is no double jeopardy, because these two
offenses are not identical. Reckless imprudence is a crime falling under the chapter on criminal negligence,
while abandonment of one's victim is a crime falling under the chapter on crimes against security. The
former is committed by means of culpa, while the latter is committed by means of dolo. Failure to help
one's victim is not an offense by itself nor an element of reckless imprudence. It merely Increases the
penalty by one degree.
(1997) The Sangguniang Panlungsod of Manila approved an ordinance (No. 1000) prohibiting
the operation in the streets within the city limits of taxicab units over eight years old (from year
of manufacture). The imposable penalty for violation thereof is a fine of P4,000.00 or imprisonment
for one year upon the erring operator. Thereafter and while the city ordinance was already in effect.
Congress enacted a law (Republic Act No. 500) prohibiting the operation in the streets of cities
throughout the country of taxicab units beyond ten years old. The imposable penalty for violation
thereof is the same as in Ordinance No. 1000. A, an owner/operator of a taxicab unit operating in
the City of Manila, was charged with violation of the city ordinance. Upon arraignment, he pleaded
not guilty; whereupon, trial was set five days thereafter. For failure of the witnesses to appear at
the trial, the City Court dismissed the case against A. The City Prosecutor of Manila forthwith filed
another information in the same court charging A with violation of Republic Act No. 500 for
operating the taxicab unit subject of the information in the first case. The accused moved to
dismiss the second case against him invoking double Jeopardy. How would you rule on A's motion
if you were the Judge?
If I were the judge, I would grant the motion. The dismissal of the first case for failure of the 35
witnesses to appear terminated the first jeopardy. As held in Caes vs. Intermediate Appellate Court, 179
SCRA 54, the dismissal of a case for failure of the witnesses for the prosecution to appear constitutes an
acquittal. The acquittal of A for violation of Ordinance No. 1000 bars his prosecution for violation of
Republic Act No. 500. Under Section 21, Article in of the Constitution, if an act is punished by a law and
an ordinance, conviction or acquittal under either bars another prosecution for the same act.
ALTERNATIVE ANSWER:
If I were the judge, I would deny the motion. The dismissal of the first case is void and does not
give rise to double jeopardy. The dismissal of the first case is arbitrary and denied the prosecution due
process of law. The trial was set five days after the arraignment. There was no sufficient time to subpoena
the witnesses and this was the first time the witnesses failed to appear. As held in People vs. Declaro 170
SCRA 142, the dismissal of a case for failure of the witnesses to appear at the initial hearing is arbitrary
and void and does not give rise to double jeopardy.
(1999) A. Discuss the right of every accused against double jeopardy? (2%)
According to Melo v. People, 85 Phil. 766, the rule of double jeopardy means that when a person
was charged with an offense and the case was terminated by acquittal or conviction or in any other manner
without his consent, he cannot again be charged with the same or identical offense.
(1999) On October 21, 1986, 17-year old Virginia Sagrado brought a complaint against
Martin Geralde for consented abduction. With the accused pleading not guilty upon arraignment,
trial ensued. After trial, a judgment of conviction was rendered against Geralde. When the case was
appealed to it, the Court of Appeals reversed the judgment of the Trial Court, ratiocinating and
ruling as follows: "This is not to say that the appellant did nothing wrong...she was seduced by the
appellant with promises (of marriage) just to accomplish his lewd designs." Years later, Virginia
brought another complaint for Qualified Seduction. Geralde presented a Motion to Quash on the
ground of double jeopardy, which motion and his subsequent motion for reconsideration were
denied: Question: May Geralde validly invoke double jeopardy in questioning the institution of the
case for Qualified Seduction? He placed reliance principally on the "same evidence" test to support
his stance. He asserted that the offenses with which he was charged arose from the same set of
facts. Furthermore, he averted that the complaint for Qualified Seduction is barred by waiver and
estoppel on the part of the complainant, she having opted to consider the case as consented
abduction. Finally, he argued that her delay of more than eight (8) years before filing the second
case against him constituted pardon on the part of the offended party. How would you resolve
Gerald's contentions? Explain. (4%)
Geralde cannot invoke double jeopardy. According to Perez v. Court of Appeals, 168 SCRA 236,
there is no identity between consented abduction and qualified seduction. CONSENTED ABDUCTION
requires that the taking away of the offended party must be with her consent, after solicitation or cajolery
from the offender, and the taking away of the offended party must be with lewd designs. On the other
hand, QUALIFIED SEDUCTION requires that the crime be committed by abuse of authority, confidence
or relationship and the offender had sexual intercourse with the woman. The delay in filing the second
case does not constitute pardon, according to Article 344 of the Revised Penal Code, to be valid the pardon
of the offender by the offended party must be expressly given.
(2000) Charged by Francisco with libel, Pablo was arraigned on January 3, 2000, Pre-trial
was dispensed with and continuous trial was set for March 7, 8 and 9, 2000. On the first setting,
the prosecution moved for its postponement and cancellation of the other settings because its
principal and probably only witness, the private complainant Francisco, suddenly had to go abroad
to fulfill a professional commitment. The judge instead dismissed the case for failure to prosecute.
Would the reversal of the trial court's assailed dismissal of the case place the accused in double
jeopardy? (3%)
Since the postponement of the case would not violate the right of the accused to speedy trial, the
precipitate dismissal of the case is void. The reversal of the dismissal will not place the accused in double
Jeopardy.
ALTERNATIVE ANSWER:
Since the dismissal of the case is valid, its reversal will place the accused in double jeopardy.
(2001) For the death of Joey, Erning was charged with the crime of homicide before the
Regional Trial Court of Valenzuela. He was arraigned. Due to numerous postponements of the
scheduled hearings at the instance of the prosecution, particularly based on the ground of
unavailability of prosecution witnesses who could not be found or located, the criminal case was
pending trial for a period of seven years. Upon motion of accused Erning who invoked his right to
speedy trial, the court dismissed the case. Eventually, the prosecution witnesses surfaced, and a
criminal case for homicide, involving the same incident was filed anew against Erning. Accused
Erning moved for dismissal of the case on the ground of double jeopardy. The prosecution objected,
submitting the reason that it was not able to present the said witnesses earlier because the latter
went into hiding out of fear. Resolve the motion. (5%)
The motion should be granted. As held in Caes vs. Intermediate Appellate Court, 179 SCRA 54
(1989), the dismissal of a criminal case predicated on the right of the accused to a speedy trial amounts
to an acquittal for failure of the prosecution to prove his guilt and bars his subsequent prosecution for
the same offense.
(2002) A Tamaraw FX driven by Asiong Cascasero, who was drunk, sideswiped a pedestrian
along EDSA in Makati City, resulting in physical injuries to the latter. The public prosecutor filed
two separate informations against Cascasero, the first for reckless imprudence resulting in physical
injuries under the Revised Penal Code, and the second for violation of an ordinance of Makati City
prohibiting and penalizing driving under the influence of liquor.
Cascasero was arraigned, tried and convicted for reckless imprudence resulting in physical
injuries under the Revised Penal Code. With regard to the second case (i.e., violation of the city
ordinance), upon being arraigned, he filed a motion to quash the information invoking his right
against double jeopardy. He contended that, under Art. III, Section 21 of the Constitution, if an act
is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar
to another prosecution for the same act He argued that the two criminal charges against him
stemmed from the same act of driving allegedly under the influence of liquor which caused the
accident. Was there double jeopardy? Explain your answer
Yes, there is double jeopardy. Under the second sentence of Article III, Section 21 of the
Constitution, if an act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act. In this case, the same act is involved in the two
cases. The reckless imprudence which resulted in physical injuries arose from the same act of driving
under the influence of liquor. In Yap v. Lutero, G.R. No. L-12669, April 30, 1959, the Supreme Court
held that an accused who was acquitted of driving recklessly in violation of an ordinance could not be
prosecuted for damage to property through reckless imprudence because the two charges were based on
the same act. In People v, Relova, 148 SCRA 292 (1987), it was held that when there is identity in the act
punished by a law and an ordinance, conviction or acquittal under either shall bar prosecution under the
other.
ALTERNATIVE ANSWER:
There is no double jeopardy because the act penalized under the Revised Penal Code is different
from the act penalized by the ordinance of Makati City. The Revised Penal Code penalizes reckless
imprudence resulting in physical injuries, while the ordinance of Makati City penalizes driving under the
influence of liquor.
36
(1987) Congress passed a law relating to officials and employees who had served in the
Government for the period from September 21, 1972 up to February 25, 1986. One provision of the
law declared all officials from the rank of assistant head of a department, bureau, office or agency
"Unfit" for continued service in the government and declared their respective positions vacant.
Another provision required all the other officials and employees to take an oath of loyalty to the
flag and government as a condition for their continued employment. Are the two provisions valid?
Why?
37
The law is a bill of attainder by which Congress, by assuming judicial magistracy, in effect declares
all officials and employees during martial law (September 21, 1972- February 25, 1986) as disloyal and,
on this basis, removes some while subjecting others to a loyalty test. With respect to the provision
declaring positions vacant, even the power to reorganize cannot be invoked because under the Freedom
Constitution such power can be exercised only by the President and only up to February 25, 1987. Since
the law under question was presumably passed after February 25, 1987 and by Congress, it is
unconstitutional.
With respect to the provision requiring the loyalty test, loyalty as a general rule is a relevant
consideration in assessing employees' fitness. However, the requirement in this case is not a general
requirement but singles out "martial law" employees and therefore is administered in a discriminatory
manner. Loyalty, therefore, while a relevant consideration in other circumstances, is being employed in
this case for an unconstitutional purpose.
(2016) Jojo filed a criminal complaint against Art for theft of a backpack worth P150.00
with the Office of the City Prosecutor of Manila. The crime is punishable with arresto mayor to
prision correccional in its minimum period, or not to exceed 4 years and 2 months. The case was
assigned to Prosecutor Tristan and he applied Sec. 8(a) of Rule 112 which reads: "(a) If filed with
the prosecutor. - If the complaint is filed directly with the prosecutor involving an offense
punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the
procedure outlined in Sec. 3(a) of this Rule shall be observed. The Prosecutor shall act on the
complaint within ten (10) days from its filing." On the other hand, Sec. 3(a) of Rule 112 provides:
"(a) The complaint shall state the address of the respondent and shall be accompanied by affidavits
of the complainant and his witnesses as well as other supporting documents to establish probable
cause. x x x" Since Sec. 8(a) authorizes the Prosecutor to decide the complaint on the basis of the
affidavits and other supporting documents submitted by the complainant, Prosecutor Tristan did
not notify Art nor require him to submit a counter- affidavit. He proceeded to file the Information
against Art with the Metropolitan Trial Court. Art vehemently assails Sec. 8(a) of Rule 112 as
unconstitutional and violative of due process and his rights as an accused under the Constitution
for he was not informed of the complaint nor was he given the opportunity to raise his defenses
thereto before the Information was filed. Rule on the constitutionality of Sec. 8(a) of Rule 112.
Explain. (5%)
The contention of Art is not meritorious. The right to be informed of the complaint and to be given
the opportunity to raise one’s defenses does not apply to preliminary investigation. Preliminary
investigation is merely procedural. It may be dispensed with without violating the right of the accused to
due process. (Bustos v. Lucero, 81 Phil. 640 [1948]).
(1999) On April 6, 1963, Police Officer Mario Gatdula was charged by the Mayor with Grave
Misconduct and Violation of Law before the Municipal Board. The Board investigated Gatdula but
before the case could be decided, the City charter was approved. The City Fiscal, citing Section 30
of the city charter, asserted that he was authorized thereunder to investigate city officers and
employees. The case against Gatdula was then forwarded to him, and a re-investigation was
conducted. The office of the Fiscal subsequently recommended dismissal. On January 11, 1966,
the City Mayor returned the records of the case to the City Fiscal for the submission of an
appropriate resolution but no resolution was submitted. On March 3, 1968, the City Fiscal
transmitted the records to the City Mayor recommending that final action thereon be made by the
City Board of Investigators (CBI). Although the CBI did not conduct an investigation, the records
show that both the Municipal Board and the Fiscal's Office exhaustively heard the case with both
parties afforded ample opportunity to adduce their evidence and argue their cause. The Police
Commission found Gatdula guilty on the basis of the records forwarded by the CBI. Gatdula
challenged the adverse decision of the Police Commission theorizing that he was deprived of due
process.
Is the Police Commission bound by the findings of the City Fiscal? Is Gatdula's protestation
of lack or non-observance of due process well-grounded? Explain your answers. (4%)
The Police Commission is not bound by the findings of the City Fiscal. In Mangubat v. de Castro,
163 SCRA 608, it was held that the Police Commission is not prohibited from making its own findings on
the basis of its own evaluation of the records. Likewise, the protestation of lack of due process is not wellgrounded, since the hearings before the Municipal Board and the City Fiscal offered Gatdula the chance
to be heard. There is no denial of due process if the decision was rendered on the basis of evidence
contained in the record and disclosed to the parties affected.
(1994) A complaint was filed by Intelligence agents of the Bureau of Immigration and
Deportation (BID) against Stevie, a German national, for his deportation as an undesirable alien.
The Immigration Commissioner directed the Special Board of Inquiry to conduct an Investigation.
At the said Investigation, a lawyer from the Legal Department of the BID presented as witnesses
the three Intelligence agents who filed the complaint. On the basis of the findings, report and
recommendation of the Board of Special Inquiry, the BID Commissioners unanimously voted for
Stevie's deportation. Stevie's lawyer questioned the deportation order on the ground that Stevie
was denied due process because the BID Commissioners who rendered the decision were not the
ones who received the evidence, in violation of the "He who decides must hear" rule. Is he correct?
No, Stevie is not correct. As held in Adamson, Inc. vs. Amores, 152 SCRA 237, administrative due
process does not require that the actual taking of testimony or the presentation of evidence before the
same officer who will decide the case.
In American Tobacco Co. V. Director of Patents, 67 SCRA 287,
the Supreme Court has ruled that so long as the actual decision on the merits of the cases is made by the
officer authorized by law to decide, the power to hold a hearing on the basis of which his decision will be
made can be delegated and is not offensive to due process. The Court noted that: "As long as a party is
not deprived of his right to present his own case and submit evidence in support thereof, and the decision
is supported by the evidence in the record, there is no question that the requirements of due process and
fair trial are fully met. In short, there is no abrogation of responsibility on the part of the officer concerned
as the actual decision remains with and is made by said officer. It is, however, required that to give the
substance of a hearing, which is for the purpose of making determinations upon evidence the officer who
makes the determinations must consider and appraise the evidence which justifies them.
On the ground that there was a violation of due process because the complainants, the
prosecutor and the hearing officers were all subordinates of the BID Commissioners who rendered
the deportation decision. Is he correct?
No, Stevie was not denied due process simply because the complainants, the prosecutor, and the
hearing officers were all subordinates of the Commissioner of the Bureau of Immigration and Deportation.
In accordance with the ruling in Erianger & Galinger, Inc. vs. Court of Industrial Relations, 110 Phil. 470,
the findings of the subordinates are not conclusive upon the Commissioners, who have the discretion to
accept or reject them. What is important is that Stevie was not deprived of his right to present his own
case and submit evidence in support thereof, the decision is supported by substantial evidence, and the
commissioners acted on their own independent consideration of the law and facts of the case, and did not
simply accept the views of their subordinates in arriving at a decision.
(1993) The S/S "Masoy" of Panamanian registry, while moored at the South Harbor, was
found to have contraband goods on board. The Customs Team found out that the vessel did not
have the required ship's permit and shipping documents. The vessel and its cargo were held and a
warrant of Seizure and Detention was issued after due investigation. In the course of the forfeiture
proceedings, the ship captain and the ship's resident agent executed sworn statements before the
Custom legal officer admitting that contraband cargo was found aboard the vessel. The shipping
lines object to the admission of the statements as evidence contending that during their execution,
the captain and the shipping agent were not assisted by counsel, in violation of due process. Decide.
38
The admission of the statements of the captain and the shipping agent as evidence did not violate
due process even if they were not assisted by counsel. In Feeder International Line, Pts. Ltd. v. Court of
Appeals, 197 SCRA 842, It was held that the assistance of counsel is not indispensable to due process in
forfeiture proceedings since such proceedings are not criminal in nature. Moreover, the strict rules of
evidence and procedure will not apply in administrative proceedings like seizure and forfeiture
proceedings. What is important is that the parties are afforded the opportunity to be heard and the
decision of the administrative authority is based on substantial evidence.
39
(1996) At the trial of a rape case where the victim-complainant was a well-known
personality while the accused was a popular movie star, a TV station was allowed by the trial judge
to televise the entire proceedings like the O.J. Simpson trial. The accused objected to the TV
coverage and petitioned the Supreme Court to prohibit the said coverage. As the Supreme Court,
how would you rule on the petition? Explain.
The Supreme Court should grant the petition. In its Resolution dated October 22, 1991, the
Supreme Court prohibited live radio and television coverage of court proceedings to protect the right of
the parties to due process to prevent the distraction of the participants in the proceedings, and in the
last analysis to avoid a miscarriage of justice.
(1999) On November 7, 1990, nine lawyers of the Legal Department of Y Bank who were all
under Fred Torre, sent a complaint to management accusing Torre of abusive conduct and
mismanagement. Furnished with a copy of the complaint, Torre denied the charges. Two days
later, the lawyers and Torre were called to a conference in the office of the Board Chairman to give
their respective sides of the controversy. However, no agreement was reached thereat. Bank
Director Romulo Moret was tasked to look further into the matter. He met with the lawyers together
with Torre several times but to no avail. Moret then submitted a report sustaining the charges of
the lawyers. The Board Chairman wrote Torre to inform him that the bank had chosen the
compassionate option of "waiting" for Torre's resignation. Torre was asked, without being
dismissed, to turn over the documents of all cases handled by him to another official of the bank
but Torre refused to resign and requested for a "full hearing". Days later, he reiterated his request
for a "full hearing", claiming that he had been "constructively dismissed". Moret assured Torre that
he is "free to remain in the employ of the bank" even if he has no particular work assignment. After
another request for a "full hearing" was ignored, Torre filed a complaint with the arbitration branch
of NLRC for illegal dismissal. Reacting thereto, the bank terminated the services of Torre.
Questions: (a) Was Torre "constructively dismissed" before he filed his complaint?
Torre was constructively dismissed, as held in Equitable Banking Corporation V. National Labor
Relations Commission, 273 SCRA 352. Allowing an employee to report for work without being assigned
any work constitutes constructive dismissal.
(b) Given the multiple meetings held among the bank officials, the lawyers and Torre, is it
correct for him to say that he was not given an opportunity to be heard? Explain your answers.
Torre is correct in saying that he was not given the chance to be heard. The meetings in the nature
of consultations and conferences cannot be considered as valid substitutes for the proper observance of
notice and hearing.
(1988) Macabebe, Pampanga has several barrios along the Pampanga river. To service the
needs of their residents the municipality has been operating a ferry service at the same river, for
a number of years already. Sometime in 1987, the municipality was served a copy of an order from
the Land Transportation Franchising and Regulatory Board (LTFRB), granting a certificate of public
convenience to Mr. Ricardo Macapinlac, a resident of Macabebe, to operate ferry service across the
same river and between the same barrios being serviced presently by the municipality's ferry boats.
A check of the records of the application of Macapinlac shows that the application was filed some
months before, set for hearing, and notices of such hearing were published in two newspapers of
general circulation in the town of Macabebe, and in the province of Pampanga. The municipality
had never been directly served a copy of that notice of hearing nor had the Sangguniang Bayan
been requested by Macapinlac for any operate. The municipality immediately filed a motion for
reconsideration with the LTFRB which was denied. It went to the Supreme Court on a petition for
certiorari to nullify the order granting a certificate of public convenience to Macapinlac on two
grounds: Denial of due process to the municipality and for failure of Macapinlac to secure approval
of the Sangguniang Bayan for him to operate a ferry service in Macabebe. Resolve the two points
in the petition with reasons.
The petition for certiorari should be granted: As a party directly affected by the operation of the 40
ferry service, the Municipality of Macabebe, Pampanga was entitled to be directly notified by the LTFRB
of its proceedings relative to Macapinlac's application, even if the Municipality had not notified the LTFRB
of the existence of the municipal ferry service. Notice by publication was not enough. (Municipality of
Echague v. Abellera, 146 SCRA 180 (1986)). Where a ferry operation lies entirely within the municipality,
the prior approval of the Municipal government is necessary.
(2001) The Philippine Ports Authority (PPA) General Manager issued an administrative
order to the effect that all existing regular appointments to harbor pilot positions shall remain
valid only up to December 31 of the current year and that henceforth all appointments to harbor
pilot positions shall be only for a term of one year from date of effectivity, subject to yearly renewal
or cancellation by the PPA after conduct of a rigid evaluation of performance. Pilotage as a
profession may be practiced only by duly licensed individuals, who have to pass five government
professional examinations. The Harbor Pilot Association challenged the validity of said
administrative order arguing that it violated the harbor pilots' right to exercise their profession
and their right to due process of law and that the said administrative order was issued without
prior notice and hearing. The PPA countered that the administrative order was valid as it was issued
in the exercise of its administrative control and supervision over harbor pilots under PPA's
legislative charter, and that in issuing the order as a rule or regulation, it was performing its
executive or legislative, and not a quasi-Judicial function. Due process of law is classified into two
kinds, namely, procedural due process and substantive due process of law. Was there, or, was there
no violation of the harbor pilots' right to exercise their profession and their right to due process of
law? (5%)
The right of the harbor pilots to due process was violated. Am held in Corona vs. United Harbor
Pilots Association of the Philippines, 283 SCRA 31 (1997) pilotage as a profession is a property right
protected by the guarantee of due process. The pre-evaluation cancellation of the licenses of the harbor
pilots every year is unreasonable and violated their right to substantive due process. The renewal is
dependent on the evaluation after the licenses have been cancelled. The issuance of the administrative
order also violated procedural due process, since no prior public hearing was conducted. As hold in
Commissioner of Internal Revenue vs. Court of Appeals, 261 SCRA 237 (1998), when a regulation is being
issued under the quasi-legislative authority of an administrative agency, the requirements of notice, hearing
and publication must be observed.
(1991) On 29 July 1991. the Energy Regulatory Board (ERB), in response to public clamor,
issued a resolution approving and adopting a schedule for bringing down the prices of petroleum
products over a period of one (1) year starting 15 August 1991, over the objection of the oil
companies which claim that the period covered is too long to prejudge and foresee. Is the resolution
valid?
No, the resolution is invalid, since the Energy Regulatory Board issued the resolution without a
hearing. The resolution here is not a provisional order and therefore it can only be issued after
appropriate notice and hearing to affected parties. The ruling in Philippine Communications Satellite
Corporation vs. Alcuaz, 180 SCRA 218, to the effect that an order provisionally reducing the rates which
a public utility could charge, could be issued without previous notice and hearing, cannot apply.
(2002) Ten public school teachers of Caloocan City left their classrooms to join a strike,
which lasted for one month, to ask for teachers' benefits. The Department of Education, Culture
and Sports charged them administratively, for which reason they were required to answer and
formally investigated by a committee composed of the Division Superintendent of Schools as
Chairman, the Division Supervisor as member and a teacher, as another member. On the basis of
the evidence adduced at the formal investigation which amply established their guilt, the Director
rendered a decision meting out to them the penalty of removal from office. The decision was
affirmed by the DECS Secretary and the Civil Service Commission. On appeal, they reiterated the
arguments they raised before the administrative bodies, namely: (b) They were deprived of due
process of law as the Investigating Committee was improperly constituted because it did not
include a teacher in representation of the teachers' organization as required by the Magna Carta
for Public School Teachers (R.A. No. 4670, Sec. 9).
The teachers were deprived of due process of law. Under Section 9 of the Magna Carta for Public
School Teachers, one of the members of the committee must be a teacher who is a representative of the
local, or in its absence, any existing provincial or national organization of teachers. According to Fabella
v. Court of Appeals, 283 SCRA 256 (1997), to be considered the authorized representative of such
organization, the teacher must be chosen by the organization itself and not by the Secretary of Education,
Culture and Sports. Since in administrative proceedings, due process requires that the tribunal be vested
with jurisdiction and be so constituted as to afford a person charged administratively a reasonable
guarantee of impartiality, if the teacher who is a member of the committee was not appointed in
accordance with the law, any proceeding before it is tainted with deprivation of procedural due process.
(1987) In the morning of August 28, 1987, during the height of the fighting at Channel 4
and Camelot Hotel, the military closed Radio Station XX, which was excitedly reporting the
successes of the rebels and movements towards Manila and troops friendly to the rebels. The
reports were correct and factual. On October 6, 1987, after normalcy had returned and the
Government had full control of the situation, the National Telecommunications Commission,
without notice and hearing, but merely on the basis of the report of the military, cancelled the
franchise of station XX. Discuss the legality of: (b) The cancellation of the franchise of the station
on October 6, 1987.
The cancellation of the franchise of the station on October 6, 1987, without prior notice and
hearing, is void. As held in Eastern Broadcasting Corp. (DYRE) v. Dans, 137 SCRA 647 (1985), the cardinal
primary requirements in administrative proceedings (one of which is that the parties must first be heard)
as laid down in Ang Tibay v. CIR, 69 Phil. 635 (1940) must be observed in closing a radio station because
radio broadcasts are a form of constitutionally-protected expression.
(1988) Norberto Malasmas was accused of estafa before the Regional Trial Court of Manila.
After the trial, he was found guilty. On appeal, his conviction was affirmed by the Court of Appeals.
After the records of his case had been remanded to the Regional Trial Court for execution, and after
the latter Court had set the date for the promulgation of judgment, the accused filed a motion with
the Court of Appeals to set aside the entry of judgment, and to remand the case to the Regional
Trial Court for new trial on the ground that he had just discovered that "Atty. Leonilo Maporma"
whom he had chosen and who had acted as his counsel before the trial court and the Court of
Appeals, is not a lawyer. Resolved the motion of the accused with reasons.
The motion should be granted and the entry of judgment should be set aside. An accused is
entitled to be heard by himself or counsel. (Art. III, sec. 14(2)). Unless he is represented by an attorney,
there is a great danger that any defense presented in his behalf will be inadequate considering the legal
requisite and skill needed in court proceedings. There would certainly be a denial of due process. (Delgado
v. Court of Appeals, 145 SCRA 357 (1986)).
(2003) The municipal council of the municipality of Guagua, Pampanga, passed an
ordinance penalizing any person or entity engaged in the business of selling tickets to movies or
other public exhibitions, games or performances which would charge children between 7 and 12
years of age the full price of admission tickets instead of only one-half of the amount thereof.
Would you hold the ordinance a valid exercise of legislative power by the municipality? Why?
The ordinance is void. As held in Balacuit v. Court of First Instance of Agusan del Norte. 163
SCRA 182 [1988], the ordinance is unreasonable. It deprives the sellers of the tickets of their property
without due process. A ticket is a property right and may be sold for such price as the owner of it can
obtain. There is nothing pernicious in charging children the same price as adults.
(1992) Congress is considering a law against drunken driving. Under the legislation, police
41
authorities may ask any driver to take a "breathalyzer test", wherein the driver exhales several
times into a device which can determine whether he has been driving under the influence of
alcohol. The results of the test can be used, in any legal proceeding against him. Furthermore,
declaring that the issuance of a driver's license gives rise only to a privilege to drive motor vehicles
on public roads, the law provides that a driver who refuses to take the test shall be automatically
subject to a 90-day suspension of his driver's license. Cite two [2] possible constitutional objections
to this law. Resolve the objections and explain whether any such infirmities can be cured.
42
Possible objections to the law are that requiring a driver to take the breathalyzer test will violate
his right against self-incrimination, that providing for the suspension of his driver's license without any
hearing violates due process, and that the proposed law will violate the right against unreasonable
searches and seizures, because it allows police authorities to require a drive to take the breathalyzer test
even if there is no probable cause.
ALTERNATIVE ANSWER:
Requiring a driver to take a breathalyzer test does not violate his right against self- incrimination,
because he is not being compelled to give testimonial evidence. He is merely being asked to submit to a
physical test. This is not covered by the constitutional guarantee against self-incrimination. Thus, in
South Dakota vs. Neville, 459 U.S. 553, it was held for this reason that requiring a driver to take a bloodalcohol test is valid. As held in Mackey vs. Afontrya 443 U.S. 1, because of compelling government interest
in safety along the streets, the license of a driver who refuses to take the breathalyzer test may be
suspended immediately pending a post- suspension hearing, but there must be a provision for a postsuspension hearing. Thus, to save the proposed law from unconstitutionally on the ground of denial of
due process, it should provide for an immediate hearing upon suspension of the driver's license. The
proposed law violates the right against unreasonable searches and seizures. It will authorize police
authorities to stop any driver and ask him to take the breathalyzer test even in the absence of a probable
cause.
(1987) The Manila Transportation Company applied for upward adjustment of its rates
before the Transportation Regulatory Board. Pending the petition, the TRB, without previous
hearing, granted a general nationwide provisional increase of rates. In another Order, TRB required
the company to pay the unpaid supervisory fees collectible under the Public Service Law. After due
notice and hearing, on the basis of the evidence presented by Manila Transportation Company and
the Oppositors, TRB issued an Order reducing the rates applied for by one-fourth. Characterize the
powers exercised by the TRB in this case and determine whether under the present constitutional
system the Transportation Regulatory Board can be validly conferred the powers exercised by it in
issuing the Orders given above. Explain.
The orders in this case involve the exercise of judicial function by an administrative agency, and
therefore, as a general rule, the cardinal primary rights enumerated in Ang Tibay v. CIR, 69 Phil. 635
(1940) must be observed. In Vigart Electric Light Co, v. PSC, 10 SCRA 46 (1964) it was held that a rate
order, which applies exclusively to a particular party and is predicated on a finding of fact, partakes of the
nature of a quasi-judicial, rather than legislative, function.
The first order, granting a provisional rate increase without hearing, is valid if justified by URGENT
PUBLIC NEED, such as increase in the cost of fuel. The power of the Public Service Commission to grant
such increase was upheld in several cases. (Silva v. Ocampo, 90 Phil. 777 (1952); Halili v. PSC, 92 Phil.
1036(1953)) The second order requiring the company to pay unpaid supervisory fees under the Public
Service Act cannot be sustained. The company has a right to be heard, before it may be ordered to pay.
(Ang Tibay v. CIR, 69 Phil. 635 (1940)) The third order can be justified. The fact that the TRB has allowed
a provisional rate increase does not bind it to make the order permanent if the evidence later submitted
does not justify increase but, on the contrary, warrants the reduction of rates.
(2016) The Government, through Secretary Toogoody of the Department of · Transportation
(DOTr), filed a complaint for eminent domain to acquire a 1,000- hectare property in Bulacan, owned
by Baldomero. The court granted the expropriation, fixed the amount of just compensation, and
installed the Government in full possession of the property.
A. If the Government does not immediately pay the amount fixed by the court as just
compensation, can Baldomero successfully demand the return of the property to him? Explain your
answer. (2.5%)
If the government does not pay Baldomero the just compensation immediately, he cannot demand
the return of the property to him. Instead, legal interest should be paid from the time of taking of the
property until actual payment in full. (Republic v. Court of Appeals, 383 SCRA 611 [2002]).
43
B. If the Government paid full compensation but after two years it abandoned its plan to
build an airport on the property, can Baldomero compel the Government to re-sell the property
back to him? Explain your answer. (2.5%)
With respect to the element of public use, the expropriator should commit to use the property for
the purposes stated in the petition. If not, it is incumbent upon it to return the property to the owner, if
the owner desires to reacquire it. Otherwise, the judgment of the expropriation will lack the element of
public use. The owner will be denied due process and the judgment will violate his right to justice. (MactanCebu Airport Authority v. Lozada, Sr., 613 SCRA 618 [2010]). If the just compensation was not paid within
5 years from finality of judgment, the owner is entitled to recover the property. (Republic v. Lim. 462 SCRA
265 [2005]).
(2014) The National Power and Grid Corporation (NPGC), a government entity involved in
power generation distribution, had its transmission lines traverse some fields belonging to
Farmerjoe. NPGC did so without instituting any expropriation proceedings. Farmerjoe, not knowing
any better, did not immediately press his claim for payment until after ten years later when a son
of his took up Law and told him that he had a right to claim compensation. That was then the only
time that Farmerjoe earnestly demanded payment. When the NPGC ignored him, he instituted a
case for payment of just compensation. In defense, NPGC pointed out that the claim had already
prescribed since under its Charter it is clearly provided that "actions for damages must be filed
within five years after the rights of way, transmission lines, substations, plants or other facilities
shall have been established and that after said period, no suit shall be brought to question the said
rights of way, transmission lines, substations, plants or other facilities." If you were the lawyer of
Farmerjoe, how would you protect and vindicate the rights of your client? (4%)
Farmerjoe’s demand for payment is justified and cannot be considered as prescribed. His demand
for payment is an action for the payment of just compensation and not an action for damages as provided
in the Charter of the National Power and Grid Corporation. It partakes of the nature of a reverse eminent
domain proceeding (or inverse condemnation proceeding) wherein claims for just compensation for
property taken can be made and pursued (National Power Corporation vs Vda. De Capin, 569 SCRA 648
(2008); National Power Corporation Vs Heirs of Sangkay, 656 SCRA 60 (2011)
ALTERNATIVE ANSWER
I will claim that since National Power and Grid Corporation took the property traversing the fields
of Farmerjoe without first acquiring title through expropriation or negotiated sale, his action to recover
just compensation is imprescriptible (Republic vs Court of Appeals, 454 SCRA 510 (2005))
(1994) The Municipality of Antipolo, Rizal, expropriated the property of Juan Reyes for use
as a public market. The Municipal Council appropriated P1,000,000.00 for the purchase of the lot
but the Regional Trial Court, on the basis of the evidence, fixed the value at P2,000,000.00. What
legal action can Juan Reyes take to collect the balance?
To collect the balance of Judgment, as stated in Tantoco vs. Municipal Counsel of Iloilo, 49 Phil.
52, Juan Reyes may levy on patrimonial properties of the Municipality of Antipolo. If it has no patrimonial
properties, in accordance with the Municipality of Makati vs. Court of Appeals, 190 SCRA 206, the remedy
of Juan Reyes is to file a petition for mandamus to compel the Municipality of Antipolo to appropriate the
necessary funds to satisfy the judgment.
Can Juan Reyes ask the Regional Trial Court to garnish the Municipality's account with the
Land Bank?
Pursuant to the ruling in Pasay City Government vs. Court of First Instance of Manila, 132 SCRA
156, since the Municipality of Antipolo has appropriated P1,000,000 to pay for the lot, its bank account
may be garnished but up to this amount only.
(1998) If the City of Cebu has money in bank, can it be garnished? [2%]
No, the money of the City of Cebu in the bank cannot be garnished if it came from public funds. 44
As held in Municipality of Makati vs. Court of Appeals, 190 SCRA 206, 212, public funds are exempted
from garnishment.
(2001) The Republic of the Philippines, through the Department of Public Works and
Highways (DPWH), constructed a new highway linking Metro Manila and Quezon province, and
which major thoroughfare traversed the land owned by Mang Pandoy. The government neither filed
any expropriation proceedings nor paid any compensation to Mang Pandoy for the land thus taken
and used as a public road. Mang Pandoy filed a suit against the government to compel payment for
the value of his land. The DPWH filed a motion to dismiss the case on the ground that the State is
immune from suit. Mang Pandoy filed an opposition. Resolve the motion. (5%)
The motion to dismiss should be denied. As held in Amigable v. Cuenca, 43 SCRA 300 (1972),
when the Government expropriates private property without paying compensation, it is deemed to have
waived its immunity from suit. Otherwise, the constitutional guarantee that private property shall not be
taken for public use without payment of just compensation will be rendered nugatory.
(1990) The City of Cebu passed an ordinance proclaiming the expropriation of a ten (10)
hectare property of C Company, which property is already a developed commercial center. The City
proposed to operate the commercial center in order to finance a housing project for city employees
in the vacant portion of the said property. The ordinance fixed the price of the land and the value
of the improvements to be paid C Company on the basis of the prevailing land value and cost of
construction. As counsel for C Company, give two constitutional objections to the validity of the
ordinance. As the judge, rule on the said objections.
1. As counsel for C Company, I will argue that the taking of the property is not for a public use
and that the ordinance cannot fix the compensation to be paid C Company, because this is a judicial
question that is for the courts to decide.
2. As judge, I will sustain the contention that the taking of the property of C Company to operate
the commercial center established within it to finance a housing project for city employees is not for a
public use but for a private purpose. As the Court indicated in a dictum in Manotok. v. National Housing
Authority, 150 SCRA 89, that the expropriation of a commercial center so that the profits derived from its
operation can be used for housing projects is a taking for a private purpose.
I will also sustain the contention that the ordinance, even though it fixes the compensation for
the land on the basis of the prevailing land value cannot really displace judicial determination of the price
for the simple reason that many factors, some of them supervening, cannot possibly be considered by the
legislature at the time of enacting the ordinance. There is greater reason for nullifying the use of the cost
of construction in the ordinance as basis for compensation for the improvements. The fair market value
of the improvements may not be equal to the cost of construction. The original cost of construction may
be lower than the fair market value, since the cost of construction at the time of expropriation may have
increased.
ALTERNATIVE ANSWER:
The taking of the commercial center is justified by the concept of indirect public benefit since its
operation is intended for the development of the vacant portion for socialized housing, which is clearly a
public purpose.
(2010) A valid and definite offer to buy a property is a pre-requisite to expropriation
initiated by a local government unit.
TRUE. Under the Local Government Code, there must be a prior valid and definite offer before
expropriation proceeding can be initiated (Section 19, Local Government Code).
(1988) Mr. Roland Rivera is the owner of four lots sought to be expropriated by the Export
Processing Zone Authority for the expansion of the export processing zone at Baguio City. The
same parcels of land had been valued by the Assessor at P120.00 per square meter, while Mr. Rivera
had previously fixed the market value of the same at P100 per square meter. The Regional Trial 45
Court decided for expropriation and ordered the payment to Mr. Rivera at the rate of P100 a square
meter pursuant to Presidential Decree No. 1533, providing that in determining just compensation
for private property acquired through eminent domain proceedings, the compensation to be paid
shall not exceed the value declared by the owner or determined by the Assessor, pursuant to the
Real Property Tax Code, whichever value is lower, prior to the recommendation or decision of the
appropriate government office to acquire the property. Mr. Rivera appealed, insisting that just
compensation for his property should be determined by Commissioners who could evaluate all
evidence on the real value of the property, at the time of its taking by the government. He
maintains that the lower court erred in relying on Presidential Decree No, 1533, which he claims
is unconstitutional. How would you decide the appeal? Explain your answer.
The decision of the lower court should be reversed. In EPZA v, Dulay, 149 SCRA 305 (1987) the
Supreme Court declared PD No. 1533 to be an unconstitutional encroachment on the prerogatives of the
judiciary. It was explained that although a court would technically have the power to determine the just
compensation for property under the Decree, the court's task would be relegated to simply stating the
lower value of the property as declared either by the owner or by the assessor. Just compensation means
the value of the property at the time of the taking. It means a fair and full equivalent for the loss sustained.
To determine it requires consideration of the condition of the property and its surrounding, its
improvements and capabilities.
(1989) A law provides that in the event of expropriation, the amount to be paid to a
landowner as compensation shall be either the sworn valuation made by the owner or the official
assessment thereof, whichever is lower. Can the landowner successfully challenge the law in court?
Discuss briefly your answer.
Yes, the landowner can successfully challenge the law in court. According to the decision in Export
Processing Zone Authority vs. Dulay, 149 SCRA 305, such a law is unconstitutional. First of all, it violates
due process, because it denies to the landowner the opportunity to prove that the valuation in the tax
declaration is wrong. Secondly, the determination of just compensation in expropriation cases is a judicial
function. Since under Section 9, Article III of the 1987 Constitution private property shall not be taken for
public use without just compensation, no law can mandate that its determination as to the just
compensation shall prevail over the findings of the court.
(1998) The City of Cebu expropriated the property of Carlos Topico for use as a municipal
parking lot. The Sangguniang Panlungsod appropriated P10 million for this purpose but the
Regional Trial Court fixed the compensation for the taking of the land at P15 million. What legal
remedy, if any, does Carlos Topico have to recover the balance of P5 million for the taking of his
land? [3%]
The remedy of Carlos Toplco is to levy on the patrimonial properties of the City of Cebu. In
Municipality of Paoay vs Manaois, 86 Phil 629. 632, the Supreme Court held: "Property, however, which
is patrimonial and which is held by a municipality in its proprietary capacity as treated by the great weight
of authority as the private asset of the town and may be levied upon and sold under an ordinary execution."
If the City of Cebu does not have patrimonial properties, the remedy of Carlos Topico is to file a
petition for mandamus to compel it to appropriate money to satisfy the Judgment. In Municipality Makati
vs. Court of Appeals, 190 SCRA 206, 213. the Supreme Court said: "Where a municipality falls or refuses,
without justifiable reason, to effect payment of a final money judgment rendered against it, the claimant
may avail of the remedy of mandamus in order to compel the enactment and approval of the necessary
appropriation ordinance, and the corresponding disbursement of municipal funds therefor."
ALTERNATIVE ANSWER:
He can file the money claim with the Commission on Audit.
(2000) Madlangbayan is the owner of a 500 square meter lot which was the birthplace of
the founder of a religious sect who admittedly played an important role in Philippine history and
culture. The National Historical Commission (NHC) passed a resolution declaring it a national
landmark and on its recommendation the lot was subjected to expropriation proceedings. This was
opposed by Madlangbayan on the following grounds: a) that the lot is not a vast tract; b) that those 46
to be benefited by the expropriation would only be the members of the religious sect of its founder,
and c) that the NHC has not initiated the expropriation of birthplaces of other more deserving
historical personalities. Resolve the opposition raised by Madlangbayan. (5%)
The arguments of Madlangbayan are not meritorious. According to Manosca v. Court of Appeals,
252 SCRA 412 (1996), the power of eminent domain is not confined to expropriation of vast tracts of the
land. The expropriation of the lot to preserve it as the birthplace of the founder of the religious sect because
of his role in Philippine history and culture is for a public purpose, because public use is no longer
restricted to the traditional concept. The fact that the expropriation will benefit the members of the
religious sect is merely incidental. The fact that other birthplaces have not been expropriated is likewise
not a valid basis for opposing the expropriation. As held in J.M. Tuason and Company, Inc. v. Land Tenure
Administration, 31 SCRA 413 (1970), the expropriating authority is not required to adhere to the policy of
"all or none".
(2005) The Sangguniang Bayan of the Municipality of Santa, Ilocos Sur passed Resolution
No. 1 authorizing its Mayor to initiate a petition for the expropriation of a lot owned by Christina
as site for its municipal sports center. This was approved by the Mayor. However, the Sangguniang
Panlalawigan of Ilocos Sur disapproved the Resolution as there might still be other available lots
in Santa for a sports center. Nonetheless, the Municipality of Santa, through its Mayor, filed a
complaint for eminent domain. Christina opposed this on the following grounds: (1) the
Municipality of Santa has no power to expropriate;(2) Resolution No. 1 has been voided since the
Sangguniang Panlalawigan disapproved it for being arbitrary; and (3) the Municipality of Santa has
other and better lots for that purpose. Resolve the case with reasons. (5%)
Under Section 19 of R.A. No. 7160, the power of eminent domain is explicitly granted to the
municipality, but must be exercised through an ordinance rather than through a resolution. (Municipality
of Paranaque v. V.M. Realty Corp., G.R. No. 127820, July 20, 1998) The Sangguniang Panlalawigan of
Ilocos Sur was without the authority to disapprove Resolution No. 1 as the municipality clearly has the
power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said
resolution. The only ground upon which a provincial board may declare any municipal resolution,
ordinance or order invalid is when such resolution, ordinance or order is beyond the powers conferred
upon the council or president making the same. Such is not the situation in this case. (Moday v. Court of
Appeals, G.R. No. 107916, February 20, 1997) The question of whether there is genuine necessity for the
expropriation of Christina's lot or whether the municipality has other and better lots for the purpose is a
matter that will have to be resolved by the Court upon presentation of evidence by the parties to the case.
(2008) Congress passed a law authorizing the National Housing Authority (NHA) to
expropriate or acquire private property for the redevelopment of slum areas, as well as to lease or
resell the property to private developers to carry out the redevelopment plan. Pursuant to the law,
the NHA acquired all properties within a targeted badly blighted area in San Nicolas, Manila except
a well-maintained drug and convenience store that poses no blight or health problem itself.
Thereafter, NHA initiated expropriation proceedings against the store owner who protested that his
property could not be taken because it is not residential or slum housing. He also contended that
his property is being condemned for a private purpose, not a public one, noting the NHA’s sale of
the entire area except his property to a private party. If you were the judge, how would you decide
the case? (6%).
The power of the NHA is a delegated power of eminent domain, strictly construed against its holder
and limited to the public purpose of redevelopment of slum areas. The expropriation of a property already
previously excluded for not posing a blight of health problem lacks public purpose and exceeds the
delegated power of the NHA.
ALTERNATIVE ANSWER:
The power of expropriation cannot be used to benefit private parties (Pascual vs. Secretary, G.R.
No. L-10405, Dec. 29, 1960.) In this case, the main beneficiary would be the private realty company. The
taking of private property and then transferring it to private persons under the guise of public use is not
within the power of eminent domain (Heirs of Moreno vs. Mactan Airport, G.R. No. 156273, August 9,
2005).
47
(1987) In January 1984, Pasay City filed expropriation proceedings against several
landowners for the construction of an aqueduct for flood control in a barangay. Clearly, only the
residents of that barangay would be benefited by the project. As compensation, the city offered to
pay only the amount declared by the owners in their tax declarations, which amount was lower
than the assessed value as determined by the assessor. The landowners oppose the expropriation
on the grounds that: (1) the same is not for public use; and (2) assuming it is for public use, the
compensation must be based on the evidence presented in court and not, as provided in
presidential decrees prescribing payment of the value stated in the owner's tax declarations or the
value determined by the assessor, whichever is lower. If you were judge, how would you rule on the
issue? Why?
The contention that the taking of private property for the purpose of constructing an aqueduct for
flood control is not for public use" is untenable- The idea that "PUBLIC USE" means exclusively use by
the public has been discarded. As long as the purpose of the taking is public, the exercise of power of
eminent domain is justifiable. Whatever may be beneficially employed for the general welfare satisfies the
requirement of public use. (Heirs of Juancho Aroma v. Reyes, 123 SCR A 220 (1983)
But the contention that the Presidential Decrees providing that in determining just compensation
the value stated by the owner in his tax declaration or that determined by the assessor, whichever is lower,
in unconstitutional is correct. In EPZA v. Dulay. G.R. No. 59603, April 29, 1987, it was held that this
method prescribed for ascertaining just compensation constitutes an impermissible encroachment on the
prerogatives of courts. It tends to render courts inutile in a matter which, under the Constitution, is
reserved to them for final determination. For although under the decrees the courts still have the power
to determine just compensation, their task is reduced to simply determining the lower value of the property
as declared either by the owner or by the assessor. "JUST COMPENSATION" means the value of the
property at the time of the taking. Its determination requires that all facts as to the condition of the
property and its surroundings and its improvements and capabilities must be considered, and this can
only be done in a judicial proceeding.
(1996) The City of Pasig initiated expropriation proceedings on a one-hectare lot which is
part of a ten-hectare parcel of land devoted to the growing of vegetables. The purpose of the
expropriation is to use the land as a relocation site for 200 families squatting along the Pasig river.
Can the owner of the property oppose the expropriation on the ground that only 200 out of the
more than 10,000 squatter families in Pasig City will benefit from the expropriation? Explain.
No, the owner of the property cannot oppose the expropriation on the ground that only 200 out of
more than 10,000 squatter families in Pasig City will benefit from the expropriation. As held in Philippine
Columbian Association vs. Pants, 228 SCRA 668, the acquisition of private property for socialized housing
is for public use and the fact that only a few and not everyone will benefit from the expropriation does not
detract from the nature of the public use.
Can the Department of Agrarian Reform require the City of Pasig to first secure authority
from said Department before converting the use of the land from agricultural to housing? Explain.
No, the Department of Agrarian Reform cannot require Pasig City to first secure authority from it
before converting the use of the land from agricultural to residential. According to Province of Camarines
Sur vs. Court of Appeals, 222 SCRA 173, there is no provision in the Comprehensive Agrarian Reform Law
which subjects the expropriation of agricultural lands by local government units to the control of the
Department of Agrarian Reform and to require approval from the Department of Agrarian Reform will
mean that it is not the local government unit but the Department of Agrarian Reform who will determine
whether or not the expropriation is for a public use.
(2009) Filipinas Computer Corporation (FCC), a local manufacturer of computers and
computer parts, owns a sprawling plant in a 5,000-square meter lot in Pasig City. To remedy
the city’s acute housing shortage, compounded by a burgeoning population, the Sangguniang
Panglungsod authorized the City Mayor to negotiate for the purchase of the lot. The Sanggunian
intends to subdivide the property into small residential lots to be distributed at cost to qualified
city residents. But FCC refused to sell the lot. Hard pressed to find a suitable property to house
its homeless residents, the city filed a complaint for eminent domain against FCC. If FCC hires 48
you as lawyer, what defense or defenses would you set up in order to resist the expropriation of the
property? Explain.
The following are the defenses that I will set up: (1) No prior valid and definite offer was made;
and (2) The expropriation is for socialized housing therefore it must comply with the order of preference
of the land to be acquired and the mode of acquisition. Under the law regarding expropriation for socialized
housing, private lands are in the last in line and the expropriation proceeding is last resorted to if all other
modes of acquisition has already been exhausted.
Order of expropriation for socialized housing: (1) Government lands (2) Alienable lands of the
public domain (3) Unregistered, abandoned or idle lands (4) Lands within the declared areas for priority
development, zonal improvement program sites, slum improvement and resettlement sites which have not
yet been acquired (5) BLISS sites which have not yet been acquired and (6) Privately owned lands.
The mode of expropriation is subject to 2 conditions: (1) It shall be resorted to only when the other
modes of acquisition have been exhausted; and (2) Parcels owned by small property owners are exempt
from such acquisition. Small property owners are owners of residential lands with an area not more than
300 sq. in highly urbanized cities and not more than 800 sq. in other urban areas; and they do not own
residential property other than the same.
If the court grants the City’s prayer for expropriation, but the City delays payment of the
amount determined by the court as just compensation, can FCC recover the property from Pasig
city?
Yes. As a general rule, non-payment of just compensation does not entitle the landowner to
recover possession of the expropriated lots. Instead legal interest on just compensation should be paid
(National Power Corporation vs. Henson, 300 SCRA 751 [1998]). However, in cases where the government
failed to pay the just compensation within 5 years from the FINALITY OF THE JUDGMENT in the
expropriation proceedings, the owners concerned shall have the right to recover possession of their
property (Republic vs. Lim, 462 SCRA 265 [2005]).
Suppose the expropriation succeeds, but the city decides to abandon its plan to subdivide
the property for residential purposes having found much bigger lot, can FCC legally demand that
it be allowed to repurchase the property from the city of Pasig? Why or why not?
It depends. The property
owner’s
right to repurchase the property depends upon the
character of the title acquired by the expropriator, i.e., if the land is expropriated for a particular purpose
with the condition that when that purpose is ended or abandoned, the property shall revert to the former
owner, then the former owner can re- acquire the property (Heirs of Timoteo Moreno vs. Mactan-Cebu
International Airport Authority, 413 SCRA 502 [2003]). But if there is no such condition the owner cannot
repurchase because the judgment in the expropriation case grants title to the lot in fee simple to the
REPUBLIC.
(1993) In expropriation proceedings: Can the judge validly withhold issuance of the writ of
possession until full payment of the final value of the expropriated property?
No, the judge cannot validly withhold the issuance of the writ of possession until full payment of
the final value of the expropriated property. As held in National Power Corporation vs. Jocson, 206 SCRA
520. it is the rninisterial duty of the Judge to issue the writ of possession upon deposit of the provisional
value of the expropriated property with the National or Provincial Treasurer.
ALTERNATIVE ANSWER:
In Republic vs. Gingoyon, GR no. 166429, Dec. 19, 2005, the SC held that RA 8974 now requires
full payment before the State may exercise proprietary rights in an expropriation proceeding and making
the previous ruling obiter dictum.
(2016) A law is passed intended to protect women and children from all forms of violence.
When a woman perceives an act to be an act of violence or a threat of violence against her, she may
apply for a Barangay Protection Order (BPO) to be issued by the Barangay Chairman, which shall 49
have the force and effect of law. Conrado, against whom a BPO had been issued on petition of his
wife, went to court to challenge the constitutionality of the law. He raises the following grounds:
A. The law violates the equal protection clause, because while it extends protection to
women who may be victims of violence by their husbands, it does not extend the same protection
to husbands who may be battered by their wives. (2.5%)
The law does not violate the equal protection clause. It is based on substantial distinctions. The
unequal power relationship between women and men, the greater likelihood for women than men to be
victims of violence, and the widespread gender bias and prejudice against women all make for real
differences. (Garcia v. Drilon, 699 SCRA 352 [2013]).
B. The grant of authority to the Barangay Chairman to issue a Barangay Protection Order
(BPO) constitutes an undue delegation of judicial power, because obviously, the issuance of the BPO
entails the exercise of judicial power. (2.5%)
The grant of authority to the Barangay Chairman to issue a Barangay Protection Orders is a purely
executive function pursuant to his duty to enforce all laws and ordinances and to maintain public order.
(Garcia v. Drilon, 699 SCRA 352 [2013]).
(2015) The Gay, Bisexual and Transgender Youth Association (GBTYA), an organization of
gay, bisexual, and transgender persons, filed for accreditation with the COMELEC to join the
forthcoming party-list elections. The COMELEC denied the application for accreditation on the
ground that GBTYA espouses immorality which offends religious dogmas. GBTY A challenges the
denial of its application based on moral grounds because it violates its right to equal protection of
the law. What are the three (3) levels of test that are applied in equal protection cases? Explain.
(3%)
The three kinds of tests applied in equal protection cases are:
1. Strict Scrutiny Test – requires the government to show that the challenged classifications serve
a compelling state interest and that the classification is necessary to serve that interest. This is used in
cases involving classifications based on race, national origin, religion, alienage, denial of right to vote,
interstate migration, access to courts and other rights recognized as fundamental.
2. Immediate or middle-tier scrutiny test – requires government to show that the challenged
classification serves as an important state interest and that the classification is at least substantially
related to serving that interest. This applies to suspect classification like gender or illegitimacy.
3. Minimum or rational basis scrutiny – according to which the government need only to show
that the challenged classification is rationally related to serving a legitimate state interest. This is the
traditional rationality test and it applies to all subjects other than those listed above. (see Bernas
Commentary, in Ang Ladlad v. COMELEC, GR No. 190582, April 8, 2010 for the explanation)
Which of the three (3) levels of test should be applied to the present case? Explain. (3%)
Rational Basis Test
The Rational Basis Test should be applied to the present case. In our jurisdiction, the Supreme
Court declared that the standard of analysis of equal protection challenges is the rational basis test.
Jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class,
the classification shall be upheld as long as it bears a rational relationship to some legitimate end. In the
case at bar, in so far as the party-list system is concerned, GBTYA is similarly situated as all other groups
which are running for a party-list seat in Congress (Ang Ladlad v. COMELEC).
(2014) In Serrano v. Gallant Maritime Services, Inc., 582 SCRA 254 (2009), the Supreme
Court declared as violative of the Equal Protection Clause the 5th paragraph of §10 R.A. No. 8042
(Migrant Workers and Overseas Filipinos Act of 1995) for discriminating against illegally dismissed
OFWs who still had mo re than a year to their contract compared to those who only had less than
a year remaining. The next year, Congress enacted R.A. No 10222, an amendment to the Migrant 50
Workers and Overseas Filipinos Act, which practically reinstated the provision struck down in
Serrano. Seamacho, an overseas seafarer who still had two years remaining on his contract when
he was illegally terminated, and who would only be entitled to a maximum of six-month’s pay under
the reinstated provision, engages you as his counsel. How are you to argue that the new law is
invalid insofar as it brings back to the statute books a provision that has already been struck down
by the Court?
I will argue that since Section 10 of RA No. 8042 has already been declared unconstitutional by
the Supreme Court, its nullity cannot be cured by reincorporation or reenactment of the same or a similar
law or provision. Once a law has been declared unconstitutional, it remains unconstitutional unless
circumstances have so changed as to warrant a reverse conclusion (Sameer Overseas Placement Agency
vs Cabiles, GR No. 170139, August 5, 2014)
(2007) The City Mayor issues an Executive Order declaring that the city promotes
responsible parenthood and upholds natural family planning. He prohibits all hospitals operated by
the city from prescribing the use of artificial methods of contraception, including condoms, pills,
intrauterine devices and surgical sterilization. As a result, poor women in his city lost their access
to affordable family planning programs. Private clinics, however, continue to render family planning
counsel and devices to paying clients. (a) Is the Executive Order in any way constitutionally infirm?
Explain.
The Executive Order is constitutionally infirm. Under the 1987 Constitution, the State shall
defend the right of spouses establish a family in accordance with their religious convictions and the
demands of responsible parenthood. (Art. XV, Sec. 3[1]). By upholding natural family planning and
prohibiting city hospitals from prescribing artificial methods of contraception, the Mayor is imposing his
religious beliefs on spouses who rely on the services of city hospitals. This clearly violates the above section
of the Constitution. Moreover, the 1987 Constitution states that no person shall be denied the equal
protection of the laws. (Art. III, Sec. 1). The Constitution also provides that the state shall promote a
just and dynamic social order that will ensure the prosperity and independence of the nation and free the
people from poverty through policies that provide adequate social services, promote full employment, a
rising standard of living and an improved quality of life for all. (Art. II, Section 9). The loss of access of
poor city women to family planning programs is discriminatory and creates suspect classification. It also
goes against the demands of social justice as enshrined in the immediately preceding provision.
The Executive Order is constitutionally infirm. It constitutes an invalid exercise of police power
and violates substantive due process by depriving people of the means to control their reproductive
processes. Moreover, since the national government has not outlawed the use of artificial methods of
contraception, then it would be against national policies. In addition, the Mayor cannot issue such
Executive Order without an underlying ordinance. (Moday v, Court of Appeals, G.R. No. 107916, February
20, 1997) Besides, the action of the Mayor may be in violation of a person’s right to privacy.
ALTERNATIVE ANSWER:
The executive order is constitutionally infirm. It violates Section 3(1), Article XV of the 1987
Constitution, which recognizes the right of the spouses to found a family in accordance with the demands
of responsible parenthood which includes the artificial method.
ALTERNATIVE ANSWER:
The Executive order is constitutionally infirm. When Section 12, Article II of the 1987 Constitution
provides that the State shall equally protect the life of the mother and the life of the unborn from
conception, it is prohibiting abortion only and not the use of artificial contraceptives (Record of the
Constitutional Commission, Vol. IV. Pp. 683, 711 and 760).
May the Commission on Human Rights order the Mayor to stop the implementation of the
Executive Order? Explain.
No, the power of the Commission on Human Rights (CHR) is limited to fact-finding investigations.
Thus, it cannot issue an “order to desist” against the mayor, inasmuch as the order prescinds from an 51
adjudicatory power that CHR does not possess. (Simon v. Commission on Human Rights, G.R. No. 100150,
January 5, 1994; Cariño v. Commission on Human Rights, G.R. No. 96681, December 2, 1991.)
(1989) An ordinance of the City of Manila requires every alien desiring to obtain
employment of whatever kind, including casual and part-time employment, in the city to secure
an employment permit from the City Mayor and to pay a work permit fee of P500. Is the ordinance
valid?
No, the ordinance is not valid. In Villegas vs. Hiu Chiong Tsai Pao Ho, 86 SCRA 270, it was held
that such an ordinance violates equal protection. It failed to consider the valid substantial differences
among the aliens required to pay the fee. The same among it being collected from every employed alien,
whether he is casual or permanent, part-time or full-time. The ordinance also violates due process,
because it does not contain any standard to guide the mayor in the exercise of the power granted to him
by the ordinance. Thus, it confers upon him unrestricted power to allow or prevent an activity which is
lawful per se.
(1987) Marina Neptunia, daughter of a sea captain and sister to four marine officers decided
as a child to follow in her father's footsteps. In her growing up years she was as much at home on
board a boat as she was in the family home by the sea. In time she earned a Bachelor of Science
degree in Marine Transportation, major in Navigation and Seamanship. She served her
apprenticeship for a year in a merchant marine vessel registered for foreign trade and another year
on a merchant marine vessel registered for coastwise trade. But to become a full-fledged marine
officer she had to pass the appropriate board examinations before she could get her professional
license and registration. She applied in January 1986 to take examination for marine officers but
her application was rejected for the reason that the law Regulating the Practice of Marine
Profession in the Philippines (Pres. Dec. No. 97 (1973) specifically prescribes that "No person shall
be qualified for examination as marine officer unless he is: Marina feels very aggrieved over the
denial and has come to you for advice. She wants to know: Whether the Board of Examiners had
any plausible or legal basis for rejecting her application in 1986. Explain briefly. Whether the 1987
Constitution guarantees her the right to admission to take the coming January 1988 marine
officers examinations. Explain and cite relevant provisions.
The disqualification of females from the practice of marine profession constitutes as invidious
discrimination condemned by the Equal Protection Clause of that Constitution (Art. IV, Sec. 1) In the
United States, under a similar provision, while earlier decisions of the Supreme Court upheld the validity
of a statute prohibiting women from bartending unless she was the wife or daughter of a male owner
(Goesart v. Cleary, 335 U.S. 464 (1948) and denying to women the right to practice law (Bradwell v. State,
83 U.S. (16 Wall) 130 (1873), recent decisions have invalidated statutes or regulations providing for
differential treatment of females based on nothing stereotypical and inaccurate generalizations. The Court
held that "classification based on sex, like classifications based upon race, alienage, or national origin,
are inherently suspect, and must therefore be subjected to strict judicial scrutiny." Accordingly, the Court
invalidated a statute permitting a male serviceman to claim his spouse as a dependent to obtain increased
quarter allowance, regardless of whether the wife is actually dependent on him, while denying the same
right to a servicewoman unless her husband was in fact dependent on her for over one half of his support.
(Frontierro v Richardson, 411 U.S. 687 (1973); Accord Craig, v. Boren, 429 U.S. 190 (1976) (providing for
sale of beer to males under 21 and to females under 18); Reed v. Reed. 404 U.S. 71 (1971) (preference
given to men over women for appointment as administrators of estates invalid).
In addition to the Equal Protection Clause, the 1987 Constitution now requires the State to
"ensure the fundamental equality before the law of women and men" (Art II, Sec. 14) and to provide them
with "such facilities and opportunities that will enhance their welfare and enable them to realize their full
potential in the service of the nation." (Art. XIII, Sec. 14). These provisions put in serious doubt the validity
of PD 97 limiting the practice of marine profession to males.
(1987) "X", a son of a rich family, applied for enrolment with the San Carlos Seminary in
Mandaluyong, Metro Manila. Because he had been previously expelled from another seminary for
scholastic deficiency, the Rector of San Carlos Seminary denied the application without giving any
grounds for the denial. After "X" was refused admission, the Rector admitted another applicant, 52
who is the son of a poor farmer who was also academically deficient. (a) Prepare a short argument
citing rules, laws, or constitutional provisions in support of "X's" motion for reconsideration of the
denial of his application.
The refusal of the seminary to admit "X" constitutes invidious discrimination, violative of the Equal
Protection Clause (Art. III, Sec. 1) of the Constitution. The fact, that the other applicant is the son of a
poor farmer does not make the discrimination any less invidious since the other applicant is also
academically deficient. The reverse discrimination practiced by the seminary cannot be justified because
unlike the race problem in America, poverty is not a condition of inferiority needing redress.
(2000) Undaunted by his three failures in the National Medical Admission Test (NMAT), Cruz
applied to take it again but he was refused because of an order of the Department of Education,
Culture and Sports (DECS) disallowing flunkers from taking the test a fourth time. Cruz filed suit
assailing this rule raising the constitutional grounds of accessible quality education, academic
freedom and equal protection. The government opposes this, upholding the constitutionality of the
rule on the ground of exercise of police power. Decide the case discussing the grounds raised. (5%)
As held in Department of Education, Culture and Sports v. San Diego 180 SCRA 533 (1989), the
rule is a valid exercise of police power to ensure that those admitted to the medical profession are qualified.
The arguments of Cruz are not meritorious. The right to quality education and academic freedom are not
absolute. Under Section 5(3), Article XIV of the Constitution, the right to choose a profession is subject to
fair, reasonable and equitable admission and academic requirements. The rule does not violate equal
protection. There is a substantial distinction between medical students and other students. Unlike other
professions, the medical profession directly affects the lives of the people.
(1994) The Department of Education, Culture and Sports Issued a circular disqualifying
anyone who fails for the fourth time in the National Entrance Tests from admission to a College of
Dentistry. X who was thus disqualified, questions the constitutionality of the circular. Did the
circular deprive her of her constitutional right to education?
No, because it is a permissive limitation to right to education, as it is intended to ensure that only
those who are qualified to be dentists are admitted for enrollment.
Did the circular violate the equal protection clause of the Constitution?
No, the circular did not violate the equal protection clause of the Constitution. There is a
substantial distinction between dentistry students and other students. The dental profession directly
affects the lives and health of people. Other professions do not involve the same delicate responsibility
and need not be similarly treated. This is in accordance with the ruling in Department of Education,
Culture and Sports vs. San Diego, 180 SCRA 533.
(1989) "X" was sentenced to a penalty of 1 year and 5 months of prision correctional and
to pay a fine of P8,000.00, with subsidiary imprisonment in case of solvency. After serving his
prison term, "X" asked the Director of Prisons whether he could already be released. "X" was asked
to pay the fine of P5,000.00 and he said he could not afford it, being an indigent. The Director
informed him he has to serve an additional prison term at the rate of one day per eight pesos in
accordance with Article 39 of the Revised Penal Code. The lawyer of "X" filed a petition for habeas
corpus contending that the further incarceration of his client for unpaid fines violates the equal
protection clause of the Constitution. Decide.
The petition should be granted, because Article 39 of the Revised Penal Code is unconstitutional.
In Tate vs. Short, 401 U.S. 395, the United States Supreme Court held that imposition of subsidiary
imprisonment upon a convict who is too poor to pay a fine violates equal protection, because economic
status cannot serve as a valid basis for distinguishing the duration of the imprisonment between a convict
who is able to pay the fine and a convict who is unable to pay it. On the other hand, in United States ex
rel. Privitera vs. Kross, 239 F Supp 118, it was held that the imposition of subsidiary imprisonment for
inability to pay a fine does not violate equal protection, because the punishment should be tailored to fit
the individual, and equal protection does not compel the eradication of every disadvantage caused by
indigence. The decision was affirmed by the United States Circuit Court of Appeals in 345 F2d 533, and 53
the United States Supreme Court denied the petition for certiorari in 382 U.S. 911. This ruling was
adopted by the Illinois Supreme Court in People vs. Williams, 31 ALR3d 920.
(2015) When is a facial challenge to the constitutionality of a law on the ground of violation
of the Bill of Rights traditionally allowed? Explain your answer. (3%)
Facial challenge to the constitutionality of a law is traditionally allowed when it operates in the
area of freedom of expression. The established rule is that a party can question the validity of a statute
only if, as applied to him, it is unconstitutional. The exception is the so-called “Facial challenge". But the
only time a facial challenge to a statute is allowed is when it operates in the area of freedom of expression.
ln such instance, the "overbreadth doctrine" permits a party to challenge the validity of a statute even
though, as applied to him, it is not unconstitutional, but it might be if applied to others not before the
Court whose activities are constitutionally protected. lnvalidation of the statute "on its face", rather than
"as applied", is permitted in the interest of preventing a "chilling effect" on freedom of expression (Justice
Mendoza's concurring opinion in Cruz v. DENR, G.R. No. 135385, December 06, 20001). A facial challenge
to a legislative act is the most difficult challenge to mount successfully since the challenge must establish
that no set of circumstances exists under which the act would be valid (Estrada v. Sandiganbayan, G.R.
No. 148560, November 19,20011).
(2014) Surveys Galore is an outfit involved in conducting nationwide surveys. In one such
survey, it asked the people about the degree of trust and confidence they had in several institutions
of the government. When the results came in, the judiciary was shown to be less trusted than most
of the government offices. The results were then published by the mass media. Assension, a trial
court judge, felt particularly offended by the news. He then issued a show- cause order against
Surveys Galore directing the survey entity to explain why it should not be cited in contempt for
coming up with such a survey and publishing the results which were so unflattering and degrading
to the dignity of the judiciary. Surveys Galore immediately assailed the show-cause order of Judge
Assension, arguing that it is violative of the constitutional guaranty of freedom of expression. Is
Surveys Galore’s petition meritorious? (4%)
The petition of Surveys Galore is meritorious. Freedom of speech and freedom of the press may
be identified with the liberty to discuss publicly and truthfully any matter of public interest without
censorship and punishment. There should be no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there is a clear and present danger of substantive evil that Congress has a right to
prevent (Chavez vs Gonzales, 545 SCRA 441 (2008)). Freedom of speech should not be impaired through
the exercise of the power to punish for contempt of court unless the statement in question is a serious
and imminent threat to the administration of justice. Here, the publication of the result of the survey was
not intended to degrade the Judiciary (Cabansag vs Fernandez, 102 Phil. 152 (2012))
(2014) The guarantee of freedom of expression signifies: (1%)
Freedom from prior restraint.
(2003) May the COMELEC (COMELEC) prohibit the posting of decals and stickers on
"mobile" places, public or private, such as on a private vehicle, and limit their location only to the
authorized posting areas that the COMELEC itself fixes? Explain.
According to Adiong v. COMELEC. 207 SCRA 712 [1992], the prohibition is unconstitutional. It
curtails the freedom of expression of individuals who wish to express their preference for a candidate by
posting decals and stickers on their cars and to convince others to agree with them. It is also overbroad,
because it encompasses private property and constitutes deprivation of property without due process of
law. Ownership of property includes the right to use. The prohibition is censorship, which cannot be
justified.
(1988) The Secretary of Transportation and Communications has warned radio station
operators against selling blocked time, on the claim that the time covered thereby are often used
by those buying them to attack the present administration. Assume that the department
implements this warning and orders owners and operators of radio stations not to sell blocked time 54
to interested parties without prior clearance from the Department of Transportation and
Communications. You are approached by an interested party affected adversely by that order of
the Secretary of Transportation and Communications. What would you do regarding that ban on
the sale of blocked time? Explain your answer.
I would challenge its validity in court on the ground that it constitutes a prior restraint on freedom
of expression. Such a limitation is valid only in exceptional cases, such as where the purpose is to prevent
actual obstruction to recruitment of service or the sailing dates of transports or the number and location
of troops, or for the purpose of enforcing the primary requirements of decency or the security of community
life. (Near v. Minnesota, 283 U.S, 697 (1931)). Attacks on the government, on the other hand, cannot
justify prior restraints. For as has been pointed out, "the interest of society and the maintenance of good
government demand a full discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be
assuaged with the balm of a clear conscience," (United States v Bustos, 37 Phil. 741 (1918)). The parties
adversely affected may also disregard the regulation as being on its face void. As has been held, "any
system of prior restraints of expression comes to the court bearing a heavy presumption against its
constitutional validity," and the government "thus carries a heavy burden of showing justification for the
imposition of such a restraint." (New York Times Co. V. United States, 403 U.S. 713 (1971)). The usual
presumption of validity that inheres in legislation is reversed in the case of laws imposing prior restraint
on freedom of expression.
[2017] To fulfill a campaign promise to the poor folk in a far-flung area in Mindanao, the
President requested his friend, Pastor Roy, to devote his ministry to them. The President would
pay Pastor Roy a monthly stipend of ₱50,000.00 from his discretionary fund, and would also erect
a modest house of worship in the locality in an area of the latter's choice. Does the President
thereby violate any provisions of the Constitution?
Yes, the President has violated the provision under Section 25(6), Article VI of the Constitution
under which, it provides that discretionary funds appropriated for particular officials shall be disbursed
only for public purpose. The act of the President in relation to his discretionary funds id an act of spending
for his personal benefit which is contrary to public interest. Also, the President also violated the provision
under Section 29 (2), Article VI of the Constitution which states that “No public money or property shall
be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher,
minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution.
(2016) Congress passed a bill appropriating P100 billion. Part of the money is to be used for
the purchase of a 200-hectare property in Antipolo. The rest shall be spent for the development of
the area and the construction of the Universal Temple for All the World's Faiths (UTAW-F). When
completed, the site will be open, free of charge, to all religions, beliefs, and faiths, where each
devotee or believer shall be accommodated and treated in a fair and equal manner, without
distinction, favor, or prejudice. There will also be individual segments or zones in the area which
can be used for the conduct of whatever rituals, services, sacraments, or ceremonials that may be
required by the customs or practices of each particular religion. The President approved the bill,
happy in the thought that this could start the healing process of our wounded country and
encourage people of varied and often conflicting faiths to live together in harmony and in peace. If
the law is questioned on the ground that it violates Sec. 5, Article III of the Constitution that "no
law shall be made respecting an establishment of religion or prohibiting the free exercise thereof,"
how will you resolve the challenge? Explain. (5%)
The contention must be rejected. The use of the site temple will not be limited a particular religious
sect. it will be made available to all religious sects. The temporary use of public property for religious
purposes without discrimination does not violate the Constitution. (Ignacio v. De la Cruz, 99 Phil. 346
[1956]; People v. Fernandez, 40 O.G. 1089 [1956]).
ALTERNATIVE ANSWER:
The contention is meritorious. The state cannot pass laws which aid one religion, all religions, or
prefer one religion over another (Emerson v. Board of Education, 330 U.S.A. 1 [1947]).
[2016] Fernando filed an administrative complaint against his co- teacher, Amelia, claiming
that the latter is living with a married man who is not her husband. Fernando charged Amelia with
committing "disgraceful and immoral conduct" in violation of the Revised Administrative Code
and, thus, should not be allowed to remain employed in the government. Amelia, on the other hand,
claims that she and her partner are members of a religious sect that allows members of the
congregation who have been abandoned by their respective spouses to enter marital relations under
a "Declaration of Pledging Faithfulness." Having made such Declaration, she argues that she cannot
be charged with committing immoral conduct for she is entitled to free exercise of religion under
the Constitution. A. Is Amelia administratively liable? State your reasons briefly. (2.5%)
Amelia is not administratively liable. There is no compelling state interest that justifies inhibiting
the free exercise of religious beliefs. The means used by the government to achieve its legitimate objective
is not the least intrusive means (Estrada v. Escritor, 492 SCRA 1 [2006]).
B. Briefly explain the concept of "benevolent neutrality." (2.5%)
Benevolent neutrality means that with respect to governmental actions, accommodation of religion
may be permitted to allow individual and groups to exercise their religion without hindrance. That is
sought is not a declaration unconstitutionality of the law but an exemption from its application. ((Estrada
v. Escritor, 492 SCRA 1 [2006]).
(2009) Angelina, a married woman, is a division chief in the Department of Science and
Technology. She had been living with a married man, not her husband, for the last 15 years.
Administratively charged with immorality and conduct prejudicial to the best interest to the
service, she admits her live-in arrangement, but maintains that this conjugal understanding is in
conformity with their religious beliefs. As members of the religious sect, Yahweh’s Observers, they
had executed a Declaration of Pledging Faithfulness which has been confirmed and blessed by their
Council of Elders. At the formal investigation of the administrative case, the Grand Elder of the
sect affirmed Angelina’s testimony and attested to the sincerity of Angelina and her partner in the
profession of their faith. If you were to judge this case, will you exonerate Angelina? Reasons. (3%)
Yes. (Estrada vs Escritor, August, 4, 2003 and June 22, 2006) – Right to freedom of religion must
prevail. Benevolent neutrality recognizes that government must pursue its secular goals and interests,
but at the same time, strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Although the morality contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not offend compelling state
interest. Benevolent neutrality approach requires that the court make an individual determination and
not dismiss the claim outright.
(b) Meanwhile, Jenny, also a member of Yahweh’s Observers, was severely disappointed at
the manner the Grand Elder validated what she considered was on obviously immoral conjugal
arrangement between Angelina and her partner. Jenny filed suit in court, seeking the removal of
the Grand Elder from the religious sect on the ground that his act in supporting Angelina not only
ruined the reputation of their religion, but also violated the constitutional policy upholding the
sanctity of marriage and the solidarity of the family. Will Jenny’s case prosper? Explain your
answer.
The case will not prosper. The expulsion/excommunication of members of a religious
institution/organization is a matter best left to the discretion of the officials, and the laws and canons, of
55
said institution/organization. (Taruc v. Bishop dela Cruz, et al. Mar. 10, 2005).
(1989) "X" is serving his prison sentence in Muntinlupa. He belongs to a religious sect that
prohibits the eating of meat. He asked the Director of Prisons that he be served with meatless diet.
The Director refused and "X" sued the Director for damages for violating his religious freedom.
Decide.
Yes, the Director of Prison is liable under Article 32 of the Civil Code for violating the religious
freedom of "X". According to the decision of the United States Supreme Court in the case of O'Lone vs.
Estate of Shabazz, 107 S. Ct. 2400, convicted prisoners retain their right to free exercise of religion. At
the same time, lawful incarceration brings about necessary limitations of many privileges and rights
justified by the considerations underlying the penal system. In considering the appropriate balance
between these two factors, reasonableness should be the test. Accommodation to religious freedom can
be made if it will not involve sacrificing the interests of security and it will have no impact on the allocation
of the resources of the penitentiary. In this case, providing "X" with a meatless diet will not create a
security problem or unduly increase the cost of food being served to the prisoners. In fact, in the case of
O' Lone vs. Estate of Shabazz, it was noted that the Moslem prisoners were being given a different meal
whenever pork would be served.
ALTERNATIVE ANSWER:
The suit should be dismissed. The Free Exercise Clause of the Constitution is essentially a
restraint on governmental interference with the right of individuals to worship as they please. It is not a
mandate to the state to take positive, affirmative action to enable the individual to enjoy his freedom. It
would have been different had the Director of Prisons prohibited meatless diets in the penal institution.
(1998) A religious organization has a weekly television program. The program presents and
propagates its religious, doctrines, and compares their practices with those of other religions. As
the Movie and Television Review and Classification Board (MTRCB) found as offensive several
episodes of the program which attacked other religions, the MTRCB required the organization to
submit its tapes for review prior to airing. The religious organization brought the case to court on
the ground that the action of the MTRCB suppresses its freedom of speech and interferes with its
right to free exercise of religion. Decide. [5%]
The religious organization cannot invoke freedom of speech and freedom of religion as grounds
for refusing to submit the tapes to the Movie and Television Review and Classification Board for review
prior to airing. When the religious organization started presenting its program over television, it went into
the realm of action. The right to act on one's religious belief is not absolute and is subject to police power
for the protection of the general welfare. Hence the tapes may be required to be reviewed prior to airing.
In Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529, 544, the Supreme Court held: "We thus reject
petitioner's postulate that Its religious program is per se beyond review by the respondent Board. Its public
broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium
that reaches even the eyes and ears of children. The Court reiterates the rule that the exercise of religious
freedom can be regulated by the State when it will bring about the CLEAR AND PRESENT DANGER of
some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the mere
overriding Interest of public health, public morals, or public welfare."
However, the Movie and Television Review and Classification Board cannot ban the tapes on the
ground that they attacked other religions. In Iglesia ni Cristo vs. Court of Appeals 259 SCRA 529, 547,
the Supreme Court held: "Even a side glance at Section 3 of PD No. 1986 will reveal that it is not among
the grounds to justify an order prohibiting the broadcast of petitioner's television program."
Moreover, the broadcasts do not give rise to a clear and present danger of a substantive evil. In
the case of Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529, 549: "Prior restraint on speech, including
the religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive
and imminent evil which has taken the reality already on the ground."
(1997) Section 28. Title VI, Chapter 9, of the Administrative Code of 1987 requires all
educational institutions to observe a simple and dignified flag ceremony, including the playing or
56
singing of the Philippine National Anthem, pursuant to rules to be promulgated by the Secretary of
Education. Culture and Sports. The refusal of a teacher, student or pupil to attend or participate
in the flag ceremony is a ground for dismissal after due investigation. The Secretary of Education
Culture and Sports issued a memorandum implementing said provision of law. As ordered, the flag
ceremony would be held on Mondays at 7:30 a.m. during class days. A group of teachers, students
and pupils requested the Secretary that they be exempted from attending the flag ceremony on the
ground that attendance thereto was against their religious belief. The Secretary denied the request. 57
The teachers, students and pupils concerned went to Court to have the memorandum circular
declared null and void. Decide the case.
The teachers and the students should be exempted from the flag ceremony. As held in Ebralinag
vs. Division Superintendent of Schools of Cebu, 251 SCRA 569. to compel them to participate in the flag
ceremony will violate their freedom of religion. Freedom of religion cannot be impaired except upon the
showing of a clear and present danger of a substantive evil which the State has a right to prevent. The
refusal of the teachers and the students to participate in the flag ceremony does not pose a clear and
present danger.
(2003) Children who are members of a religious sect have been expelled from their
respective public schools for refusing, on account of their religious beliefs, to take part in the flag
ceremony which includes playing by a band or singing the national anthem, saluting the Philippine
flag and reciting the patriotic pledge. The students and their parents assail the expulsion on the
ground that the school authorities have acted in violation of their right to free public education,
freedom of speech, and religious freedom and worship. Decide the case.
The students cannot be expelled from school. As held in Ebralinag v. The Division Superintendent
of Schools of Cebu. 219 SCRA 256 [1993], to compel students to take part in the flag ceremony when it is
against their religious beliefs will violate their religious freedom. Their expulsion also violates the duty of
the State under Article XIV, Section 1 of the Constitution to protect and promote the right of all citizens
to quality education and make such education accessible to all.
(1988) Tawi-Tawi is a predominantly Moslem province. The Governor, the Vice-Governor,
and members of its Sangguniang Panlalawigan are all Moslems. Its budget provides the Governor
with a certain amount as his discretionary funds. Recently, however, the Sangguniang Panlalawigan
passed a resolution appropriating P100,000 as a special discretionary fund of the Governor to be
spent by him in leading a pilgrimage of his province mates to Mecca, Saudi Arabia, Islam's holiest
city. Philconsa, on constitutional grounds, has filed suit to nullify the resolution of the
Sangguniang Panlalawigan giving the special discretionary fund to the Governor for the stated
purpose. How would you decide the case? Give your reasons.
The resolution is unconstitutional First, it violates art. VI, sec. 29(2) of the Constitution which
prohibits the appropriation of public money or property, directly or indirectly, for the use, benefit or
support of any system of religion, and, second, it contravenes art. VI, sec, 25(6) which limits the
appropriation of discretionary funds only for public purposes. The use of discretionary funds for purely
religious purpose is thus unconstitutional, and the fact that the disbursement is made by resolution of a
local legislative body and not by Congress does not make it any less offensive to the Constitution. Above
all, the resolution constitutes a clear violation of the Non-Establishment Clause (art. III, sec. 5) of the
Constitution.
(1992) Recognizing the value of education in making the Philippine labor market attractive
to foreign investment, the Department of Education, Culture and Sports offers subsidies to
accredited colleges and universities in order to promote quality tertiary education. The DECS
grants a subsidy to a Catholic school which requires its students to take at least 3 hours a week of
religious instruction. Is the subsidy permissible? Explain.
No, the subsidy is not permissible. It will foster religion, since the school gives religious
instructions to its students. Besides, it will violate the prohibition in Section 29 [2J, Article VI of the
Constitution against the use of public funds to aid religion. In Lemon vs Kurtzman, 403 U.S. 602, it was
held that financial assistance to a sectarian school violates the prohibition against the establishment of
religion if it fosters an excessive government entanglement with religion. Since the school requires its
students to take at least three hours a week of religious instructions, to ensure that the financial
assistance will not be used for religious purposes, the government will have to conduct a continuing
surveillance. This involves excessive entanglement with religion.
Presuming that you answer in the negative, would it make a difference if the subsidy were
given solely in the form of laboratory equipment in chemistry and physics?
58
If the assistance would be in the form of laboratory equipment in chemistry and physics, it will
be valid. The purpose of the assistance is secular, i.e., the improvement of the quality of tertiary education.
Any benefit to religion is merely incidental. Since the equipment can only be used for a secular purpose,
it is religiously neutral. As held in Tilton vs. Richardson, 403 U.S. 672, it will not involve excessive
government entanglement with religion, for the use of the equipment will not require surveillance.
Presume, on the other hand, that the subsidy is given in the form of scholarship vouchers
given directly to the student and which the student can use for paying tuition in any accredited
school of his choice, whether religious or non-sectarian. Will your answer be different?
In general, the giving of scholarship vouchers to students is valid. Section 2(3), Article XIV
of the Constitution requires the State to establish a system of subsidies to deserving students in both
public and private schools. However, the law is vague and over-broad. Under it, a student who wants to
study for the priesthood can apply for the subsidy and use it for his studies. This will involve using public
funds to aid religion.
(1997) Upon request of a group of overseas contract workers in Brunei, Rev. Father Juan
de la Cruz, a Roman Catholic priest, was sent to that country by the President of the Philippines
to minister to their spiritual needs. The travel expenses, per diems, clothing allowance and monthly
stipend of P5,000 were ordered charged against the President's discretionary fund. Upon post audit
of the vouchers therefor, the Commission on Audit refused approval thereof claiming that the
expenditures were in violation of the Constitution. Was the Commission on Audit correct in
disallowing the vouchers in question?
Yes, the Commission on Audit was correct in disallowing the expenditures. Section 29(2), Article
VI of the Constitution prohibits the expenditure of public funds for the use, benefit, or support of any
priest. The only exception is when the priest is assigned to the armed forces, or to any penal institution
or government orphanage or leprosarium. The sending of a priest to minister to the spiritual needs of
overseas contract workers does not fall within the scope of any of the exceptions.
(2014) Almighty Apostles is a relatively new religious group and movement with fastgrowing membership. One time, DeepThroat, an investigative reporter, made a research and study
as to what the group’s leader, Maskeraid was actually doing. DeepThroat eventually came up with
the conclusion that Maskeraid was a phony who is just fooling the simple-minded people to part
with their money in exchange for the promise of eternal happiness in some far -away heaven. This
was published in a newspaper which caused much agitation among the followers of Maskeraid. Some
threatened violence against DeepThroat, while some others already started destroying properties
while hurting those selling the newspaper. The local authorities, afraid of the public disorder that
such followers might do, decided to ban the distribution of the newspaper containing the article.
DeepThroat went to court complaining about the prohibition placed on the dissemination of his
article. He claims that the act of the authorities partakes of the nature of heckler’s veto, thus a
violation of the guaranty of press freedom. On th e other hand, the authorities counter that the act
was necessary to protect the public order and the greater interest of the community. If you were
the judge, how would you resolve the issue? (4%)
If I were the judge, I would rule that the distribution of the newspaper cannot be banned. Freedom
of the news should be allowed although it induces a condition of unrest and stirs people to anger. Freedom
of the press include freedom of circulation (Chavez vs Gonzales, 545 SCRA 441 (2008)) When governmental
action that restricts freedom of the press is based on content, it is given the strictest scrutiny and the
government must show that there is a clear and present danger as to warrant curtailment of the right of
Deep Throat to distribute the newspaper (Chavez vs Gonzales, 545 SCRA 441(2008))
ALTERNATIVE ANSWER
The action of the government is justified. The fact that some people had already started destroying
properties while hurting those selling the newspaper can be validly considered by the government as a
clear and present danger, which will justify its banning of the further distribution of the newspaper
containing the article. The test for limitations on freedom of expression continues to be the clear and
present danger rule-that words are used in such circumstances and are of such a nature as to create a 59
clear and present danger that they will bring about the substantive evils that the lawmaker has a right to
prevent (Chavez vs Gonzales, 545 SCRA 441 (2008))
(2009) The KKK Television Network (KKK- TV) aired the documentary, "Case Law: How the
Supreme Court Decides," without obtaining the necessary permit required by P.D. 1986.
Consequently, the Movie and Television Review and Classification Board (MTRCB) suspended the
airing of KKK-TV programs. MTRCB declared that under P.D. 1986, it has the power of prior review
over all television programs, except "newsreels" and programs "by the Government", and the subject
documentary does not fall under either of these two classes. The suspension order was ostensibly
based on Memorandum Circular No. 98-17 which grants MTRCB the authority to issue such an
order. KKK-TV filed a certiorari petition in court, raising the following issues: The act of MTRCB
constitutes "prior restraint" and violates the constitutionally guaranteed freedom of expression;
(3%)
The contention of KKK-TV is not tenable. The prior restraint is a valid exercise of police power.
Television is a medium which reaches even the eyes and ears of children (Iglesia ni Cristo vs. Court of
Appeals, 259 SCRA 529 [1996]).
ALTERNATIVE ANSWER:
The memo circular is unconstitutional. The act of the Movie and Television Review and
Classification Board Constitutes prior restraint and violates freedom of expression. Any system of prior
restraint has against it a heavy presumption against its validity. Prior restraint is an abridgment of the
freedom of expression. There is no showing that the airing of the programs would constitute a clear and
present danger (New York Times vs. United States, 403 U.S. 713 [1971]).
While Memorandum Circular No. 98-17 was issued and published in a newspaper of general
circulation, a copy thereof was never filed with the Office of the National Register of the University
of the Philippines Law Center. (2%)
In accordance with Chapter 2, Book VII of the Administrative Code of 1987, Memorandum Circular
No. 98-17 must be filled with the University of the Philippines Law Center. It cannot be enforced until it
has been filed with the University of the Philippines Law Center (Pilipinas Shell Petroleum Corporation Vs
Commissioner of Internal Revenue, 541 SCRA 316 [2007]).
(2004) The STAR, a national daily newspaper, carried an exclusive report stating that
Senator XX received a house and lot located at YY Street, Makati, in consideration for his vote
cutting cigarette taxes by 50%. The Senator sued the STAR, its reporter, editor and publisher for
libel, claiming the report was completely false and malicious. According to the Senator, there is no
YY Street in Makati, and the tax cut was only 20%. He claimed one million pesos in damages. The
defendants denied "actual malice," claiming privileged communication and absolute freedom of the
press to report on public officials and matters of public concern. If there was any error, the STAR
said it would publish the correction promptly. Is there "actual malice" in STAR'S reportage? How
is "actual malice" defined? Are the defendants liable for damages? (5%)
Since Senator XX is a public person and the questioned imputation is directed against him in his
public capacity, in this case actual malice means the statement was made with knowledge that it was
false or with reckless disregard of whether it was false or not (Borja v. Court of Appeals, 301 SCRA 1
/1999). Since there is no proof that the report was published with knowledge that it is false or with
reckless disregard of whether it was false or not, the defendants are not liable for damage.
ALTERNATIVE ANSWER
Since Senator XX is a public person and the questioned imputation is directed against him in his
public capacity, in this case actual malice means the statement was made with knowledge that it was
false or with reckless disregard of whether it was false or not (Borjal v. Court of Appeals, 301 SCRA 1
/1999]). Since it is a matter of public knowledge that there is no YY Street in Makati, the publication was
made with reckless disregard of whether or not it is false. The defendants may be held liable for damages.
(1987) In the morning of August 28, 1987, during the height of the fighting at Channel 4 60
and Camelot Hotel, the military closed Radio Station XX, which was excitedly reporting the
successes of the rebels and movements towards Manila and troops friendly to the rebels. The
reports were correct and factual. On October 6, 1987, after normalcy had returned and the
Government had full control of the situation, the National Telecommunications Commission,
without notice and hearing, but merely on the basis of the report of the military, cancelled the
franchise of station XX. Discuss the legality of: The action taken against the station on August 28,
1987; The cancellation of the franchise of the station on October 6, 1987.
The closing down of Radio Station XX during the fighting is permissible. With respect news media,
wartime censorship has been upheld on the ground that "when a nation is at war many things that might
be said in time of peace are such a hindrance to its efforts that their utterance will not be endured so long
as men fight and that no Court could regard them as protected by any constitutional right." The security
of community life may be protected against incitements to acts of violence and the overthrow by force of
orderly government. (Near v. Minnesota, 283 U.S. 697 (1931), quoting Justice Holmes’s opinion in Schenck
v. United States, 249 U.S. 47 (1919); New York Times v. United States, 403 U.S. 713 (1971)) With
greater reason then may censorship in times of emergency be justified in the case of broadcast media
since their freedom is somewhat lesser in scope. The impact of the vibrant speech, as Justice Gutierrez
said, is forceful and immediate. Unlike readers of the printed work, a radio audience has lesser opportunity
to cogitate, analyze and reject the utterance. (Eastern Broadcasting Corp (DYRE) v, Dans, 137 SCRA 647
(1985)). In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), it was held that "of all forms of
communication, it is broadcasting which has received the most limited First Amendment Protection."
(2007) The Destilleria Felipe Segundo is famous for its 15-year old rum, which it has
produced and marketed successfully for the past 70 years. Its latest commercial advertisement
uses the line: "Nakatikim ka na ba ng kinse anyos?" Very soon, activist groups promoting women's
and children's rights were up in arms against the advertisement. All advertising companies in the
Philippines have formed an association, the Philippine Advertising Council, and have agreed to
abide by all the ethical guidelines and decisions by the Council. In response to the protests, the
Council orders the pull- out of the "kinse anyos" advertising campaign. Can Destilleria Felipe
Segundo claim that its constitutional rights are thus infringed?
Destilleria Felipe Segundo cannot claim that its constitutional rights were infringed. In this case,
a private association formed by advertising companies for self-regulation was the one who ordered that
the advertisement be pulled out, because Destilleria did not comply with the association’s ethical
guidelines. The guarantee of freedom of speech is a limitation on state action and not on the action of
private parties (Lloyd Corporation vs. Tanner, 407 U.S. 551 [1972]). The mass media are private
enterprises, and their refusal to accept any advertisement does not violate freedom of speech (TimesPicayune Publishing Company vs. United States, 345 U.S. 594 [1953]; Columbia Broadcasting System,
Inc. vs. Democrat Control Committee, 412 U.S. 94 [1973])
ALTERNATIVE ANSWER:
No, Destillera Felipe Segundo may not claim that its constitutional rights, particularly freedom of
expression, have been infringed. The constitutional guarantee of freedom of speech is a guarantee only
against abridgment by the government and does not apply to private parties. (People v. Marti, G.R. No.
81561, January 18, 1991). Moreover, Destilleria freely joined the Philippine Advertising Council and is
therefore bound by the ethical guidelines and decisions of that council.
ALTERNATIVE ANSWER:
No. Constitutional rights can be validly restricted to promote good morals. Moreover, what is being
exercised is commercial expression which does not enjoy the same extent of freedom as political or artistic
speech. (Central Hudson Gas & Electric v. PSC, 447 U.S. 557 [1980]). The order for the withdrawal comes
not from the State but from a private group of advertisers which is not within the coverage of the Bill of
Rights.
One of the militant groups, the Amazing Amazonas, call on all government-owned and
controlled corporations (GOCC) to boycott any newspaper, radio or TV station that carries the
"kinse anyos" advertisements. They call on all government nominees in sequestered corporations 61
to block any advertising funds allocated for any such newspaper, radio or TV station. Can the GOCCs
and sequestered corporations validly comply?
The government owned and controlled corporations and the government nominees in sequestered
corporations cannot block any advertising funds allocated for any newspaper, radio or television station
which carries the advertisements of Destilleria Felipe Segundo. Since they are government entities and
officers, they are bound by the guarantee of freedom of speech. Freedom of speech extends to commercial
establishments (Metromedia, Inc. vs. San Diego, 453 U.S. 490 [1981]). The mere fact that an advertisement
is offensive cannot justify its suppression (Carey vs. Population Services International, 431 U.S. 678
[1977]). The blocking of advertising funds is a threat intended to prevent the exercise of freedom of speech
of Destilleria Felipe Segundo through the fear of consequences. Sucha threat qualifies as prior restraint
(Rosden, The Law of Advertising, Vol. I, pp. 5-13).
ALTERNATIVE ANSWER:
They may comply with such call as these entities may institute certain measures to promote a
socially desirable end, namely, the prevention of the exploitation and abuse of women, especially those
who are not yet of age.
ALTERNATIVE ANSWER:
The GOCCs and sequestered corporations may not be compelled to boycott or block advertising
funds for media companies carrying the said advertisements. These companies may have existing
contracts with the media companies concerned and non- compliance may result in breach that will open
them to possible suits.
(2008) Nationwide protests have erupted over rising gas prices, including disruptive
demonstrations in many universities, throughout the country. The Metro Manila State University,
a public university, adopted a university-wide circular prohibiting public mass demonstrations and
rallies within the campus. Offended by the circular, militant students spread word that on the
following Friday, all students were to wear black T-shirts as a symbol of their protest both against
high gas prices and the university ban on demonstrations. The effort was only moderately
successful, with around 30% of the students heeding the call. Nonetheless, university officials were
outraged and compelled the student leaders to explain why they should not be expelled for violating
the circular against demonstrations. The student leaders approached you for legal advice. They
contended that they should not be expelled since they did not violate the circular, their protest
action being neither a demonstration nor a rally since all they did was wear black T-shirts. What
would you advise the students? (6%)
The wearing of black shirts is an exercise of freedom of expression and not necessarily freedom of
assembly. Regardless of the distinction, in both cases, the Constitutional guaranty includes freedom from
prior restraint and freedom from subsequent liability. There are three tests to determine whether or not
there was valid government interference: (1) dangerous tendency rule; (2) balancing of interest test; and
(3) clear and present danger test. In the Philippine jurisdiction, we adhere to the clear and present danger
test (ABS-CBN Broadcasting Corp. vs. Comelec, G.R. No. 133486, Jan. 28, 2000). This test simply means
that there is clear and present danger of a substantive evil which the State has the right to prevent.
Applying the clear and present danger test, the protest conducted by the students was only moderately
successful and the wearing of black shirts was neither tumultuous nor disruptive. Thus, the substantive
evil which the school authorities were trying to suppress did not even occur. Therefore, the prohibition
imposed by the circular violates freedom from prior restraint while the threat of expulsion by the school
authorities violates freedom from subsequent liability.
(2007) In a protest rally' along Padre Faura Street, Manila, Pedrong Pula took up the stage
and began shouting "kayong mga kurakot kayo! Magsi-resign na kayo! Kung hindi, manggugulo kami
dito!" ("you corrupt officials, you better resign now, or else we will cause trouble here!")
Simultaneously, he brought out a rock the size of a· fist and pretended to hurl it at the flagpole
area of a government building. He did not actually throw the rock. Police officers who were
monitoring the situation immediately approached Pedrong Pula and arrested him. He was
prosecuted for seditious speech and was convicted. On appeal, Pedrong Pula argued he was merely 62
exercising his freedom of speech and freedom of expression guaranteed by the Bill of Rights. Decide
with reasons. (5%)
Pedrong Pula should be acquitted. His freedom of speech should not be limited in the absence of
a clear and present danger of a substantive evil that the state had the right to prevent. He pretended to
hurl a rock but did not actually throw it. He did not commit any act of lawless violence. (David vs.
Macapagal-Arroyo, 489 SCRA 160).
What is "commercial speech"? Is it entitled to constitutional protection? What must be
shown in order for government to curtail "commercial speech"? Explain. (3%)
Commercial speech is communication which involves only the commercial interest of the speaker
and the audience, such as advertisements. (Black’s Law dictionary, 9th ed., p. 1529.) Commercial speech
is entitled to constitutional protection. (Ayer Productions Pty. Ltd. vs. Capulong, 160 SCRA 861.)
Commercial speech may be required to be submitted to a government agency for review to protect public
interests by preventing false or deceptive claims. (Pharmaceutical and Health Care Association of the
Philippines vs. Duque, 535 SCRA 265.)
What are the two (2) basic prohibitions of the freedom of speech and of the press clause?
Explain. (2%)
The two basic prohibitions on freedom of speech and freedom of the press are prior restraint and
subsequent punishment (Chavez vs. Gonzales, 545 SCRA 441.)
(1992) Congress passes a law prohibiting television stations from airing any commercial
advertisement which promotes tobacco or in any way glamorizes the consumption of tobacco
products. This legislation was passed in response to findings by the Department of Health about
the alarming rise in lung diseases in the country. The World Health Organization has also reported
that U.S. tobacco companies have- shifted marketing efforts to the Third World due to dwindling
sales in the health-conscious American market. Cowboy Levy's, a Jeans company, recently released
an advertisement featuring model Richard Burgos wearing Levy's jackets and jeans and holding a
pack of Marlboro cigarettes. The Asian Broadcasting Network (ABN), a privately owned television
station, refuses to air the advertisement in compliance with the law. Assume that such refusal
abridges the freedom of speech. Does the constitutional prohibition against the abridgement of the
freedom of speech apply to acts done by ABN, a private corporation? Explain.
The constitutional prohibition against the freedom of speech does not apply to ABN, a private
corporation. As stated in Hudgens vs. National Labor Relations Board, 424 U.S. 507, the constitutional
guarantee of freedom of speech is a guarantee only against abridgement by the government. It does not
therefore apply against private parties.
ALTERNATIVE ANSWER:
Since ABN has a franchise, it may be considered an agent of the government by complying with
the law and refusing to air the advertisement, it aligned itself with the government. Thus it rendered itself
liable for a lawsuit which is based on abridgement of the freedom of speech. Under Article 32 of the Civil
Code, even private parties may be liable for damages for impairment of the freedom of speech.
May Cowboy Levy's, a private corporation, invoke the free speech guarantee in its favor?
Explain.
Cowboy Levy's may invoke the constitutional guarantee of freedom of speech in its favor. In First
National Bank of Boston vs. Bellotti, 435 U.S. 765, it was ruled that this guarantee extends to
corporations. In Virginia State Board of Pharmacy vs. Virginia Citizens Consumer Council Inc., 425 U.S.
748, it was held that this right extends to commercial advertisements. In Ayer Productions Pty, Ltd. vs.
Capulong, 160 SCRA 861, the Supreme Court held that even if the production of a film is a commercial
activity that is expected to yield profits, it is covered by the guarantee of freedom of speech.
(2012) What do you understand by the term "hierarchy of civil liberties"? Explain. (5%)
The hierarchy of civil liberties means that freedom of expression and the rights of peaceful
assembly are superior to property rights. (Philippine Blooming Mills Employees Organization vs. Philippine
Blooming Mills Company, Inc., 51 SCRA 189.)
Distinguish fully between the "free exercise of religion clause" and the "non- establishment
of religion clause". (3%)
The freedom of exercise of religion entails the right to believe, which is absolute, and the right to
act on one’s belief, which is subject to regulation. As a rule, the freedom of exercise of religion can be
restricted only if there is a clear and present danger of a substantive evil which the state has the right to
prevent. (Iglesia Ni Cristo vs. Court of Appeals, 259 SCRA 529.) The non-establishment clause implements
the principle of separation of church and state. The state cannot set up a church, pass laws that aid one
religion, and all religions, prefer one religion over another, force or influence a person to go to or remain
away from church against his will, or force him to profess a belief or disbelief in any religion. (Everson vs.
Board of Education, 330 U.S. 1.)
When can evidence "in plain view" be seized without need of a search warrant? Explain.
Evidence in plain view can be seized without need of search warrant if the following elements are
present. (1) There was a prior valid intrusion based on the valid warrantless arrest in which the police
were legally present pursuant of their duties; (2) The evidence was inadvertently discovered by the police
who had the right to be where they were; (3) The evidence must be immediately apparent; and (4) Plain
view justified seizure of the evidence without further search. (Del Rosario vs. People, 358 SCRA 372.)
(1992) Sheila, an actress, signed a two-year contract with Solidaridad Films. The film
company undertook to promote her career and to feature her as the leading lady in at least four
movies. In turn, Sheila promised that, for the duration of the contract, she shall not get married
or have a baby; otherwise, she shall be liable to refund to the film company a portion of its
promotion expenses. Does this contract impair, or impinge upon, any constitutionally protected
liberty of Sheila? Explain.
Yes, the contract impairs the right of Sheila to marry and to procreate. The case of Loving vs.
Virginia, 388 U.S. 1 and Zablocki vs. Redhail 434 U.S. 374 recognized the right to marry is a basic civil
right. Likewise, the case of Skinner vs Oklahoma, 316 U.S. 535 recognized that the right to procreate is a
basic civil right. These rights are part of the liberty protected by the due process clause in Section 1.
Article 1 of the Constitution.
If Solidaridad Films tries to enforce this contract judicially, will this constitutionally
protected liberty prevail? Explain.
Yes, the constitutionally protected liberty of Sheila will prevail, because it involves basic human
rights. The waiver of these basic human rights is void. What Solidaridad Films is seeking to recover are
promotion expenses. These involve property rights. As held in Philippine Blooming Mills Employees
Organization vs. Philippine Blooming Mills, Inc., 51 SCRA 189, civil rights are superior to property rights.
ALTERNATIVE ANSWER
The waiver of the right to marry and the right to procreate is valid. Enforcement of the contract
does not entail enforcement of the stipulation not to marry and not to have a baby. It is limited to a refund
of a portion of the promotion expenses incurred by Solidaridad Films.
63
(1993) Joy, an RTC stenographer, retired at the age of 65. She left unfinished the
transcription of her notes in a criminal case which was on appeal. The Court of Appeals ordered
Joy to transcribe her notes. She refused to comply with the order reasoning that she was no longer
in the government service. The CA declared Joy in contempt of court and she was incarcerated.
Joy filed a petition for habeas corpus arguing that her incarceration is tantamount to illegal
detention and to require her to work sans compensation would be involuntary servitude. Decide.
Joy can be incarcerated for contempt of court for refusing to transcribe her stenographic notes.
As held in Adoracion v. Gatmaitan, 64 SCRA 132, her incarceration does not constitute illegal detention.
It is lawful, because it is the consequence of her disobedience of the court order. Neither can she claim
that to require her to work without compensation is tantamount to involuntary servitude. Since courts
have the Inherent power to Issue such orders as are necessary for the administration of Justice, the Court
of Appeals may order her to transcribe her stenographic notes even if she is no longer in the government
service.
(2012) Mr. Violet was convicted by the RTC of Estafa. On appeal, he filed with the Court of
Appeals a Motion to Fix Bail for Provisional Liberty Pending Appeal. The Court of Appeals granted
the motion and set a bail amount in the sum of Five (5) Million Pesos, subject to the conditions
that he secure "a certification/guaranty from the Mayor of the place of his residence that he is a
resident of the area and that he will remain to be a resident therein until final judgment is rendered
or in case he transfers residence, it must be with prior notice to the court". Further, he was ordered
to surrender his passport to the Division Clerk of Court for safekeeping until the court orders its
return. Mr. Violet challenges the conditions imposed by the Court of Appeals as violative of his
liberty of abode and right to travel. Decide with reasons. (5%)
The right to change abode and the right to travel are not absolute. The liberty of changing abode
may be unpaired upon order of the court. The order of the Court of Appeals is lawful, because purpose is
to ensure that the accused will be available whenever his presence is required. He is not being prevented
from changing its abode. He is merely being required to inform the Court of Appeals if he does. (Yap vs.
Court of Appeals, 358 SCRA 564.)
Are "liberty of abode" and "the right to travel" absolute rights? Explain. What are the
respective exception/s to each right if any?
The liberty of abode and the right to travel are not absolute. The liberty of abode and changing it
can be imposed within the limits prescribed by law upon lawful order of the court. The right to travel may
be unpaired in the interest of national security, public safety, or public health as may be provided by law.
(Section 6, Article III of the Constitution.) in addition, the court has the inherent power to restrict the right
of an accused who has pending criminal case to travel abroad to maintain its jurisdiction over him.
(Santiago vs. Vasquez, 217 SCRA 633.)
(1998) Juan Casanova contracted Hansen's disease (leprosy) with open lesions. A law
requires that lepers be isolated upon petition of the City Health Officer. The wife of Juan Casanova
wrote a letter to the City Health Officer to have her formerly philandering husband confined in
some isolated leprosarium. Juan Casanova challenged the constitutionality of the law as violating
his liberty of abode. Will the suit prosper? [5%]
No, the suit will not prosper. Section 6, Article III of the Constitution provides: "The liberty of
abode and of changing the same within the limits prescribed by law shall not be impaired except upon
lawful order of the court." The liberty of abode is subject to the police power of the State. Requiring the
segregation of lepers is a valid exercise of police power. In Lorenzo us. Director of Health. 50 Phil 595,
598, the Supreme Court held: "Judicial notice will be taken of the fact that leprosy is commonly believed
to be an infectious disease tending to cause one afflicted with it to be shunned and excluded from society,
and that compulsory segregation of lepers as a means of preventing the spread of the disease is supported
by high scientific authority."
(1996) The military commander-in charge of the operation against rebel groups directed
the inhabitants of the island which would be the target of attack by government forces to evacuate
the area and offered the residents temporary military hamlet. Can the military commander force
64
the residents to transfer their places of abode without a court order? Explain.
No, the military commander cannot compel the residents to transfer their places of abode without
a court order. Under Section 6, Article III of the Constitution, a lawful order of the court is required before
the liberty of abode and of changing the same can be impaired.
ALTERNATIVE ANSWER
Yes, the military commander can compel the residents to transfer their places of abode without a
court order. If there is no reasonable time to get a court order and the change of abode is merely temporary,
because of the exigency, this exercise of police power may be justified.
(1993) Sec. 13 of PD 115 (Trust Receipts Law) provides that when the entrustee in a trust
receipt agreement fails to deliver the proceeds of the sale or to return the goods if not sold to the
entrustee-bank, the entrustee is liable for estafa under the RPC. Does this provision not violate the
constitutional right against imprisonment for non-payment of a debt? Explain.
No, Section 13 of Presidential Decree No. 115 does not violate the constitutional right against
imprisonment for non-payment of a debt. As held in Lee vs. Rodil, 175 SCRA 100, the criminal liability
arises from the violation of the trust receipt, which is separate and distinct from the loan secured by it.
Penalizing such an act is a valid exercise of police power. (See also People vs. Nitafan, 207 SCRA 730)
(2014) The void-for-vagueness doctrine is a concept which means that: (1%)
(1) If a law is vague, then it must be void; (2) Any law which could not be understood by laymen
is a nullity; (3) If a law is incomprehensible to ordinary people such that they do not really know what is
required or prohibited, then the law must be struck down; (4) A government regulation that lacks clear
standards is nonsensical and useless as a guide for human conduct; (5) Clarity in legal language is a
mandate of due process.
(2012) (a) What is the doctrine of "overbreadth"? In what context can it be correctly applied?
Not correctly applied? Explain (5%)
A statute is overbroad when a governmental purpose to control or prevent activities
constitutionally subject to state regulations is sought to be achieved by means which sweep unnecessarily
broadly and invade the area of protected freedom. It applies both to free speech cases and penal statutes.
However, a facial challenge on the ground of overbreadth can only be made in free speech cases because
of its chilling effect upon protected speech. A facial challenge on the ground of overbreadth is not
applicable to penal statutes, because in general they have an in terrorem effect. (Southern Hemisphere
Engagement Network, Inc. vs. Anti-Terrorism Council, 632 SCRA 146.)
(b) What is the doctrine of "void for vagueness"? In what context can it be correctly applied?
Not correctly applied? Explain (5%)
A statute is vague when it lacks comprehensible standards that men of common intelligence that
guess at its meaning and differ as to its application. It applies to both free speech cases and penal statutes.
However, a facial challenge on the ground of vagueness can be made only in free speech cases. It does not
apply to penal statutes. (Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism Council, 632
SCRA 146.)
(2010) Compare and contrast “Overbreadth” doctrine from void-for vagueness doctrine.
While the overbreadth doctrine decrees that a governmental purpose may not be achieved by
means in a statute which sweep unnecessary broadly and thereby invades the area of protected freedom
a statute is void for vagueness when it forbids or requires the doing of an act in terms so vague that men
of common intelligence cannot necessarily guess at its meaning and differ as to its application. (Estrada
vs. Sandiganbayan, 369 vs. SCRA 394 [2001]).
ALTERNATIVE ANSWER:
65
Overbreadth and Void for Vagueness doctrine is used as test for the validity on their faces (FACIAL
CHALLENGE) statutes in free speech cases (freedom of speech). It is not applicable in criminal cases.
Overbreadth doctrine decrees that governmental purpose may not be achieved by means which sweeps
unnecessarily broadly and thereby invade the area of protected freedoms. “Void
for
vagueness
doctrine" which holds that “a law is facially invalid i f 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.
(2014) The National Building Code and its implementing rules provide, inter alia, that
operators of shopping centers and malls should provide parking and loading spaces, in accordance
with a prescribed ratio. The Solicitor General, heeding the call of the public for the provision of
free parking spaces in malls, filed a case to compel said business concerns to discontinue their
practice of collecting parking fees. The mall owners and operators oppose, saying that this is an
invalid taking of their property, thus a violation of due process. The Solicitor General justifies it,
however, claiming that it is a valid exercise of police power. Could the mall owners and operators
be validly compelled to provide free parking to their customers? (4%)
No, the mall owners and operators cannot be validly compelled to provide free parking to their
customers, because requiring them to provide free parking space to their customers is beyond the scope
of police powers. It unreasonably restricts the right to use property for business purposes and amounts
to confiscation of property (Office of the Solicitor General vs Ayala Land, Inc. 600 SCRA 617 (2009))
(2010) ABC operates an industrial waste processing plant within Laoag City. Occasionally,
whenever fluid substances are released through a nearby creek, obnoxious odor is emitted causing
dizziness among residents in Barangay La Paz. On complaint of the Punong Barangay, the City
Mayor wrote ABC demanding that it abate the nuisance. This was ignored. An invitation to attend
a hearing called by the Sangguniang Panlungsod was also declined by the president of ABC. The city
government thereupon issued a cease and desist order to stop the operations of plant, prompting
ABC to file a petition for injunction before the RTC, arguing that the city government did not have
any power to abate the alleged nuisance. Decide with reasons. (3%)
The city government has no power to stop the operations of the plant. Since its operations is not
a nuisance per se, the city government cannot abate it extrajudicially. A suit must be filed in court. (AC
Enterprises, Inc. vs. Frabelle Properties Corporation, 506 SCRA 625 [2006]).
ALTERNATIVE ANSWER:
Petition will not prosper. The obnoxious odor emitted from the processing plant is a nuisance per
se which can be summarily abated by the city government. Even if we consider it a nuisance per accidens,
the cease and desist order to stop the operations of the plant is still valid because there had been
compliance with due process, that is, the opportunity to be heard has been given.
(2009) To address the pervasive problem of gambling, Congress is considering the following
options: (1) prohibit all forms of gambling; (2) allow gambling only on Sundays; (3) allow gambling
only in government-owned casinos; and (4) remove all prohibition against gambling but impose a
tax equivalent to 30% on all winnings. If Congress chooses the first option and passes the
corresponding law absolutely prohibiting all forms of gambling, can the law be validly attacked on
the ground that it is an invalid exercise of police power? Explain your answer (2%)
Yes. Although the Congress has the plenary power to enact law and interfere with the personal
liberty and property in order to promote the general welfare, the exercise of police power is subject to 2
test: 1. Lawful subject – refers to the interest of the General Public requiring the interference of the State
and 2. Lawful means – refers to the reasonable means employed necessary for the accomplishment of its
objective and not duly oppressive upon individuals. Basis of the exercise of police power: (1) Sic utere tuo
et alienum non laedas – use your property so that you do not injure that of another; (2) Salus populi est
suprema lex – the welfare of the people is the highest law
If Congress chooses the last option and passes the corresponding law imposing a 30% tax
on all winnings and prizes won from gambling, would the law comply with the constitutional
limitations on the exercise of the power of taxation? Explain you answer (2%)
66
No. Because the lawful means is not reasonably necessary for the accomplishment of its objective.
It adds more burden upon individuals.
ALTERNATIVE ANSWER:
A tax of 30% on winnings from gambling does not violate due process as to the reasonableness of
the rate of the tax imposed. Taxes on non-useful enterprises may be increased to restrain the number of 67
persons who might otherwise engage in it (Ermita-Malate Hotel and Motel Operatos Association, Inc. vs.
City Mayor of Manila, 20 SCRA 849 [1967]). Taxes may be imposed for the attainment of the objective of
police power (Lutz vs. Araneta, 98 Phil. 148 [1955]).
(2004) (9-b) The City of San Rafael passed an ordinance authorizing the City Mayor,
assisted by the police, to remove all advertising signs displayed or exposed to public view in the
main city street, for being offensive to sight or otherwise a nuisance. AM, whose advertising agency
owns and rents out many of the billboards ordered removed by the City Mayor, claims that the City
should pay for the destroyed billboards at their current market value since the City has
appropriated them for the public purpose of city beautification. The Mayor refuses to pay, so AM
is suing the City and the Mayor for damages arising from the taking of his property without due
process nor just compensation. Will AM prosper? Reason briefly. (5%)
The suit of AM will not prosper. The removal of the billboards is not an exercise of the power of
eminent domain but of police power (Churchill v. Rafferty, 32 Phil. 580 [19150- The abatement of a
nuisance in the exercise of police power does not constitute taking of property and does not entitle the
owner of the property involved to compensation. (Association of Small Landowners in the Philippines, Inc.
v. Secretary of Agrarian Reform, 175 SCRA 343 [1989]).
ALTERNATIVE ANSWER:
The removal of the billboards for the purpose of beautification permanently deprived AM of the
right to use his property and amounts to its taking. Consequently, he should be paid just compensation.
(People v. Fajardo, 104 Phil. 443 11958]).
(1992) Congress passes a law prohibiting television stations from airing any commercial
advertisement which promotes tobacco or in any way glamorizes the consumption of tobacco
products. This legislation was passed in response to findings by the Department of Health about
the alarming rise in lung diseases in the country. The World Health Organization has also reported
that U.S. tobacco companies have- shifted marketing efforts to the Third World due to dwindling
sales in the health-conscious American market, Cowboy Levy's, a Jeans company, recently released
an advertisement featuring model Richard Burgos wearing Levy's jackets and jeans and holding a
pack of Marlboro cigarettes. The Asian Broadcasting Network (ABN), a privately owned television
station, refuses to air the advertisement in compliance with the law. Decide the constitutionality
of the law in question.
The law is constitutional. It is a valid exercise of police power, because smoking is harmful to
health. In Posadas de Puerto Rico Associates vs. Tourism Company of Puerto Rico, 478 U.S. 328, it was
ruled that a law prohibiting certain types of advertisements is valid if it was adopted in the interest of the
health safety, and welfare of the people. In Capital Broadcasting Company us. Mitchell 333 F Supp 582,
a law making it unlawful to advertise cigarettes on any medium of electronic communication was upheld.
The United States Supreme Court summarily sustained this ruling in Capita! Broadcasting Company us,
Acting Attorney General 405 U.S. 1000. The law in question was enacted on the basis of the legislative
finding that there is a need to protect public health, because smoking causes lung diseases. Cowboy Levy's
has not overthrown this finding.
(1989) Pedro bought a parcel of land from Smart Corporation, a realty firm engaged in
developing and selling lots to the public. One of the restrictions in the deed of sale which was
annotated in the title is that the lot shall be used by the buyer exclusively for residential purposes.
A main highway having been constructed across the subdivision, the area became commercial in
nature. The municipality later passed a zoning ordinance declaring the area as a commercial bank
building on his lot. Smart Corporation went to court to stop the construction as violative of the
building restrictions imposed by it. The corporation contends that the zoning ordinance cannot
nullify the contractual obligation assumed by the buyer. Decide the case.
The case must be dismissed. As held in Ortigas and Company, Limited Partnership vs. FEATI
Bank and Trust Company, 94 SCRA 533, such a restriction in the contract cannot prevail over the zoning
ordinance, because the enactment of the ordinance is a valid exercise of police power. It is hazardous to 68
health and comfort to use the lot for residential purposes, since a highway crosses the subdivision and
the area has become commercial.
(2001) In the deeds of sale to, and in the land titles of homeowners of a residential
subdivision in Pasig City, there are restrictions annotated therein to the effect that only residential
houses or structures may be built or constructed on the lots. However, the City Council of Pasig
enacted an ordinance amending the existing zoning ordinance by changing the zone classification
in that place from purely residential to commercial. "A", a lot owner, sold his lot to a banking firm
and the latter started constructing a commercial building on the lot to house a bank inside the
subdivision. The subdivision owner and the homeowners' association filed a case in court to stop
the construction of the building for banking business purposes and to respect the restrictions
embodied in the deed of sale by the subdivision developer to the lot owners, as well as the
annotation in the titles. If you were the Judge, how would you resolve the case? (5%)
If I were the judge, I would dismiss the case. As held in Ortigas and Company Limited Partnership
vs. FEATI Bank and Trust Company. 94 SCRA 633 (1979), the zoning ordinance is a valid exercise of
police power and prevails over the contractual stipulation restricting the use of the lot to residential
purposes.
(2009) In criminal prosecution for murder, the prosecution presented, as witness, an
employee of the Manila Hotel who produced in court a videotape recording showing the heated
exchange between the accused and the victim that took place at the lobby of the hotel barely 30
minutes before the killing. The accused objects to the admission of the videotape recording on the
ground that it was taken without his knowledge or consent, in violation of his right to privacy and
the Anti-Wire Tapping law. Resolve the objection with reasons. (3%).
The objection should be overruled. What the law prohibits is the overhearing, intercepting, and
recording of private communication. Since the exchange of heated words was not private, its videotape
recording is not prohibited (Navarro vs. Court of Appeals, 313 SCRA 153 [1999]).
ALTERNATIVE ANSWER:
The heated conversation at the lobby of the hotel is not privilege and is not protected under the
right to privacy and anti-wiretapping law. Heated conversation is not privilege because it was uttered in a
public place and it has to be revealed in open court to help in the prosecution of the case.
(2001) "A" has a telephone line with an extension. One day, "A" was talking to "B" over the
telephone. "A" conspired with his friend "C", who was at the end of the extension line listening to
"A's" telephone conversation with "B" in order to overhear and tape-record the conversation wherein
"B" confidentially admitted that with evident premeditation, he (B) killed "D" for having cheated
him in their business partnership. "B" was not aware that the telephone conversation was being
tape- recorded. In the criminal case against "B" for murder, is the tape-recorded conversation
containing his admission admissible in evidence? Why? (5%)
The tape-recorded conversation is not admissible in evidence. As held in Salcedo- Ortanez vs.
Court of Appeals, 235 SCRA 111 (1994). Republic Act No. 4200 makes the tape- recording of a telephone
conversation done without the authorization of all the parties to the conversation, inadmissible in
evidence. In addition, the taping of the conversation violated the guarantee of privacy of communications
enunciated in Section 3, Article III of the Constitution.
(1998) The police had suspicions that Juan Samson, member of the subversive New
Proletarian Army, was using the mail for propaganda purposes in gaining new adherents to its
cause. The Chief of Police of Bantolan, Lanao del Sur ordered the Postmaster of the town to
intercept and open all mail addressed to and coming from Juan Samson in the interest of the
national security. Was the order of the Chief of Police valid? (5%)
No, the order of the Chief of Police is not valid, because there is no law which authorizes him to
order the Postmaster to open the letters addressed to and coming from Juan Samson. An official in the
Executive Department cannot interfere with the privacy of correspondence and communication in the 69
absence of a law authorizing him to do so or a lawful order of the court. Section 3(1), Article III of the
Constitution provides: "The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise as prescribed by law."
(1989) While serving sentence in Muntinlupa for the crime of theft, "X" stabbed dead one of
his guards, "X" was charged with murder. During his trial, the prosecution introduced as evidence
a letter written in prison by "X" to his wife tending to establish that the crime of murder was the
result of premeditation. The letter was written voluntarily. In the course of inspection, it was
opened and read by a warden pursuant to the rules of discipline of the Bureau of Prisons and
considering its contents, the letter was turned over to the prosecutor. The lawyer of "X" objected
to the presentation of the letter and moved for its return on the ground that it violates the right of
"X" against unlawful search and seizure. Decide.
The objection of the lawyer must be overruled. In Hudson vs. Palmer, 468 U.S. 517, it was held
that the constitutional prohibition against illegal searches and seizures does not extend to the confines of
the prison. In Stroud vs. United States, 251 U.S. 15, the United States Supreme Court held that letters
voluntarily written by a prisoner and examined by the warden which contained incriminatory statements
were admissible in evidence. Their inspection by the prison authorities did not violate the constitutional
prohibition against illegal searches and seizures. This is an established practice reasonably designed to
promote discipline within the penitentiary.
(2007) Batas Pambansa 880, the Public Assembly Law of 1985, regulates the conduct of all
protest rallies in the Philippines. Salakay, Bayan! held a protest rally and planned to march from
Quezon City to Luneta in Manila. They received a permit from the Mayor of Quezon City, but not
from the Mayor of Manila. They were able to march in Quezon City and up to the boundary
separating it from the City of Manila. Three meters after crossing the boundary, the Manila Police
stopped them for posing a danger to public safety. Was this a valid exercise of police power?
Yes, the authorities are given the power to stop marchers who do not possess a permit. However,
mere exercise of the right to peaceably assemble is not considered as a danger to public safety. They could
have been asked to disperse peacefully, but it should not altogether be characterized as posing a danger
to public safety. (Bayan v. Ermita, G.R. No. 169848, April 25, 2006; David v. Arroyo, G.R. No. 171390,
May 3, 2006).
ALTERNATIVE ANSWER:
Since the protesters merely reached three meters beyond the boundary of Quezon City, the police
authorities in Manila should not have stopped them, as there was no clear and present danger to public
order. In accordance with the policy of maximum tolerance, the police authorities should have asked the
protesters to disperse and if they refused, the public assembly may be dispersed peacefully.
ALTERNATIVE ANSWER:
No, this is not a valid exercise of police power. Police power has been defined as the power of
promoting public welfare by restraining and regulating the use of liberty and property. (City of Manila v.
Laguio, G.R. No. 118127, April 12, 2005). It is principally the Legislature that exercises the power but it
may be delegated to the President and administrative agencies. Local government units exercise the power
under the general welfare clause. In this case, if Salakay applied for a permit from the city government,
the application must be approved or denied within two (2) working days from the date it was filed, failing
which, the permit shall be deemed granted. (Section 16, B.P. Blg. 880). Even without a permit, the law
does not provide for outright stopping of the march if the demonstrators, for example, were marching
peacefully without impeding traffic.
The security police of the Southern Luzon Expressway spotted a caravan of 20 vehicles,
with paper banners taped on their sides and protesting graft and corruption in government. They
were driving at 50 kilometers per hour in a 40-90 kilometers per hour zone. Some banners had been
blown off by the wind, and posed a hazard to other motorists. They were stopped by the security
police. The protesters then proceeded to march instead, sandwiched between the caravan vehicles.
They were also stopped by the security force. May the security police validly stop the vehicles and
the marchers?
70
Yes, the security police may stop the vehicles and the marchers but only to advise the leaders to
secure their banners so that it will not pose a hazard to others. They may not be prevented from heading
to their destination. The marchers may also be ordered to ride the vehicles so as not to inconvenience
other uses of the Expressway.
ALTERNATIVE ANSWER:
Yes. While the protesters possess the right to freely express themselves, their actuations may pose
a safety risk to other motorists and therefore be the subject of regulation. The security police may
undertake measures to prevent any hazard to other motorists but not altogether prevent the exercise of
the right. So, to that extent, while the protesters maybe asked to remove the banners which pose hazard
to other motorists and prevent them from using the expressway as a venue for their march, the security
force may not prevent them from proceeding to where they might want to go.
ALTERNATIVE ANSWER:
In accordance with the policy of maximum tolerance, the security policy should not have stopped
the protesters. They should have simply asked the protesters to take adequate steps to prevent their
banners from being blown off, such as rolling them up while they were in the expressway and required
the protesters to board their vehicles and proceed on their way.
(2006) The Samahan ng mga Mahihirap (SM) filed with the Office of the City Mayor of Manila
an application for permit to hold a rally on Mendiola Street on September 5, 2006 from 10:00 a.m.
to 3:00 p.m. to protest the political killings of journalists. However, the City Mayor denied their
application on the ground that a rally at the time and place applied for will block the traffic in the
San Miguel and Quiapo Districts. He suggested the Liwasang Bonifacio, which has been designated
a Freedom Park, as venue for the rally. Does the SM have a remedy to contest the denial of its
application for a permit? (2.5%)
Yes, SM has a remedy. Under B.P. Big. 880 (The Public Assembly Act of 1985), in the event of
denial of the application for a permit, the applicant may contest the decision in an appropriate court of
law. The court must decide within twenty-four (24) hours from the date of filing of the case. Said decision
may be appealed to the appropriate court within forty- eight (48) hours after receipt of the same. In all
cases, any decision may be appealed to the Supreme Court (Bayan Muna v. Ermita, G.R. No. 169838,
April 25, 2006).
Does the availability of a Freedom Park justify the denial of SM's application for a permit?
(2.5%)
No, the availability of a freedom park does not justify the denial of the permit. It does imply that
no permits are required for activities in freedom parks. Under B.P. Big. 880, the denial may be justified
only if there is clear and convincing evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public morals or public health (Bayan Muna v.
Ermita, G.R. No. 169838, April 25, 2006).
Is the requirement to apply for a permit to hold a rally a prior restraint on freedom of
speech and assembly? (2.5%)
No, the requirement for a permit to hold a rally is not a prior restraint on freedom of speech and
assembly. The Supreme Court has held that the permit requirement is valid, referring to it as regulation
of the time, place, and manner of holding public assemblies, but not the content of the speech itself. Thus,
there is no prior restraint, since the content of the speech is not relevant to the regulation (Bayan Muna
v. Ermita, G.R. No. 169838, April 25, 2006).
Assuming that despite the denial of SM's application for a permit, its members hold a rally,
prompting the police to arrest them. Are the arrests without judicial warrants lawful? (2.5%)
The arrests are unlawful. What is prohibited and penalized under Sec. 13 (a) and 14 (a) of B.P. 71
Big 880 is "the holding of any public assembly as defined in this Act by any leader or organizer without
having first secured that written permit where a permit is required from the office concerned x x x Provided,
however, that no person can be punished or held criminally liable for participating in or attending an
otherwise peaceful assembly." Thus, only the leader or organizer of the rally without a permit may be
arrested without a warrant while the members may not be arrested, as they cannot be punished or held
criminally liable for attending the rally. However, under Section 12 thereof, when the public assembly is
held without a permit where a permit is required, the said public assembly may be peacefully dispersed.
(1992) Olympia Academy, a private university, issued a student regulation for maintaining
order in the school campus and to ensure that academic activities shall be conducted effectively.
Henceforth, every student organization intending to hold any symposium, convocation, rally or
any assembly within school property and involving at least 20 people must file, for the prior
approval of the Dean of Students, an Application setting forth the time, place, expected size of the
group, and the subject- matter and purpose of the assembly. The League of Nationalist Students
questions the validity of the new regulation. Resolve.
The regulation is valid. As held in Rarnento us. Malabanan, 129 SCRA 359, if an assembly will
be held by students in school premises, permit must be sought from the school authorities, who are devoid
of the power to deny such request arbitrarily or unreasonably. In granting such permit, there may be
conditions as to the time and place of the assembly to avoid disruption of classes or stoppage of work of
the non- academic personnel.
(2000) Public school teachers staged for days’ mass actions at the Department of
Education, Culture and Sports to press for the immediate grant of their demand for additional pay.
The DECS Secretary issued to them a notice of the illegality of their unauthorized action, ordered
them to immediately return to work, and warned them of imposable sanctions. They ignored this
and continued with their mass action. The DECS Secretary issued orders for their preventive
suspension without pay and charged the teachers with gross misconduct and gross neglect of duty
for unauthorized abandonment of teaching posts and absences without leave. Are employees in the
public sector allowed to form unions? To strike? Why? (3%)
a. Section 8, Article III of the Constitution allows employees in the public sector to form unions.
However, they cannot go on strike. As explained in Social Security System Employees Association V. Court
of Appeals. 175 SCRA 686 [1989], the terms and conditions of their employment are fixed by law.
Employees in the public sector cannot strike to secure concessions from their employer.
The teachers claim that their right to peaceably assemble and petition the government for
redress of grievances has been curtailed. Are they correct? Why? (2%)
b. The teachers cannot claim that their right to peaceably assemble and petition for the redress
of grievances has been curtailed. According to Bangalisan v. Court of Appeals. 276 SCRA 619 (1997), they
can exercise this right without stoppage of classes.
(2002) Ten public school teachers of Caloocan City left their classrooms to join a strike,
which lasted for one month, to ask for teachers' benefits. The Department of Education, Culture
and Sports charged them administratively, for which reason they were required to answer and
formally investigated by a committee composed of the Division Superintendent of Schools as
Chairman, the Division Supervisor as member and a teacher, as another member. On the basis of
the evidence adduced at the formal investigation which amply established their guilt, the Director
rendered a decision meting out to them the penalty of removal from office. The decision was
affirmed by the DECS Secretary and the Civil Service Commission. On appeal, they reiterated the
arguments they raised before the administrative bodies, namely: (a) Their strike was an exercise of
their constitutional right to peaceful assembly and to petition the government for redress of
grievances.
(a) According to De la Cruz v. Court of Appeals, 305 SCRA 303 (1999), the argument of the teachers
that they were merely exercising their constitutional right to peaceful assembly and to petition the
government for redress of grievance cannot be sustained, because such rights must be exercised within
reasonable limits. When such rights were exercised on regular school days instead of during the free time 72
of the teachers, the teachers committed acts prejudicial to the best interests of the service.
(2009) The Philippine Government is negotiating a new security treaty with the United
States which could involve engagement in joint military operations of the two countries’ armed
forces. A loose organization of Filipinos, the Kabataan at Matatandang Makabansa (KMM) wrote the
Department of Foreign Affairs (DFA) and the Department of National Defense (DND) demanding
disclosure of the details of the negotiations, as well as copies of the minutes of the meetings. The
DFA and the DND refused, contending that premature disclosure of the offers and counter-offers
between the parties could jeopardize on-going negotiations with another country. KMM filed suit
to compel disclosure of the negotiation details, and be granted access to the records of the meetings,
invoking the constitutional right of the people to information on matters of public concern. Decide
with reasons. (3%)
The petition of KMM must be denied. Diplomatic negotiations are privileged in order to encourage
a frank exchange of exploratory ideas between the parties by shielding the negotiations from public view
(Akbayan Citizens Action Party vs. Aquino, 558 SCRA 468 [2008]).
ALTERNATIVE ANSWER:
The information sought to be disclose by the parties is a diplomatic negotiation between States
and is considered privileged. it cannot be subjected to public scrutiny. The interest protected being the
national security and integrity of the State on how can it be trusted in terms of diplomatic secrets.
Will your answer be the same if the information sought by KMM pertains to contracts
entered into by the Government in its proprietary or commercial capacity? Why or why not?
KKM is entitled to have access to information pertaining to government contracts entered into by
the Government in the exercise of its proprietary commercial capacity. The right to information under the
Constitution does not exclude contracts of public interest and are not privileged (Section 7, Article III of
the Constitution; Valmonte vs. Belmonte, 170 SCRA 256 [1989]).
ALTERNATIVE ANSWER:
If what is sought is the final contract itself then the information must be open to the public for
transparency and for awareness and information. But if what were sought were the negotiations or
communications in arriving at the final contract, the information sought remains privileged. An interest
need to be protected.
(1991) Mr. Esteban Krony, a Filipino citizen, is arrested for the crime of smuggling. He
posts bail for his release. Subsequently, he jumps bail and is about to leave the country when the
Department of Foreign Affairs (DFA) cancels his passport. He sues the DFA, claiming violation of
his freedom to travel, citing the new provision in the Bill of Rights of the 1987 Constitution, to
wit: "Neither shall the right to travel be impaired except in the interest of national security, public
safety, or public health, as may be provided by law. Decide the case.
The case should be dismissed. Any person under an order of arrest is under restraint and
therefore he cannot claim the right to travel. If he is admitted to bail his freedom of movement is confined
within the country. Therefore, if he subsequently jumps bail, he cannot demand passport which in effect
will facilitate his escape from the country; he is in fact liable to be arrested anytime. Indeed, the right to
travel under the Constitution presupposes that the individual is under no restraint such as that which
would follow from the fact that one has a pending criminal case and has been placed under arrest.
(2008) The Philippine National Police (PNP) issued a circular to all its members directed at
the style and length of male police officers’ hair, sideburns and moustaches, as well as the size of
their waistlines. It prohibits beards, goatees, and waistlines over 38 inches, except for medical
reason. Some police officers questioned the validity of the circular, claiming that it violated their
right to liberty under the Constitution. Resolve the controversy.
Although the National Police is civilian in character, it partakes of some of the characteristics of 73
military life, thus permitting the imposition of reasonable measures for discipline, uniformity in behavior
and presentableness. The circular does not go beyond what is reasonable and therefore passes the test of
due process (Gudani vs. Senga, G.R. No. 170165, Aug. 15, 2006). In Kelly vs. Johnson, 425 US 238 (1976),
the US Supreme Court said that the regulations of personal appearance of policemen could be justified
so long as there was a rational connection between the regulation and the promotional safety of
persons and property. The requisite connection was present since the government had a legitimate
interest in policemen’s appearances so that they would: (1) be readily recognizable to the public and
(2) feel a sense of “esprit de corps” that comes from being similar.
ALTERNATIVE ANSWER:
The circular is a valid exercise of police power. The rule-making power is vested in congress
however, it can be delegated to administrative agencies pursuant to a valid delegation requiring the
concurrence of the following: (1) Made pursuant of law; (2) Issued within the scope and purview of the law;
(3) Promulgated in accordance with the prescribed procedure; (4) It must be reasonable. It is the policy of
the state to secure peace and order through the PNP. Therefore, it is reasonable to require them to be
physically fit in order to secure peace and order in the community. This is to boost the confidence of the
public that they are not lazy and they are doing their job with dedication.
[2018] Congress enacted a law to provide Filipinos, especially the poor and the
marginalized, access and information to a full range of modern family planning methods, including
contraceptives, intrauterine devices, injectibles, non-abortifant hormonal contraceptives, and
family planning products and supplies, but prohibited abortion. To ensure its objectives, the law
made it mandatory for health providers to provide information on the full range of modern family
planning methods, supplies and services, for schools to provide reproductive health education, for
non-governmental medical practitioners to render mandatory 48 hours pro bono reproductive
health services as a condition to Philhealth accreditation, and for couples desiring to marry to
attend family planning seminar prior to the issuance of marriage license. It also punishes certain
acts of refusals to carry out its mandates. The spouses Aguiluz, both Roman Catholics, filed a
petition to declare the law unconstitutional based on, among others, the following grounds: Rule
on each of the above objections. (2.5% each)
(a) It violates the right to life, since it practically sanctions abortion. Despite express terms
prohibiting abortion, petitioners claim that the family planning products and supplies oppose the
initiation of life, which is fundamental human right, and the sanction of contraceptive use
contravenes natural law and is an affront to the dignity of man.
(a) The law in question does not sanction abortion even in practical terms. In case of Imbong v.
Ochoa (G.R. No. 204819, April 8, 2014), the law on its face expressly mentioned that aborton is not
permissible, and this was the determinative factor in making the ruling. In the same case, the Court also
found that the RH law was replete with provisions that embody the policy of protecting the unborn from
the moment of fertilization. In addition, the majority of court believed that the question of when life starts
is a scientific and medical issue; hence, the Court refused to make a ruling on this issue.
(b) It violates the constitutional prohibition against involuntary servitude because it
requires medical practitioners to render 48 hours of pro bono reproductive health services which
may be against their will.
(b) Involuntary servitude denotes compulsion or coercion to do something either through force,
threats, intimidation, or other means. The accreditation with the PhilHealth, as rules by the Supreme
Court in the case of Imbong v. Ochoa, should be viewed as an incentive and not a punisment. These health
service providers also enjoy the liberty to choose which kind of health service they wish to provide. Clearly,
there is no compulsion, force, or threat upon them to render the pro bono services against their will.
(c) It violates the Freedom of Religion, since petitioners’ religious beliefs prevent them from
using contraceptives, and that any State-sponsored procurement of contraceptives, funded by
taxes, violates the guarantee of religious freedom.
(c) What is prohibited in the Constitution is the establishment of a State religion. While the 74
establishment clause in the Constitution restricts what the government can do with religion, it also limts
what religious sects can or cannot do with the government. They can neither cause the government to
adopt their particular doctrine as policy for everyone, nor can they cause the government to restrict other
groups. To do so would cause the State to adhere to a particular religion, and thus establish a state
religion. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014).
ARTICLE IV: CITIZENSHIP
(2015) Discuss the evolution of the principle of jus sanguinis as basis of Filipino citizenship
under the 1935, 1973, and 1987 Constitutions. (3%)
Under the 1935 Constitution, Filipino citizens under the principle of jus sanguinis are only those
whose fathers are citizens of the Philippines. Under the 1973 and 1987 Constitutions, Filipino citizens are
those whose fathers or mothers are Filipino citizens.
(1993) Ferdie immigrated to the United States in the 1980s. Thereafter, he visited his
hometown, Makahoy, every other year during town fiestas. In January 1993. Ferdie came home
and filed his certificate of candidacy for Mayor of Makahoy. He won in the elections. Joe, the
defeated candidate, learned that Ferdie is a green card holder which on its face identifies Ferdie as
a "resident alien" and on the back thereof is clearly printed: "Person identified by this card is
entitled to reside permanently and work in the United States." Joe filed a case to disqualify Ferdie
from assuming the mayorship of Maka-hoy. Whether or not a green card is proof that the holder is
a permanent resident of the United States.
According to the ruling in Coast vs. Court of Appeals, 191 SCRA 229, a green card is proof that
the holder is a permanent resident of the United States, for it identifies the holder as a resident of the
United States and states that the holder is entitled to reside permanently and work in the United States.
Whether or not Ferdie's act of filing his certificate of candidacy constitutes waiver of his
status as a permanent resident of the United States.
The filing of a certificate of candidacy does not constitute a waiver of the status of the holder of a
green card as a permanent resident of the United States. As held in Coast vs. Court of Appeals, 191 SCRA
229, the waiver should be manifested by an act independent of and prior to the filing of his certificate of
candidacy.
(1990) Y was elected Senator in the May 1987 national elections. He was born out of wedlock
in 1949 of an American father and a naturalized Filipina mother. Y never elected Philippine
citizenship upon reaching the age of majority. Before what body should T, the losing candidate,
question the election of Y? State the reasons for your answer. Is Y a Filipino citizen? Explain your
answer.
T, the losing candidate, should question the election of Y before the Senate Electoral Tribunal, ....
Yes, Y is a Filipino citizen. More than that he is a natural born citizen of the Philippines qualified
to become a Senator. Since Y is an illegitimate child of a Filipino mother, he follows the citizenship of his
mother. He need not elect Philippine citizenship upon reaching the age of majority as held in re Mallare.
59 SCRA 45. In Osias v. Antonino, Electoral Case No. 11, August 6, 1971, the Senate Electoral Tribunal
held that the illegitimate child of an alien father and a Filipino mother is a Filipino citizen and is qualified
to be a Senator.
(1996) X was born in the United States of a Filipino father and a Mexican mother. He
returned to the Philippines when he was twenty- six years of age, carrying an American passport
and he was registered as an alien with the Bureau of Immigration. Was X qualified to run for
membership in the House of Representatives in the 1995 elections? Explain.
If X was an Illegitimate child, he is not qualified to run for the House of Representatives. According
to the case of in re Mallare, 59 SCRA 45, an illegitimate child follows the citizenship of the mother. Since 75
the mother of X is a Mexican, he will be a Mexican citizen if he is an illegitimate child, even if his father is
a Filipino.
Whether or not X was qualified to run for membership in the House of Representatives in
the 1995 election depends on the circumstances.
If X is a legitimate child, he is a Filipino citizen. Under Section 2(2), Article IV of the Constitution,
those whose fathers are citizens of the Philippines are Filipino citizens. Since X was born in the United
States, which follows jus soli, X is also an American citizen. In accordance with Aznar vs. Commission,
on Elections, 185 SCRA 703, the mere fact a person with dual citizenship registered as an alien with the
Commission on Immigration and Deportation does not necessarily mean that he is renouncing his
Philippine citizenship. Likewise, the mere fact that X used an American passport did not result in the loss
of his Philippine citizenship. As held in Kawakita vs. United States, 343 U.S. 717, since a person with
dual citizenship has the rights of citizenship in both countries, the use of a passport issued by one country
is not inconsistent with his citizenship in the other country.
ALTERNATIVE ANSWER:
If X has taken an oath of allegiance to the U.S., he will be deemed to have renounced his Philippine
citizenship. Consequently, he is disqualified to run for the House of Representatives.
(2003) Miguel Sin was born a year ago in China to a Chinese father and a Filipino mother.
His parents met in Shanghai where they were lawfully married just two years ago. Is Miguel Sin
a Filipino citizen?
Miguel Sin is a Filipino citizen because he is the legitimate child of a Filipino mother. Under Article
IV, Section 4 of the 1987 Constitution, his mother retained her Philippine citizenship despite her marriage
to an alien husband, and according to Article IV, Section 1(2) of the 1987 Constitution, children born of a
Filipino mother are Filipino citizens.
(1987) "A" was born in 1951 in the United States of a Chinese father and a Filipina mother.
Under Chinese laws, "A's" mother automatically became a Chinese national by her marriage. In
1973, upon reaching the age of majority, "A" elected to acquire Philippine citizenship. However,
"A" continued to reside in California and to carry an American passport. He also paid allegiance to
the Taipei government. In the 1987 Philippine National elections, he was elected Senator. His
opponent moved to disqualify him on the grounds: That he was not a natural born citizen; and that
he had "dual allegiance" not only to the United States but also to the Republic of China. Decide.
The electoral contest must be dismissed. A. "A" is a natural born citizen. Art. IV, Sec. 2 of the
1987 Constitution provides that "those who elect Philippine citizenship in accordance with paragraph (3),
Sec. 1 hereof shall be deemed natural born citizens." The purpose of this provision is to equalize the status
of those who elected Philippine citizenship before and those who did so after January 17, 1973 when the
previous Constitution took effect.
The "DUAL ALLEGIANCE" declared inimical to national interest in Art. IV, Sec. 5 refers to the dual
allegiance of some such as naturalized Filipino citizens (mostly Chinese) who maintain allegiance to
Nationalist China as shown in some cases by their membership in the legislative Yuan after their
naturalization as citizens of the Philippines. The prohibition does not apply in situations brought about
by dual citizenship, such as the one involved in the problem. Indeed, a Filipino woman can have dual
allegiance resulting from her marriage to a foreigner under Sec. 4, so long as she does not do or omit to
do an act amounting to renunciation under Commonwealth Act. No. 63, Sec. 1(2). Under this law, express
renunciation is different from an act of allegiance to a foreign power as a ground for loss of Philippine
citizenship. Moreover, what constitutes "dual allegiance" inimical to national interest is and what the
sanctions for such dual allegiance will be, will still have to be defined by law pending adoption of such
legislation, objection based on dual allegiance will be premature.
(1988) Robert Brown was born in Hawaii on May 15, 1962, of an American father and a
Filipina mother. On May 16, 1983 while holding an American passport, he registered as a Filipino
with the Philippine Consulate at Honolulu, Hawaii. In September, 1983 he returned to the 76
Philippines, and took up residence at Boac, Marinduque, hometown of his mother. He registered as
a voter, voted, and even participated as a leader of one of the candidates in that district in the
1984 Batasan elections. In the elections of 1987, he ran for Congressman, and won. His sole
opponent is now questioning his qualifications and is trying to oust him on two basic claims: He is
not a natural born Filipino citizen, but is in fact, an American, born in Hawaii, an integral portion
of the U.S.A., who holds an American passport; He did not meet the age requirement; and He has a
"green card" from the U.S. Government. Assume that you are a member of the House Electoral
Tribunal where the petition for Brown's ouster is pending. How would you decide the three issues
raised against him?
The first and third grounds have no merit. But the second is well taken and, therefore, Brown
should be disqualified. Robert Brown is a natural born citizen of the Philippines. A person born of a Filipino
mother and an alien father before January 17, 1973, who thereafter upon reaching the age of majority
elect Philippine citizenship, is a citizen of the Philippines (Art. IV, sec. 1(3)). Under Art. IV, sec, 2 he is
also deemed a natural-born citizen. The Constitution requires, among other things, that a candidate for
member of the House of Representatives must be at least 25 years of age "on the day of the election." (Art.
VI, sec. 6). As Brown was born on May 15, 1962, he did not become 25 years old until May 15, 1987.
Hence on May 11, 1987, when the election was held, he was 4 days short of the required age.
The Constitution provides that those who seek either to change their citizenship or to acquire the
status of an immigrant of another country "during their tenure" shall be dealt with by law (Art. XI, sec.
17). The provision cannot apply to Brown for the following reasons: First, Brown is in addition an American
citizen and thus has a dual citizenship which is allowed by the Constitution. (Cf. Art. IV, sec. 4), Second,
Brown did not seek to acquire the status of an immigrant, but is an American by birth under the principle
of jus soli obtaining in the United States. Third, he did not seek to change his status during his tenure as
a public officer. Fourth, the provision of Art. XI, sec. 17 is not self-executing but requires an implementing
law. Fifth, but above all, the House Electoral Tribunal has no jurisdiction to decide this question since it
does not concern the qualification of a member-elect.
(2009) Dual citizenship is not the same as dual allegiance.
TRUE. An individual may have 2 or more citizenships but owe allegiance to one State. Taking for
example RA no. 9225 providing for retention of Philippine citizenship among natural born Filipino citizens.
Dual citizenship arises when, as a result of the concurrent application of the different laws of two or more
states, a person is simultaneously considered a national by those states and is involuntary. Dual
allegiance refers to the situation in which a person simultaneously owes by some positive and voluntary
act, loyalty to two or more states (Mercado vs. Manzano, 307 SCRA 630 [1999]).
(1994) In 1989, Zeny Reyes married Ben Tulog, a national of the State of Kongo. Under the
laws of Kongo, an alien woman marrying a Kongo national automatically acquires Kongo
citizenship. After her marriage, Zeny resided in Kongo and acquired a Kongo passport. In 1991,
Zeny returned to the Philippines to run for Governor of Sorsogon. Was Zeny qualified to run for
Governor?
Under Section 4, Article IV of the Constitution. Zeny retained her Filipino citizenship. Since she
also became a citizen of Kongo, she possesses dual citizenship. Pursuant to Section 40 (d) of the Local
Government Code, she is disqualified to run for governor. In addition, if Zeny returned to the Philippines,
less than a year immediately before the day of the election, Zeny is not qualified to run for Governor of
Sorsogon. Under Section 39(a) of the Local Government Code, a candidate for governor must be a resident
in the province where he intends to run at least one (1) year immediately preceding the day of the election.
By residing in Kongo upon her marriage in 1989, Zeny abandoned her residence in the Philippines. This
is in accordance with the decision in Caasi vs. Court of Appeals, 191 SCRA 229.
ALTERNATIVE ANSWER:
No. Zeny was not qualified to run for Governor. Under the Constitution, "citizens of the Philippines
who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under
the law to have renounced it." (Sec. 4, Art. IV, Constitution). Her residing in Kongo and acquiring a Kongo 77
passport are indicative of her renunciation of Philippine citizenship, which is a ground for loss of her
citizenship which she was supposed to have retained. When she ran for Governor of Sorsogon, Zeny was
no longer a Philippine citizen and, hence, was disqualified for said position.
Suppose instead of entering politics. Zeny just got herself elected as vice-president of the
Philippine Bulletin, a local newspaper. Was she qualified to hold that position?
Although under Section 11(1), Article XVI of the Constitution, mass media must be wholly owned
by Filipino citizens and under Section 2 of the Anti-Dummy Law, aliens may not intervene in the
management of any nationalized business activity. Zeny may be elected vice president of the Philippine
Bulletin, because she has remained a Filipino citizen. Under Section 4, Article IV of the Constitution,
Filipino citizens who marry aliens retains their citizenship unless by their act or omission they are deemed,
under the law, to have renounced it. The acts or omission which will result in loss of citizenship are
enumerated in Commonwealth Act No, 63. Zeny is not guilty of any of them. As held in Kawakita vs. United
States, 343 U.S. 717, a person who possesses dual citizenship like Zeny may exercise rights of citizenship
in both countries and the use of a passport pertaining to one country does not result in loss of citizenship
in the other country.
ALTERNATIVE ANSWER:
Neither, was Zeny qualified to hold the position of vice-president of Philippine Bulletin. Under the
Constitution, "the ownership and management of mass media shall be limited to citizens, of the
Philippines, or to corporation, cooperatives or associations wholly owned and managed by such citizens"
(Section XI [1], Art. XVI), Being a non-Philippine citizen, Zeny cannot qualify to participate in the
management of the Bulletin as Vice-President thereof.
(1999) What are the effects of marriages of: a citizen to an alien; (1%)
According to Section 4, Article IV of the Constitution, Filipino citizens who marry aliens retain
their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it.
An alien to a citizen; on their spouses and children? Discuss. (1%)
According to Mo Ya Lim Yao v. Commissioner of Immigration, 41 SCRA 292, under Section 15 of
the Revised Naturalization Law, a foreign woman who marries a Filipino citizen becomes a Filipino citizen
provided she possesses none of the disqualifications for naturalization. A foreign man who marries a
Filipino citizen does not acquire Philippine citizenship. However, under Section 3 of the Revised
Naturalization Act, in such a case the residence requirement for naturalization will be reduced from ten
(10) to five (5) years. Under Section 1(2), Article IV of the Constitution, the children of an alien and a
Filipino citizen are citizens of the Philippines.
(1989) (1) Lily Teh arrived in Manila on one of her regular tours to the Philippines from
Taipeh. She met Peter Go, a naturalized Filipino citizen. After a whirlwind courtship, Lily and Peter
were married at the San Agustin Church. A week after the wedding, Lily Teh petitioned in
administrative proceedings before immigration authorities to declare her a Filipino citizen stating
that she had none of the disqualifications provided in the Revised Naturalization Law. The jilted
Filipino girlfriend of Peter Go opposed the petition claiming that Lily Teh was still a minor who
had not even celebrated her 21st birthday, who never resided in the Philippines except during her
one-week visit as tourist from Taipeh during the Chinese New Year, who spoke only Chinese, and
who had radical ideas liked advocating unification of Taiwan with mainland China. Lily Teh,
however, swore that she was renouncing her Chinese allegiance and while she knew no Filipino
customs and traditions as yet, she evinced a sincere desire to learn and embrace them. Would Lily
Teh succeed in becoming a Filipino citizen through her marriage to Peter Go? Explain.
Yes, Lily Teh ipso facto became a Philippine citizen upon her marriage to Peter Go, who is a
Philippine citizen, provided she possesses none of the disqualifications laid down in Section 4 of the
Revised Naturalization Law. According to the ruling in Moy Ya Lim Yao vs. Commissioner of Immigration,
41 SCRA 292, an alien woman who marries a Filipino husband ipso facto becomes a Filipino citizen
without having to possess any of the qualifications prescribed in Section 2 of the Revised Naturalization 78
Law provided she possesses none of the disqualifications set forth in Section 4 of the same law. All of the
grounds invoked by the former girlfriend of Peter Go for opposing the petition of Lily Teh, except for the
last one, are qualifications, which Lily Teh need not possess. The fact that Lily Teh is advocating the
unification of Taiwan with mainland China is not a ground for disqualification under Section 4 of the
Revised Naturalization Law.
(2004) TCA, a Filipina medical technologist, left in 1975 to work in ZOZ State. In 1988 she
married ODH, a citizen of ZOZ. Pursuant to ZOZ's law, by taking an oath of allegiance, she acquired
her husband's citizenship. ODH died in 2001, leaving her financially secured. She returned home
in 2002, and sought elective office in 2004 by running for Mayor of APP, her hometown. Her
opponent sought to have her disqualified because of her ZOZ citizenship. She replied that although
she acquired ZOZ's citizenship because of marriage, she did not lose her Filipino citizenship. Both
her parents, she said, are Filipino citizens. Is TCA qualified to run for Mayor? (5%)
On the assumption that TCA took an oath of allegiance to ZOZ to acquire the citizenship of her
husband, she is not qualified to run for mayor. She did not become a citizen of ZOZ merely by virtue of
her marriage, she also took an oath of allegiance to ZOZ. By this act, she lost her Philippine citizenship.
(Section 1 [3], Commonwealth Act No. 63.)
(1999) B. Julio Hortal was born of Filipino parents. Upon reaching the age of majority, he
became a naturalized citizen in another country. Later, he reacquired Philippine citizenship. Could
Hortal regain his status as natural born Filipino citizen? Would your answer be the same whether
he reacquires his Filipino- citizenship by repatriation or by act of Congress? Explain.
Julian Mortal can regain his status as a natural born citizen by repatriating. Since repatriation
involves restoration of a person to citizenship previously lost by expatriation and Julian Mortal was
previously a natural born citizen, in case he repatriates he will be restored to his status as a natural born
citizen. If he reacquired his citizenship by an act of Congress, Julian Hortal will not be a natural born
citizen, since he reacquired his citizenship by legislative naturalization.
ALTERNATIVE ANSWER:
Julian Hortal cannot regain his status as a natural born citizen by repatriating. He had to perform
an act to acquire his citizenship, i.e., repatriation. Under Section 2, Article IV of the Constitution, natural
born citizens are those who are citizens from birth without having to perform an act to acquire or perfect
their citizenship. If he reacquired his citizenship by an act of Congress, Julian Hortal will not be a natural
born citizen since he reacquired his citizenship by legislative naturalization.
(2002) A was born in the Philippines of Filipino parents. When martial law was declared in
the Philippines on September 21, 1972, he went to the United States and was naturalized as an
American citizen. After the EDSA Revolution, he came home to the Philippines and later on
reacquired Philippine citizenship by repatriation. Suppose in the May 2004 elections he is elected
Member of the House of Representatives and a case is filed seeking his disqualification on the
ground that he is not a natural-born citizen of the Philippines, how should the case against him be
decided? Explain your answer.
The case should be decided in favor of A. As held in Bengson v. House of Representatives Electoral
Tribunal, 357 SCRA 545 (2001), repatriation results in the recovery of the original nationality. Since A was
a natural-born Filipino citizen before he became a naturalized American citizen, he was restored to his
former status as a natural-born Filipino when he repatriated.
(2003) Juan Cruz was born of Filipino parents in 1960 in Pampanga. In 1985, he enlisted
in the U.S. Marine Corps and took an oath of allegiance to the United States of America. In 1990,
he was naturalized as an American citizen. In 1994, he was repatriated under Republic Act No.
2430. During the 1998 National Elections, he ran for and was elected representative of the First
District of Pampanga where he resided since his repatriation. Was he qualified to run for the
position? Explain.
Cruz was qualified to run as representative of the First District of Pampanga. Since his parents 79
were Filipino citizens, he was a natural- born citizen. Although he became a naturalized American citizen,
under the ruling in Bengson v. House of Representatives Electoral Tribunal. 357 SCRA 545 [2001], by
virtue of his repatriation, Cruz was restored to his original status as a natural-born Filipino citizen.
(2001) From mainland China where he was born of Chinese parents, Mr. Nya Tsa Chan
migrated to the Philippines in 1894. As of April 11, 1899, he was already a permanent resident of
the Philippine Islands and continued to reside in this country until his death. During his lifetime
and when he was already in the Philippines, Mr. Nya Tsa Chan married Charing, a Filipina, with
whom he begot one son, Hap Chan, who was born on October 18. 1897. Hap Chan got married also
to Nimfa, a Filipina, and one of their children was Lacqui Chan who was born on September 27,
1936. Lacqui Chan finished the course Bachelor of Science in Commerce and eventually engaged
in business. In the May 1989 election, Lacqui Chan ran for and was elected Representative
(Congressman). His rival candidate, Ramon Deloria, filed a quo warranto or disqualification case
against him on the ground that he was not a Filipino citizen. It was pointed out in particular, that
Lacqui Chan did not elect Philippine citizenship upon reaching the age of 21. Decide whether Mr.
Lacqui Chan suffers from a disqualification or not.
Lacqui Chan is a Filipino citizen and need not elect Philippine citizenship. His father, Hap Chan,
was a Spanish subject, was residing in the Philippines on April 11, 1899, and continued to reside in the
Philippines. In accordance with Section 4 of the Philippine Bill of 1902, he was a Filipino citizen. Hence,
in accordance with Section 1(3} of the 1935 Constitution, Lacqui Chan is a natural born Filipino citizen,
since his father was a Filipino citizen.
(1992) Edwin Nicasio, born in the Philippines of Filipino parents and raised in the province
of Nueva Ecija, ran for Governor of his home province. He won and he was sworn into office. It was
recently revealed, however, that Nicasio is a naturalized American citizen. Does he still possess
Philippine citizenship?
No, Nicasio no longer possesses Philippine citizenship. As held in Frivaldo vs. COMELEC, 174
SCRA 245, by becoming a naturalized American citizen, Nicasio lost his Philippine citizenship. Under
Section 1(1) of Commonwealth Act No. 63, Philippine citizenship is lost by naturalization in a foreign
country.
If the second-placer in the gubernatorial elections files a quo warranto suit against Nicasio
and he is found to be disqualified from office, can the second-placer be sworn into office as
governor?
2nd placer can’t be sworn to office...
If, instead, Nicasio had been born (of the same set of parents) in the United States and he
thereby acquired American citizenship by birth, would your answer be different?
If Nicasio was born in the United States, he would still be a citizen of the Philippines, since his
parents are Filipinos. Under Section 1(2), those whose fathers or mothers are citizens of the Philippines
are citizens of the Philippines. Nicasio would possess dual citizenship, since under American Law persons
born in the United States are American citizens. As held in Aznor vs. COMELEC. 185 SCRA 703, a person
who possesses both Philippine and American citizenship is still a Filipino and does not lose his Philippine
citizenship unless he renounces it.
(2006) Atty. Emily Go, a legitimate daughter of a Chinese father and a Filipino mother, was
born in 1945. At 21, she elected Philippine citizenship and studied law. She passed the bar
examinations and engaged in private practice for many years. The Judicial and Bar Council
nominated her as a candidate for the position of Associate Justice of the Supreme Court. But her
nomination is being contested by Atty. Juris Castillo, also an aspirant to the position. She claims
that Atty. Emily Go is not a natural- born citizen, hence, not qualified to be appointed to the
Supreme Court. Is this contention correct? (5%)
The contention is not correct. Under Article IV, Section 1(3) of the 1987 Constitution, it is provided
that those born before January 17, 1973 of Filipino mothers, who elect Philippine Citizenship upon 80
reaching the age of majority are Filipino citizens. Atty. Emily Go was born of a Filipino mother in 1945
and elected citizenship upon reaching the age of 21. She is a natural born Filipino citizen as provided by
Article IV, Section 2 of the Constitution — "x x x those who elect Philippine citizenship in accordance with
paragraph (3), Section 1 hereof shall be deemed natural-born citizens." Hence she is qualified to be
appointed to the Supreme Court.
Atty. Richard Chua was born in 1964. He is a legitimate son of a Chinese father and a Filipino
mother. His father became a naturalized Filipino citizen when Atty. Chua was still a minor. Eventually,
he studied law and was allowed by the Supreme Court to take the bar examinations, subject to his
submission to the Supreme Court proof of his Philippine citizenship. Although he never complied with
such requirement, Atty. Chua practiced law for many years until one Noel Eugenio filed with the Supreme
Court a complaint for disbarment against him on the ground that he is not a Filipino citizen. He then filed
with the Bureau of Immigration an affidavit electing Philippine citizenship. Noel contested it claiming it
was filed many years after Atty. Chua reached the age of majority. Will Atty. Chua be disbarred? Explain.
(5%)
No, Atty. Chua will not be disbarred. Atty. Chua is already a Filipino
need for him to file the affidavit electing Filipino citizenship. An election
presupposes that the person electing is an alien. His father, however, already
when Atty. Chua was still a minor and thus, he was already a Filipino be- fore
HRET, G.R. Nos. 92191-92, July 30,1991).
citizen and there was no
of Philippine citizenship
became a Filipino citizen
the age of majority (Co v.
(1989) A child was born to a Japanese father and a Filipina mother. Would he be eligible to
run for the position of Member of the House of Representatives upon reaching twenty-five years of
age?
The child can run for the House of Representatives provided upon reaching the age of majority he
elected Philippine citizenship. Under Section 6, Article VI of the 1987 Constitution, to qualify to be a
member of the House of Representatives, one must be a natural-born Philippine citizen. According to
Section 1 (3), Article IV of the 1987 Constitution, children born before January 17, 1973 of Filipino
mothers, who elect Philippine citizenship upon reaching the age of majority are Philippine citizens. Section
2, Article IV of the 1987 Constitution provides: "Those who elect Philippine citizenship in accordance with
paragraph (3), Section 1 hereof shall be deemed natural-born citizens." On the other hand, if the child
was born after January 17, 1973, he would be considered a natural born citizen without need of election
pursuant to Art. IV, Sec. 1(2).
(2009) Warlito, a natural-born Filipino, took up permanent residence in the United States,
and eventually acquired American citizenship. He then married Shirley, an American, and sired
three children. In August 2009, Warlito decided to visit the Philippines with his wife and children:
Johnny, 23 years of age; Warlito Jr., 20; and Luisa 17. While in the Philippines, a friend informed
him that he could reacquire Philippine citizenship without necessarily losing US nationality. Thus,
he took the oath of allegiance required under RA no. 9225. Having reacquired Philippine
citizenship, is Warlito a natural born or naturalized Filipino Citizen today? Explain your answer.
NATURAL BORN. Reacquisition of Philippine Citizenship under RA no. 9225 will restore him back
of his former status as a natural-born citizen (Bengzon vs. House of Representatives Electoral Tribunal,
357 SCRA 545 [2001]; R.A. 2630).
With Warlito having regained Philippine Citizenship, will Shirley also become a Filipino
Citizen? If so, why? If not, what would be the speediest procedure for Shirley to acquire Philippine
citizenship? Explain.
Shirley will not become a Filipino citizen, because under RA 9225, Warlito’s reacquisition of
Philippine citizenship did not extend its benefits to Shirley. She should instead file with the Bureau of
Immigration a petition for cancellation of her alien certificate of registration on the ground that in
accordance with Section 15 of the Naturalization Law, because of her Marriage to Warlito, she should be
deemed to have become a Filipino Citizen. She must allege and prove that she possesses none of the
disqualifications to become a naturalized Filipino citizen (Burca vs. Republic, 51 SCRA 248 [1973]).
ALTERNATIVE ANSWER
NO. Shirley will not become a Filipino Citizen because only Warlito’s unmarried children whether
legitimate, illegitimate or adopted, below 18 years of age shall be entitled to derivative Philippine
citizenship. Shirley may acquire Philippine citizenship in the speediest procedure through JUDICIAL
NATURALIZATION under CA no. 473, as amended.
Do the Children - - - Johnny, Warlito Jr. and Luisa - - - become Filipino citizens with their
father’s reacquisition of Philippine citizenship? Explain your answer. (3%)
Only LUISA shall acquire Philippine Citizenship upon the reacquisition of her father’s Filipino
citizenship under
RA no. 9225. The unmarried children, whether legitimate, illegitimate or adopted,
below 18 years of age shall be entitled to derivative Philippine citizenship.
(1998) Andres Ang was born of a Chinese father and a Filipino mother in Sorsogon,
Sorsogon. On January 20, 1973, in 1988, his father was naturalized as a Filipino citizen. On May
11, 1998, Andres Ang was elected Representative of the First District of Sorsogon. Juan Bonto who
received the second highest number of votes, filed a petition for Quo Warranto against Ang. The
petition was filed with the House of Representative Electoral Tribunal (HRET). Bonto contends that
Ang is not a natural born citizen of the Philippines and therefore is disqualified to be a member of
the House. The HRET ruled in favor of Ang. Bonto filed a petition for certiorari in the Supreme
Court. The following issues are raised: Whether the case is justiciable considering that Article VI.
Section 17 of the Constitution declares the HRET to be the "sole Judge" of all contests relating to
the election returns and disqualifications of members of the House of Representatives. [5%]
Whether Ang is a natural born citizen of the Philippines. |5%] How should this case be decided?
The case is justiciable. (grave abuse of discretion) …
Andres Ang should be considered a natural born citizen of the Philippines. He was born of a
Filipino mother on January 20, 1973. This was after the effectivity of the 1973 Constitution on January
17, 1973. Under Section (1), Article III of the 1973 Constitution, those whose fathers or mothers are
citizens of the Philippines are citizens of the Philippines. Andres Ang remained a citizen of the Philippines
after the effectivity of the 1987 Constitution. Section 1, Article IV of the 1987 Constitution provides: "The
following are citizens of the Philippines: "(l) Those who are citizens of the Philippines at the time of the
adoption of this Constitution;"
(1993) In 1964, Ruffa, a Filipina domestic helper working in Hongkong, went to Taipei for
a vacation, where she met Cheng Sio Pao, whom she married. Under Chinese Law, Ruffa
automatically became a Chinese citizen. The couple resided in Hongkong, where on May 9, 1965,
Ruffa gave birth to a boy named Ernest. Upon reaching the age of majority, Ernest elected
Philippine citizenship. After the EDSA Revolution, Ernest decided to live permanently in the
Philippines, where he prospered as a businessman. During the May 11, 1993 election, Ernest ran
and won as a congressman. His opponent, noting Ernest's Chinese ancestry, filed a petition to
disqualify the latter on the following grounds; (1) Ernest Cheng is not a natural born Filipino; and
(2) he is under-aged. Decide.
Ernest cannot be disqualified. Section 1, Article IV of the Constitution provides: "The following are
citizens of the Philippines; XXX"(3) Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority;" Ernest could elect Philippine citizenship since
he was born before January 17, 1973 and his mother is a Filipino. As stated in the cases of Torres vs. Tan
Chim, 69 Phil. 518 and Cu vs. Republic, 83 Phil. 473, for this provision to apply, the mother need not be
a Filipino citizen at the time she gave birth to the child in question. It is sufficient that she was a Filipino
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citizen at the time of her marriage. Otherwise, the number of persons who would be benefited by the
foregoing provision would be limited. Having elected Philippine citizenship, Ernest is a natural-born
Filipino citizen in accordance with Section 2, Article IV of the Constitution, which reads: “Those who elect
Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural born
citizens."
Ernest is not under-aged. (minimum 25 yrs. old) …
(1998) Lim Tong Biao, a Chinese citizen applied for and was granted Philippine citizenship
by the court. He took his oath as citizen of the Philippines to July 1963, in 1975, the Office of the
Solicitor General filed a petition to cancel his Philippine citizenship for the reason that in August
1963, the Court of Tax Appeals found him guilty of tax evasion for deliberately understating his
income taxes for the years 1959-1961. Could Lim Tong Biao raise the defense of prescription of
the action for cancellation of his Filipino citizenship? [3%]
No, Lim Tong Biao cannot raise the defense of prescription. As held in Republic us. Go Bon Lee,
1 SCRA 1166, 1170, a decision granting citizenship is not res judicata and the right of the government to
ask for the cancellation of a certificate cancellation is not barred by the lapse of time.
Supposing Lim Tong Biao had availed of the Tax Amnesty of the government for his tax
liabilities, would this constitute a valid defense to the cancellation of his Filipino citizenship?
The fact that Lim Tong Biao availed of the tax amnesty is not a valid defense to the cancellation
of his Filipino citizenship. In Republic vs. Li Yao, 214 SCRA 748, 754, the Supreme Court held: "In other
words, the tax amnesty does not have the effect of obliterating his lack of good moral character and
irreproachable conduct which are grounds for denaturalization,"
(2005) In the May 8,1995 elections for local officials whose terms were to commence on
June 30, 1995, Ricky filed on March 20, 1995 his certificate of candidacy for the Office of Governor
of Laguna. He won, but his qualifications as an elected official was questioned. It is admitted that
he is a repatriated Filipino citizen and a resident of the Province of Laguna. To be qualified for the
office to which a local official has been elected, when at the latest should he be: (5%) A Filipino
Citizen? Explain.
The citizenship requirement is to be possessed by an elective official at the latest as of the time
he is proclaimed and at the start of the term of office to which he has been elected. Section 39 of the Local
Government Code, which enumerates the qualifications of elective local government officials, does not
specify any particular date or time when the candidate must possess citizenship. (Frivaldo v. COMELEC,
G.R. No. 120295, June 28,1996)
A resident of the locality? Explain.
Under Section 39 of the Local Government Code, an individual must possess the residency
requirement in the locality where he intends to run at least one year immediately preceding the day of
election.
(2000) Cruz, a Filipino by birth, became an American citizen. In his old age he has returned
to the country and wants to become a Filipino again. As his lawyer, enumerate the ways by which
citizenship may be reacquired. (2%)
Cruz may reacquire Philippine citizenship in the following ways: (1) By naturalization; (2) By
repatriation pursuant to Republic Act No. 8171; and (3) By direct act of Congress (Section 2 of
Commonwealth Act No. 63).
(1994) Enzo, a Chinese national, was granted Philippine citizenship in a decision rendered
by the Court of First Instance of Pampanga on January 10, 1956. He took his oath of office on June
5, 1959. In 1970, the Solicitor General filed a petition to cancel his citizenship on the ground that
in July 1969 the Court of Tax Appeals found that Enzo had cheated the government of income
taxes for the years 1956 to 1959. Said decision of the Tax Court was affirmed by the Supreme Court
82
in 1969. Between 1960 and 1970, Enzo had acquired substantial real property in the Philippines.
Has the action for cancellation of Enzo's citizenship prescribed?
No, the action has not prescribed. As held in Republic vs. Li Yao, 214 SCRA 748, a certificate of
naturalization may be cancelled at any time if it was fraudulently obtained by misleading the court
regarding the moral character of the petitioner.
Can Enzo ask for the denial of the petition on the ground that he had availed of the Tax
Amnesty for his tax liabilities?
No, Enzo cannot ask for the denial of the petition for the cancellation of his certificate of
naturalization on the ground that he had availed of the tax amnesty. In accordance with the ruling in
Republic vs. Li Yao, 224 SCRA 748, the tax amnesty merely removed all the civil, criminal and
administrative liabilities of Enzo. It did not obliterate his lack of good moral character and irreproachable
conduct.
What is the effect on the petition for cancellation of Enzo's citizenship if Enzo died during
the pendency of the hearing on said petition?
On the assumption that he left a family, the death of Enzo does not render the petition for the
cancellation of his certificate of naturalization moot. As held in Republic vs. Li Yao, 224 SCRA 748, the
outcome of the case will affect his wife and children.
ARTICLE VI: LEGISLATIVE DEPARTMENT
(2021) A Senator filed a petition for mandamus to compel a newly elected President to sign,
approve, and transmit to the Senate for its ratification the treaty creating the International
Criminal Court. Should this petition prosper? Explain briefly.
The petition should fail. In the case of Pimentel vs Romulo, GR NO 158088, the Supreme Court
rejected the petition for mandamus seeking to enjoin the President to submit the signed text of Rome
Statute to the Senate for concurrence. It ratiocinated that the power to ratify is vested in the President,
subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or
withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification,
refuse to ratify it.
Here, a petition for mandamus was filed compelling the President to sign, and transmit to the
Senate for its ratification the treaty creating the International Criminal Court. To sign and to transmit a
treaty to the Senate for concurrence is part of the official and discretionary duty of the President being the
chief architect of foreign policy, and the SC has no jurisdiction to issue the writ of mandamus prayed for
by the petitioner as it is beyond its jurisdiction. Hence, the petition should fail.
(2019) In 2014, Congress enacted an appropriation law containing a provision
that gives individual legislators the discretion to determine, post-enactment, how
much funds would go to a specific project or beneficiary which they themselves also
determine. Consequently, disbursements were made in the interim pursuant thereto.
Eventually, Mr. Z filed a petition questioning the constitutionality of the statutory
provision on the grounds that it violates the separation of powers principle. On the
other hand, certain Congressman argued that there was nothing wrong with the
provision because, after all, the power to appropriate belongs to Congress. Rule on the
arguments of the parties. (2.5%)
The argument of Mr. Z has merit and the argument of the Congressman will fail. The
2014 appropriation violates the principle of separation of powers and is, thus, unconstitutional.
The Article, as well as all other provisions of law, which similarly allow legislators to wield any
form
of post-enforcement authority in the implementation and enforcement of the budget,
such as in the areas of project identification, fund release and fund realignment, unrelated to
83
congressional oversight, violates the principle of separation of powers. From the moment the
law becomes effective, any provision that empowers Congress or any of its members to intervene
and assume duties that properly belong to the sphere of budget execution, is unconstitutional.
That this authority is treated as merely recommendatory does not alter its unconstitutional tenor
since the prohibition covers "any role in the implementation or enforcement of the law". The 2014
appropriation violates the principle of non-delegability of legislative power and is, thus,
unconstitutional. The 2014 appropriation deprives the President
of the exercise of his 84
prerogative of item-veto, impairs the system of checks and balances, and
is, thus,
unconstitutional. Insofar as the post-enactment features dilute Congressional oversight and
violate Section 14, Article VI of the Constitution, thus impairing public accountability and Insofar
as individual legislators are authorized to intervene in purely local matters and thereby subvert
genuine local autonomy, the 2014 appropriation, as well as all other similar forms of
Congressional Pork Barrel, is deemed unconstitutional.
Assuming that the provision is declared unconstitutional, should the
disbursements made pursuant thereto be returned in light of the doctrine of operative
fact? Explain. (2.5%)
It depends. If its unconstitutionality was declared before the promulgation of the
decision in Belgica vs. Ochoa on November 19, 2013, disbursements made pursuant thereto
should not be returned as the decision has expressly been treated with prospective effect in
view of the operative fact doctrine. If, on the other hand, its unconstitutionality was declared
on or after the said date, disbursements made pursuant to that law/system should be
returned because the pork barrel system's unconstitutionality applies to all other
Congressional Pork Barrel provisions similar thereto (Belgica vs. Ochoa, Jr, G.R. No.
208566, November 19, 2013).
(2019) A committee of the Senate invited Mr. X and Mr. Y, the Secretary of
Foreign Affairs and Secretary of Energy, respectively, as resource speakers for an inquiry
in aid legislation. Mr. X refused to attend, arguing that the Senate, not its committee,
has the power to compel attendance. Meanwhile, Mr. Y attended the committee hearing
but upon being asked about discussions made during a closed-door cabinet meeting, he
refused to answer invoking executive privilege. The committee members insisted that
Mr. Y answer the question pursuant
to the right of Congress to information from the
executive branch. Based on his argument, is Mr. X ‘s non-appearance permissible?
Explain. (2.5%)
No. The Congress' power of inquiry includes the power to compel attendance not only
by each House (Senate and House of Representatives) but also by "any of its respective
committees." (Art. VI, Sec. 21, Const.)
Is Mr. Y ‘s refusal to answer based on executive privilege valid? Explain.
No. If the officer wants to withhold information on the ground that it is privileged, he
must so assert it and state the reason therefor and why it must be respected. The mere claim
of privilege without providing precise and certain reasons for the claim severely frustrates the
power of inquiry of Congress (Senate v. Ermita, G.R. No. 169777. April 20, 2006)
[2017] Give the limitations on the power of the Congress to enact the General
Appropriations Act. Explain your answer.
As an implied limitation, an appropriation law in order to be valid must be devoted for public
purpose. No public money shall be spent for private gains only. For example, an appropriation for the
construction of roads inside a private subdivision is not allowed. (Pascual vs. Secretary of Public Works
and Communications). Also, the following are the limitations on the power of the Congress to enact the
General Appropriations Act set forth in the 1987 Constitution:
All appropriations bill shall originate from the House of Representatives. Discretionary funds
appropriated for particular officials shall be disbursed only for public purpose to be supported by
appropriate vouchers and subject to guidelines as may be prescribed by law. Special appropriations bill
shall specify the purpose for which it is intended and shall be supported by funds actually available as
certified by the National Treasurer, or to be raised by a corresponding revenue proposal included therein.
The Congress shall not increase the general appropriations recommended by the President. Form, content
and manner of preparation of the budget shall be prescribed by law. No "riders" or irrelevant provisions
shall be included in the general appropriations bill. The procedure in approving the appropriations for the
Congress shall strictly follow the same procedure for approving appropriations for other departments and 85
agencies. Transfer of appropriations shall not be allowed but the President, Senate President, Speaker of
the House of Representatives, Chief Justice and heads of Constitutional Commissions may be authorized
to augment any item in the general appropriations law for their respective agencies from savings in other
items of their respective appropriations. Prohibition against the use of public funds or property for
sectarian purposes. Old general appropriations act is deemed re-enacted if the Congress fails to pass a
general appropriations bill for the ensuing year. All money collected on any tax levied for a special purpose
shall be treated as a special fund and paid out for such purpose only. (See Section 24 and 25 of Article
VI)
[2017] Under the enrolled bill doctrine, the signing of a bill by both the Speaker of the
House of Representatives and the President of the Senate and the certification by the secretaries
of both Houses of Congress that the bill was passed on a certain date are conclusive on the bill's
due enactment. Assuming there is a conflict between the enrolled bill and the legislative journal,
to the effect that the enrolled bill signed by the Senate President and eventually approved by the
President turned out to be different from what the Senate actually passed as reflected in the
legislative journal. A. May the Senate President disregard the enrolled bill doctrine and consider
his signature as invalid and of no effect? (2.5%)
No. The enrolled bill became a law already. It has to be repealed by a subsequent law, except when
the signature was attained due to fraud or other illegal circumstances which appears that the enrolled bill
is totally different from that which was intended as reflected in the journal.
May the President thereafter withdraw his signature? Explain your answer. (2.5%)
Yes, in this extra ordinary situation, the President may withdraw his signature to avoid
constitutional or legal impediment.
Sec. 26(2), Art. VI of the Constitution provides that no bill passed by either House of
Congress shall become a law unless it has passed three readings on separate days and printed copies
of it in its final form have been distributed to the Members of the House three days before its
passage. Is there an exception to the provision? Explain your answer. (3%)
Yes, there is an exception to the abovementioned provision. When the President certifies the
urgency and necessity of the enactment of a bill into law to meet a public calamity or emergency or for the
advancement of the people, the (1) printing requirement and (2) readings on separate days may be
dispensed. However, this does not guarantee that a bill will be passed. It only speeds up the procedure.
(1988) Metropolitan newspapers have reported that the Philippine Games and Amusement
Corporation (PAGCOR) gives hefty contributions to Malacanang, to fund "socio- economic and civic
projects" of the President. The reports add that for 1988 alone, some six hundred million (P600M)
pesos have already been earmarked for remittance to the Office of the President. PAGCOR had also
been reported to have funded, as coordinated by a Congressman from Mindanao, special projects
of quite a number of members of the House of Representatives. Assuming that money earned by
PAGCOR from its operations are public funds, are such contributions to Malacañang and to certain
Congressmen and their expenditure as reported, legal? Cite constitutional or decisional rules in
support of your answer.
The contributions made to Malacañang and to certain congressmen are Illegal. Under art. VI, sec.
29(1) no money can be paid out of the Treasury except in pursuance of an appropriation made by law.
The disbursement of public funds by PAGCOR, not being made pursuant to an appropriation made by
law, violates the Constitution.
(1992) Explain how the automatic appropriation of public funds for debt servicing can be
reconciled with Article VI, Section 29(1) of the Constitution. Said provision says that "no money
shall be paid out of the Treasury except in pursuance of an appropriation made by law".
As stated in Guingona vs. Carague, 196 SCRA 221, the presidential decrees providing for the
appropriation of funds to pay the public debt do not violate Section 29(1), Article VI of the Constitution.
They provide for a continuing appropriation, there is no constitutional prohibition against this. The 86
presidential decrees appropriate as much money as is needed to pay the principal, interest, taxes and
other normal banking charges on the loan. Although no specific amounts are mentioned, the amounts are
certain because they can be computed from the books of the National Treasury.
(1988) Tawi-Tawi is a predominantly Moslem province. The Governor, the Vice-Governor,
and members of its Sangguniang Panlalawigan are all Moslems. Its budget provides the Governor
with a certain amount as his discretionary funds. Recently, however, the Sangguniang Panlalawigan
passed a resolution appropriating P100,000 as a special discretionary fund of the Governor, to be
spent by him in leading a pilgrimage of his province mates to Mecca, Saudi Arabia, Islam's holiest
city. Philconsa, on constitutional grounds, has filed suit to nullify the resolution of the
Sangguniang Panlalawigan giving the special discretionary fund to the Governor for the stated
purpose. How would you decide the case? Give your reasons.
The resolution is unconstitutional. First, it violates art. VI, sec. 29(2) of the Constitution which
prohibits the appropriation of public money or property, directly or indirectly, for the use, benefit or
support of any system of religion, and, second, it contravenes art. VI, sec, 25(6) which limits the
appropriation of discretionary funds only for public purposes. The use of discretionary funds for purely
religious purpose is thus unconstitutional, and the fact that the disbursement is made by resolution of a
local legislative body and not by Congress does not make it any less offensive to the Constitution. Above
all, the resolution constitutes a clear violation of the non-establishment Clause (art. III, sec. 5) of the
Constitution.
(2002) Suppose there are 202 members in the House of Representatives. Of this number,
185 belong to the Progressive Party of the Philippines or PPP, while 17 belong to the Citizens Party
or CP. How would you answer the following questions regarding the representation of the House in
the Commission on Appointments? How many seats would the PPP be entitled to have in the
Commission on Appointments? Explain your answer fully. (5%)
The 185 members of the Progressive Party of the Philippines represent 91.58 per cent of the 202
members of the House of Representatives. In accordance with Article VI, Section 18 of the Constitution,
it is entitled to have ten of the twelve seats in the Commission on Appointments. Although the 185
members of Progressive Party of the Philippines represent 10.98 seats in the Commission on
Appointments, under the ruling in Guingona v. Gonzales, 214 SCRA 789 (1992), a fractional membership
cannot be rounded off to full membership because it will result in over- representation of that political
party and under- representation of the other political parties.
Suppose 15 of the CP representatives, while maintaining their party affiliation, entered into
a political alliance with the PPP in order to form the "Rainbow Coalition'' in the House. What effect,
if any, would this have on the right of the CP to have a seat or seats in the Commission on
Appointments? Explain your answer fully. (5%)
The political alliance formed by the 15 members of the Citizens Party with the Progressive Party
of the Philippines will not result in the diminution of the number of seats in the Commission on
Appointments to which the Citizens Party is entitled. As held in Cunanan v. Tan, 5 SCRA 1 (1962), a
temporary alliance between the members of one political party and another political party does not
authorize a change in the membership of the Commission on Appointments, Otherwise, the Commission
on Appointments will have to be reorganized as often as votes shift from one side to another in the House
of Representatives.
(2002) Suppose that Congress passed a law creating a Department of Human Habitat and
authorizing the Department Secretary to promulgate implementing rules and regulations. Suppose
further that the law declared that violation of the implementing rules and regulations so issued
would be punishable as a crime and authorized the Department Secretary to prescribe the penalty
for such violation. If the law defines certain acts as violations of the law and makes them
punishable, for example, with imprisonment of three (3) years or a fine in the amount of
P10,000.00, or both such imprisonment and fine, in the discretion of the court, can it be provided
in the implementing rules and regulations promulgated by the Department Secretary that their
violation will also be subject to the same penalties as those provided in the law itself? Explain your
answer fully. (5%)
87
The rules and regulations promulgated by the Secretary of Human Habitat cannot provide that
the penalties for their violation will be the same as the penalties for the violation of the law. As held in
United States v. Barrias, 11 Phil. 327 (1908), the fixing of the penalty for criminal offenses involves the
exercise of legislative power and cannot be delegated. The law itself must prescribe the penalty.
(2005) (2) Section 32 of Republic Act No. 4670 (The Magna Carta for Public School Teachers)
reads: Sec. 32. Penal Provision. — A person who shall willfully interfere with, restrain or coerce any
teacher in the exercise of his rights guaranteed by this Act or who shall in any other manner
commit any act to defeat any of the provisions of this Act shall, upon conviction, be punished by
a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment,
in the discretion of the court. Is the proviso granting the court the authority to impose a penalty
or imprisonment in its discretion constitutional? Explain briefly.
The proviso is unconstitutional. Section 32 of R.A. No. 4670 provides for an indeterminable period
of imprisonment, with neither a minimum nor a maximum duration having been set by the legislative
authority. The courts are thus given wide latitude of discretion to fix the term of imprisonment, without
even the benefit of any sufficient standard, such that the duration thereof may range, in the words of
respondent judge, from one minute to the life span of the accused. This cannot be allowed. It vests in the
courts a power and a duty essentially legislative in nature and which, as applied to this case, does violence
to the rules on separation of powers as well as the non-delegability of legislative powers. (People v. Judge
Dacuycuy, G.R. No. L-45127, May 5, 1989)
(2005) (1) The two accepted tests to determine whether or not there is a valid delegation of
legislative power are the Completeness Test and the Sufficient Standard Test. Explain each.
Under the COMPLETENESS TEST, a law must be complete in all its terms and provisions when
it leaves the legislature that nothing is left to the judgment of the delegate. The legislature does not
abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of
his authority. However, a delegation of power to make the laws which necessarily involves a discretion as
to what it shall be may not constitutionally be done. (Edu v. Ericta, G.R. No. L-32096, October 24, 1970)
Under the SUFFICIENCY OF STANDARDS TEST, the statute must not only define a fundamental
legislative policy, mark its limits and boundaries, and specify the public agency to exercise the legislative
power. It must also indicate the circumstances under which the legislative command is to be effected. To
avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the
legislature itself determines matters of principle and lays down fundamental policy. (Free Telephone
Workers Union v. Minister of Labor, G.R. No. L-58184, October 30, 1981)
ALTERNATIVE ANSWER:
COMPLETENESS TEST. The law must be complete in all its essential terms and conditions when
it leaves the legislature so that there will be nothing left for the delegate to do when it reaches him except
to enforce it. (See ITS v. Ang Tang Ho, G.R. No. L-17122, February 27, 1922) SUFFICIENT STANDARD
TEST. A sufficient standard is intended to map out the boundaries of the delegate's authority by defining
the legislative policy and indicating the circumstances under which it is to be pursued and effected;
intended to prevent a total transference of legislative power from the legislature to the delegate. The
standard is usually indicated in the law delegating legislative power. (See Ynot u. Intermediate Appellate
Court, G.R. No. 74457, March 20, 1987)
(2015) Senator Fleur De Lis is charged with plunder before the Sandiganbayan. After finding
the existence of probable cause, the court issues a warrant for the Senator's arrest. The prosecution
files a motion to suspend the Senator relying on Section 5 of the Plunder Law. According to the
prosecution, the suspension should last until the termination of the case. Senator Lis vigorously
opposes the motion contending that only the Senate can discipline its members; and that to allow
his suspension by the Court would violate the principle of separation of powers. Is Senator Lis'
contention tenable? Explain. (4%)
No, Senator Lis’, contention is not tenable. The suspension contemplated in the Constitution to
discipline Member of the Senate is not the suspension contemplated under the Sec. 5 of the Plunder Law. 88
The latter is not a penalty but a preliminary preventive measure and is not imposed upon the petitioner
for misbehavior as a member of Congress. In a synonymous case (Miriam Defensor-Santiago v.
Sandiganbayan, G.R. No. 128055, April 18,2001) it appears to be a ministerial duty of the court to issue
the order of suspension upon a determination of the validity of the criminal information filed before it. The
order of suspension provided in RA 3019 is distinct from the power of Congress to discipline its own ranks.
Neither does the order of suspension encroach upon the power of Congress. The doctrine of separation of
powers, by itself, is not deemed to have effectively excluded the members of Congress from RA 3019.
(2013) In the May 2013 elections, the Allied Workers' Group of the Philippines (AWGP),
representing land-based and sea- based workers in the Philippines and overseas, won in the partylist
congressional elections. Atty. Abling, a labor lawyer, is its nominee. As part of the party's advocacy
and services, Congressman Abling engages in labor counseling, particularly for local workers with
claims against their employers and for those who need representation in collective bargaining
negotiations with employers. When labor cases arise, AWGP enters its appearance in representation
of the workers and the Congressman makes it a point to be there to accompany the workers,
although a retained counsel also formally enters his appearance and is invariably there.
Congressman Abling largely takes a passive role in the proceedings although he occasionally speaks
to supplement the retained counsel's statements. It is otherwise in CBA negotiations where he
actively participates.
Management lawyers, feeling that a congressman should not actively participate in cases
before labor tribunals and before employers because of the influence a congressman can wield, filed
a disbarment case against the Congressman before the Supreme Court for his violation of the Code
of Professional Responsibility and for breach of trust, in relation particularly with the prohibitions
on legislators under the Constitution. Is the cited ground for disbarment meritorious? (6%)
Being a congressman, Atty. Abling is disqualified under Article VI, Section 14 of the 1987
Constitution from personally appearing as counsel before quasi- judicial and other administrative bodies
handling labor cases constitutes personal appearance before them (Puyat vs. De Guzman, 135 SCRA 33).
His involvement in collective bargaining negotiations also involves practice of law, because he is making
use of his knowledge for the benefit of others (Cayetano vs. Monsod, 201 SCRA 210). The Bureau of Labor
Relations is involved in collective bargaining negotiations (Article 250 of the Labor Code). Atty. Abling
should not be disbarred but should be merely suspended from the practice of law. Suspension is the
appropriate penalty for involvement in the unlawful practice of law (Tapay vs. Bancolo, 694 SCRA 1).
ALTERNATIVE ANSWER:
No, Congressman Abling cannot be disbarred. A retained counsel formally appears for AWGP. His
role is largely passive and cannot be considered as personal appearance. His participation in the collective
bargaining negotiations does not entail personal appearance before an administrative body (Article VI,
Section 13 of the 1987 Constitution).
ALTERNATIVE ANSWER:
No, the ground for disbarment is not meritorious. The Supreme Court said that the determination
of the acts which constitute disorderly behavior is within the discretionary authority of the House
concerned, and the Court will not review such determination, the same being a political question (Osmeña
v. Pendatun, 109 Phil 863).
(1993) How may the following be removed from office: (1) Senators & Congressmen (2)
Judges of lower courts (3) Officers and employees in the Civil Service?
In accordance with Art. III, section 16(3), of the Constitution, Senators and Congressmen may be
removed by their EXPULSION for disorderly behavior, with the concurrence of at least two-thirds of all the
members of the House to which they belong. In addition, they may also be removed in consequence of an
election contest filed with the Senate or House of Representatives Electoral Tribunal.
(2002) Simeon Valera was formerly a Provincial Governor who ran and won as a Member of
the House of Representatives for the Second Congressional District of lloilo. For violation of 89
Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019), as amended, allegedly
committed when he was still a Provincial Governor, a criminal complaint was filed against him
before the Office of the Ombudsman for which, upon a finding of probable cause, a criminal case
was filed with the Sandiganbayan. During the course of trial, the Sandiganbayan issued an order of
preventive suspension for 90 days against him. Representative Valera questioned the validity of
the Sandiganbayan order on the ground that, under Article VI, Section 16(3) of the Constitution,
he can be suspended only by the House of Representatives and that the criminal case against him
did not arise from his actuations as a member of the House of Representatives. Is Representative
Valera's contention correct? Why? (5%)
The contention of Representative Valera is not correct. As held in Santiago v. Sandiganbayan, 356
SCRA 636, the suspension contemplated in Article VI, Section 16(3) of the Constitution is a punishment
that is imposed by the Senate or House of Representatives upon an erring member, it is distinct from the
suspension under Section 13 of the Anti-Graft and Corrupt Practices Act, which is not a penalty but a
preventive measure. Since Section 13 of the Anti-Graft and Corruption Practices Act does not state that
the public officer must be suspended only in the office where he is alleged to have committed the acts
which he has been charged, it applies to any office which he may be holding.
(2010) Define/Explain. (a) Doctrine of operative facts
DOCTRINE OF OPERATIVE FACTS – The general rule is that an unconstitutional law is void. It
produces no rights, imposes no duties and affords no protection. However, the doctrine of operative fact
is an exception to the general rule and it only applies as a matter of equity and fair play. Under the doctrine
of operative fact, the unconstitutional law remains unconstitutional, but the effects of the unconstitutional
law, prior to its judicial declaration of nullity, may be left undisturbed as a matter of equity and fair play.
It can never be invoked to validate as constitutional an unconstitutional act.
(2010) Define/Explain. Doctrine of necessary implication
DOCTRINE OF NECESSARY IMPLICATION provides that every statute is understood, by
implication, to contain all such provisions as may be necessary to effectuate its object and purpose, or to
make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and
subsidiary consequences as may be fairly and logically inferred from its terms. Ex necessitate legis. (PepsiCola Products Philippines, Inc. v. Secretary of Labor, 312 SCRA 104, 117 [1999]).
Principle of holdover?
PRINCIPLE OF HOLDOVER provides that an incumbent officer or official may remain in office
and continue performing his functions beyond his tenure or term until his successor has been elected
and qualified.
(2004) AVE ran for Congressman of QU province. However, his opponent, BART, was the
one proclaimed and seated as the winner of the election by the COMELEC. AVE filed seasonably a
protest before HRET (House of Representatives Electoral Tribunal). After two years, HRET reversed
the COMELEC's decision and AVE was proclaimed finally as the duly elected Congressman. Thus,
he had only one year to serve in Congress. Can AVE collect salaries and allowances from the
government for the first two years of his term as Congressman? Should BART refund to the
government the salaries and allowances he had received as Congressman?
AVE cannot collect salaries and allowances from the government for the first two years of his term,
because in the meanwhile BART collected the salaries and allowances. BART was a de facto officer while
he was in possession of the office. To allow AVE to collect the salaries and allowances will result in making
the government pay a second time. (Mechem, A Treatise on the Law of Public Offices and Public Officers,
[1890] pp. 222-223.)
What will happen to the bills that BART alone authored and were approved by the House of
Representatives while he was seated as Congressman? Reason and explain briefly. (5%)
BART is not required to refund to the government the salaries and allowances he received. As a 90
de facto officer, he is entitled to the salaries and allowances because he rendered services during his
incumbency. (Rodriguez v. Tan, 91 Phil. 724 [1952]) The bills which BART alone authored and were
approved by the House of Representatives are valid because he was a de facto officer during his
incumbency. The acts of a de facto officer are valid insofar as the public is concerned. (People v. Garcia,
313 SCRA 279 [1999]).
(2006) 1. What is the function of the Senate Electoral Tribunal and the House of
Representatives Electoral Tribunal? (2.5%)
Under Article VI, Section 17 of the 1987 Constitution, the Senate and House of Representatives
Electoral Tribunals shall be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members.
What is the composition of each? (2.5%)
Each Electoral Tribunal shall be composed of NINE Members, three of whom shall be Justices of
the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the
Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman
(Article VI, Section 17,1987 Constitution).
[2018] Ang Araw, a multi-sectoral party-list organization duly registered as such with the
Commission on Elections (Comelec), was proclaimed as of the winning party-list groups in the last
national elections. Its first nominee, Alejandro, assumed office as the party-list representative.
About one year after Alejandro assumed office, the Interim Central Committee of Ang Araw expelled
Alejandro from the party for disloyalty and replaced him with Andoy, its second nominee. Alejandro
questioned before the Comelec his expulsion and replacement by Andoy. The Comelec considered
Alejandro’s petition as an inter-party dispute which it could resolve as an incident of its power to
register political parties; it proceeded to uphold expulsion. Is the Comelec’s ruling correct? (5%)
Alejandro’s petition should be dismissed for lack of jurisdiction. It is the HRET which has
jurisdiction over the case, because Alejandro is already a member of the House of Representatives (Lico v.
Commission on Elections, G.R. 205505, September 29, 2015).
[2017] Sec. 17, Art. VI of the Constitution establishes an Electoral Tribunal for each of the
Houses of Congress, and makes each Electoral Tribunal "the sole judge of all contests relating to
the election, returns, and qualifications of their respective Members." On the other hand, Sec. 2(1),
C (Commission on Elections), Art. IX of the Constitution grants to the COMELEC the power to
enforce and administer all laws and regulations "relative to the conduct of an election, plebiscite,
initiative, referendum, and recall." Considering that there is no concurrence of jurisdiction between
the Electoral Tribunals and the COMELEC, state when the jurisdiction of the Electoral Tribunals
begins, and the COMELEC's jurisdiction ends. Explain your answer. (4%)
To be considered a Member of the House of the Representatives, three must be a concurrence of
the following requisites: [1] a valid proclamation, [2] a proper oath, and [3] assumption of office. Once a
winning candidate has been proclaimed and taken his oath, and assumed office as a Member of the House
of Representatives, the jurisdiction of the COMELEC over the election contests ends, and the jurisdiction
of the House of Representatives Electoral Tribunal begins.
(2014) Beauty was proclaimed as the winning candidate for the position of Representative
in the House of Representatives three (3) days after the elections in May. She then immediately
took her oath of office. However, there was a pending disqualification case against her, which case
was eventually decided by the COMELEC against her 10 days after the election. Since she has
already been proclaimed, she ignored that decision and did not bother appealing it. The COMELEC
then declared in the first week of June that its decision holding that Beauty was not validly elected
had become final. Beauty then went to the Supreme Court questioning the jurisdiction of the
COMELEC claiming that since she had already been proclaimed and had taken her oath of office,
such election body had no more right to come up with a decision – that the jurisdiction had already 91
been transferred to the House of Representatives Electoral Tribunal. How defensible is the
argument of Beauty? (4%)
The House of Representatives Electoral Tribunal has acquired exclusive jurisdiction over the case
of Beauty, since she has already been proclaimed. The proclamation of the winning candidate is the
operative fact that triggers the exclusive jurisdiction of the House of Representative Electoral Tribunal
over election contests relating to the election, returns and qualifications of the winning candidate. The
proclamation divests the COMELEC of jurisdiction over the question of disqualifications pending before it
at the time of the proclamation. Any case pertaining to questions over the qualifications of a winning
candidate should be raised before the House of Representative Electoral Tribunal (Limkaichong vs
COMELEC, 583 SCRA 1 (2011)); Jalosjos, Jr. vs COMELEC, 674 SCRA 530 (2013)
(2012) Mr. Yellow and Mr. Orange were the leading candidates in the vice-presidential
elections. After elections, Yellow emerged as the winner by a slim margin of 100,000 votes.
Undaunted, Orange filed a protest with the Presidential Electoral Tribunal (PET). After due
consideration of the facts and the issues, the PET ruled that Orange was the real winner of the
elections and ordered his immediate proclamation. Aggrieved, Yellow filed with the Supreme Court
a Petition for Certiorari challenging the decision of the PET alleging grave abuse of discretion. Does
the Supreme Court have jurisdiction? Explain.
The Supreme Court has no jurisdiction over the petition. The Presidential Electoral Tribunal is
not simply an agency to which the Members of the Senate Court were assigned. It is not separate from the
Supreme Court. (Macalintal vs. Presidential Electoral Tribunal, 631 SCRA 239.)
Would the answer in (a.) be the same if Yellow and Orange were contending for a senatorial
slot and it was the Senate Electoral Tribunal (SET) who issued the challenged ruling?
The Supreme Court would have jurisdiction if it were the Senate Electoral Tribunal who issued
the challenged ruling. The Supreme Court can review its decision if it acted with grave abuse of discretion.
(Lerias vs. House of Representatives Electoral Tribunal, 202 SCRA 808.)
(2002) In an election case, the House of Representatives Electoral Tribunal rendered a
decision upholding the election protest of protestant A, a member of the Freedom Party, against
protestee B, a member of the Federal Party. The deciding vote in favor of A was cast by
Representative X, a member of the Federal Party. For having voted against his party mate,
Representative X was removed by Resolution of the House of Representatives, at the instance of
his party (the Federal Party), from membership in the HRET. Representative X protested his
removal on the ground that he voted on the basis of the evidence presented and contended that he
had security of tenure as a HRET Member and that he cannot be removed except for a valid cause.
With whose contention do you agree, that of the Federal Party or that of Representative X? Why?
(5%)
I agree with the contention of Representative X. As held in Bondoc v. Pineda, 201 SCRA 792
(1991), the members of the House of Representatives Electoral Tribunal are entitled to security of tenure
like members of the judiciary. Membership in it may not be terminated except for a just cause. Disloyalty
to party is not a valid ground for the expulsion of a member of the House of Representatives Electoral
Tribunal. Its members must discharge their functions with impartiality and independence from the
political party to which they belong.
(1990) Y was elected Senator in the May 1987 national elections. He was born out of
wedlock in 1949 of an American father and a naturalized Filipina mother. Y never elected Philippine
citizenship upon reaching the age of majority. Before what body should T, the losing candidate,
question the election of Y? State the reasons for your answer. Is Y a Filipino citizen? Explain your
answer.
T, the losing candidate, should question the election of Y before the Senate Electoral Tribunal,
because the issue involved is the qualification of Y to be a Senator. Section 17, Article VI of the 1987
Constitution provides that. The Senate and the House of Representatives shall each-have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications 92
of their respective Members."
(1996) Can the House of Representatives take active part in the conduct of foreign
relations, particularly in entering into treaties and international agreements? Explain.
No, the House of Representatives cannot take active part in the conduct of foreign relations,
particularly in entering into treaties and international agreements. As held in United States vs. CurtissWright Export Corporation, 299 U.S. 304, the President alone is the representative of the nation in the
conduct of foreign affairs. Although the Senate has the power to concur in treaties, the President alone
negotiates treaties and Congress is powerless to intrude into this. However, if the matter involves a treaty
or an executive agreement, the House of Representatives may pass a resolution expressing its views on
the matter.
(1994) Under the Constitution, what is the role of the Senate in the conduct of foreign
affairs?
The Senate plays a role in the conduct of foreign affairs, because of the requirement in Section
21, Article VII of the Constitution that to be valid and effective a treaty or international agreement must
be concurred in by at least two-thirds of all the Members of the Senate. Section 4, Article XVIII of the
Constitution provides: "All existing treaties or international agreements which have not been ratified shall
not be renewed or extended without the concurrence of at least two-thirds of all the Members of the
Senate.”
(2015) Several senior officers of the Armed Forces of the Philippines received invitations
from the Chairperson of the Senate Committees on National Defense and Security for them to
appear as resource persons in scheduled public hearings regarding a wide range of subjects. The
invitations state that these public hearings were triggered by the privilege speeches of the Senators
that there was massive electoral fraud during the last national elections. The invitees Brigadier
General Matapang and Lieutenant Coronel Makatuwiran, who were among those tasked to maintain
peace and order during the last election, refused to attend because of an Executive Order banning
all public officials enumerated in paragraph 3 thereof from appearing before either house of
Congress without prior approval of the President to ensure adherence to the rule of executive
privilege. Among those included in the enumeration are "senior officials of executive departments
who, in the judgment of the department heads, are covered by executive privilege." Several
individuals and groups challenge the constitutionality of the subject executive order because it
frustrates the power of the Congress to conduct inquiries in aid of legislation under Section 21,
Article VI of the 1987 Constitution. Decide the case. (5%)
The subject executive order is unconstitutional. The Court in Senate v. Ermita (GR No. 169777)
declared that the executive privilege is the power of the government to withhold information from the
public, the courts, and the Congress. But this is recognized only for certain types of information of a
sensitive character. When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that
they are department heads. Only one official may be exempted from this power -- the President.
Under the Constitution, there are two different functions of the Legislature: The power to conduct
inquiries in aid of legislation and the power to conduct inquiry during question hour. The objective of
conducting a question hour is to obtain information in pursuit of Congress’ oversight function. When
Congress merely seeks to be informed on how department heads are implementing the statutes which it
had issued, the department heads’ appearance is merely requested. The power of inquiry in aid of
legislation is inherent in the power to legislate. A legislative body cannot legislate wisely or effectively in
the absence of information respecting the conditions which the legislation is intended to affect or change.
And where the legislative body does not itself possess the requisite information, recourse must be had to
others who do possess it. The executive privilege is the exception under this type of inquiry.
When an official is being summoned by Congress on a matter which, in his own judgment, might
be covered by executive privilege, he must be afforded reasonable time to inform the President or the
Executive Secretary of the possible need for invoking the privilege. This is necessary to provide the
President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for 93
a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the
Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official
to appear before Congress and may then opt to avail of the necessary legal means to compel his
appearance. (Senate v. Ermita)
(2014) A few months before the end of the present Congress, Strongwill was invited by the
Senate to shed light in an inquiry relative to the alleged siphoning and diverting of the pork barrel
of members of Congress to non-existent or fictitious projects. Strongwill has been identified in the
news as the principal actor responsible for the scandal, the leader of a non- governmental
organization which ostensibly funneled the funds to certain local government projects which
existed only on paper. At the start of the hearings before the Senate, Strongwill refused at once to
cooperate. The Senate cited him in contempt and sent him to jail until he would have seen the
light. The Congress, thereafter, adjourned sine die preparatory to the assumption to office of the
newly-elected members. In the meantime, Strongwill languished behind bars and the remaining
senators refused to have him released, claiming that the Senate is a continuing body and, therefore,
he can be detained indefinitely. Are the senators right? (4%)
Yes, the Senators are right. The Senate is to be considered as a continuing body for purposes of
its exercise of its power punish for contempt. Accordingly, the continuing validity of its orders punishing
for contempt should not be affected by its sine die adjournment (Arnault vs Nazareno, 87 Phil. 29 (1950)
ALTERNATIVE ANSWER
The Senators are right. While the Senate as an institution is continuing, in the conduct of its dayto-day business, the Senate of each Congress acts separately from the Senate of the Congress before it.
All pending matters terminate upon expiration of each Congress (Neri vs Senate Committee on
Accountability of Public Officers and Investigation, 564 SCRA 152 (2008)
(2010) The House Committee on Appropriations conducted an inquiry in aid of legislation
into alleged irregular and anomalous disbursements of the Countrywide Development Fund (CDF)
and Congressional Initiative Allocation (CIA) as exposed by X, a division chief of the Department of
Budget and Management (DBM). Implicated in the questionable disbursements are high officials of
the Palace. The house committee summoned X and the DBM Secretary to appear and testify. X
refused to appear, while the Secretary appeared but refused to testify invoking executive privilege.
May X be compelled to appear and testify? If yes, what sanction may be imposed on him?
YES. Individuals invited to a legislative inquiry can be anybody whether an executive head or not.
The inquiry is in aid of legislation which is to elicit information useful for legislation not for prosecution
or persecution. The attendance of the resource person is mandatory and can be compelled through
compulsory processes. Only the President or the Executive Secretary by order of the President can invoke
executive privilege (Senate of Philippines vs. Ermita, 488 SCRA 13 [2006]). He may be cited for contempt
if he fails to attend.
Is the Budget Secretary shielded by executive privilege from responding to the inquiries of
the House Committee? Explain Briefly. If the answer is no, is there any sanction that may be
imposed on him?
No, executive privilege is granted to the President himself not to anybody else. It is the president
who shall invoke the privilege. The inquiry is in aid of legislation and neither the President nor Executive
Secretary by order of the President invoke executive privilege (Senate of the Philippines vs. Ermita, 438
SCRA 1 [2006]). Citation for contempt can be imposed.
(2009) Congressman Nonoy delivered a privilege speech charging the Intercontinental
Universal Bank (IUB) with the sale of unregistered foreign securities, in violation of RA no. 8799.
He then filed, and the House of Representatives unanimously approved, a resolution directing the
House Committee on Good Government (HCGG) to conduct an inquiry on the matter, in aid of
legislation, in order to prevent the recurrence of any similar fraudulent activity. HCGG immediately
scheduled a hearing and invited the responsible officials of IUB, the chairman and Commissioners
of the SEC and the Governor of the BSP. On the date set for the hearing, only the SEC commissioners 94
appeared, prompting Congressman Nonoy to move for the issuance of the appropriate subpoena ad
testificandum to compel the attendance of the invited resource persons. The IUB officials filed suit
to prohibit HCGG from proceeding with the inquiry and to quash the subpoena, raising the following
arguments: The subject of the legislative investigation is also the subject of the criminal and
civil actions pending before the courts and the prosecutor’s office; thus, the legislative inquiry
would preempt judicial action.
The argument is untenable, the mere filing of a criminal or an administrative complaint before
the court of quasi- judicial body should not automatically bar the conduct of legislative inquiry provided
that there is an explicit subject and nature of the inquiry. Since legislative inquiry is an essential part of
legislative power, it cannot be made subordinate to criminal and civil actions. Otherwise, it would be very
easy to subvert any investigation in aid of legislation through the convenient ploy of instituting civil and
criminal actions (Standard Chartered Bank [Philippine Branch] vs, Senate Committee on banks, Financial
Institutions and Currencies, 541 SCRA 456 [2007]).
ALTERNATIVE ANSWER:
Yes, legislative inquiry would preempt judicial action. In one case, the Supreme Court did not
allow the Committee to continue with the legislative inquiry because it was not in aid of legislation but in
aid of prosecution. It holds that there will be a violation of separation of powers and the possibility of
conflicting judgment. The Subjudice rule restricts comments and disclosures pertaining to judicial
proceedings to avoid prejudicing the issue, influencing the court, or obstructing the administrations of
justice.
Compelling the IUB officials, who are also respondents in the criminal and civil cases in
court, to testify at the inquiry would violate their constitutional right against self-incrimination.
Are the foregoing arguments tenable? Decide with reasons.
Congress can compel them to appear. Persons under legislative investigation are not being
indicted as accused in a criminal proceeding but are merely summoned as resource persons, or witnesses,
in a legislative inquiry. Hence they cannot on the ground of their right against self-incrimination,
altogether decline appearing before the Congress, although they may invoke the privilege when a question
calling for an incriminating answer is propounded (Standard Chartered Bank [Philippine Branch] vs,
Senate Committee on banks, Financial Institutions and Currencies, 541 SCRA 456 [2007]).
May the Governor of the BSP validly invoke executive privilege and thus, refuse to attend
the legislative inquiry? Why or why not?
No. the Governor cannot invoke executive privilege. Only the President as a general rule can invoke
executive privilege (Senate of the Philippines vs. Ermita, 488 SCRA 1 [2006]).
(1992) A case was filed before the Sandiganbayan regarding a questionable government
transaction. In the course of the proceedings, newspapers linked the name of Senator J. de Leon
to the scandal. Senator de Leon took the floor of the Senate to speak on a "matter of personal
privilege" to vindicate his honor against those "baseless and malicious" allegations. The matter was
referred to the Committee on Accountability of Public Officers, which proceeded to conduct a
legislative inquiry. The Committee asked Mr. Vince Ledesma, a businessman linked to the
transaction and now a respondent before the Sandiganbayan, to appear and to testify before the
Committee. Mr. Ledesma refuses to appear and file suit before the Supreme Court to challenge the
legality of the proceedings before the Committee. He also asks whether the Committee had the
power to require him to testify. Identify the issues Involved and resolve them.
The issues involved in this case are the following: (1) Whether or not the Supreme Court has
jurisdiction to entertain the case; (2) Whether or not the Committee on Accountability of Public Officers
has the power to investigate a matter which is involved in a case pending in court; and (3) Whether or not
the petitioner can invoke his right against self-incrimination. All these Issues were resolved in the case of
Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767. The Supreme Court has jurisdiction over the
case (determination of grave abuse of discretion).
[2018] What and whose vote is required for the following acts: (a) the repeal of tax exemption
law;
The Constitution is silent on the voting requirement for repealing a tax exemption. However, it
could be considered that the voting requirement to grant is also the voting requirement to repeal; hence,
the required vote is the majority of all the members of Congress.
ALTERNATIVE ANSWER:
The granting of tax exemptions requires the majority of all members of the Congress, because
granting such will impair the lifeblood of the government. Repealing such tax exemption, however, is not
inimical to such lifeblood and a simple majority is needed instead of a qualified majority.
(b) a declaration of the existence of a state of war;
Two-thirds of all members of Congress, voting separately (Article VI, Section 23, 1).
(c) the amendment of a constitutional provision through a constituent assembly;
A proposal for the amendment shall be valid, upon a vote of three-fourths of all its Members
(Article XVII, Section 1 [1]). For the effectivity of the amendment, however, the vote needed is the majority
of all those who voted (Article XVII, Section 4).
(d) the resolution of a tie in a presidential election; and
A majority of all the members of both Houses of Congress, voting separately (Article VII, Section
4).
(e) the extension of the period of suspension of the privilege of the writ of habeas corpus?
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special
session (Article VII, Section 18).
[2018] State whether or not the following acts are constitutional: (b) A law requiring all
candidates for national or local elective offices to be college degree holders;
The law requiring all candidAtes for national or local elective offices to be college degree holders
should be considered as unconstitutional with respect to national elective officers, because it is not one
of the qualifications specifically required for these offices. The qualifications for these positions under the
Constitutions are exclusive in character and the Congress would be incompetent to prescribe this
requirement as an additional qualification for candidates for national elective office. This additional
requirement would, however, be valid with respect to candidates for local elective posts (Social Justice
Society v. Dangerous Drugs Board, G.R. No. 157870, November 3, 2008).
(2014) Congress may increase the appellate jurisdiction of the Supreme Court: (1%)
Yes, but only with the advice and concurrence of the Supreme Court
(2014) Gerrymandering refers to the practice of: (1%)
A. creating or dividing congressional districts in a manner intended to favor a particular party or
candidate
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(2008) In 1963, Congress passed a law creating a government-owned corporation named
Manila War Memorial Commission (MWMC), with the primary function of overseeing the
construction of a massive memorial in the heart of Manila to commemorate victims of the 1945
Battle of Manila. The MWMC charter provided an initial appropriation of P1,000,000 empowered
the corporation to raise funds in its own name, and set aside a parcel of land in Malate for the
memorial site. The charter set the corporate life of MWMC at 50 years with a proviso that Congress
may not abolish MWMC until after the completion of the memorial. Forty-five (45) years later, the 96
memorial was only 1/3 complete, and the memorial site itself had long been overrun by squatters.
Congress enacted a law abolishing the MWMC and requiring that the funds raised by it be remitted
to the National Treasury. The MWMC challenged the validity of the law arguing that under its
charter its mandate is to complete the memorial no matter how long it takes. Decide with reasons.
(6%).
The law abolishing the MWMC is valid. Within the plenary powers of the Congress, it can create
as well as destroy what is created after determination its purpose could no longer be attained by
subsequent circumstances. The power to create also carries with it the power to destroy so long as it was
done in good faith and consistent with the purpose of promoting the general welfare.
(2009) A law fixing the passing grade in the Bar examinations at 70% with no grade lower
than 40% in any subject is constitutional.
FALSE. Congress cannot enact a law regulating the admission to the legal profession. It is within
the power of the Supreme Court to promulgate rules concerning the admission to the legal profession. The
present Constitution has taken away the power of Congress to alter the Rules of Court (Echegaray vs.
Secretary of Justice, 301 SCRA 96 [1999]). The law will violate the principle of separation of powers.
ALTERNATIVE ANSWER:
TRUE. Deliberations in ConCom reveal that Congress retains the power to amend or alter the
rules because the power to promulgate rules is essentially legislative even though the power has been
deleted in the 1987 Constitution. If the law, however, is retroactive, it is unconstitutional because it is
prejudicial. The Committee on Accountability of Public Officers has no power to investigate the scandal.
(no judicial functions). The petitioner can invoke his right against self- incrimination, because this right
is available in all proceedings. Since the petitioner is a respondent in the case pending before the
Sandiganbayan, he may refuse to testify.
(1993) Ernest Cheng, a businessman, has no knowledge of legislative procedure. Cheng
retains you as his legal adviser and asks enlightenment on the following matters: When does a bill
become a law even without the signature of the President? When does the law take effect?
Under Section 27(1), Article VI of the Constitution, a bill becomes a law even without the signature
of the President if he vetoed it but his veto was overridden by two-thirds vote of all the members of both
the Senate and the House of Representatives and If the President failed to communicate his veto to the
House from which the bill originated, within thirty days after the date of receipt of the bill by the President.
As held in Tanada vs. Tuvera, 146 SCRA 446, a law must be published as a condition for its effectivity
and in accordance with Article 2 of the Civil Code, it shall take effect fifteen days following the completion
of its publication in the Official Gazette or in a newspaper of general circulation unless it is otherwise
provided. (Executive Order No. 292, Revised Administrative Code of 1989)
(1996) Are the following bills filed in Congress constitutional? A bill originating from the
Senate which provides for the creation of the Public Utility Commission to regulate public service
companies and appropriating the initial funds needed to establish the same. Explain.
A bill providing for the creation of the Public Utility Commission to regulate public service
companies and appropriating funds needed to establish it may originate from the Senate. It is not an
appropriation bill, because the appropriation of public funds is not the principal purpose of the bill. In
Association of Small Landowners of the Philippines, Inc. vs. Secretary of Agrarian Reform 175 SCRA 343,
it was held that a law is not an appropriate measure if the appropriation of public funds is not its principal
purpose and the appropriation is only incidental to some other objective.
(1998) Suppose the President submits a budget which does not contain provisions for CDF
(Countrywide Development Funds), popularly known as the pork barrel, and because of this
Congress does not pass the budget. Will that mean paralization of government operations in the
next fiscal year for lack of an appropriation law? (2%)
No, the failure of Congress to pass the budget will not paralyze the operations of the Government.
Section 25(7), Article VI of the Constitution provides: "If, by the end of any fiscal year, the Congress shall 97
have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations
law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the
general appropriations bill is passed by the Congress.
Suppose in the same budget, there is a special provision in the appropriations for the Armed
Forces authorizing the Chief of Staff, AFP, subject to the approval of the Secretary of National
Defense, to use savings in the appropriations provided thereto to cover up whatever financial losses
suffered by the AFP Retirement and Separation Benefits System (RSBS) in the last five (5) years
due to alleged bad business judgment. Would you question the constitutionality validity of the
special provision?
Yes, the provision authorizing the Chief of Staff, with the approval of the Secretary of National
Defense, to use savings to cover the losses suffered by the AFP Retirement and Separation Benefits System
is unconstitutional. Section 25(5], Article VI of the Constitution provides: "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 appropriation
law for their respective offices from savings in other Items of their respective appropriations."
In Philippine Constitution vs Enriquez, 235 SCRA 506, 544, the Supreme Court held that a
provision in the General Appropriation Act authorizing the Chief of Staff to use savings to augment the
funds of the AFP Retirement and Separation Benefits Systems was unconstitutional. "While Section 25(5)
allows as an exception the realignment of savings to augment items in the general appropriations law for
the executive branch, such right must and can be exercised only by the President pursuant to a specific
law."
(2001) Suppose that the forthcoming General Appropriations Law for Year 2002, in the
portion pertaining to the Department of Education, Culture and Sports, will contain a provision to
the effect that the Reserve Officers Training Course (ROTC) in all colleges and universities is hereby
abolished, and in lieu thereof all male college students shall be required to plant ten (10) trees
every year for two (2) years in areas to be designated by the Department of Environment and Natural
Resources in coordination with the Department of Education, Culture and Sports and the local
government unit concerned. It further provides that the same provision shall be incorporated in
future General Appropriations Acts. There is no specific item of appropriation of funds for the
purpose. Comment on the constitutionality of said provision. (5%)
The provision is unconstitutional, because it is a rider. Section 25(2), Article VI of the Constitution
provides, "No provision or enactment shall be embraced in the general appropriations bill unless it relates
specifically to some particular appropriation therein." The abolition of the Reserve Officers Training Course
involves a policy matter. As held in Philippine Constitution Association vs. Enriquez, 235 SCRA 506
(1994), this cannot be incorporated in the General Appropriations Act but must be embodied in a separate
law.
(2010) Congresswoman A is a co-owner of an industrial estate in Sta. Rosa, Laguna which
she had declared in her Statement of Assets and liabilities. A member of her political party authored
a bill which would provide a 5-year development plant for all industrial estates in the southern
Tagalog Region to attract investors. The plan included an appropriation of 2 billion pesos for
construction of roads around the estates. When the bill finally became law, a civil society watchdog
questioned the constitutionality of the law as it obviously benefited Congresswoman A’s industrial
estate. Decide with reasons (3%)
The law is a valid exercise of police power although it may indirectly benefit a Congresswoman,
but the purpose of the law to provide a 5-year plant for all industrial estates is reasonable thus, it conforms
to the twin requisite of lawful subject and lawful means for a valid exercise police power. However, the
congresswoman could be sanctioned by the House of Representative for failure to notify the House of a
potential conflict of interest in the filing of the proposed legislation of which they author.
ALTERNATIVE ANSWER:
The law is constitutional. Section 12, Article VI of the Constitution does not prohibit the enactment
of a law which will benefit the business interests of a member of the Senate or the House of
Representatives. It only requires that if the member of Congress whose business interests will be benefited
by the law is the one who will file the bill, he should notify the House concerned of the potential conflict
of interest.
(2010) Distinguish between pocket veto and item veto.
An item veto refers to the veto made by the president but not the entire bill is vetoed but only a
specific item. Generally, item veto is not allowed but the constitution permits item veto on revenue, tariff,
and appropriation bill. And although it is not an appropriation, tariff or revenue bill an item veto is still
allowed for inappropriate provision in the bill. A pocket veto occurs when the President fails to act on the
bill and did not return the bill to Congress because the latter is not in session. In the Philippines pocket
veto is not applicable because a bill will pass into law if remain enacted within 30 days from receipt thereof.
(1996) Are the following bills filed in Congress constitutional? A bill creating a joint
legislative-executive commission to give, on behalf of the Senate, its advice, consent and
concurrence to treaties entered into by the President. The bill contains the guidelines to be
followed by the commission in the discharge of its functions. Explain.
A bill creating a joint legislative-executive commission to give, on behalf of the Senate, its advice,
consent and concurrence to treaties entered into by the President. The Senate cannot delegate this
function to such a commission, because under Section 21, Article VII of the Constitution, the concurrence
of at least two-thirds of the Senate itself is required for the ratification of treaties.
(1991) The President signs into law the Appropriations Act passed by Congress but she
vetoes separate items therein, among which is a provision stating that the President may not
increase an item of appropriation by transfer of savings from other items. The House of
Representatives chooses not to override this veto. The Senate, however, proceeds to consider two
options: (1) to override the veto and (2) to challenge the constitutionality of the veto before the
Supreme Court. Is option (1) viable? If so. what is the vote required to override the veto? Is option
(2) viable? If not. why not? If viable, how should the Court decide the case?
Option 1 is not viable in as much as the House of Representatives, from which the Appropriations
Act originated and to which the President must have returned the law, is unwilling to override the
presidential veto. There is, therefore, no basis for the Senate to even consider the possibility of overriding
the President's veto. Under the Constitution the vote of two-third of all the members of the House of
Representatives and the Senate, voting separately, will be needed to override the presidential veto.
It is not feasible to question the constitutionality of the veto before the Supreme Court. In Gonzales
vs. Macaraig, 191 SCRA 152, the Supreme Court upheld the constitutionality of a similar veto. Under
Article VI, Sec. 27(2) of the Constitution, a distinct and severable part of the General Appropriations act
may be the subject of a separate veto. Moreover, the vetoed provision does not relate to any particular
appropriation and is more an expression of a congressional policy in respect of augmentation from
savings than a budgetary provision. It is therefore an inappropriate provision and it should be treated as
an item for purposes of the veto power of the President.
The Supreme Court should uphold the validity of the veto in the event the question is brought
before it.
(2010) The Poverty Alleviation and Assistance Act was passed to enhance the capacity of
the most marginalized families nationwide. A financial assistance scheme called “conditional cash
98
transfers” was initially funded 500 million pesos by Congress. One of the provisions of the law gave
the joint-congressional oversight committee authority to screen the list of beneficiary families
initially determined by the Secretary of Department of Social Welfare and Development pursuant
to the Department implementing rules. Mang Pandoy, a resident of Smokey Mountain in Tondo,
questioned the authority of the Committee. (b) Is the grant of authority to the Oversight Committee
to screen beneficiary’s constitutional? Decide with Reasons.
The grant of authority to the oversight Committee to screen beneficiaries is unconstitutional. It
violates the principle of separation of powers. By being involved in the implementation of the law, the
Oversight Committee will be exercising executive power. (Abakada Guro Party List vs. Purisima, 562 SCRA
251 [2008]).
ALTERNATIVE ANSWER:
NO. True that the Oversight power of congress is to scrutinize, investigate, and supervise that the
laws that it enacted is fully implemented. But to secure authority to screen beneficiaries is an unfair
interference with the personal liberty or property of individual. It is more of an intrusion than an
overseeing.
(1988) A bill upon filing by a Senator or a Member of the House of Representatives goes
through specified steps before it leaves the House of Representatives or the Senate, as the case
may be. After leaving the legislature, please name the three methods by which said bill may become
a law.
A bill passed by Congress may become a law in any of the following cases: (1) If it is signed into
law by the President. (Art. VI, sec. 27(1)); (2) If it is re-passed over the President's veto by the vote of two
thirds of all the members of the House of Representatives and of the Senate. (Id.); and (3) If the President
fails to veto it within thirty days after receipt thereof and communicate the veto to the House from which
it originated, (Id.)
(1990) Executive Orders Nos. 1 and 2 issued by President Corazon C. Aquino created the
Presidential Commission on Good Government (PCGG) and empowered it to sequester any property
shown prima facie to be ill-gotten wealth of the late President Marcos, his relatives and cronies.
Executive Order No. 14 vests on the Sandiganbayan jurisdiction to try hidden wealth cases. On
April 14, 1986, after an investigation, the PCGG sequestered the assets of X Corporation, Inc. X
Corporation, Inc. claimed that President Aquino, as President, could not lawfully issue Executive
Orders Nos. 1, 2 and 14, which have the force of law, on the ground that legislation is a function
of Congress. Decide. Said corporation also questioned the validity of the three executive orders on
the ground that they are bills of attainder and, therefore, unconstitutional. Decide.
The contention of X Corporation should be rejected. Executive Orders Nos. 1, 2 and 14 were issued
in 1986. At that time President Corazon Aquino exercised legislative power Section 1, Article II of the
Provisional Constitution established by Proclamation No, 3, provided: "Until a legislature is elected and
convened under a new constitution, the President shall continue to exercise legislative power." Likewise,
Section 6, Article XVIII of the 1987 Constitution reads: The incumbent President shall continue to exercise
legislative power until the first Congress is convened."
In the case of Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas. Inc. v. Tan, 163 SCRA 371. the Supreme Court ruled that the Provisional
Constitution and the 1987 Constitution, both recognized the power of the president to exercise legislative
powers until the first Congress created under the 1987 Constitution was convened on July 27, 1987.
Executive Orders Nos. 1, 2 and 14 are not bills of attainder.
(1989) An existing law grants government employees the option to retire upon reaching
the age of 57 years and completion of at least 30 years of total government service. As a fiscal
retrenchment measure, the Office of the President later issued a Memorandum Circular requiring
physical incapacity as an additional condition for optional retirement age of 65 years. A
government employee, whose application for optional retirement was denied because he was below
65 years of age and was not physically incapacitated, filed an action in court questioning the
disapproval of his application claiming that the Memorandum Circular is void. Is the contention of
the employee correct? Explain.
99
Yes, the contention of the employee is correct. In Marasigan vs. Cruz, 150 SCR A 1, it was held
that such a memorandum circular is void. By introducing physical capacity as an additional condition for
optional retirement, the memorandum circular tried to amend the law. Such a power is lodged with the
legislative branch and not with the executive branch.
(1988) Legislative powers had been vested by the Constitution in the Congress of the
Philippines. In addition, the Constitution also granted the lawmaking body, non-legislative powers. 100
Kindly name five of the latter.
Congress has the following non-legislative powers: (1) To act as national board of canvassers for
President and Vice President. (Art. VII, sec. 4); (2) To decide whether the President is temporarily disabled
in the event he reassumes his office after the Cabinet, by a majority of vote of its members, declared that
he is unable to discharge the powers and duties of his office and now within five days insists that the
President is really unable to discharge the powers and duties of the presidency. (Art. VII, sec. 11); (3) To
concur in the grant of amnesty by the President. (Art. VII, sec. 19); (4) To initiate through the House of
Representatives and, through the Senate, to try all cases of impeachment against the President, Vice
President, the Members of the Supreme Court, the Members of the Constitutional Commissions and the
Ombudsman, for culpable violation of the Constitution, treason, bribery, graft and corruption, other high
crimes, or betrayal of public trust. (Art. XI, secs. 2-3); (5) To act as a constituent assembly for the revision
or amendment of the Constitution. (Art. XVII).
(1997) During a period of national emergency. Congress may grant emergency powers to
the President, State the conditions under which such vesture is allowed.
Under Section 23(2), Article VI of the Constitution. Congress may grant the President emergency
powers subject to the following conditions: (1) There is a war or other national emergency: (2) The grant of
emergency powers must be for a limited period; (3) The grant of emergency powers is subject to such
restrictions as Congress may prescribe; and (4) The emergency powers must be exercised to carry out a
declared national policy.
[2018] State whether or not the following acts are constitutional: (e) The nomination by a
national party-list of a person who is not one of its bona fide members.
The nomination is invalid, because nominees of national parties must be a bona fide members of
such parties (Atong Paglaum v. Commission on Elections, G.R. No. 203766, April 2, 2013).
(2015) The Partido ng Mapagkakatiwalaang Pilipino (PMP) is a major political party which
has participated in every election since the enactment of the 1987 Constitution. It has fielded
candidates mostly for legislative district elections. In fact, a number of its members were elected,
and are actually serving, in the House of Representatives. In the coming 2016 elections, the PMP
leadership intends to join the party-list system. Can PMP join the party-list system without
violating the Constitution and Republic Act (R.A.) No. 7941? (4%)
Yes, the PMP can join the party-list system in accordance with the rules enunciated in Atong
Paglaum v. COMELEC. Accordingly, political parties can participate in party-list elections provided they
register under the party- list system and do not field candidates in legislative district elections. A political
party, whether major or not, that fields candidates in legislative district elections can participate in partylist elections only through its sectoral wing that can separately register under the party-list system. The
sectoral wing is by itself an independent sectoral party, and is linked to a political party through a coalition
(Atong Paglaum v. COMELEC, GR Nos. 203766, 203818-19, et al.)
(2014) Greenpeas is an ideology-based political party fighting for environmental causes. It
decided to participate under the party-list system. When the election results came in, it only
obtained 1.99 percent of the votes cast under the party -list system. Bluebean, a political observer,
claimed that Greenpeas is not entitled to any seat since it failed to obtain at least 2% of the votes.
Moreover, since it does not represent any of the marginalized and underrepresented sectors of
society, Greenpeas is not entitled to participate under the party-list system. How valid are the
observations of Bluebean? (4%)
The claim of Bluebean that Greenpeas is not entitled to a seat under the party-list system because
it obtained only 1.99 percent of the votes cast under the party-list system is not correct. Since the provision
in Section 5(2), Article VI of the Constitution that the party-list representative shall constitute twenty
percent (20%) of the total number of the Members of the House of Representatives is mandatory, after the
parties receiving at least two percent (2%) of the total votes case for the party-list system have been
allocated one seat, the remaining seats should be allocated among the parties by the proportional
percentage of the votes received by each party as against the total party-list votes (Barangay Association 101
for National Advancement and Transparency vs COMELEC, 586 SCRA 211 (2009). The claim of Bluebean
that Greenpeas is not entitled to participate in the party-list elections because it does not represent any
marginalized and underrepresented sectors of society is not correct. It is enough that its principal
advocacy pertains to the special interests of its sector (Atong Panglaum vs COMELEC, 694 SCRA 477
(2013)).
(2010) Rudy Domingo, 38 years old, natural-born Filipino and a resident of the
Philippines since birth, is a Manila-based entrepreneur who runs KABAKA, a coalition of people’s
organizations from fisherfolk communities. KABAKA’s operations consist of empowering
fisherfolk leaders through livelihood projects and trainings on good governance. The Dutch
Foundation for Global Initiatives, a private organization registered in the Netherlands, receives
a huge subsidy from the Dutch Foreign Ministry, which, in turn is allocated worldwide to the
Foundation’s partners like KABAKA. Rudy seeks to register KABAKA as a party-list with himself
as a nominee of the coalition. Will KABAKA and Rudy be qualified as a party-list and a nominee,
respectively? Decide with reasons.
No, Kabaka and Rudy will not be qualified as party-list and nominee because KABAKA is a partner
of Dutch Foreign Ministry a foreign based organization. KABAKA is indirectly receiving support from Dutch
Ministry. It is therefore disqualified to be registered as a party-list. (Section 2(5), Article IX-C of the
Constitution). Under the law, the following are grounds for disqualification for registration in the partylist system:
1. It is a religious sect or denomination, organization or association organized for religious
purposes;
2. It advocates violence or unlawful means to seek its goal;
3. It is a foreign party or organization;
4. It is receiving support from any foreign government, foreign political party, foundation,
organization, whether directly or through any of its officers or members or indirectly through third parties
for partisan election purposes;
5. It violates or fails to comply with laws, rules or regulations relating to elections;
6. It declares untruthful statements in its petition;
7. It has ceased to exist for at least one (1) year; or
8. It fails to participate in the last two (2) preceding elections or fails to obtain at le ast two
percentum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the
constituency in which it has registered.”
(2007) The Supreme Court has provided a formula for allocating seats for party-list
representatives. For each of these rules, state the constitutional or legal basis, if any, and the
purpose.
THE TWENTY PERCENT ALLOCATION - the combined number of all partylist congressmen shall
not exceed twenty percent of the total membership of the House of Representatives, including those elected
under the party list. Section 5(2), Article VI of the Constitution, as implemented by R.A. No. 7941. The
purpose is to assure that there will be at least a guaranteed portion of the House of Representatives
reserved for the party-list members. The legislative policy is to promote the election of party-list
representatives in order to enable Filipinos belonging to the marginalized and underrepresented sectors
to contribute legislation that would benefit them.
THE TWO PERCENT THRESHOLD - only those parties garnering a minimum of two percent of the
total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives;
R.A. No. 7941. This is to ensure that the party-list organizations at least represent a significant portion of
those voting for the party-list system – that they at least have a substantial constituency which must, at 102
the minimum, not be less than two percent (2%) of the total number of those casting their votes for partylist organizations.
THE THREE-SEAT LIMIT - each qualified party, regardless of the number of votes it actually
obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats; and
R.A. No. 7941. This is to prevent any dominant party-list organization from having a monopoly of the seats
for the party-list system. Since the objective of the party-list system is to enable other groups who might
otherwise have difficulty getting to Congress through the traditional system of elections, then the system
developed to accommodate them must be fair and equitable enough to afford better odds to as many
groups as possible.
THE FIRST-PARTY RULE - additional seats which a qualified party is entitled to shall be
determined in relation to the total number of votes garnered by the party with the highest number of
votes. RA No. 7941. The party-list system is predicated, among others, on proportional representation.
Thus, there is need to reflect the same in relation to the total number of votes obtained. Accordingly, the
first party must not be placed on the same footing as the others who obtained less votes. The votes obtained
by first placer would be the reckoning point for the computation of additional seats or members for the
remaining organizations who got at least two percent (2%) of the votes cast for the party-list system.
(Veterans Federation Party v. COMELEC, G.R. No. 136781, October 6, 2000).
(2004) JAR faces a dilemma: should he accept a Cabinet appointment now or run later for
Senator? Having succeeded in law practice as well as prospered in private business where he and
his wife have substantial investments, he now contemplates public service but without losing the
flexibility to engage in corporate affairs or participate in professional activities within ethical
bounds. Taking into account the prohibitions and inhibitions of public office whether as Senator
or Secretary, he turns to you for advice to resolve his dilemma. What is your advice? Explain briefly.
(5%)
I shall advise JAR to run for SENATOR. As a Senator, he can retain his investments in his
business, although he must make a full disclosure of his business and financial interests and notify the
Senate of a potential conflict of interest if he authors a bill. (Section 12, Article VI of the 1987 Constitution.)
He can continue practicing law, but he cannot personally appear as counsel before any court of justice,
the Electoral Tribunals, or quasi- judicial and other administrative bodies. (Section 14, Article VI of the
1987 Constitution.) As a member of the Cabinet, JAR cannot directly or indirectly practice law or
participate in any business. He will have to divest himself of his investments in his business. (Section 13,
Article VII of the 1987 Constitution.) In fact, the Constitutional prohibition imposed on members of the
Cabinet covers both public and private office or employment. (Civil Liberties Union v. Executive Secretary,
194 SCRA 317)
(1988) Robert Brown was born in Hawaii on May 15, 1962, of an American father and a
Filipina mother. On May 16, 1983 while holding an American passport, he registered as a Filipino
with the Philippine Consulate at Honolulu, Hawaii. In September, 1983 he returned to the
Philippines, and took up residence at Boac, Marinduque, hometown of his mother. He registered as
a voter, voted, and even participated as a leader of one of the candidates in that district in the
1984 Batasan elections. In the elections of 1987, he ran for Congressman, and won. His sole
opponent is now questioning his qualifications and is trying to oust him on two basic claims: He is
not a natural born Filipino citizen, but is in fact, an American, born in Hawaii, an integral portion
of the U.S.A., who holds an American passport; He did not meet the age requirement; and He has a
"green card" from the U.S. Government. Assume that you are a member of the House Electoral
Tribunal where the petition for Brown's ouster is pending. How would you decide the three issues
raised against him?
The first and third grounds have no merit. But the second is well taken and, therefore, Brown
should be disqualified. Robert Brown is a natural born citizen of the Philippines. A person born of a Filipino
mother and an alien father before January 17, 1973, who thereafter upon reaching the age of majority
elect Philippine citizenship, is a citizen of the Philippines (Art. IV, sec. 1(3)). Under Art. IV, sec, 2 he is also
deemed a natural-born citizen. The Constitution requires, among other things, that a candidate for
member of the House of Representatives must be at least 25 years of age "on the day of the election." (Art.
VI, sec. 6). As Brown was born on May 15, 1962, he did not become 25 years old until May 15, 1987. 103
Hence on May 11, 1987, when the election was held, he was 4 days short of the required age.
The Constitution provides that those who seek either to change their citizenship or to acquire the
status of an immigrant of another country "during their tenure" shall be dealt with by law (Art. XI, sec.
17). The provision cannot apply to Brown for the following reasons: First, Brown is in addition an American
citizen and thus has a dual citizenship which is allowed by the Constitution. (Cf. Art. IV, sec. 4), Second,
Brown did not seek to acquire the status of an immigrant, but is an American by birth under the principle
of jus soli obtaining in the United States. Third, he did not seek to change his status during his tenure as
a public officer. Fourth, the provision of Art. XI, sec. 17 is not self-executing but requires an implementing
law. Fifth, but above all, the House Electoral Tribunal has no jurisdiction to decide this question since it
does not concern the qualification of a member-elect.
(1993) In 1964. Ruffa, a Filipina domestic helper working in Hongkong, went to Taipei for
a vacation, where she met Cheng Sio Pao. whom she married. Under Chinese Law, Ruffa
automatically became a Chinese citizen. The couple resided in Hongkong, where on May 9, 1965,
Ruffa gave birth to a boy named Ernest. Upon reaching the age of majority, Ernest elected
Philippine citizenship. After the EDSA Revolution, Ernest decided to live permanently in the
Philippines, where he prospered as a businessman. During the May 11, 1993 election, Ernest ran
and won as a congressman. His opponent, noting Ernest's Chinese ancestry, filed a petition to
disqualify the latter on the following grounds; (1) Ernest Cheng is not a natural born Filipino; and
(2) he is under aged. Decide.
Ernest cannot be disqualified. Ernest is not under-aged. Having been born on May 9, 1965, he
was over twenty-five years old on the date of the May 11, 1993 election. (Election was held on May 11,
1992). Section 6, Article VI of the Constitution, requires congressmen to be at least twenty-five years of
age on the day of the election.
(1999) Victor Ahmad was born on December 16, 1972 of a Filipino mother and an alien
father. Under the law of his father's country, his mother did not acquire his father's citizenship.
Victor consults you on December 21, 1993 and informs you of his intention to run for Congress in
the 1995 elections. Is he qualified to run? What advice would you give him? Would your answer be
the same if he had seen and consulted you on December 16, 1991 and informed you of his desire
to run for Congress in the 1992 elections? Discuss your answer. (3%)
No, Victor Ahmad is not qualified to run for Congress in the 1995 elections. Under Section 6,
Article VI of the Constitution, a member of the House of Representatives must be at least twenty-five (25)
years of age on the day of the election. Since he will be less than twenty-five (25) years of age in 1995,
Victor Ahmad is not qualified to run.
Under Section 2, Article IV of the Constitution, to be deemed a natural-born citizen, Victor Ahmad
must elect Philippine citizenship upon reaching the age of majority. I shall advise him to elect Philippine
citizenship, if he has not yet done so, and to wait until the 1998 elections. My answer will be the same if
he consulted me in 1991 and informed me of his desire to run in the 1992 elections.
ALTERNATIVE ANSWER:
Under Section 2, Article IV of the Constitution, Victor Ahmad must have elected Philippine
citizenship upon reaching the age of majority to be considered a natural born citizen and qualified to run
for Congress. Republic Act No. 6809 reduced the majority age to eighteen (18) years. Cuenco v. Secretary
of Justice, 5 SCRA 108 recognized three (3) years from reaching the age of majority as the reasonable
period for electing Philippine citizenship. Since Republic Act No. 6809 took effect in 1989 and there is no
showing that Victor Ahmad elected Philippine citizenship within three (3) years from the time he reached
the age of majority on December 16, 1990, he is not qualified to run for Congress. If he consulted me on
December 16, 1991, I would inform him that he should elect Philippine citizenship so that he can be
considered a natural born citizen.
(1991) After 2 February 1987, the Philippine National Bank (PNB) grants a loan to
Congressman X. Is the loan violative of the Constitution?
A. Whether or not the loan is violative of the 1987 Constitution depends upon its purpose. If it
was obtained for a business purpose, it is violative of the Constitution. If it was obtained for some other
purpose, e.g., for housing. It is not violative of the Constitution because under Section 16, Article XI.
Members of Congress are prohibited from obtaining loans from government-owned banks only if it is for
a business purpose.
Suppose the loan had instead been granted before 2 February 1987, but was outstanding on
that date with a remaining balance on the principal in the amount of P50,000.00, can the PNB
validly give Congressman X an extension of time after said date to settle the obligation?
If the loan was granted before the effectivity of the Constitution on February 2, 1987, the
Philippine National Bank cannot extend its maturity after February 2, 1987, if the loan was obtained for
a business purpose. In such a case the extension is a financial accommodation which is also prohibited
by the Constitution.
(1988) Can any other department or agency of the Government review a decision of the
Supreme Court? Why or why not?
No. The Supreme Court is the highest arbiter of legal questions. (Javier v. Comelec, 144 SCRA
194 (1986)) To allow review of its decision by the other departments of government would upset the classic
pattern of separation of powers and destroy the balance between the judiciary and the other departments
of government. As the Justices said in their answer to the complaint for impeachment in the Committee
on Justice of the House of Representatives, "Just as it is completely unacceptable to file charges against
the individual members of Congress for the laws enacted by them upon the argument that these laws are
violative of the Constitution, or are a betrayal of public trust, or are unjust. So too, should it be equally
impermissible to make the individual members of the Supreme Court accountable for the court's decisions
or rulings.
(2003) A group of losing litigants in a case decided by the Supreme Court filed a complaint
before the Ombudsman charging the Justices with knowingly and deliberately rendering an unjust
decision in utter violation of the penal laws of the land. Can the Ombudsman validly take
cognizance of the case? Explain.
No, the Ombudsman cannot entertain the complaint. As stated in the case of in re: Laureta. 148
SCRA 382 [1987], pursuant to the principle of separation of powers, the correctness of the decisions of
the Supreme Court as final arbiter of all justiciable disputes is conclusive upon all other departments of
the government; the Ombudsman has no power to review the decisions of the Supreme Court by
entertaining a complaint against the Justices of the Supreme Court for knowingly rendering an unjust
decision.
ALTERNATIVE ANSWER:
Article XI, Section 1 of the 1987 Constitution provides that public officers must at all times be
accountable to the people. Section 22 of the Ombudsman Act provides that the Office of the Ombudsman
has the power to investigate any serious misconduct allegedly committed by officials removable by
impeachment for the purpose of filing a verified complaint for impeachment if warranted. The Ombudsman
can entertain the complaint for this purpose.
(1996) X, a member of the House of Representatives, was serving his third consecutive
term in the House. In June 1996 he was appointed Secretary of National Defense. Can he run for
election to the Senate in the 1998 elections? Explain.
104
Yes, X can run for the Senate in the 1988 election. Under Section 7, Article X of the Constitution,
having served for three consecutive terms as Member of the House of Representatives. X is only prohibited
from running for the same position.
(2001) During his third term, "A", a Member of the House of Representatives, was
suspended from office for a period of 60 days by his colleagues upon a vote of two-thirds of all the
Members of the House. In the next succeeding election, he filed his certificate of candidacy for the 105
same position. "B", the opposing candidate, filed an action for disqualification of "A" on the ground
that the latter's, candidacy violated Section 7. Article VI of the Constitution which provides that
no Member of the House of Representatives shall serve for more than three consecutive terms. "A"
answered that he was not barred from running again for that position because his service was
interrupted by his 60- day suspension which was involuntary. Can 'A', legally continue with his
candidacy or is he already barred? Why? (5%)
"A" cannot legally continue with his candidacy. He was elected as Member of the House of
Representatives for a third term. This term should be included in the computation of the term limits, even
if "A" did not serve for a full term. (Record of the Constitutional Commission, Vol. n, p. 592.) He remained
a Member of the House of Representatives even if he was suspended.
ARTICLE VII: EXECUTIVE DEPARTMENT
(2021) To contain the spread of a virus, and in line with the World Health Organization's
declaration of a pandemic, the President declared martial law throughout the entire Philippine
archipelago. As an additional justification, the Proclamation declaring martial law cited the
possibility that health protocols might not be followed. A law student filed a petition before the
Supreme Court questioning the sufficiency of the constitutional and factual bases for the martial
law declaration. Does the law student have standing to file this action? Explain briefly.
The law student has legal standing. Under Article 7, Section 18 of the 1987 Constitution, the
Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.
Here, a citizen, who is a law student, filed with the SC to review the sufficiency of the factual
basis of the proclamation of martial law. Hence, the law student, as a citizen, has legal standing.
(2021) Can a charismatic and effective 30-year-old former mayor of a chartered city in
Metro Manila legally run for President of the Republic of the Philippines in the 2022 elections?
Explain briefly.
He cannot legally run as President in the 2022 elections. Under Article 7, Section 2 of the 1987
Constitution, no person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election, and a resident
of the Philippines for at least ten years immediately preceding such election.
Here, the chartered city mayor is only 30 years old. He did not meet the age requirement for a
presidential candidate. And even if the chartered city mayor met the age requirement, he still had to satisfy
the residency of 10 years, and he must be a natural born citizen to be able to run as president of the
Philippines. Hence, he cannot legally run as President in the 2022 elections.
(2019) A was appointed by the President as a Commissioner of the Commission
on Election (COMELEC) while Congress was not in session. Pending confirmation of
his appointment by the Commission on Appointments, A started to perform his official
functions in the COMELEC, such as attending en banc sessions, hearing election
protests, signing Resolutions, issuing Orders, and appearing before Congress during
budget hearings. Atty. B questioned before the Supreme Court the exercise of official
functions by A, stating that his ad interim appointment is not a permanent
appointment but a temporary one pending confirmation by the Commission on
Appointments, and thus, prohibited under Article IX-C of the 1987 Constitution which
states that "[i]n no case shall any Member [of the COMELEC] be appointed or
designated in a temporary or acting capacity." Is Atty. B ‘s contention correct?
Explain. (2.5%)
No, Atty. B's contention is incorrect. An ad interim appointment is a permanent
appointment because it takes effect immediately and can no longer be withdrawn by the
President once the appointee has qualified into office (Matibag v. Benipayo. G.R. No. 149036. 106
April 2, 2002).
If the Commission on Appointments by-passed the confirmation of A, can he still
be reappointed by the President? Explain. (2.5%)
Yes. Subsequent renewals by the President of ad interim appointment of Commissioners
of the COMELEC do not violate the constitutional provision proscribing their reappointment
(Section 1 (2), Article IX-C) because Commission on Appointments did not act on said
appointments after submission by the President. An ad interim appointment that has lapsed by
inaction of the Commission on Appointments does not constitute a term of office. The phrase
"without reappointment" applies only to one who has been appointed by the President and
confirmed by the Commission on Appointments, whether or not such person completes his term
of office. There must be
a confirmation by the Commission on Appointments of the previous
appointment before the prohibition on reappointment can apply. (Matibag v. Benipayo. G.R.
No. I 49036, April 2. 2002)
(2019) The continuing threat to the security of the State in various parts of the
country prompted the National Security Adviser of the
President
to
adopt
a
"Comprehensive National Security Strategy (CNSS)" with the following components:
Component 1: During a state of emergency, the President, in the exercise of his power
of general supervision, may delegate to the heads of local government units (LGUs),
through an administrative issuance, the power to call-out the Armed Forces of the
Philippines (AFP) for a more effective and immediate response to the ground situation;
and Component 2: In declaring Martial Law, the President, in a preemptive action and
without waiting for the recommendation of the Secretary of National Defense and the
AFP, may rely upon any intelligence information he may have gathered through other
sources. Disturbed by the strategy ‘s supposed infirmities, a concerned citizen
‘organization raised the constitutionality of the two (2) components of the CNSS
before the Supreme Court. Is component 1 of the CNSS constitutional? Explain.
(2.5%)
No. Only the President is authorized to exercise the calling out powers under Article
V 11, Section 18 of the Constitution. He is the only one who has full discretion to call the
military when in his judgment it is necessary to do so in order to prevent or suppress
lawless violence, invasion or rebellion (Kulayan v. Tan. G.R. No. 187298. July 3. 2012)
Is component 2 of the CNSS constitutional? Explain. (2.5%)
Yes. The President's power to declare martial law is not subject to any condition except
for the two (2) requirements of actual invasion or rebellion and that public safety requires it. It
does
not need the recommendation of the Defense Secretary and the AFP (Lagman vs.
Medialdea, G.R. No. 23/658. 4 July 2017)
[2018] President Alfredo died during his third year in office. In accordance with the
Constitution, Vice President Anastasia succeeded him. President Anastasia then nominated the
late President Alfredo’s Executive Secretary, Anna Maria, as her replacement as Vice President.
The nomination was confirmed by a majority of all the Members of the House of Representatives
and the Senate, voting separately. (a) Is Anna Maria’s assumption as Vice President valid? (2.5%)
(a) No, Anna Maria’s assumption is unconstitutional, because only a member of the Senate or
House of Representatives may be nominated by successor-President as Vice President. (Article VII, Section
9).
(b) Can Anastasia run as President in the next election? (2.5%)
(b) Yes, Anastacia can still run as President in the next election since she has served for less than
four years. Section 4, Article VII provides that “no person who has succeeded as President and has served
as such for more than four years shall be qualified for election to the same office at any time.”
[2017] The Executive Department has accumulated substantial savings from its 107
appropriations. Needing ₱3,000,000.00 for the conduct of a plebiscite for the creation of a new city
but has no funds appropriated soon by the Congress for the purpose, the COMELEC requests the
President to transfer funds from the savings of the Executive Department in order to avoid a delay
in the holding of the plebiscite. May the President validly exercise his power under the 1987
Constitution to transfer funds from the savings of the Executive Department, and make a crossborder transfer of ₱3,000,000.00 to the COMELEC by way of augmentation? Is your answer being
the same if the transfer is treated as aid to the COMELEC? Explain your answer. (4%)
The President may not transfer savings to the Commission on election as aid. The Constitutional
prohibition against the transfer of appropriations to other branches of government or Constitutional
Commission applies for whatever reason. In Araullo vs Aquino (GR No. 209287, July 1, 2014), the Supreme
Court declared as unconstitutional the following act and practice under the DAP, to wit: “The funding of
Programs, Activities and Projects (PAPs) that are not covered by any appropriation in the General
Appropriations Act (GAA) since augmentation can only be made from one existing item to another existing
item into the budget.” However, in a resolution dated February 3, 2015, the SC partially granted the
Motion for Reconsideration filed by the Office of the Solicitor General and allowed the funding of PAPs not
covered by any appropriation in the GAA. Cross-border transfers are illegal as it was ruled in the Araullo
case where the SC declared that the cross-border transfers of the savings of the executive to augment the
appropriation of other offices outside the executive is an unconstitutional act.
[2017] The President appoints the Vice President as his Administration's Housing Czar, a
position that requires the appointee to sit in the Cabinet. Although the appointment of the
members of the Cabinet requires confirmation by the Commission on Appointment (CA), the Office
of the President does not submit the appointment to the CA. May the Vice President validly sit in
the Cabinet? (2.5%)
Yes, as it is prescribed under Article VII, Section 3 (2) which states that “The Vice- President may
be appointed as a Member of the Cabinet. Such appointment requires no confirmation.”
(2016) While Congress was not in session, the President appointed Antero as Secretary of
the Department of Tourism (DOT), Benito as Commissioner of the Bureau of Immigration (BI),
Clodualdo as Chairman of the Civil Service Commission (CSC), Dexter as Chairman of the
Commission on Human Rights (CHR), and Emmanuel as Philippine Ambassador to Cameroon. The
following day, all the appointees took their oath before the President, and commenced to perform
the functions of their respective offices. [a] Characterize the appointments, whether permanent or
temporary; and whether regular or interim, with reasons. (2.5%)
[A1] The appointment of Antero as Secretary of Tourism is ad interim, because it is subject to
confirmation of the Commission on Appointments and was made while Congress was not in session. He
can start perfoming his duties upon his acceptance, because it is permanent and cannot be withdrawn
after its acceptance. (Matibag vs. Benipayo, 380 SCRA 49 [2002]).
[A2] The appointment of Benito as Commission of the Bureau of Immigration is regular and
permanent. It is not required to be confirmed by the Commission on Appointments. He can start
performing his duties upon acceptance of the appointment. (Section 16, Article VII of the Constitution).
[A3] The appointment of Clodualdo as Chairman of the Civil Service Commission is ad interim,
because it is subject to confirmation by the Commission on Appointments and was made while Congress
was not in session. He can start performing his duties upon his acceptance of the appointment, because
it is permanent and cannot be withdrawn.
[A4} The appointment of Dexter as Chairman of the Commission on Human Rights is regular and
permanent upon his acceptance. It is not required to be confirmed by the Commission on Appointments.
He can start performing his duties upon his acceptance. (Bautista v. Salonga, 172 SCRA 160 [1989])
[A5] the appointment of Emmanuel as Ambassador to Cameron is ad interim, because it is subject
to confirmation by the Commission on Appointment. (Section 16, Article VII of the Constitution)
A civil society group, the Volunteers Against Misguided Politics (VAMP), files suit, contesting 108
the legality of the acts of the appointees and claiming that the appointees should not have entered
into the performance of the functions of their respective offices, because their appointments had
not yet been confirmed by the Commission on Appointments. Is this claim of VAMP correct? Why
or why not? (2.5%)
The claim of VAMP is not correct. The Commission of Investigation and the Commission on Human
Rights can immediately start performing their functions upon acceptance since they are not required to
be confirmed. The Secretary of the Department of Tourism and the Chairman of the Civil Service
Commission, can immediately start performing their duties upon acceptance, since their ad interim
appointment is permanent.
(2013) While Congress was in session, the President appointed eight acting Secretaries. A
group of Senators from the minority bloc questioned the validity of the appointments in a petition
before the Supreme Court on the ground that while Congress is in session, no appointment that
requires confirmation by the Commission on Appointments, can be made without the latter's
consent, and that an undersecretary should instead be designated as Acting Secretary. Should the
petition be granted? (5%)
No, the petition should not be granted. The clear and expressed intent of the framers of the 1987
Constitution is to exclude presidential appointments from confirmation on the Commission on
Appointments except appointments to offices expressly mentioned in the first sentence of Section 16,
Article VII of the 1987 Constitution (Sarmiento III v. Mison, 159 SCRA 549). Since the appointment of an
acting secretary is not included under the first sentence of Section 16, Article VII of the 1987 Constitution,
it is no longer subject to confirmation by the Commission on Appointments.
(2003) What is the nature of an "acting appointment" to a government office? Does such
an appointment give the appointee the right to claim that the appointment will, in time, ripen into
a permanent one? Explain.
According to Sevilla v. Court of Appeals. 209 SCRA 637 [1992], an acting appointment is merely
temporary. As held in Marohombsar v. Alonto, 194 SCRA 390 [1991], a temporary appointment cannot
become a permanent appointment, unless a new appointment which is permanent is made. This holds
true unless the acting appointment was made because of a temporary vacancy. In such a case, the
temporary appointee holds office until the assumption of office by the permanent appointee.
(2010) A was a career Ambassador when he accepted an ad interim appointment as Cabinet
Member. The Commission on Appointments bypassed his ad interim appointment, however, and he
was not re- appointed. Can he re-assume his position as career ambassador?
The career Ambassador cannot re- assume his position as career Ambassador. His ad interim
appointment as Cabinet Member was a permanent appointment (Summers vs. Ozaeta, 81 Phil. 754
[1948]). He abandoned his position as Ambassador when he accepted his appointment as Cabinet Member
because as Cabinet Member, he could not hold any other office during his tenure. (Section 13, Article VII,
Constitution).
ALTERNATIVE ANSWER:
NO. an interim appointment is an appointment made by the President during the recess of
Congress and it is a permanent appointment and shall continue to hold such permanency until
disapproved by the Commission on Appointment or until the next adjournment of congress. If the
appointment is bypassed and the appointee was not re-appointed, he can no longer re-assume as career
ambassador because by accepting an ad interim appointment he is deemed to have waived his right to
hold his old position as ad interim appointment is permanent.
(1991) On 3 May 1992, while Congress is on a short recess for the elections, the president
appoints Renato de Silva to the rank of General (4-star) in the Armed Forces. She also designates
him as Chief of Staff of the AFP. He immediately takes his oath and assumes that office, with the
rank of 4-star General of the AFP. When Congress resumes its session on 17 May 1992, the
Commission on Appointments informs the Office of the President that it has received from her 109
office only the appointment of De Silva to the rank of 4-star General and that unless his
appointment to the Office of the Chief of Staff of the AFP is also submitted, the Commission will
not act on the matter. The President maintains that she has submitted to the Commission all that
the Constitution calls for. Who is correct? Did Gen. de Silva violate the Constitution in immediately
assuming office prior to a confirmation of his appointment? Are the appointment and designation
valid?
The President is correct. Under Presidential Decree No. 360, the grade of four-star general is
conferred only upon the Chief of Staff. Hence, the appointment of Renato de Silva as a four-star general
must be deemed to carry with it his appointment as Chief of Staff of the AFP. Gen. Renato de Silva did not
violate the Constitution when he immediately assumed office before the confirmation of his appointment,
since his appointment was an ad interim appointment. Under Article VI I, Sec. 16 of the Constitution,
such appointment is immediately effective and is subject only to disapproval by the Commission on
Appointments or as a result of the next adjournment of the Congress. The appointment and designation
of Gen. de Silva are valid for reasons given above. However, from another point of view they are not valid
because they were made within the period of the ban for making appointments. Under Article VII, Sec. 15
the President is prohibited from making appointments within the period of two (2) months preceding the
election for President and Vice President. The appointment in this case will be made on May 3, 1992 which
is just 8 days away from the election for President and Vice President on May 11, 1992. For this reason,
the appointment and designation of Gen. de Silva are after all invalid.
(1994) In December 1988, while Congress was in recess, A was extended an ad interim
appointment as Brigadier General of the Philippine Army, in February 1989. When Congress was in
session, B was nominated as Brigadier General of the Philippine Army. B's nomination was
confirmed on August 5, 1989 while A's appointment was confirmed on September 5, 1989. Who is
deemed more senior of the two, A or B? Suppose Congress adjourned without the Commission on
Appointments acting on both appointments, can A and B retain their original ranks of colonel?
A is senior to B. In accordance with the ruling in Summers vs. Ozaeta. 81 Phil. 754, the ad interim
appointment extended to A is permanent and is effective upon his acceptance although it is subject to
confirmation by the Commission on Appointments. If Congress adjourned without the appointments of A
and B having been confirmed by the Commission on Appointments, A cannot return to his old position.
As held in Summers vs. Qzaeta, 81 Phil. 754, by accepting an ad interim appointment to a new position,
A waived his right to hold his old position. On the other hand, since B did not assume the new position,
he retained his old position.
(2002) On December 13, 1990, the President signed into law Republic Act No. 6975
(subsequently amended by RA No. 8551) creating the Department of Interior and Local Government.
Sections 26 and 31 of the law provide that senior officers of the Philippine National Police (PNP),
from Senior Superintendent, Chief Superintendent, Deputy Director General to Director General or
Chief of PNP shall, among others, be appointed by the President subject to confirmation by the
Commission on Appointments. In 1991 the President promoted Chief Superintendent Roberto
Matapang and Senior Superintendent Conrado Mahigpit to the positions of Director and Chief
Superintendent of the PNP, respectively. Their appointments were in a permanent capacity.
Without undergoing confirmation by the Commission on Appointments, Matapang and Mahigpit
took their oath of office and assumed their respective positions. Thereafter, the Department of
Budget and Management authorized disbursements for their salaries and other emoluments.
Juan Bantay filed a taxpayer's suit questioning the legality of the appointments and
disbursements made. Bantay argues that the appointments are invalid inasmuch as the same have
not been confirmed by the Commission on Appointments, as required under Sections 26 and 31 of
R.A. No. 6975. Determine with reasons the legality of the appointments and the disbursements for
salaries by discussing the constitutional validity of Sections 26 and 31 of R.A. No. 6975. (5%)
The appointments of Matapang and Mahigpit are valid even if they were not confirmed by the
Commission on Appointments, because they are not among the public officials whose appointments are
required to be confirmed by the first sentence of Article VII, Section 16 of the Constitution. According to
Manalo v. Sistoza, 312 SCRA 239 (1999), Sections 26 and 31 of Republic Act 6975 are unconstitutional, 110
because Congress cannot by law expand the list of public officials required to be confirmed by the
Commission on Appointments. Since the appointments of Matapang and Mahigpit are valid, the
disbursements of their salaries and emoluments are valid.
(1999) What are the six categories of officials who are subject to the appointing power of
the President? Name the category or categories of officials whose appointments need confirmation
by the Commission on Appointments? (2%)
Under Section 16, Article VII of the Constitution, the six categories of officials who are subject to
the appointing power of the President are the following: 1. Head of executive departments; 2.
Ambassadors, other public ministers and consuls; 3. Officers of the armed forces from the rank of colonel
or naval captain; 4. Other officers whose appointments are vested in him by the Constitution; 5. All other
officers of the government whose appointments are not otherwise provided by law; and 6. Those whom he
may be authorized by law to appoint. (Cruz, Philippine Political Law, 1998 ed., pp. 204-205) (It is suggested
that if the examinee followed the classification in Sarmiento v. Mison, 156 SCRA 549 and named only four
categories, because he combined the first three categories into one, he be given full credit.)
According to Sarmiento v. Mison, 156 SCRA 549, the only officers whose appointments need
confirmation by the Commission on Appointments are the head of
executive
departments,
ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or
naval captain, and other officials whose appointments are vested in the President by the Constitution.
(1994) When is an appointment in the civil service permanent? Distinguish between an
"appointment in an acting capacity" extended by a Department Secretary from an ad interim
appointment extended by the President. Distinguish between a provisional and a temporary
appointment.
Under Section 25(a) of the Civil Service Decree, an appointment in the civil service is PERMANENT
when issued to a person who meets all the requirements for the position to which he is being appointed,
including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and
standards promulgated in pursuance thereof. An appointment in an ACTING CAPACITY extended by a
Department Secretary is not permanent but temporary. Hence, the Department Secretary may terminate
the services of the appointee at any time. On the other hand, an AD INTERIM APPOINTMENT extended by
the President is an appointment which is subject to confirmation by the Commission on Appointments
and was made during the recess of Congress. As held in Summers vs. Qzaeta, 81 Phil. 754, an ad interim
appointment is permanent.
In Section 24 (d) of the Civil Service Act of 1959, a TEMPORARY APPOINTMENT is one issued to
a person to a position needed only for a limited period not exceeding six months. Under Section 25(b) of
the Civil Service Decree, a temporary appointment is one issued to a person who meets all the
requirements for the position to which he is being appointed except the appropriate civil service eligibility
because of the absence of appropriate eligibles and it is necessary in the public Interest to fill the vacancy.
On the other hand, Section 24(e) of the Civil Service Act of 1959 defined a PROVISIONAL APPOINTMENT
as one Issued upon the prior authorization of the Civil Service Commission in accordance with its
provisions and the rules and standards promulgated in pursuance thereto to a person who has not
qualified in an appropriate examination but who otherwise meets the requirements for appointment to a
regular position in the competitive service, whenever a vacancy occurs and the filling thereof is necessary
in the interest of the service and there is no appropriate register of eligibles at the time of appointment.
Provisional appointments in general have already been abolished by Republic Act 6040. However,
it still applies with regard to teachers under the Magna Carta for Public School Teachers.
ALTERNATIVE ANSWER:
The case of Regis vs. Osmena, 197 SCRA 308, laid down the distinction between a provisional and
a temporary appointment. A PROVISIONAL APPOINTMENT is extended to a person who has not qualified
in an appropriate examination but who otherwise meets the requirements for appointment to a regular
position in the competitive service whenever a vacancy occurs and the filling thereof is necessary in the
interest of the service and there is no appropriate register of eligible at the time of the appointment. On 111
the other hand, a TEMPORARY APPOINTMENT given to a non-civil service eligible is without a definite
tenure and is dependent on the pleasure of the appointing power.
A provisional appointment is good only until replacement by a civil service eligible and in no case
beyond 30 days from date of receipt by the appointing officer of the certificate of eligibility. (Sec. 24 [c|.
Republic Act 2260). A provisional appointment contemplates a different situation from that of a temporary
appointment. Whereas a temporary appointment is designed to fill a position needed only for a limited
period not exceeding six (6) months, a provisional appointment, on the other hand, is intended for the
contingency that "a vacancy occurs and the filling thereof is necessary in the interest of the service and
there is no appropriate register of eligibles at the time of the appointment."
In other words, the reason for extending a provisional appointment is not because there is an
occasional work to be done and is expected to be finished in not more than six months but because the
interest of the service requires that certain work be done by a regular employee, only that no one with
appropriate eligibility can be appointed to it. Hence, any other eligible may be appointed to do such work
in the meantime that a suitable eligible does not qualify for the position. To be more precise, a provisional
appointment may be extended only to a person who has not qualified in an appropriate examination but
who otherwise meets the requirements for appointment to a regular position in the competitive service,
meaning one who must any way be a civil service eligible. In the case of a temporary appointment, all that
the law enjoins is that "preference in filling such position be given to persons on appropriate eligible lists."
Merely giving preference presupposes that even a non-eligible may be appointed. Under the law, even if
the appointee has the required civil service eligibility, his appointment is still temporary simply because
such is the nature of the work to be done. NOTE: Since provisional appointments have already been
abolished examinees should be given full credit for whatever answer they may or may not give.
(1997) A month before a forthcoming election, "A" one of the incumbent Commissioners of
the COMELEC, died while in office and "B", another Commissioner, suffered a severe stroke. In view
of the proximity of the elections and to avoid paralyzation in the COMELEC, the President who was
not running for any office, appointed Commissioner C of the Commission on Audit, who was not a
lawyer but a certified public accountant by profession, ad interim Commissioner to succeed
Commissioner A and designated by way of a temporary measure. Associate Justice D of the Court
of Appeals as acting Associate Commissioner during the absence of Commissioner B. Did the
President do the right thing in extending such ad interim appointment in favor of Commissioner C
and designating Justice D acting Commissioner of the COMELEC?
No. The President was wrong in extending an ad interim appointment in favor of Commissioner
C. In Summers vs. Ozaeta, 81 Phil. 754, it was held that an ad interim appointment is a permanent
appointment. Under Section 15, Article VII of the Constitution, within two months immediately before the
next presidential elections and up to the end of his term, the President cannot make permanent
appointments. The designation of Justice D as acting Associate Commissioner is also invalid. Section 1(2).
Article IX-C of the Constitution prohibits the designation of any Commissioner of the COMELEC in a
temporary or acting capacity. Section 12, Article VIII of the Constitution prohibits the designation of any
member of the Judiciary to any agency performing quasi- judicial or administrative functions.
(2005) In March 2001, while Congress was adjourned, the President appointed Santos as
Chairman of the COMELEC. Santos immediately took his oath and assumed office. While his
appointment was promptly submitted to the Commission on Appointments for confirmation, it was
not acted upon and Congress again adjourned. In June 2001, the President extended a second ad
interim appointment to Santos for the same position with the same term, and this appointment
was again submitted to the Commission on Appointments for confirmation. Santos took his oath
anew and performed the functions of his office. Reyes, a political rival, filed a suit assailing certain
orders issued by Santos. He also questioned the validity of Santos' appointment. Resolve the
following issues: Does Santos' assumption of office on the basis of the ad interim appointments issued
by the President amount to a temporary appointment which is prohibited by Section 1(2), Article
IX-C of the Constitution?
No, Santos' appointment does not amount to a temporary appointment. An ad interim
appointment is a permanent appointment because it takes effect immediately and can no longer be 112
withdrawn by the President once the appointee has qualified into office. The fact that it is subject to
confirmation by the Commission on Appointments does not alter its permanent character. The
Constitution itself makes an ad interim appointment permanent in character by making it effective until
disapproved by the Commission on Appointments or until the next adjournment of Congress. A temporary
or acting appointee does not enjoy any security of tenure, no matter how briefly. (Matibag v. Benipayo,
G.R. No. 149036, April 2, 2002)
ALTERNATIVE ANSWER:
An ad interim appointment is a permanent appointment and does not violate Section 1(2), Article
IX-C of the Constitution. (Pamantasan ng Lungsod ng Maynila v. IAC, G.R. No. L- 65439, November
13,1985)
Assuming the legality of the first ad interim appointment and assumption of office by
Santos, were his second ad interim appointment and subsequent assumption of office to the same
position violations of the prohibition on reappointment under Section 1(2), Article IX-C of the
Constitution?
No, the second ad interim appointment and subsequent assumption of office does not violate the
Constitution. The prohibition on reappointment in Section 1(2), Article IX-C of the Constitution does not
apply to by-passed ad interim appointments. It can be revived by a new ad interim appointment because
there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment
will not result in the appointee serving beyond the fixed term of seven years. The phrase "without
reappointment" applies only to one who has been appointed by the President and confirmed by the
Commission on Appointments, whether or not such person completes his term of office. To hold otherwise
will lead to absurdities and negate the President's power to make ad interim appointments. (Matibag v.
Benipayo, G.R. No. 149036, April 2, 2002)
[2017] Command responsibility pertains to the responsibility of commanders for crimes
committed by subordinate members of the armed forces or other persons subject to their control
in international wars or domestic conflicts. The doctrine has now found application in civil actions
for human rights abuses, and in proceedings seeking the privilege of the writ of amparo. A. What
are the elements to be established in order to hold the superior or commander liable under the
doctrine of command responsibility? (4%)
In the decided case of Saez vs Macapagal-Arroyo, , citing the decision in Noriel Rodriguez vs
Macapagal-Arroyo, G.R. No. 191805, November 15, 2011, the following elements must be established to
hold someone liable under the doctrine of command responsibility: (i) The existence of a superiorsubordinate relationship between the accused as superior and the perpetrator of the crime as his
subordinate; (ii) the superior knew or had reason to know that the crime was about to be or had been
committed; and (iii)the superior failed to take the necessary and reasonable measuresto prevent the criminal
acts or punish the perpetrators itself.
May the doctrine of command responsibility apply to the President for the abuses of the
armed forces (AFP and PNP) given his unique role as the commander-in-chief ofall the armed forces?
Explain your answer. (4%)
Yes, the President may be held liable for the abuses made by the armed forces under the doctrine
command responsibility. It is stated in the decision held by the Supreme Court in the case of Saez vs
Macapagal-Arroyo, Gr No. 183533, Sept. 25, 2012, that “pursuant to the doctrine of command
responsibility, the President, as the Commander-in-Chief of the AFP, can be held liable for affront against
the petitioners life, liberty and security as long as substantial evidence exist to show that she had exhibited
involvement in or can be imputed with knowledge of the violations, or had failed to exercise necessary and
reasonable diligence in conducting the necessary investigations required under the rules.”
(2006) What do you mean by the "Calling-out Power" of the President under Section 18,
Article VII of the Constitution?
Under Article VII, Sec. 18 of the 1987 Constitution, whenever it becomes necessary, the President, 113
as Commander-in-Chief, may call out the armed forces to aid him in preventing or suppressing lawless
violence, invasion or rebellion (David v. Arroyo, G.R. No. 171396, May 3, 2006).
(2009) The President exercises the power of control over all executive departments and
agencies, including government-owned or controlled corporations.
TRUE. The president exercises the power of control over all executive departments and agencies,
including government- owned or controlled corporations with or without original charters. But the
President does not have the power of control over LGUs (Cruz vs. Secretary of Environment and Natural
Resources, 347 SCRA 128 [2000]; National Marketing Corporation vs. Arca, 29 SCRA 648 [1969]).
(2010) The League of Filipino Political Scientist (LFPS) organized an international
conference on the human rights situation in Myanmar at the Central Luzon State University (CLSU).
An exiled Myanmar professor Sung Kui, critical of the military government in Myanmar, was invited
as keynote speaker. The Secretary of Foreign Affairs informed the President of the regional and
national security implications of having Prof. Kui address the conference. The President thereupon
instructed the immigration authorities to prevent the entry of Prof. Kui into Philippine territory.
The chancellor of CLSU argued that the instruction violates the Constitution. Decide with reasons.
(4%)
The argument of the chancellor of Central Luzon State University is not valid. Since an alien has
no right to enter the Philippines, preventing Prof. Sing Kui from entering the Philippines is not a violation
of his rights. (Lee and Quigley, Consular Law and Practice, 3rd ed., p. 220.) Since the President has the
Power of Control over foreign relations, he has the power to ban aliens from entering the Philippines.
(United States vs. Curtiss-Wright Export Corporation, 299 U.S. 304 [1936]).
ALTERNATIVE ANSWER:
There is no violation of the Constitution. It is within the Residual Power of the President to select
who shall be allowed entry in the Philippines especially when the allowance of such entry poses imminent
threat or danger to national security.
(2005) To give the much needed help to the Province of Aurora which was devastated by
typhoons and torrential rains, the President declared it in a "state of calamity." Give at least four
(4) legal effects of such declaration. (4%)
A Declaration of a state of calamity produces, inter alia, these legal effects within the Province of
Aurora; 1. Automatic Price Control — under R.A. No. 7581, The Price Act; 2. Authorization for the
importation of rice under R.A. No. 8178, The Agricultural Tarrification Act; 3. Automatic appropriation
under R.A. No. 7160 is available for unforeseen expenditures arising from the occurrence of calamities in
areas declared to be in a state of calamity; 4. Local government units may enact a supplemental budget
for supplies and materials or payment of services to prevent danger to or loss of life or property, under
R.A. No. 7160; 5. Entitlement to hazard allowance for Public Health Workers (under R.A. No. 7305, Magna
Carta for Public Health Workers), who shall be compensated hazard allowances equivalent to at least
twenty-five percent (25%) of the monthly basic salary of health workers receiving salary grade 19 and
below, and five percent (5%) for health workers with salary grade 20 and above; 6. Entitlement to hazard
allowance for science and technological personnel of the government under R.A. No. 8439; and 7. A crime
committed during the state of calamity will be considered aggravated under Art. 14, par. 7 of the Revised
Penal Code.
(2015) Typhoon Bangis devastated the Province of Sinagtala. Roads and bridges were
destroyed which impeded the entry of vehicles into the area. This caused food shortage resulting
in massive looting of grocery stores and malls. There is power outage also in the area. For these
reasons, the governor of the province declares a state of emergency in their province through
Proclamation No. 1. He also invoked Section 465 of the Local Government Code of 1991 (R.A. No.
7160) which vests on the provincial governor the power to carryout emergency measures during
man-made and natural disasters and calamities, and to call upon the appropriate national law
enforcement agencies to suppress disorder and lawless violence. In the same proclamation, the 114
governor called upon the members of the Philippine National Police, with the assistance of the
Armed Forces of the Philippines, to set up checkpoints and chokepoints, conduct general searches
and seizures including arrests, and other actions necessary to ensure public safety. Was the action
of the provincial governor proper? Explain.
No, the action of the governor is not proper. Under the Constitution, it is only the President, as
Executive, who is authorized to exercise emergency powers as provided under Section 23, Article VI, as
well as the calling- out powers under Section 7, Article VII thereof. In the case at bar, the provincial
governor is not endowed with the power to call upon the state forces at his own bidding. It is an act which
is ultra vires and may not be justified by the invocation of Section 465 of the Local Government Code
(Kulayan v. Gov. Tan, GR No. 187298, July 3, 2012).
(2010) A proclamation of a State of emergency is sufficient to allow the President to take
over any public utility.
The statement that a proclamation of emergency is sufficient to allow the President to take over
any public utility is false. Since it is an aspect of emergency powers, in accordance with Section 23(2),
Article VI of the Constitution, there must be a law delegating such power to the President. (David vs.
Macapagal-Arroyo, 489 SCRA 160 [2006]).
ALTERNATIVE ANSWER:
FALSE. The declaration of a state of emergency is one thing and the exercise of emergency powers
is another. In the latter case, it requires a prior legislative enactment before the President can exercise
them.
(2006) 1. On February 24, 2006, President Gloria Macapagal-Arroyo issued Proclamation
No. 1017 declaring a state of national emergency. Is this Proclamation constitutional? Explain.
(2.5%)
The proclamation is constitutional insofar as it constitutes a call by the President for the AFP to
prevent or suppress lawless violence as this is sustained by Section 18, Article VII of the Constitution.
However, PP 1017's provisions giving the President express or implied power (1) to issue decrees; (2) to
direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the
press, are ultra vires and unconstitutional. Likewise, under Section 17, Article XII of the Constitution, the
President, in the absence of legislation, cannot take over privately-owned public utilities and businesses
affected with the public interest (David v. Arroyo, G.R. No. 171396, May 3, 2006).
2. During the effectivity of this Proclamation, Gener, Lito and Bong were arrested by the
police for acts of terrorism. Is the arrest legal? Explain. (2.5%)
The arrest, apparently done without a valid warrant, is illegal. However, a warrantless arrest
would be valid if those accused are caught committing crimes en flagrante delicto. On the other hand, if
the arrest is made pursuant to a valid warrant, then it is lawful. The term "acts of terrorism" has not been
legally defined and made punishable by Congress. No law has been enacted to guide the law enforcement
agents, and eventually the courts, to determine the limits in making arrests for the commission of said
acts of terrorism (David v. Arroyo, G.R. No. 171396, May 3, 2006).
(1994) The President of the Philippines authorized the Secretary of Public Works and
Highways to negotiate and sign a loan agreement with the German Government for the construction
of a dam. The Senate, by a resolution, asked that the agreement be submitted to it for ratification.
The Secretary of Foreign Affairs advised the Secretary of Public Works and Highways not to comply
with the request of the Senate. Is the President bound to submit the agreement to the Senate for
ratification?
No, the President is not bound to submit the agreement to the Senate for ratification. Under
Section 20, Article VII of the Constitution, only the prior concurrence of the Monetary Board is required
for the President to contract foreign loans on behalf of the Republic of the Philippines.
115
(1999) What are the restrictions prescribed by the Constitution on the power of the
President to contract or guarantee foreign loans on behalf of the Republic of the Philippines?
Explain. (2%)
Under Section 20, Article VII of the Constitution, the power of the President to contract or
guarantee loans on behalf of the Republic of the Philippines is subject to the prior concurrence of the
Monetary Board and subject to such limitations as may be prescribed by law.
(2010) A treaty which provides tax exemption needs no concurrence by a majority of all the
Members of the Congress.
The statement that a treaty which provides tax exemption needs no concurrence by a majority of
all the Members of Congress is true. It is only a law, not a treaty, granting a tax exemption which requires
the concurrence of a majority of all the Members of Congress. (Section 28(4), Article VI of the Constitution.)
Without respect to its lawful substantive content, a treaty, to be valid and effective, requires concurrence
by at least two- thirds of all the Members of the Senate. (Sec. 21, Art. VII of the Constitution).
ALTERNATIVE ANSWER:
FALSE. Granting tax exemptions requires concurrence by a majority of all the Members of the
Congress.
(2008) The President alone without the concurrence of the Senate abrogated a treaty.
Assume that the other country-party to the treaty is agreeable to the abrogation provided it
complies with the Philippine Constitution. If a case involving the validity of the treaty of the treaty
abrogation is brought to the Supreme Court, how should it be resolved? (6%).
The President should be overruled. She cannot abrogate a treaty alone even if the other State,
party to a treaty, agrees to the abrogation. If the legislative branch ratifies a treaty by 2/3 vote pursuant
to Art. VII, Sec. 21, it must also do so when the President abrogates it. She cannot motu propio abrogate
the treaty.
ALTERNATIVE ANSWER
The Supreme Court should sustain the validity of the abrogation of the treaty. There is no
constitutional provision governing the termination of a treaty. What the constitution provides is only the
concurrence of the Senate in order that a treaty be valid and binding and under recent jurisprudence, the
ratification of the treaty is left to the sound discretion of the President. Therefore, the President as the
representative of the State in treaty negotiation can abrogate a treaty by himself.
(2016) The Philippines entered into an international agreement with members of the
international community creating the International Economic Organization (IEO) which will serve
as a forum to address economic issues between States, create standards, encourage greater volume
of trade between its members, and settle economic disputes. After the Philippine President signed
the agreement, the Philippine Senate demanded that the international agreement be submitted to
it for its ratification. The President refused, arguing that it is an executive agreement that merely
created an international organization and it dwells mainly on addressing economic issues among
States. Is the international agreement creating the IEO a treaty or an executive agreement?
Explain. (5%)
The agreement creating the International Economic Organization is an executive agreement and
not a treaty. In Section 21, Article VII is the only provision of the Constitution which defines a “treaty or
international agreement” as valid and effective law by reason of concurrence of the Senate. However, it is
the intendment of the Constitution that such “treaty or international agreement” does not include
executive agreement which is excluded from the Senate’s authority of concurrence over treaties. This
constitutional intent is expressed in the proceedings of the Constitutional Commission in its awareness
that at the time the power of the President to conclude executive agreement was clearly recognized by at
least decisions of the Supreme Court establishing the principle that the President’s power includes 116
conclusion of executive agreements which are valid without need of Senate concurrence. Hence, logically
the Treaty Clause in Section 21, Article VII is to be interpreted as excluding executive agreement.
(Commissioner v. Eastern Sea Trading, 3 SCRA 351 [1961]; USAFFE Veterans Association V. Treasurer, 105
Phil. 1030 [1959]).
Moreover, as the Supreme Court has pointed out in Pimentel v. Office of the Executive Secretary
(462 SCRA 622, [2005]) the President has the sole power to ratify treaties. The Senate may be able to
exercise its authority of concurrence only if the President transmits the instrument of ratification by which
he accepts the terms agreed on by his diplomatic negotiators of the proposed treaty as requested by the
President. It is only on the basis of the authority of the President to ratify treaties that the Senate may act
in concurrence under the Treaty clause of the Constitution.
(2015) The Philippines and the Republic of Kroi Sha established diplomatic relations and
immediately their respective Presidents signed the following: (1) Executive Agreement allowing the
Republic of Kroi Sha to establish its embassy and consular offices within Metro Manila; and (2)
Executive Agreement allowing the Republic of Kroi Sha to bring to the Philippines its military
complement, warships, and armaments from time to time for a period not exceeding one month
for the purpose of training exercises with the Philippine military forces and exempting from
Philippine criminal jurisdiction acts committed in the line of duty by foreign military personnel,
and from paying custom duties on all the goods brought by said foreign forces into Philippine
territory in connection with the holding of the activities authorized under the said Executive
Agreement. Senator Maagap questioned the constitutionality of the said Executive Agreements and
demanded that the Executive Agreements be submitted to the Senate for ratification pursuant to
the Philippine Constitution. Is Senator Maagap correct? Explain. (4%)
Senator Maagap is correct in so far as the second Executive Agreement is concerned. The first
Executive Agreement is in such a nature that such need not be concurred in by the Senate. In Bayan
Muna v. Romulo, the right of the Executive to enter into binding agreements without the necessity of
subsequent congressional approval has been confirmed by long usage. From the earliest days of our
history, we have entered executive agreements covering such subjects as commercial and consular
relations, most favored nation rights, patent rights trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. However, for the second Executive Agreement
which is in the nature of an International agreements involving political issues or changes on national
policy and those involving international arrangements of a permanent character, is deemed as a treaty
(Commissioner of Customs V. Eastern Sea Trading), in which case must be concurred in by the Senate
(Section 21, Article VI, 1987 Constitution). Hence Senator Maagap is only correct as regards the second
Executive Agreement which must be submitted for the concurrence of the Senate. The delay is excusable,
since it will be impossible to comply with his obligation.
(2003) An Executive Agreement was executed between the Philippines and a neighboring
State. The Senate of the Philippines took it upon itself to procure a certified true copy of the
Executive Agreement and, after deliberating on it, declared, by a unanimous vote, that the
agreement was both unwise and against the best interest of the country. Is the Executive
Agreement binding (a) from the standpoint of Philippine law and (b) from the standpoint of
international law? Explain.
From the standpoint of Philippine law, the Executive Agreement is binding. According to
Commissioner of Customs V. Eastern Sea Trading. 3 SCRA 351 [1961], the President can enter into an
Executive Agreement without the necessity of concurrence by the Senate. The Executive Agreement is also
binding from the standpoint of international law.
(1999) What are the limitations/restrictions provided by the Constitution on the power of
Congress to authorize the President to fix tariff rates, import and export quotas, tonnage and
wharfage dues. Explain.
According to Section 28(2), Article VI of the Constitution, Congress may, by law, authorize the
President to fix within specified limits, and subject to such limitations and restrictions it may impose,
tariff rates, import and export quotas, tonnage and wharfage dues and other duties or imposts within the 117
framework of the national development program of the Government.
(1987) One of the features of the government established under the 1987 Constitution is
the restoration of the principle of checks and balances. This is especially noteworthy in the
Commander-in-Chief powers of the President which substantially affects what was styled under the
past dispensation as the "calibrated response" to national emergencies. Discuss fully the provisions
of the 1987 Constitution, giving the scope, limits and the role of the principle of checks and
balances on the President's exercise of the power:
The President's power to suspend the privilege of the writ of habeas corpus and to proclaim martial
law is subject to several checks by Congress and by the Supreme Court. The President is required to report
to Congress within 48 hours his action in declaring martial law or suspending the privilege of the writ,
and Congress is in turn required to convene, if it is not in session, within 24 hours following the
proclamation of martial law or the suspension of the privilege without need of any call, in accordance with
its rules. The proclamation of martial law or suspension of the writ is effective for 60 days only, but
Congress can cut short its effectivity by revoking the proclamation by the vote of at least a majority of all
its members, voting, jointly. Any extension of the proclamation of martial law or suspension of the writ
can only be granted by Congress which will determine also the period of such extension.
On the other hand, the Supreme Court exercises a check on Executive action in the form of judicial
review at the instance of any citizen. The Constitution embodies in this respect the ruling in Garcia v.
Lansang, 42 SCRA 448 (1971) that the Court can determine the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege or the extension thereof not for the purpose
of supplanting the judgment of the President but to determine whether the latter did not act arbitrarily.
Indeed, Art. VIII, Sec. 1 imposes upon the courts the duty of determining whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the other branches of
the government, in this case, the President.
The President cannot, by means of the proclamation of martial law, suspend the Constitution or
supplant the courts and the legislature. Neither can he authorize the trial of civilians by military tribunals
so long as courts are open and functioning, thus overruling the case of Aquino v. Military Commission No.
2, 63 SCRA 546 (1975). His proclamation of martial law does not carry with it the suspension of the writ
of habeas corpus, so that the decision on Aquino v. Ponce Enrile, 59 SCRA 183 (1973) is now overruled.
Nor does the suspension of the writ deprive courts of their power to admit persons to bail, where proper.
The Constitution thus overrules the cases of Garcia-Padilla v. Ponce Enrile, 121 SCRA 472 (1983) and
Morales v. Ponce Enrile. 121 SCRA 538 (1983).
Considering the pressing problems of insurgency, rebel activities, liberation movements
and terrorist violence, which in your considered opinion among the options available to the
President as Commander-in-Chief would be the most effective in meeting the emergencies by the
nation? Explain.
The President has three options: (1) TO CALL OUT the armed forces to prevent or suppress lawless
violence, invasion or rebellion; (2) TO SUSPEND the privilege of the writ of habeas corpus or (3) TO
PROCLAIM martial law. The last two options can be resorted to only in cases of invasion or rebellion when
public safety requires either the suspension of the privilege or the proclamation of martial law. It is
submitted that the most effective means of meeting the current emergency which is brought about by
rebellion, liberation movements, and terrorism is to simply call out the armed forces for the following
reasons: (1) the exigencies to be met are not solely those caused by invasion or rebellion but terrorism
and other crimes; (2) Suspension of the privilege will only be for a limited period and then the period of
retention is limited to 3 days which may not really be effective. On the other hand, public criticism of the
action may only erode the President's authority; (3) There is practically little difference, as far as the ability
of the President to meet an emergency is concerned, between option 1, on the other hand, the options 2
and 3.
(2000) Declaring a rebellion, hostile groups have opened and maintained armed conflicts
on the Islands of Sulu and Basilan. To quell this, can the President place under martial law the
islands of Sulu and Basilan? Give your reasons? (3%)
118
If public safety requires it, the President can place Sulu and Basilan under martial law since there
is an actual rebellion. Under Section 18, Article VII of the Constitution, the President can place any part
of the Philippines under martial law in case of rebellion, when public safety requires it.
What are the constitutional safeguards on the exercise of the President's power to proclaim
martial law? (2%)
The following are the constitutional safeguards on the exercise of the power of the President to
proclaim martial law: (1) There must be actual invasion or rebellion; (2) The duration of the proclamation
shall not exceed sixty days: (3) Within forty-eight hours, the President shall report his action to Congress.
If Congress is not in session, it must convene within twenty-four hours; (4) Congress may by majority
vote of all its members voting Jointly revoke the proclamation, and the President cannot set aside the
revocation; (5) By the same vote and in the same manner, upon Initiative of the President, Congress may
extend the proclamation If the invasion or rebellion continues and public safety requires the extension;
(6) The Supreme Court may review the factual sufficiency of the proclamation, and the Supreme Court
must decide the case within thirty days from the time it was filed; (7) Martial law does not automatically
suspend the privilege of the writ of habeas corpus or the operation of the Constitution; (8) It does not
supplant the functioning of the civil courts and of Congress. Military courts have no Jurisdiction over
civilians where civil courts are able to function. (Cruz, Philippine Political Law, 1995 ed., pp. 213- 214.)
(2006) The President issued a Proclamation No. 1018 placing the Philippines under Martial
Law on the ground that a rebellion staged by lawless elements is endangering the public safety.
Pursuant to the Proclamation, suspected rebels were arrested and detained and military tribunals
were set up to try them. Robert dela Cruz, a citizen, filed with the Supreme Court a petition
questioning the validity of Proclamation No. 1018. Does Robert have a standing to challenge
Proclamation No. 1018? Explain. (2.5%)
Yes, Robert has standing. Under Article VIII, Section 17 of the 1987 Constitution, the Supreme
Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law. As citizen therefore, Robert may file the petition questioning Proclamation
No. 1018.
In the same suit, the Solicitor General contends that under the Constitution, the President
as Commander-in-Chief, determines whether the exigency has arisen requiring the exercise of his
power to declare Martial Law and that his determination is conclusive upon the courts. How should
the Supreme Court rule? (2.5%)
The Supreme Court should rule that his determination is not conclusive upon the courts. The
1987 Constitution allows a citizen, in an appropriate proceeding, to file a petition questioning the
sufficiency of the factual basis of said proclamation. Moreover, the power to suspend the privilege of the
writ of habeas corpus and the power to impose martial law involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitate safeguards by Congress and review
by the Supreme Court (IBP v. Zamora, G.R. No. 141284, August 15, 2000).
The Solicitor General argues that, in any event, the determination of whether the rebellion
poses danger to public safety involves a question of fact and the Supreme Court is not a trier of
facts. What should be the ruling of the Court? (2.5%)
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government (Art. Vin, Sec. 1, par. 2,1987 Constitution). When the grant of power
is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or
conditions have been met or the limitations respected, is justiciable — the problem being one of legality
or validity, not its wisdom.
Article VII, Section 18 of the 1987 Constitution specifically grants the Supreme Court the power
to review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the 119
proclamation of martial law. Thus, in the matter of such declaration, two conditions must concur: (1)
there must be an actual invasion or rebellion; and (2) public safety must require it. The Supreme Court
cannot renege on its constitutional duty to determine whether or not the said factual conditions exist (IBP
v. Zamora, G.R. No. 141284, August 15, 2000).
Finally, the Solicitor General maintains that the President reported to Congress such
proclamation of Martial Law, but Congress did not revoke the proclamation. What is the effect of
the inaction of Congress on the suit brought by Robert to the Supreme Court? (2.5%)
The inaction of Congress has no effect on the suit brought by Robert to the Supreme Court as
Article VIII, Section 18 provides for checks on the President's power to declare martial law to be exercised
separately by Congress and the Supreme Court. Under said provision, the duration of martial law shall
not exceed sixty days but Congress has the power to revoke the proclamation or extend the period. On the
other hand, the Supreme Court has the power to review the said proclamation and promulgate its decision
thereon within thirty days from its filing (Article VIII, Section 18).
[2017] What is the pardoning power of the President under *Art. VII, Sec. 19 of the
Constitution? Is the exercise of the power absolute? Distinguish pardon from amnesty. (4%)
Except in cases of impeachment, or as otherwise provided in this Constitution, the President may
grant reprieves, commutations and pardons, and remit fines and forfeitures, after conviction by final
judgment. He shall also have the power to grant amnesty with the concurrence of the majority of all
Members of the Congress. No pardon, amnesty, parole, or suspension of sentence for violation of election
laws, rules and regulations shall be granted by the President without the favorable recommendation of
the Commission.
The only instances in which the President may not extend pardon remain to be in: [1]
impeachment cases; [2] cases that have not yet resulted in a final conviction; and [3] cases involving
violations of election laws, rules and regulations in which there was no favorable recommendation coming
from the COMELEC. Any act of the Congress by way of statute cannot delimit the power of the President
to grant pardon.
Distinguish pardon from amnesty.
(1) Pardon can only be given after final conviction; amnesty can be given at any time and even
before the filing of the criminal case; (2) Pardon looks forward; amnesty looks backwards, as if the accused
never committed a crime; (3) Pardon is given to individuals. Amnesty is given to a class of persons; (4)
Pardon is given for all criminal offenses. Amnesty is given for political offenses; (5) Pardon does not require
the concurrence of congress, amnesty does; (6) Pardon must be proven, because it is a private act; amnesty
need not be proven, because it is a public act.
(2015) What are the limitations, if any, to the pardoning power of the President? (3%)
The limitations to the pardoning power of the President are that, it: (1) Cannot be granted in cases
of impeachment (Sec. 19, Art. VII); (2) Cannot be granted in cases of violation of election laws without the
favorable recommendation of the Commission on Elections [Sec. 5, Art. IX-C]; (3) Can be granted only after
conviction by final judgment; (4) Cannot be granted in cases of legislative contempt (as it would violate
separation of powers), or civil contempt (as the State is without interest in the same); (5) Cannot absolve
the convict of civil liability; (6) Cannot restore public offices forfeited [Monsanto v. Factoran, supra].
(2008) ST, a Regional Trial Court judge who falsified his Certificate of Service, was found
liable by the Supreme Court for serious misconduct and inefficiency, and meted the penalty of
suspension from office for 6 months. Subsequently, ST filed a petition for executive clemency with
the Office of the President. The Executive Secretary, acting on said petition issued a resolution
granting ST executive clemency. Is the grant of executive clemency valid? Why or why not?
No. the grant of executive clemency is invalid because it violates the separation of powers. The
Supreme Court has the power of administrative supervision over all courts and its personnel and with
this power the Supreme Court can discipline erring Judges. The grant of an executive clemency has the 120
effect of removing the penalty imposed by the competent authority. The Supreme Court has the authority
to discipline judges of lower court. In so doing, the constitution guaranteed its independence from the
other political bodies. If the executive department were to grant executive clemency, it would be an
encroachment of a prerogative thus violation of the separation of powers.
(1993) The National Unification Commission has recommended the grant of absolute and
unconditional amnesty to all rebels. There is the view that it is not necessary for the rebels to
admit the commission of the crime charged, it being enough that the offense falls within the scope
of the amnesty proclamation following the doctrine laid down in Barrioquinto vs. Fernandez, 82
Phil. 642. In other words, admission of guilt is not a condition sine qua non for the availment of
amnesty. Is this correct? Explain.
The view that it is not necessary for rebels to admit the commission of the crime charged in order
to avail themselves of the benefits of amnesty is not correct. As stated in Vera v. People, 7 SCRA 156, the
doctrine laid down in Borrioquinto vs. Fernandez, 82 Phil. 642 has been overturned. Amnesty presupposes
the commission of a crime. It is inconsistent for someone to seek for forgiveness for a crime which he
denies having committed. (People vs. Pasilan, 14 SCRA 694).
(1995) Lucas, a ranking member of the NDF, was captured by policemen while about to
board a passenger bus bound for Sorsogon. Charged with rebellion he pleaded not guilty when
arraigned. Before trial he was granted absolute pardon by the President to allow him to participate
in the peace talks between the government and the communist rebels. (1) Instead of a pardon, may
the President grant the accused amnesty if favorably recommended by the National Amnesty
Commission? Explain.
The President may grant the accused amnesty. According to Barrioquinto vs. Fernandez, 82 Phil.
642, Amnesty may be granted before or after the institution of the criminal prosecution.
(2) May the accused avail of the benefits of amnesty despite the fact the he continued to
profess innocence? Explain.
No, the accused cannot avail of the benefits of amnesty if he continues to profess his innocence.
In Vera vs. People, 7 SCRA 152. since amnesty presupposes the commission of a crime. It is inconsistent
for an accused to seek forgiveness for something which he claims he has not committed.
(2005) Bruno still had several years to serve on his sentence when he was conditionally
pardoned by the President. Among the conditions imposed was that he would "not again violate
any of the penal laws of the Philippines." Bruno accepted all of the conditions and was released.
Shortly thereafter, Bruno was charged with 2 counts of estafa. He was then incarcerated to serve
the i expired portion of his sentence following the revocation by the President of the pardon.
Bruno's family filed a petition for habeas corpus, alleging that it was error to have him recommitted
as the charges were false, in fact, half of them were already dismissed. Resolve the petition with
reasons. (4%)
The petition should not be given due course. The grant of pardon and the determination of the
terms and conditions of a conditional pardon are PURELY EXECUTIVE ACTS which are not subject to
judicial scrutiny. The acceptance thereof by the convict or prisoner carried with it the authority or power
of the Executive to determine whether a condition or conditions of the pardon has or have been violated.
Where the President opts to revoke the conditional pardon given, no judicial pronouncement of guilt of a
subsequent crime is necessary, much less conviction therefor by final judgment of a court, in order that
a convict may be recommended for the violation of his conditional pardon. The determination of the
occurrence of a breach of a condition of a pardon, and the proper consequences of such breach, is a purely
executive act, not subject to judicial scrutiny. (Torres v. Gonzales, G.R. No. 76872, July 23, 1987)
(1995) Lucas, a ranking member of the NDF, was captured by policemen while about to
board a passenger bus bound for Sorsogon. Charged with rebellion he pleaded not guilty when
arraigned. Before trial he was granted absolute pardon by the President to allow him to participate
in the peace talks between the government and the communist rebels. Is the pardon of the
President valid? Explain.
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The pardon is not valid. Under Section 19, Article VII of the 1987 Constitution, pardon may be
granted only after conviction by final Judgment.
Assuming that the pardon is valid, can Lucas reject it? Explain.
Yes, Lucas can reject the pardon. As held in United States vs. Wilson, 7 Pet. 150 and Burdick vs.
United States, 274 U.S. 480. acceptance is essential to complete the pardon and the pardon may be
rejected by the person to whom it is tendered, for it may inflict consequences of greater disgrace than
those from which it purports to relieve.
ALTERNATIVE ANSWER:
No, Lucas cannot reject the pardon. According to Biddle vs. Perovich, 274 U.S. 480, acceptance
is not necessary, for the grant of pardon involves a determination by the President that public welfare will
be better served by inflicting less than what the judgment fixed.
(1997) Governor A was charged administratively with oppression and was placed under
preventive suspension from office during the pendency of his case. Found guilty of the charge, the
President suspended him from office for ninety days. Later, the President granted him clemency
by reducing the period of his suspension to the period he has already served. The Vice Governor
questioned the validity of the exercise of executive clemency on the ground that it could be granted
only in criminal, not administrative, cases. How should the question be resolved?
The argument of the Vice Governor should be rejected. As held in Llamas vs. Orbos, 202 SCRA
844. the power of executive clemency extends to administrative cases. In granting the power of executive
clemency upon the President, Section 19, Article VII of the Constitution does not distinguish between
criminal and administrative cases. Section 19, Article VII of the Constitution excludes impeachment cases,
which are not criminal cases, from the scope of the power of executive clemency. If this power may be
exercised only in criminal cases, it would have been unnecessary to exclude impeachment cases from this
scope. If the President can grant pardons in criminal cases, with more reason he can grant executive
clemency in administrative cases, which are less serious.
(1999) What are the constitutional limitations on the pardoning power of the President?
(2%) Distinguish between pardon and amnesty. (2%)
The following are the limitations on the pardoning power of the President; (1) It cannot be granted
in cases of impeachment; (2) Reprieves, commutations, pardon, and remission of fines and forfeitures can
be granted only after conviction by final judgment; (3) The favorable recommendation of the COMELEC is
required for violation of election laws, rules and regulations.
According to Barrioquinto v. Fernandez, 82 Phil. 642, the following are the distinctions between
pardon and amnesty; (1) Pardon is a private act and must be pleaded and proved by the person pardoned;
while amnesty is a public act of which courts take judicial notice; (2) Pardon does not require the
concurrence of Congress, while amnesty requires the concurrence of Congress; (3) Pardon is granted to
individuals, while amnesty is granted to classes of persons or communities; (4) Pardon may be granted for
any offense, while amnesty is granted for political offenses; (5) Pardon is granted after final conviction,
while amnesty may be granted at any time; and (6) Pardon looks forward and relieves the offender from
the consequences of his offense, while amnesty looks backward and the person granted it stands before
the law as though he had committed no offense.
(1988) The first paragraph of Section 19 of Article VII of the Constitution providing for the
pardoning power of the President, mentions reprieve, commutation, and pardon. Please define the
three of them, and differentiate one from the others.
The terms were defined and distinguished from one another in People v. Vera, 65 Phil. 56, 111112 (1930), as follows: (1) REPRIEVE is a postponement of the execution of a sentence to a day certain;
(2) COMMUTATION is a remission of a part of the punishment, a substitution of less penalty for the one
originally imposed; (3) A PARDON, on the other hand, is an act of grace, proceeding from the power 122
entrusted with the execution of the laws which exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed.
(1997) A while serving imprisonment for estafa. upon recommendation of the Board of
Pardons and Parole, was granted pardon by the President on condition that he should not again
violate any penal law of the land. Later, the Board of Pardons and Parole recommended to the
President the cancellation of the pardon granted him because A had been charged with estafa on
20 counts and was convicted of the offense charged although he took an appeal therefrom which
was still pending. As recommended, the President canceled the pardon he had granted to A. A was
thus arrested and imprisoned to serve the balance of his sentence in the first case. A claimed in
his petition for habeas corpus filed in court that his detention was illegal because he had not yet
been convicted by final judgment and was not given a chance to be heard before he was
recommitted to prison. Is A's argument valid?
The argument of A is not valid. As held in Torres vs. Gonzales. 152 SCRA 272 a judicial
pronouncement that a convict who was granted a pardon subject to the condition that he should not again
violate any penal law is not necessary before he can be declared to have violated the condition of his
pardon. Moreover, a hearing is not necessary before A can be recommitted to prison. By accepting the
conditional pardon, A, agreed that the determination by the President that he violated the condition of his
pardon shall be conclusive upon him and an order for his arrest should at once issue.
(2014) The President, concerned about persistent reports of widespread irregularities and
shenanigans related to the alleged ghost projects with which the pork barrel funds of members of
Congress had been associated, decided not to release the funds authorized under a Special
Appropriations Act for the construction of a new bridge. The Chief Executive explained that, to
properly conserve and preserve the limited funds of the government, as well as to avoid further
mistrust by the people, such a project – which he considered as unnecessary since there was an old
bridge near the proposed bridge which was still functional – should be scrapped. Does the President
have such authority? (4%)
The President has the authority to withhold the release of the funds under a Special Appropriation
Act for a project which he considered unnecessary. The faithful execution of the laws requires the President
to desist from implementing a law if by doing so will prejudice public interest. It is folly to require the
President to spend the entire amounts appropriated in the law in such a case. (Philippine Constitution
Association vs. Enriquez, 235 SCRA 506 (1994))
ALTERNATIVE ANSWER
The President does not possess the authority to scrap the Special Appropriations Act for the
construction of the new bridge. His refusal to spend the funds appropriated for the purpose is unlawful.
The President is expected to faithfully implement the purpose for which Congress appropriated funds.
Generally, he cannot replace legislative discretion with his own personal judgment as to the wisdom of a
law. (Araullo vs Aquino, GR No. 209287, July 1, 2014).
(1996) Can the President take active part in the legislative process? Explain.
Yes, The President can take active part in the legislative process to the extent allowed by the
Constitution. He can address Congress at any time to propose the enactment of certain laws. He
recommends the general appropriations bill. He can call a special session of Congress at any time. He can
certify to the necessity of the immediate enactment of a bill to meet a public calamity or emergency. He
can veto a bill.
(1997) Upon complaint of the incumbent President of the Republic, "A" was charged with
libel before the Regional Trial Court. "A" moved to dismiss the information on the ground that the
Court had no jurisdiction over the offense charged because the President, being immune from suit,
should also be disqualified from filing a case against "A" in court. Resolve the motion.
The motion should be denied according to Soliven us. Makasiar, 167 SCRA 393, the immunity of
the President from suit is personal to the President. It may be invoked by the President only and not by 123
any other person.
(2010) Distinguish “presidential communication privilege” from “deliberative
process privilege.”
Jurisprudence laid down 2 kinds of executive privilege which are presidential communication
privilege and deliberative process privilege (Neri vs. Senate Committee on Accountability of Public Officers
and Investigations, 549 SCRA 77 [2008]). Presidential Communication Privilege: pertains to the
communications, documents or other materials that reflect presidential decision-making and
deliberations and that the President believes should remain confidential. It applies to decision-making of
the President. It is based on separation of powers. It is always subject to a greater scrutiny. Deliberative
Process Privilege: includes advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated. Based on common law privileged it
applies to decision-making of executive officials and not subject to greater scrutiny.
(2002) M is the Secretary of the Department of Finance. He is also an ex-officio member of
the Monetary Board of the Bangko Sentral ng Pilipinas from which he receives an additional
compensation for every Board meeting attended. N, a taxpayer, filed a suit in court to declare
Secretary M's membership in the Monetary Board and his receipt of additional compensation illegal
and in violation of the Constitution. N invoked Article VII, Section 13 of the Constitution which
provides that the President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in the Constitution, hold any other office or
employment during their tenure. N also cited Article IX-B, Section 8 of the Constitution, which
provides that no elective or appointive public officer or employee shall receive additional, double,
or indirect compensation, unless specifically authorized by law. If you were the judge, how would
you decide the following: (1) the issue regarding the holding of multiple positions? (3%)
If I were the judge, I would uphold the validity of the designation of Secretary M as ex officio
member of the Monetary Board. As stated in Civil Liberties Union v. Executive Secretary, 194 SCRA 317
(1991), the prohibition against the holding of multiple positions by Cabinet Members in Article VII, Section
13 of the Constitution does not apply to positions occupied in an ex officio capacity as provided by law
and as required by the primary functions of their office.
(2) the issue on the payment of additional or double compensation? (2%)
If I were the Judge, I would rule that Secretary M cannot receive any additional compensation. As
stated in Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1991), a Cabinet Member holding
an ex-officio position has no right to receive additional compensation, for his services in that position are
already paid for by the compensation attached to his principal office.
(1996) Can the Secretary of Finance be elected Chairman of the Board of Directors of the
San Miguel Corporation? Explain.
No, the Secretary of Finance cannot be elected Chairman of the Board of Directors of the San
Miguel Corporation. Under Section 13, Article VII of the Constitution, members of the Cabinet cannot hold
any other office or employment during their tenure unless it is otherwise provided in the Constitution.
They shall not also during said tenure participate in any business or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
(1987) Assume that a law has been passed creating the Export Control Board composed of:
(1) The Secretary of Trade and Industry as Chairman and as Members: (2) The Chairman of the
Senate Committee on Trade and Industry; (3) An Associate Justice of the Supreme Court designated
by the Chief Justice; (4) The Commissioner of Customs, and (5) The President of the Philippine
Chamber of Commerce and Industry. The National Constitutional Association of the Philippines
has filed suit to challenge the constitutionality of the law. Determine whether the membership of
each of the above in the Board can be upheld. Cite relevant constitutional provisions.
The chairmanship of the Secretary of Trade and Industry in the Board can be upheld on the basis
of Art. IX, B, Sec. 7, which allows appointive officials to hold other offices if allowed by law (such as the
law in this case creating the Export Control Board) or justified by the primary functions of their offices.
The functions of the Board are related to his functions as Secretary of Trade and Industry. The provision
of Art, VII, Sec, 13, prohibiting Cabinet members from holding any other office or employment, is subject
to the exceptions in Art. IX, B, Sec. 7.
Dean Sinco believes that members of Congress cannot be members of the Board of Regents of the
University of the Philippines under the Incompatibility Clause of the 1935 Constitution which is similar
to the provision of Art. VI, Sec. 13 of the present Constitution. Under this view, the membership of the
Chairman of the Senate Committee on Trade and Industry in the Export Control Board cannot be
sustained. (Sinco, Philippine Political Law 136 (llth Ed. 1962). Moreover, since the apparent justification
for the membership of the Chairman of the Senate Committee is to aid him in his legislative functions,
this purpose can easily be achieved through legislative investigations under Art. VI, Sec.21. On the other
hand, Dean Cortes appears to suggest a contrary view, noting that after the decision in Government of
the Philippine Islands v. Springer 50 Phil. 259 (1927), in validating the law designating the Senate
President and Speaker as members of the Board of Control of government corporations, no other decision
has been rendered. On the contrary, laws have been enacted, making members of Congress members of
various boards. Indeed, the membership of the Chairman of the Senate Committee on Trade and Industry
may be upheld as being in aid of his legislative functions since what is prohibited by Art. VI, Sec. 13 is
the acceptance of an incompatible office or employment in the government. (Cortes, Philippine Presidency,
pp. 111- 112(1966))
The designation of an Associate Justice of the Supreme Court cannot be sustained being the
imposition on the members of the Court, of non-judicial duties, contrary to the principle of separation of
powers. It is judicial power and judicial power only which the Supreme Court and its members may
exercise. (Art VIII. Sec. 1; Manila Electric Co. v. Pasay Trans. Co., 57 Phil. 600 (1932)) The Commissioner
of Customs may be made member of the Board for the same reason in the case of the Secretary of Trade
and Industry, under Art. IX, B, Sec. 7. The membership of the President of the Philippine Chamber of
Commerce may also be upheld on the ground that Congress has the power to prescribe qualifications for
the office.
(1997) When may the privilege of the writ of habeas corpus be suspended? If validly
declared, what would be the full consequences of such suspension?
Under Section 16, Article VII of the Constitution, the privilege of the writ of habeas corpus may
be suspended when there is an invasion or rebellion and public safety requires it. According to Section
18, Article VII of the Constitution, the suspension of the privilege of the writ of habeas corpus shall apply
only to persons judicially charged with rebellion or offenses Inherent to or directly connected with invasion.
Any person arrested or detained should be judicially charged within three days. Otherwise, he should be
released. Moreover, under Section 13. Article III of the Constitution, the right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended.
ARTICLE VIII: JUDICIAL DEPARTMENT
(2021) Disappointed that both Houses of Congress are seriously debating a bill seeking to
enable absolute divorce, a citizen filed a petition asking the Supreme Court to order Congressional
deliberations to stop. Should the petition prosper? Explain briefly.
The petition should fail. Under the Article 8, Section 1 of the 1987 Constitution, judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial
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power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
Here, a citizen filed a petition to the Supreme Court to stop the deliberation of a divorce bill in the
House of Congress without any allegation of actual controversy involving her/his legally demandable and 125
enforceable rights, and neither was there any allegation that the Houses of Congress have committed
grave abuse of discretion amounting to lack or excess of jurisdiction. Hence, the petition should fail for
lack of merit.
(2021) A provincial ordinance was passed setting a province-wide curfew for all minors.
This was challenged through a suit filed before the Regional Trial Court having territorial
jurisdiction over the province. The provincial legal officer sought the case's dismissal on the lone
ground that the Supreme Court has sole and exclusive jurisdiction to determine the
constitutionality of a treaty, law, or ordinance. Should the provincial legal officer's prayer for
dismissal be granted? Explain briefly. (Do task B and C)
The dismissal should be denied. Under the Article 8, Section 5 of the 1987 Constitution, the
Supreme Court shall have the following powers: xxx (2) Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
Here, the provincial ordinance was passed and challenged in the Regional Trial Court of competent
jurisdiction. Hence, the action should not be denied for RTCs have jurisdiction to pass upon the
constitutionality of the ordinance.
[2018] Under Section 6 of Article V (on Criminal Jurisdiction) of the Visiting Forces
Agreement (VFA), the custody of a United States (US) personnel who becomes subject to criminal
prosecution before a Philippine Court shall be with the US military authorities, if the latter so
requests. The custody shall begin from the commission of the offense until the completion of all
judicial proceedings. However, when requested, the US military authorities shall make the US
personnel available to Philippine authorities for any investigative or judicial proceeding relating to
the offense with which the person has been charged. In the event that the Philippine judicial
proceedings are not completed within one year, the US shall be relieved of any obligation under
Section 6. The constitutionality of Section 6, Article V of the VFA is challenged on two grounds:
(1) it nullifies the exclusive power of the Supreme Court to adopt rules of procedure for all courts
in the Philippines; and (2) it violates the equal protection clause to the extent that it allows the
transfer of the custody of an accused to a foreign power as providing a different rule of procedure
for that accused. Rule on the challenge. (5%)
The challenge is without merit. The rule in international law is that foreign armed forces allowed
to enter one’s territory are immune from local jurisdiction, except to the extent agreed upon. As a result,
the situation involved is not one in which the power of the Supreme Court to adopt rules of procedure is
curtailed or violated, rather, it is one in which, as is normally encountered around the world, the laws
(including rules of procedure) of one State do not extend or apply, except to the extent agreed upon, to
subjects of another State due to the recognition of extraterritotrial immunity given to such bodies as
visiting foreign armed forces.
Nothing in Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity,
like Heads of State, diplomats, and members of the the armed forces contingents of a foreign State allowed
to enter another State’s territory. The Constitution, on the contrary, states that the Philippines adopts the
generally accepted principles of international law as part of the law of the land (Art. II, Sec. 2). The equal
protection clause is not violated, either, because there is a substantial basis for a different treatment of
foreign military armed forces allowed to enter our territory and all other accused (Nicolas v. Romulo, G.R.
No. 175888, Februrary 11, 2009).
(2016) Under Sec. 5, Article VIII of the Constitution, the Supreme Court shall have the
power to "promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts xxx." Section 23 of R.A. No. 9165 or the
Comprehensive Dangerous Drugs Act of 2002 provides that "any person charged under any
provision of this Act regardless of the imposable penalty shall not be allowed to avail of the
provision on plea- bargaining." Patricio, a user who was charged with alleged sale of shabu but who
wants to enter a plea of guilty to a charge of possession, questions the constitutionality of Sec. 23 126
on the ground that Congress encroached on the rule- making power of the Supreme Court under
Sec. 5, Article VIII. He argues that plea-bargaining is procedural in nature and is within the
exclusive constitutional power of the Court. Is Patricio correct? Explain your answer. (5%)
Patricio is not correct. Defining the penalty for criminal offense involves the exercise of legislative
power (People v. Dacuycuy, 173 SCRA 90 [1989]). When Section 23 of the Comprehensive Dangerous
Drugs Act prohibited plea- bargaining, Congress defined what should be the penalty for the criminal
offense. The power of the Supreme Court to promulgate rules of procedure is subject to the limitation that
it should not modify substantive rights (Section 5(5), Article VIII of the Constitution).
(2015) Congress enacted R.A. No. 14344 creating the City of Masuwerte which took effect
on September 25, 2014. Section 23 of the law specifically exempts the City of Masuwerte from the
payment of legal fees in the cases that it would file and/or prosecute in the courts of law. In two
(2) cases that it filed, the City of Masuwerte was assessed legal fees by the clerk of court pursuant
to Rule 141 (Legal Fees) of the Rules of Court. The City of Masuwerte questions the assessment
claiming that it is exempt from paying legal fees under Section 23 of its charter. Is the claim of
exemption tenable? Explain. (4%)
The claim of exemption is not tenable. Section 23 of the RA 14344 runs contrary to the provisions
of the Constitution. Under the 1987 Constitution, only the Supreme Court has the power to promulgate
its rules on pleadings, practice and procedures in court (Section 5, Article VIII, 1987 Constitution).
Payment of legal fees is a vital component of the rules promulgated by this Court concerning pleading,
practice and procedure, it cannot be validly annulled, changed or modified by Congress. As one of the
safeguards of this Court’s institutional independence, the power to promulgate rules of pleading, practice
and procedure is now the Court’s exclusive domain. That power is no longer shared by this Court with
Congress, much less with the Executive (AM No. 12-2-03-0). Such act by Congress also transgresses the
fiscal autonomy of the Courts. Hence the City of Masuwerte cannot question the assessment of legal fees
for the cases it filed before the court.
(2015) (2) Differentiate the rule-making power or the power of the Supreme Court to
promulgate rules under Section 5, Article VIII of the 1987 Constitution and judicial legislation.
(2%)
The Rule-making power of the Supreme Court was vested by the 1987 Constitution to promulgate
rules that would protect the constitutional rights of our people, pleadings, practice and proceedings in all
courts. This is recognized power exclusive to the Supreme Court. But while the power of the judiciary is
to interpret laws, judicial legislation takes place when a court steps in to craft missing parts or to fill in
the gaps in laws or when it oversteps its discretional boundaries and goes beyond the law to coin doctrines
or principles where none was before (Judicial Legislation: Dissected. M. Vidal). This is frowned upon
because the courts should merely interpret laws, and not make new laws.
(2014) Congress enacted a law exempting certain government institutions providing social
services from the payment of court fees. Atty. Kristopher Timoteo challenged the constitutionality
of the said law on the ground that only the Supreme Court has the power to fix and exempt said
entities from the payment of court fees. Congress, on the other hand, argues that the law is
constitutional as it has the power to enact said law for it was through legislative fiat that the
Judiciary Development Fund (JDF) and the Special Allowance for Judges and Justices (SAJJ), the
funding of which are sourced from the fees collected by the courts, were created. Thus, Congress
further argues that if it can enact a law utilizing court fees to fund the JDF and SAJJ, a fortiori it
can enact a law exempting the payment of court fees. Discuss the constitutionality of the said law,
taking into account the arguments of both parties? (4%)
The law is unconstitutional. The Constitution has taken away the power of Congress to repeal,
alter or supplement the Rules of Court. The fiscal autonomy guaranteed the Judiciary by Section 3, Article
VIII of the Constitution recognized the authority of the Supreme Court to levy, assess and collect fees.
Congress cannot amend the rules promulgated by the Supreme Court for the payment of legal fees by
granting exemptions (In re Petition for Recognition of Exemption of the GSIS from Payment of Legal Fees,
612 SCRA 193 (2010); In re Exemption of NAPOCOR from Payment of Filing/Docket Fees, 615 SCRA 1
(2010); In re Exemption from Payment of Court and Sheriff’s Fees of Duly Registered Cooperatives, 668 127
SCRA 1 (2012))
(2014) Congress passed a law, R.A. No. 15005, creating an administrative Board principally
tasked with the supervision and regulation of legal education. The Board was attached to the
Department of Education. It was empowered, among others, to prescribe minimum standards for
law admission and minimum qualifications of faculty members, the basic curricula for the course
of study aligned to the requirements for admission to the Bar, law practice and social
consciousness, as well as to establish a law practice internship as a requirement for taking the Bar
which a law student shall undergo anytime during the law course, and to adopt a system of
continuing legal education. Professor Boombastick, a long-time law practitioner and lecturer in
several prestigious law schools, assails the constitutionality of the law arguing; that it encroached
on the prerogatives of the Supreme Court to promulgate rules relative to admission to the practice
of law, the Integrated Bar, and legal assistance to the underprivileged. If you were Professor
Boombastick’s understudy, how may you help him develop clear, concise and cogent arguments in
support of his position based on the present Constitution and the decisions of the Supreme Court
on judicial independence and fiscal autonomy? (4%)
The statutory authority granted to the administrative Board to promulgate rule and regulations
cannot encroach upon the exclusive authority of the Supreme Court to regulate the admission to the
practice of law (Section 5(5), Article VIII of the Constitution). Thus, the Administrative Board cannot
prescribe additional standards for admission to the practice of law, adopt a course of study which is
inconsistent with the requirements of the Supreme Court, and impose additional requirements to take the
bar examinations (Philippine Lawyers Association vs Agrava, 105 Phil 173 (1959)). Since Congress has no
power to repeal, alter or supplement the Rules of Court, it cannot delegate such power to the
Administrative Board.
(2013) Conrad is widely known in the neighborhood as a drug addict. He is also suspected
of being a member of the notorious "Akyat-Condo Gang" that has previously broken into and looted
condominium units in the area. Retired Army Colonel Sangre – who is known as an anti-terrorism
fighter who disdained human and constitutional rights and has been nicknamed "terror of
Mindanao" –is now the Head of Security of Capricorn Land Corporation, the owner and developer
of Sagittarius Estates where a series of robberies has recently taken place.
On March l, 2013, Conrad informed his mother, Vannie, that uniformed security guards had
invited him for a talk in their office but he refused to come. Later that day, however, Conrad
appeared to have relented; he was seen walking into the security office flanked by two security
guards. Nobody saw him leave the office afterwards. Conrad did not go home that night and was
never seen again. The following week and after a week-long search, Vannie feared the worst because
of Col. Sangre's reputation. She thus reported Conrad's disappearance to the police. When nothing
concrete resulted from the police investigation, Vannie – at the advice of counsel - filed a petition
for a writ of amparo to compel Col. Sangre and the Sagittarius Security Office to produce Conrad
and to hold them liable and responsible for Conrad's disappearance. Did Vannie's counsel give the
correct legal advice? (6%)
The advice of Vannie’s counsel that she’ll file a petition for a writ of amparo is not correct. In order
that a writ of amparo can be availed of against a private individual for the disappearance of someone, the
involvement of the government is indispensable. There is no showing of any participation of the
government in Conrad’s disappearance (Navia vs. Pardico, 673 SCRA 618).
ALTERNATIVE ANSWER:
Yes, Vannie’s counsel gave the correct legal advice. The Writ of Amparo is a remedy available
to any person whose right to life, liberty, or security has been violated or is threatened with violation
by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ
covers extralegal killings and enforced disappearances or threats thereof. Since there has been an enforced
disappearance on the part of Conrad, the writ is applicable.
If the petition would prosper, can Col. Sangre be held liable and/or responsible for Conrad's 128
disappearance?
No, Colonel Sangre cannot be held responsible for the disappearance of Conrad. Command
responsibility has no applicability to an amparo proceeding (Rubrico vs. Macapagal-Arroyo, 613 SCRA
233). It may be established merely to enable the court to craft the appropriate remedies against the
responsible parties (Balao vs. Macapagal- Arroyo, 662 SCRA 312).
ALTERNATIVE ANSWER:
Although writ of amparo does not pinpoint criminal culpability for a disappearance, it determines
responsibility, or at least accountability, for the purpose of imposing the appropriate remedy.
Responsibility refers to the extent the actors have been established to have participated in an enforced
disappearance, as a measure of the remedy, to be crafted, such as the directive to file the appropriate
criminal and civil cases against the responsible parties (Razon, Jr. Vs. Tagitis, 606 SCRA 598).
ALTERNATIVE ANSWER:
Yes. Colonel Sangre, together with the Sagittarius Security Office should be held fully accountable
for the enforced disappearance of Conrad because of strong evidences supporting the claim of the Writ of
Amparo as shown in the case.
[2018] State whether or not the following acts are constitutional: (a) A law prescribing as
qualifications for appointment to any court lower than the Supreme Court, Philippine citizenship,
whether natural-born or naturalized, 35 years of age on the date of appointment, and at least eight
years as a member of the Philippine Bar.
(a) The law prescribing as a qualification for appointment to any lower court mere Philippine
citizenship, whether natural-born or naturalized, would be unconstitutional with respect to appointments
to collegiate courts (CA, CTA, Sandiganbayan) because all appointees to these courts must be naturalborn citizens (Article VIII, Section 7). (Commission on Elections, G.R. No. 203766, April 2, 2013).
(2014) Margie has been in the judiciary for a long time, starting from the lowest court.
Twenty (20) years from her first year in the judiciary, she was nominated as a Justice in the Court
of Appeals. Margie also happens to be a first-degree cousin of the President. The Judicial and Bar
Council included her in the short-list submitted to the President whose term of office was about
to end – it was a month before the next presidential elections. Can the President still make
appointments to the judiciary during the so-called midnight appointment ban period? Assuming
that he can still make appointments, could he appoint Margie, his cousin? (4%)
The President can make appointments to the Supreme Court two months before a presidential
election until the end of his term but not to the rest of the Judiciary like the Court of Appeals. Under
Section 4(1), Article VIII of the Constitution, vacancies in the Supreme Court shall be filled within ninety
(90) days from the occurrence of the vacancy. Under Section 9, Article VIII of the Constitution, vacancies
in the lower courts shall be filled within ninety (90) days from submission of the list of nominees. These
appointments are screened by the Judicial and Bar Council, and the process necessarily precludes or
prevents the President from making purely political appointments to the courts, which is what is sought
to be prevented by the prohibition (De Castro vs Judicial and Bar Council, 615 SCRA 666 (2010)). The
President may also appoint his first cousin, Margie, as Justice of the Court of Appeals. The prohibition in
Section 13, Article VII of the Constitution against appointment by the President of relatives within the
fourth degree by consanguinity or affinity does not include appointments to the Judiciary.
ALTERNATIVE ANSWER
The President cannot make appointments to the Judiciary during two months before the
presidential election until the end of his term because of the ban in Section 15, Article VII of the
Constitution. Despite the constitutional mandate to fill vacancies in Judiciary within the prescribed
periods, the prohibitions against the appointments releases the President from the obligation to appoint
within them.
(1996) On the first day of the trial of a rape- murder case where the victim was a popular 129
TV star, over a hundred of her fans rallied at the entrance of the courthouse, each carrying a placard
demanding the conviction of the accused and the imposition of the death penalty on him. The rally
was peaceful and did not disturb the proceedings of the case. Can the trial court order the dispersal
of the rallyists under pain of being punished for contempt of court, if they fail to do so? Explain.
Yes, the trial court can order the dispersal of the rally under pain of being cited for contempt. The
purpose of the rally is to attempt to influence the administration of Justice. As stated in People vs. Flores,
239 SCRA 83, any conduct by any party which tends to directly or indirectly Impede, obstruct or degrade
the administration of justice is subject to the contempt powers of the court.
If instead of a rally, the fans of the victim wrote letters to the newspaper editors demanding
the conviction of the accused, can the trial court punish them for contempt? Explain.
No, the trial court cannot punish for contempt the fans of the victim who wrote letters to the
newspaper editors asking for the conviction of the accused. Since the letters were not addressed to the
Judge and the publication of the letters occurred outside the court, the fans cannot be punished in the
absence of a clear and present danger to the administration of Justice. In Cabansag vs. Fernandez, 102
Phil 152, it was held that a party who wrote to the Presidential Complaints and Action Committee to
complain about the delay in the disposition of his case could not be punished for contempt in the absence
of a clear and present danger to the fair administration of Justice.
(1989) Despite the lapse of 4 months from the time that the trial was terminated and the
case submitted for decision, the trial court failed to decide the case. The defense counsel moved
to dismiss the case on the ground that after the lapse of 90 days, the court had lost jurisdiction to
decide the case. Should the motion be granted?
No, the motion should not be granted. Section 15 (4), Article VIII of the 1987 Constitution provides:
"Despite the expiration of the applicable mandatory period, the court, without prejudice to such
responsibility as may have been incurred in consequence thereof, shall decide or resolve the case or matter
submitted thereto for determination, without further delay." Thus, the failure of the trial court to decide
the case within ninety days did not oust it of jurisdiction to decide the case.
ALTERNATIVE ANSWER:
The 1973 Constitution provided for certain consequences on the decisions of courts in case of the
failure of the Supreme Court and other inferior collegiate courts to decide cases within prescribed periods.
But it did not provide for consequences on the decisions of trial courts as a result of their failure to decide
cases within three months (Art. X, Sec. 11). In Marcelino vs. Cruz, 121 SCRA 51 (1983) it was held that
the periods prescribed are only directory, not mandatory.
[2017] According to Sec. 3, Art. VIII of the Constitution, the Judiciary shall enjoy fiscal
autonomy. What does the term fiscal autonomy signify? Explain your answer. (3%)
Fiscal autonomy signifies the independence of judiciary to utilize the funds allocated therein. It
refers to the independence of a branch of government to utilize the funds allocated to it in order to attain
its governmental objective. Fiscal autonomy means that the approved annual appropriations of the
Judiciary shall be released automatically without imposing any condition before releasing the funds.
Furthermore, in the case of the Judiciary, the Congress is prohibited from reducing the appropriations
below the amount appropriated for them for the previous year.
(1992) Congress is considering new measures to encourage foreign corporations to bring
their investments to the Philippines. Congress has found that foreign investments are deterred by
the uncertain investment climate in the Philippines. One source of such uncertainty is the
heightened judicial intervention in investment matters. One such measure provides that "no court
or administrative agency shall issue any restraining order or injunction against the Central Bank"
in the Bank's exercise of its regulatory power over specific foreign exchange transactions. Would
this be a valid measure? Explain.
Yes, the measure is valid. In Mantruste Systems, Inc. vs. Court of Appeals, 179 SCRA 136, the 130
Supreme Court held that a law prohibiting the issuance of an injunction is valid, because under Section
2, Article VIII of the Constitution, the jurisdiction of the courts may be defined by law.
ALTERNATIVE ANSWER:
Since under Sections 1 and 5(2), Article VIII of the Constitution, the courts are given the power of
Judicial review, the measure is void. Such power must be preserved. The issuance of restraining orders
and Injunctions is in aid of the power of judicial review.
(1988) A novel feature of the present Constitution is the Judicial and Bar Council. Please
state its principal function; Its composition; and Who supervises it, and takes care of its
appropriations?
The Judicial and Bar Council has the principal function of recommending appointees to the
Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it. (Art.
VIII, sec. 8(5)). The JBC is composed of the Chief Justice as ex officio Chairman, the Secretary of Justice
and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a
professor of law, a retired Member of the Supreme Court, and a representative of the private sector. (Art.
VIII, sec. 8(1)). The Supreme Court supervises the JBC and provides in the annual budget of the Court
the appropriations of the JBC. (Art. VIII, sec. 8(4)).
(2013) In her interview before the Judicial and Bar Council (JBC), Commissioner Annie
Amorsolo of the National Labor Relations Commission claims that she should be given credit for
judicial service because as NLRC Commissioner, she has the rank of a Justice of the Court of
Appeals; she adjudicates cases that are appealable to the Court of Appeals; she is assigned car plate
No. 10; and she is, by law, entitled to the rank, benefits and privileges of a Court of Appeals Justice.
If you are a member of the JBC, would you give credit to this explanation? (6%)
No, I will not give credit for judicial service to the NLRC Commissioner, because Section 4
(amended Article 216 of the Labor Code of the Philippines) of R.A. 9347 (An Act Rationalizing the
Composition and Functions of the National Labor Relations Commission) amending for this purpose
Article 213, 214, 215, and 216 of P.D. 442 as amended (Labor Code of the Philippines) clearly speaks
only of the salaries, benefits, and other emoluments. It says in the first sentence of the provision, that
the Chairman and members of the Commission shall have the same rank, receive an annual salary
equivalent to, and be entitled to the same allowances, retirement and benefits as, those of the
Presiding Justice and Associate Justices of the Court of Appeals, respectively. The law is clear, that it
only allowed the equivalence of a commissioner’s rank, salary, allowances, retirement and benefits
to that of the Presiding Justices’ and Associate Justices’. The law, however, did not mention the
credits for judicial service, therefore, under the principle of inclusion unios exclusion est alterius, due
credits will not be granted.
(2013) Congress enacted a law providing for trial by jury for those charged with crimes or
offenses punishable by reclusion perpetua or life imprisonment. The law provides for the
qualifications of members of the jury, the guidelines for the bar and bench for their selection, the
manner a trial by jury shall operate, and the procedures to be followed. Is the law constitutional?
(6%)
The law providing for trial by jury is unconstitutional, because of the omission in Article VIII,
Section 5(5) of the 1987 Constitution of the provisions in Article VIII, Section 13 of the 1935 Constitution
and Article X, Section 5(5) 1973 Constitution, which authorized the Legislature to repeal, alter or
supplement the rules of procedure promulgated by the Supreme Court. Congress can no longer enact any
law governing rules of procedure of the courts (Echegaray vs. Secretary of Justice, 301 SCRA 96).
ALTERNATIVE ANSWER:
No, it will be unconstitutional because it will be contrary to the judicial power which includes the
duty of the courts of justice to settle actual controversies 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
jurisdiction on the part of any branch or instrumentality of the Government (Paragraph 2, Section 1,
Article VIII, 1987 Constitution).
131
Trial by Jury shall have the power to adjudge which claims are true and which are not. Composed
of 12 jurors and two alternate jurors, the Trial Jury shall be kept in secret places until the usually- oneweek trial ends in case the accused are influential persons. After deciding who are saying the truth, the
judge in their court shall apply the law on the jury’s decision. Although at times, trial jury nullifies the
law if they felt it is an injustice. In other words, in the trial provided by the present constitution, the judge
decides, while in trial by jury, the jury decides, however the judge only applies the law basing from that
of the jury’s decision.
ALTERNATIVE ANSWER:
The law is valid, because the grant of a right to trial by jury involves a substantive law and is
within the competence of Congress (Article VIII, Section 5(5) of the 1987 Constitution).
(2008) Congress enacted law establishing the right to trial by jury of an accused charged
with a felony or offense punishable with reclusion perpetua or life imprisonment. The law provides
for the qualifications of prospective jury members, the guidelines to be observed by the Judge and
the lawyers in jury selection including the grounds for challenging the selection of jury members,
and the methodology for jury deliberations. Is the law constitutional? Explain fully. (7%)
The law is unconstitutional because the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure in all courts is vested only in the
Supreme Court. Congress cannot encroach to the prerogatives of the Judiciary particularly those expressly
given by the Constitution. The interference of Congress of such power would be struck down because it
violates the separation of powers.
(1992) A case was filed before the Sandiganbayan regarding a questionable government
transaction. In the course of the proceedings, newspapers linked the name of Senator J. de Leon
to the scandal. Senator de Leon took the floor of the Senate to speak on a "matter of personal
privilege" to vindicate his honor against those "baseless and malicious" allegations. The matter was
referred to the Committee on Accountability of Public Officers, which proceeded to conduct a
legislative inquiry. The Committee asked Mr. Vince Ledesma, a businessman linked to the
transaction and now a respondent before the Sandiganbayan, to appear and to testify before the
Committee. Mr. Ledesma refuses to appear and file suit before the Supreme Court to challenge the
legality of the proceedings before the Committee. He also asks whether the Committee had the
power to require him to testify. Identify the issues Involved and resolve them.
The issues involved in this case are the following; (1) Whether or not the Supreme Court has
jurisdiction to entertain the case; (2) Whether or not the Committee on Accountability of Public Officers
has the power to investigate a matter which is involved in a case pending in court; and (3) Whether or not
the petitioner can invoke his right against self-incrimination. All these Issues were resolved in the case of
Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767.
The Supreme Court has jurisdiction over the case, because it involves the question of whether or
not the Committee on Accountability of Public Officers has the power to conduct the investigation. Under
Section 1, Article VIII of the Constitution, judicial power includes the duty of the courts to determine
whether or not any branch of the government is acting with grave of abuse of discretion amounting to lack
of jurisdiction. The Committee on Accountability of Public Officers has no power to investigate the scandal.
Since the scandal is involved in a case pending in court, the investigation will encroach upon the exclusive
domain of the court. To allow the investigation will create the possibility of conflicting judgments between
the committee and the court. If the decision of the committee were reached before that of the court, it
might influence the judgment of the court. The petitioner can invoke his right against self- incrimination.
(1998) Andres Ang was born of a Chinese father and a Filipino mother in Sorsogon,
Sorsogon. on January 20, 1973. In 1988. his father was naturalized as a Filipino citizen. On May
11,1998. Andres Ang was elected Representative of the First District of Sorsogon. Juan Bonto who
received the second highest number of votes, filed a petition for Quo Warranto against Ang. The
petition was filed with the House of Representative Electoral Tribunal (HRET). Bonto contends that
Ang is not a natural born citizen of the Philippines and therefore is disqualified to be a member of
the House. The HRET ruled in favor of Ang. Bonto filed a petition for certiorari in the Supreme 132
Court. The following issues are raised: (1) Whether the case is justiciable considering that Article
VI. Section 17 of the Constitution declares the HRET to be the "sole Judge" of all contests relating
to the election returns and disqualifications of members of the House of Representatives. [5%]
The case is justiciable. As stated in Lazatin vs. House Electoral Tribunal 168 SCRA 391, 404,
since judicial power includes the duty 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, the Supreme Court has the power to review the decisions of the House of Representatives
Electoral Tribunal in case of grave Abuse of discretion on its part.
Whether Ang is a natural born citizen of the Philippines. |5%]
Andres Ang should be considered a natural born citizen of the Philippines.
(2010) The Poverty Alleviation and Assistance Act was passed to enhance the capacity of
the most marginalized families nationwide. A financial assistance scheme called “conditional cash
transfers” was initially funded 500 million pesos by Congress. One of the provisions of the law gave
the joint-congressional oversight committee authority to screen the list of beneficiary families
initially determined by the Secretary of Department of Social Welfare and Development pursuant
to the Department implementing rules. MangPandoy, a resident of Smokey Mountain in Tondo,
questioned the authority of the Committee. Does Mang Pandoy have legal standing to question the
law?
On the assumption that Mang Pandoy is a beneficiary of the financial legal assistance, he has
legal standing to question the law. He may be prejudiced by the improper screening of the beneficiary
families. (Province of Batangas vs. Romulo, 492 SCRA 736 [2004]). Besides, since the implementation of
the law will require the expenditure of public funds, as a tax payer Mang Pandoy has legal standing to
question the law. (Cruz vs. Secretary of Environment and Natural Resources, 347 SCRA 128).
ALTERNATIVE ANSWER:
Yes. Mang Pandoy has legal standing to question the law as a taxpayer and a citizen. As a taxpayer
he has to show that there will be an illegal disbursement of public funds. As a citizen he must show that
the issue involved is of transcendental importance.
[2018] Andreas and Aristotle are foreign nationals working with the Asian Development
Bank (ADB) in its headquarters in Manila. Both were charged with criminal acts before the local
trial courts. Andreas was caught importing illegal drugs into the country as part of his “personal
effects” and was thus charged with violations of Comprehensive Dangerous Act of 2002. Before the
criminal proceedings could commence, the President had him deported as an undesirable alien.
Aristotle was charged with grave oral defamation for uttering defamatory words against a colleague
at work. In his defense, Aristotle claimed diplomatic immunity. He presented as proof a
communication from the Department of Foreign Affairs stating that, pursuant to the Agreement
between the Philippine Government and the ADB, the bank’s officers and staff are immune from
legal processes with respect to acts performed by them in their official capacity. (a) Can the
President’s act of deporting an undesirable alien be subject to judicial review? (2.5%)
The power to deport aliens is an act of State, an act done by or under the authority of the sovereign
power. It is a police measure against undesirable aliens whose continued presence in the country is found
to be injurious to the public good and domestic tranquility of the people (Rosas v. Montor, G.R. No. 204105,
October 14, 2015). An act of State is one done by the sovereign power of a country, or by its delegate,
within the limits of the power vested in him. An act of State cannot be questioned or made the subject of
legal proceedings in a court of law (Blacks’s Law Dictionary, 4th ed., 44). With particular reference to
Political Law, an act of State is an act done by political departments of the government and is not subject
to judicial review.
[2018] Section 9 of P.D. No. 1606, as amended, provides that the Sandiganbayan may adopt
internal rules governing the allotment of cases among its divisions, the rotation of justices among
them, and other matters relating to the internal operations of the court. Section 6 of Article IX-A 133
of the Constitution allows each of the Constitutional Commissions “en banc [to] promulgate its
own rules concerning pleadings and practice before it or before any of its offices. Such rules
however shall not diminish, increase, or modify substantive rights.” Section 16(3) of Article VI of
the Constitution states that “Each House may determine the rules of its proceedings.” Section 21,
Article VI of the Constitution provides that “The Senate or the House of Representatives or any of
its respective committees may conduct inquiries…in accordance with its duly published rules of
procedure.” Finally, Section 3(8) of Article XI of the Constitution declares that “The Congress shall
promulgate its rules of impeachment to effectively carry out the purpose of this section.” Are the
rules promulgated pursuant to these provision subject to review and disapproval by the Supreme
Court? (5%)
Section 5[5] of Article VIII of the Constitution clearly provides that the “Rules of procedure of
special courts and quasi-judcial bodies shall remain effective unless disapproved by the Supreme Court;”
accordingly, it is clear that the Supreme Court may review and reverse the rules of procedure of the
Sandiganbayan and the Constitutional Commissions. With respect to the rules of procedure of Congress
in its proceedings, legislative inquiries and on impeachment, while these rules may be generally considered
as political questions, when questioned before the courts in a proper case, they would nevertheless be
subject to the power of judicial review under the second paragraph of Section 1, Article VIII of the
Constitution, which authorizes it to review and annul all acts of any branch or instrumentality of the
government which may be tainted with grave abuse of discretion amounting to lack or excess of
jurisdiction.
ALTERNATIVE ANSWER:
Although the Rules of Procedure of the Sandiganbayan are covered by the disapproval authority
of the Supreme Court as stated in Section 5(5) of Article VIII of the Constitution, the same thing cannot
be said for the Rules of Procedure promulgated by Congress by virtue of the doctrine of separation of
powers, unless these rules are tainted with grave abuse of discretion. The Rules of Procedure of
Constitutional Commissions are likewise outside the disapproval authority of the Supreme Court as these
commissions are deliberately placed in the Constitution to be independent, unless these are tainted with
grave abuse of discretion.
(2015) What is the concept of expanded judicial review under the 1987 Constitution?
The 1987 Constitution has narrowed the reach of the political question doctrine when it expanded
the power of judicial review of this court not only to settle actual controversies involving rights which are
legally demandable and enforceable but also 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
government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed
against the exercise of its jurisdiction. With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did
not just grant the Court power of doing nothing. (Belgica v. Ochoa, G.R. No. 208566 November 19, 2013)
(2014) In keeping with the modern age of instant and incessant information and
transformation, Congress passed Cybercrime Prevention Act to regulate access to and use of the
amenities of the cyberspace. While ostensibly the law is intended to protect the interests of society,
some of its provisions were also seen as impermissibly invading and impairing widely cherished
liberties of the people particularly the freedom of expression. Before the law could even be
implemented, petitions were filed in the Supreme Court questioning said provisions by people who
felt threatened, for themselves as well as for the benefit of others who may be similarly affected
but not minded enough to challenge the law. The Solicitor General countered that there is no basis
for the exercise of the power of judicial review since there has yet been no violation of the law, and
therefore, there is no actual case or controversy to speak of, aside from the fact that the petitioners
have no locus standi since they do not claim to be in imminent danger of being prosecuted under
the law. Can the Court proceed to decide the case even if the law has not yet become effective?
(4%)
The Supreme Court can proceed to decide the case even if the law has not yet become effective.
Since the petitions filed sought to nullify the Cybercrime Prevention Act, because it violated several
provisions of the Bill of Rights, the Supreme Court became duty-bound to settle the dispute (Tanada vs
Angara, 272 SCRA 18 (1997)). Since it is alleged that the Cybercrime Prevention Act violates various
provisions of the Bill of Rights, including freedom of speech, freedom of the press, and the right against
unreasonable searches and seizures, the issues raised are the paramount public interest, of
transcendental importance and with far-reaching constitutional implications, that justify dispensation
with locus standi and exercise of the power of judicial review by the Supreme Court (Chavez vs Gonzales,
545 SCRA 441 (2008). Jurisprudence provides that locus standi is not required when the action was filed
to prevent a chilling effect on the exercise of the right to freedom of expression and over-breadth.
(1992) The Philippine Environmentalists' Organization for Nature, a duly recognized nongovernmental organization, intends to file suit to enjoin the Philippine Government from allocating
funds to operate a power plant at Mount Tuba in a southern island. They claim that there was no
consultation with the Indigenous cultural community which will be displaced from ancestral lands
essential to their livelihood and indispensable to their religious practices. The organization is based
in Makati. All its officers live and work in Makati. Not one of its officers or members belong to the
affected indigenous cultural community. Do they have the standing in this dispute? Explain.
a. Under Section 5, Article XII of the Constitution, the State should protect the rights of cultural
Indigenous communities to their ancestral lands to ensure their well-being. Under Section 17, Article XIV
of the Constitution, the State should protect the rights of indigenous cultural communities to preserve
and develop this cultures, traditions, and institutions and should consider these rights in the formulation
of national plans and policies. The government violated these provisions, because it decided to operate the
power plant without consulting the indigenous cultural community and the operation of the power plant
will result in its displacement.
If the projected lawsuit will be based on violation of the rights of the indigenous cultural
communities, the Philippine Environmentalists Organization will have no standing to file the case. None
of its officers and members belong to the indigenous cultural community. None of their rights are affected.
If the lawsuit will seek to enjoin the use of public funds to operate the power plant, the Philippine
Environmentalists' Organization can file a taxpayer's suit. As held in Maceda us. Macaraig, 197 SCRA
771, a taxpayer has standing to question the illegal expenditure of public funds.
Would your answer be different if the Philippine Power Corporation, a private company,
were to operate the plant? Explain.
The Philippine Environmentalists Organization will have no standing to file the case if it is a
private company that will operate the power plant, because no public funds will be spent for its operation.
As held in Gonzales vs. Marcos, 65 SCRA 624, a taxpayer has no standing to file a case if no expenditure
of public funds is involved. Since no member or officer of the Philippine Environmentalists' Organization
belongs to the affected indigenous community, none of the rights of the Philippine Environmentalists'
Organization and of its officers and members are affected. In accordance with the ruling in National
Economic Protectionism Association vs. Ongpin, 171 SCRA 657, the organization has no standing to file
the case.
(1994) Assume that the constitutional question raised in a petition before the Supreme
Court is the Iis mota of the case, give at least two other requirements before the Court will exercise
its power of judicial review?
According to Macasiano vs. National Housing Authority, 224 SCRA 236, in addition to the
requirement that the constitutional question raised be the lis mota of the case, the following requisites
134
must be present for the exercise of the power of judicial review: (1) There must be an actual case or
controversy involving a conflict of legal rights susceptible of Judicial determination; (2) The constitutional
question must be raised by the proper party; and (3) The constitutional question must be raised at the
earliest opportunity.
(1995) Judicial power as defined in Sec. 1, 2nd par., Art. VIII, 1987 Constitution, now
"includes the duty of the Courts of Justice to settle actual controversies involving rights which are 135
legally demandable and enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack of excess of jurisdiction on the part of any branch or
instrumentality of the Government. "This definition is said to have expanded the power of the
judiciary to include political questions formerly beyond its jurisdiction. Do you agree with such as
interpretation of the constitutional definition of judicial power that would authorize the courts to
review and, if warranted, reverse the exercise of discretion by the political departments (executive
and legislative) of the government, including the Constitutional Commissions? Discuss fully.
Yes, the second paragraph of Section 1, Article VIII of the 1987 Constitution has expanded the
power of the Judiciary to include political questions. This was not found in the 1935 and the 1973
Constitution, Precisely, the framers of the 1987 constitution intended to widen the scope of judicial review.
In your opinion, how should such definition be construed so as not to erode considerably
or disregard entirely the existing "political question" doctrine? Discuss fully.
As pointed out in Marcos vs. Manglapus, 177 SCRA 668, so as not to disregard entirely the
political question doctrine, the extent of judicial review when political questions are involved should be
limited to a determination of whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose act is being questioned. If grave abuse of discretion
is not shown, the courts should not substitute their judgment for that of the official concerned and decide
a matter which by its nature or by law is for the latter alone to decide.
(1997) To what extent, if at all, has the 1987 Constitution affected the "political question
doctrine"?
Section 1, Article VIII of the Constitution has expanded the scope of judicial power by including
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.
In Marcos vs. Manglapus, 177 SCRA 668, the Supreme Court stated that because of this courts of justice
may decide political questions if there was grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned.
(2004) SDO was elected Congressman. Before the end of his first year in office, he inflicted
physical injuries on a colleague, ET, in the course of a heated debate. Charges were filed in court
against him as well as in the House Ethics Committee. Later, the House of Representatives, dividing
along party lines, voted to expel him. Claiming that his expulsion was railroaded and tainted by
bribery, he filed a petition seeking a declaration by the Supreme Court that the House gravely
abused its discretion and violated the Constitution. He prayed that his expulsion be annulled and
that he should be restored by the Speaker to his position as Congressman. Is SDO's petition before
the Supreme Court justiciable? Cite pertinent issues for consideration. (5%)
While under Section 1, Article VIII of the 1987 Constitution the Supreme Court may inquire
whether or not the decision to expel SDO is tainted with grave abuse of discretion amounting to lack or
excess of jurisdiction, the petition should be dismissed. In Alejandrino v. Quezon (46 Phil. 83 [1924]), the
Supreme Court held that it could not compel the Senate to reinstate a Senator who assaulted another
Senator and was suspended for disorderly behavior, because it could not compel a separate and co-equal
department to take any particular action. In Osmeña v. Pendatun (109 Phil. 863 [1960]), it was held that
the Supreme Court could not interfere with the suspension of a Congressman for disorderly behavior,
because the House of Representatives is the judge of what constitutes disorderly behavior. The assault of
a fellow Senator constitutes disorderly behavior.
(2004) The 1935, 1973 and 1987 Constitutions commonly provide that "Judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law." What
is the effect of the addition in the 1987 Constitution of the following provision: "Judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government"? Discuss briefly, citing at least one illustrative case.
136
The effect of the second paragraph of Section 1, Article VIII of the 1987 Constitution is to limit
resort to the political question doctrine and to broaden the scope of judicial inquiry into areas which the
Judiciary, under the previous Constitutions, would have left to the political departments to decide. If a
political question is involved, the Judiciary can determine whether or not the official whose action is being
questioned acted with grave abuse of discretion amounting to lack or excess of jurisdiction (Marcos v.
Manglapus, 177 SCRA 668 [1989]); (Daza v. Singson, 180 SCRA 496 [1989]). Thus, although the House
of Representatives Electoral Tribunal has exclusive jurisdiction to decide election contests involving
members of the House of Representatives, the Supreme Court nullified the removal of one of its members
for voting in favor of the protestant, who belonged to a different party. (Bondoc v. Pineda, 201 SCRA 792
[1991]).
(2012) Mr. Yellow and Mr. Orange were the leading candidates in the vice-presidential
elections. After elections, Yellow emerged as the winner by a slim margin of 100,000 votes.
Undaunted, Orange filed a protest with the Presidential Electoral Tribunal (PET). After due
consideration of the facts and the issues, the PET ruled that Orange was the real winner of the
elections and ordered his immediate proclamation. What is the composition of the PET? (2%)
The Presidential Electoral Tribunal is composed of the Chief Justice and the Associate Justices of
the Supreme Court Sitting en banc. (Section 4, Article VII of the Constitution.)
What is judicial power? Explain Briefly. (2%)
Judicial Power – Sec. 1 (1) Art. 8 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. (Lopez vs. Roxas, 17 SCRA 756.) it includes the duty of the courts to settle
actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government. (Section 1, Article VIII of Constitution.)
(1999) What does it mean when a Supreme Court Justice concurs in a decision pro hac
vice? (2%)
When a decision is pro hac vice, it means the ruling will apply to this particular case only.
(1993) How may the following be removed from office: Judges of lower courts?
Under Art. VIII, sec. 11 of the Constitution, Judges of lower courts may be removed by dismissal
by the Supreme by a vote of a majority of the Members who actually took part in the deliberation on the
issues in the case and voted thereon.
(1996) X, a clerk of court of the Regional Trial Court of Manila, was found guilty of being
absent without official leave for 90 days and considered dismissed from service by the Supreme
Court. He appealed to the President for executive clemency. Acting on the appeal, the Executive
Secretary, by order of the President commuted the penalty to a suspension of six months. Can the
Supreme Court review the correctness of the action of the President in commuting the penalty
imposed on X? Explain.
Yes, the Supreme Court can review the correctness of the action of the President in commuting
the penalty imposed on X. By doing so, the Supreme Court is not deciding a political question. The
Supreme Court is not reviewing the wisdom of the commutation of the penalty. What it is deciding is
whether or not the President has the power to commute the penalty of X. As stated in Daza vs. Singson.
180 SCRA 496, it is within the scope of Judicial power to pass upon the validity of the actions of the other
departments of the Government.
Was the action of the President constitutional and valid? Explain.
The commutation by the President of the penalty imposed by the Supreme Court upon X is
unconstitutional. Section 6. Article VIII of the Constitution vests the Supreme Court with the power of 137
administrative supervision over all courts and their personnel. In Garcia vs. De la Pena, 229 SCRA 766,
it was held that no other branch of the Government may intrude into this exclusive power of the Supreme
Court.
(2012) Judge Red is the Executive Judge of Green City. Red is known to have corrupt
tendencies and has a reputation widely known among practicing lawyers for accepting bribes.
Ombudsman Grey, wishing to "clean up" the government from errant public officials, initiated an
investigation on the alleged irregularities in the performance of duties of Judge Red. Judge Red
refused to recognize the authority of the Office of the Ombudsman over him because according to
him, any administrative action against him or any court official or employee falls under the
exclusive jurisdiction of the Supreme Court. Decide with reasons. (5%)
Since the complaint refers to the performance of the duties of Judge Red, Ombudsman Grey
should not act on it and should refer it to the Supreme Court. His investigation will encroach upon the
exclusive power of administrative supervision of the Supreme Court over all courts. (Maceda vs. Vasquez,
221 SCRA 464.)
Does the Ombudsman have authority to conduct investigation over crimes or offenses
committed by public officials that are NOT in connection or related at all to the official’s discharge
of his duties and functions? Explain. (3%)
The Ombudsman can investigate crimes or offenses committed by public officers which are not
connected with the performance of their duties. Under Section 13(1), Article XI of the Constitution, the
Ombudsman can investigate any act or omission of a public official which is illegal. (Deloso vs. Domingo,
191 SCRA 545.)
Who are required by the Constitution to submit a declaration under oath of his assets,
liabilities, and net worth?
All public officers and employees are required to submit a declaration under oath of their assets,
liabilities and net worth. (Section 17, Article XI of the Constitution.)
(2005) (2) Pedro Masipag filed with the Ombudsman a complaint against RTC Judge Jose
Palacpac with violation of Article 204 of the Revised Penal Code for knowingly rendering an unjust
judgment in Criminal Case No. 617. Judge Palacpac filed a motion with the Ombudsman to refer
the complaint to the Supreme Court to determine whether an administrative aspect was involved
in the said case. The Ombudsman denied the motion on the ground that no administrative case
against Judge Palacpac relative to the decision in Criminal Case No. 617 was filed and pending in
his office. State with reasons whether the Ombudsman's ruling is correct. (4%)
The Ombudsman's ruling is not correct. Under Section 6, Article VIII of the Constitution, it is the
Supreme Court which is vested with exclusive administrative supervision over all courts and its personnel.
Prescinding from this premise, the Ombudsman cannot determine for itself and by itself whether a
criminal complaint against a judge, or court employee, involves an administrative matter. The
Ombudsman is duty bound to have all cases against judges and court personnel filed before it, referred
to the Supreme Court for determination as to whether an administrative aspect is involved therein. (Judge
Jose Caoibes v. Ombudsman, G.R. No. 132177, July 19, 2001)
(1995) When the Marcos administration was toppled by the revolutionary government, the
Marcoses left behind several Old Masters' paintings and antique silverware said to have been
acquired by them as personal gifts. Negotiations were then made with Ellen Layne of London for
their disposition and sale at public auction. Later, the government entered into a "Consignment
Agreement" allowing Ellen Layne of London to auction off the subject art pieces. Upon learning of
the intended sale, well-known artists, patrons and guardians of the arts of the Philippines filed a
petition in court to enjoin the sale and disposition of the valued items asserting that their cultural
significance must be preserved for the benefit of the Filipino people. Can the court take cognizance
of the case? Explain.
No, the court cannot take cognizance of the case. As held in Joya vs. Presidential Commission on 138
Good Government, 225 SCRA 569, since the petitioners were not the legal owners of paintings and antique
silverware, they had no standing to question their disposition. Besides, the paintings and the antique
silverware did not constitute important cultural properties or national cultural treasures, as they had no
exceptional historical and cultural significance to the Philippines.
What are the requisites for a taxpayer's suit to prosper?
According to Joya us. Presidential Commission on Good Government, 225 SCRA 568. for a
taxpayer's suit to prosper, four requisites must be considered: (1) the question must be raised by the
proper party; (2) there must be an actual controversy; (3) the question must be raised at the earliest
possible opportunity; and (4) the decision on the constitutional or legal question must be necessary to the
determination of the case. In order that a taxpayer may have standing to challenge the legality of an official
act of the government, the act being questioned must involve a disbursement of public funds upon the
theory that the expenditure of public funds for an unconstitutional act is a misapplication of such funds,
which may be enjoined at the instance of a taxpayer.
(1996) A, an associate justice of the Supreme Court reached the age of seventy on July 1,
1996. There was a case calendared for deliberation on that day where the vote of A was crucial.
Can A hold over the position and participate in the deliberation of the case on July 1, 1996?
Explain.
No. A cannot hold over his position as Associate Justice of the Supreme Court and participate in
the deliberations of the case on July 1, 1996. Under Section 11, Article VIII of the Constitution, Members
of the Supreme Court hold office until they reach the age of seventy years or become incapacitated to
discharge their duties. Constitutional officers whose terms are fixed by the Constitution have no right to
hold over their positions until their successors shall have been appointed and qualified unless otherwise
provided in the Constitution. (Mechem, A Treaties on the Law of Public Offices and Officers, p. 258.)
(1996) Can five members of the Supreme Court declare a municipal ordinance
unconstitutional? Explain.
Yes, five Members of the Supreme Court sitting en-banc can declare a municipal ordinance
unconstitutional. Under Section 4(2). Article VIII of the Constitution, a municipal ordinance can be
declared unconstitutional with the concurrence of a majority of the Members of the Supreme Court who
actually took part in the deliberation on the issues in the case and voted thereon. If only eight Members
of the Supreme Court actually took part in deciding the case, there will still be a quorum. Five Members
will constitute a majority of those who actually took part in deciding the case.
(2014) The Court had adopted the practice of announcing its decision in important,
controversial or interesting cases the moment the votes had been taken among the justices, even
as the final printed decision and separate opinions are not yet available to the public. In a greatly
anticipated decision in a case of wide-ranging ramifications, the voting was close – 8 for the
majority, while 7 were for the other side. After the Court had thus voted, it issued a press release
announcing the result, with the advice that the printed copy of the decision, together with the
separate opinions, were to be issued subsequently. The following day, however, one of the members
of the Court died. The Court then announced that it would deliberate anew on the case since
apparently the one who died belonged to the majority. Citizens for Transparency, a group of civicspirited professionals and ordinary citizens dedicated to transparency and accountability in the
government, questioned the act of the Court. The petitioners claimed the decision had already
been validly adopted and promulgated. Therefore, it could no longer be recalled by the Court. At
the same time, the group also asked the Court to disclose to the public the original decision and
the separate opinions of the magistrates, together with what they had deliberated on just before
they came up with the press release about the 8-7 decision. A. Was the announced 8-7 decision
already validly promulgated and thus not subject to recall?
The decision cannot be deemed to have been promulgated simply because of the announcement
of the voting in a press release, because the decision has not yet been issued and filed with the Clerk of
Court. Until the decision is filed with the Clerk of Court, the Justices still have control over the decision
and they can still change their votes (Limkaichong vs COMELEC, 594 SCRA 434, (2009)).
139
If the decision was not yet finalized at the time when the justice died, could it still be
promulgated?
The decision can no longer be promulgated if the Justice who belonged to the majority died, for
lack of a majority vote. The vote he cast is no longer valid, as he was no longer an incumbent member of
the Supreme Court (Lao vs To-Chip, 158 SCRA 243 (1988))
ALTERNATIVE ANSWER
The decision can be promulgated even if the Supreme Court en banc is equally divided, if after
the case was again deliberated upon, no majority decision was reached. If the case is an original action,
it should be dismissed. If it is an appealed case, the decision appealed from should be affirmed if it is a
civil case. If it is a criminal case, the accused should be acquitted (Section 7, Rule 56 of the Rules of the
Court; Section 3, Rule 125, Revised Rules on Criminal Procedure).
If the decision was still being finalized, should the Court release to the public the majority
decision and the separate opinions as originally announced, together with their deliberations on
the issues?
The Supreme Court should not release to the public the majority opinion and the separate
opinions, as well as its deliberations. They are part of its confidential internal deliberations.
ARTICLE IX: CONSTITUTIONAL COMMISSIONS
[2018] State whether or not the following acts are constitutional: (2% each) The designation
by the President of an acting Associate Commissioner of the Civil Service Commission;
Such designation is unconstitutional because the Constitution provides that no person shall be
appointed or designated in any of the constitutional commissions in a temporary or acting capacity
(Articles IX-B, Section 1 [2], IX-C. Section 2 and IX-D, Section 1 [2]).
(2015) The President appoints Emilio Melchor as Chairperson of the Civil Service
Commission. Upon confirmation of Melchor's appointment, the President issues an executive order
including him as Ex-Officio member of the Board of Trustees of the Government Service Insurance
System (GSIS), Employees Compensation Commission (ECC), and the Board of Directors of the
Philippine Health Insurance Corporation (PHILHEALTH). Allegedly, this is based on the
Administrative Code of 1997 (E.O. No. 292), particularly Section 14, Chapter 3, Title I-A, Book V.
This provision reads: "The chairman of the CSC shall be a member of the Board of Directors of other
governing bodies of government entities whose functions affect the career development,
employment, status, rights, privileges, and welfare of government officials and employees..." A
taxpayer questions the designation of Melchor as ex- officio member of the said corporations before
the Supreme Court based on two (2) grounds, to wit: (1) it violates the constitutional prohibition
on members of the Constitutional Commissions to hold any other office or employment during his
tenure; and (2) it impairs the independence of the CSC. Will the petition prosper? Explain. (4%)
Yes, the petition will prosper. The appointment of Melchor as ex-officio member of the GSIS, ECC
and PHILHEALTH during his tenure as the chairperson of the CSC is unconstitutional for violating Section
2, Article IX-A of the 1987 Constitution, prohibiting members of Constitutional Commissions from holding
any other office or employment and impairing the independence of the CSC (Section 1, Article IX-A). This
has been a settled case where the Court ruled that the CSC Chairperson’s holding other offices resulted
in double compensation and impairment to CSC’s independence because other offices held by the CSC
chairperson are under the Office of the President (Funa v. Duque, GR No. 191672, November 25, 2014).
(2015) The President appointed Dexter I. Ty as Chairperson of the COMELEC on June 14,
2011 for a term of seven (7) years pursuant to the 1987 Constitution. His term of office started on
June 2, 2011 to end on June 2, 2018. Subsequently, the President appointed Ms. Marikit as the
third member of the COMELEC for a term of seven (7) years starting June 2, 2014 until June 2, 140
2021. On June 2, 2015, Chairperson Ty retired optionally after having served the government for
thirty (30) years. The President then appointed Commissioner Marikit as COMELEC Chairperson.
The Commission on Appointments confirmed her appointment. The appointment papers expressly
indicate that Marikit will serve as COMELEC Chairperson "until the expiration of the original term
of her office as COMELEC Commissioner or on June 2, 2021." Matalino, a tax payer, files a petition
for certiorari before the Supreme Court asserting that the appointment of Marikit as COMELEC
Chairperson is unconstitutional for the following reasons: (1) The appointment of Marikit as
COMELEC Chairperson constituted a re- appointment which is proscribed by Section 1(2), Article
IX of the 1987 Constitution; and (2) the term of office expressly stated in the appointment papers
of Marikit likewise contravenes the aforementioned constitutional provision. Will the
constitutional challenge succeed?
No, the constitutional challenge will not succeed. It is well settled in the case of Matibag v.
Benipayo, the Supreme Court said that when an ad interim appointment (of the Chairman of the
Commission on Elections) is not confirmed (as it was by-passed, or that there was not ample time for the
Commission on Appointments to pass upon the same), another ad interim appointment may be extended
to the appointee without violating the Constitution.
(2010) What is the rational scheme of appointments in the COMELEC?
The rational scheme of appointments in the COMELEC refers to the appointment of the
Commissioner and 5 of its members not simultaneously but by intervals of every after 2 years upon
expiration of their term of office.
A. What are the two conditions for its workability?
The two conditions for its workability are: (1) The first Chairman and Commissioners should start
on a common date and (2) Any vacancy before the expiration of the term should be filled only for the
unexpired balance of the term.
B. To what other constitutional offices does the rational scheme of appointments apply?
The rational scheme of appointments applies to: COA, CSC, COMELEC, JBC (Section 9(2), Article
VIII, Section 1(2), Article IX-B and Section 1(2), Article IX-D of the Constitution).
CIVIL SERVICE COMMISSION
(2015) Professor Masipag who holds a plantilla or regular item in the University of the
Philippines (UP) is appointed as an Executive Assistant in the Court of Appeals (CA). The professor
is considered only on leave of absence in UP while he reports for work at the CA which shall pay
him the salary of the Executive Assistant. The appointment to the CA position was questioned, but
Professor Masipag countered that he will not collect the salary for both positions; hence, he cannot
be accused of receiving double compensation. Is the argument of the professor valid? Explain. (4%)
No, the argument is not valid. The prohibition of dual employment does not apply to Professor
Masipag because Section 5 [c], Canon III of the Code of Conduct for Court Personnel allows court personnel
to acquire outside employment provided, among others, that the outside employment does not require the
practice of law; and provided, however, that court personnel may render services as professor, lecturer, or
resource person in law schools, review or continuing education centers or similar institutions. Dual
employment applies to appointive officials who are not allowed to hold any other office or employment in
the Government or any subdivision, agency or instrumentality thereof, including government-owned
corporation or their subsidiaries, unless otherwise allowed by law or the primary functions of his position
(Article IX B Section 7 of the 1987 Constitution; Sections 1 and 2, Rule XVIII of the Omnibus Rules
Implementing Book V of E.O. No. 292).
(2008) The Mayor of San Jose City appointed his wife, Amelia, as City Treasurer from among
three (3) employees of the city considered for the said position. Prior to said promotion, Amelia had
been an Assistant City Treasurer for ten (10) years, that is, even before she married the City Mayor. 141
Should the Civil Service Commission approve the promotional appointment of Amelia? Why or why
not?
The Civil Service Commission should disapprove the
promotional appointment if at the time
of appointment Amelia is already married to the appointing authority, the Mayor, because it violates the
rule on nepotism which prohibits the appointment of relatives by consanguinity or affinity within the third
degree of the appointing authority in public office. This is to ensure that entrance to public office should
be based on merits and fitness. The rule on nepotism also extends to promotional appointment. However,
if at the time of appoint the Mayor and Amelia is not yet married and thereafter married each other, the
promotional appointment should remain as valid appointment.
(2010) The rule on nepotism does not apply to designations made in favor of a relative of
the authority making a designation.
FALSE. The Rule on Nepotism extends to designation, and promotional appointment in favor of a
relative (Laurel vs. Civil Service Commission, 203 SCRA 195 [1991]).
(1999) What characterizes the career service and what are included in the career service?
(2%)
According to Section 7, Chapter 2, Title I, Book V of the Administrative Code of 1987, the career
service is characterized by: (1) Entrance based on merit and fitness to be determined as far as practicable
by competitive examination or based on highly technical qualifications; (2) opportunity for advancement
to higher career positions; and (3) security of tenure.
The career service includes: (1) OPEN CAREER POSITIONS for appointment to which prior
qualifications in an appropriate examination is required; (2) CLOSED CAREER POSITIONS which are
scientific or highly technical in nature; (3) Positions in the CAREER EXECUTIVE SERVICE; (4) Career
officers other than those in the career executive service, who are appointed by the President; (5)
Commissioned officers and enlisted men of the Armed Forces; (6) Personnel of government - owned or
controlled corporations, whether performing governmental or proprietary functions, who do not fall under
the non-career service; and (7) Permanent laborers, whether skilled, semiskilled, or unskilled.
(2004) Former Governor PP of ADS Province had dismissed several employees to scale down
the operations of his Office. The employees complained to the Merit Systems Protection Board,
which ruled that the Civil Service rules were violated when the employees were dismissed. The
Civil Service Commission (CSC) affirmed the MSPB decision, and ordered ADS to reinstate the
employees with full backwages. ADS did not appeal and the order became final. Instead of
complying immediately, BOP, the incumbent Governor of ADS, referred the matter to the
Commission on Audit (COA), which ruled that the amounts due are the personal liabilities of the
former Governor who dismissed the employees in bad faith. Thus, ADS refused to pay. The final
CSC decision, however, did not find the former Governor in bad faith. The former Governor was
likewise not heard on the question of his liability. Is ADS' refusal justified? Can COA disallow the
payment of backwages by ADS to the dismissed employees due under a final CSC decision? Decide
and reason briefly. (5%)
The refusal of ADS is not justified, and the Commission on Audit cannot disallow the payment of
backwages by ADS to the dismissed employee. The Commission on Audit cannot make a ruling that it is
the former governor who should be personally liable, since the former governor was not given the
opportunity to be heard. In addition, the Commission on Audit cannot set aside a final decision of the
Civil Service Commission. The payment of backwages to illegally dismissed government employee is not
an irregular, unnecessary, excessive, extravagant or unconscionable expenditure. (Uy v. Commission on
Audit, 328 SCRA 607 [2000]).
(2009) A de facto public officer is, by right, entitled to receive the salaries and emoluments
attached to the public office he holds.
TRUE. A de facto public officer discharges his public duties under a color of title to the office,
therefore, by right entitled to salary (Civil Liberties vs. Executive Secretary, 194 SCRA 317).
142
(2010) A discretionary duty of a public officer is never delegable.
The statement that a discretionary duty of a public officer can never be delegated is FALSE. It can
be delegated if the delegation is authorized (Mechem, A Treatise on the Law on Public Offices and Officers,
p. 368).
ALTERNATIVE ANSWER:
TRUE. Discretionary duty of a public officer cannot be delegated.
(1994) Can the Civil Service Commission revoke an appointment by the appointing power
and direct the appointment of an individual of its choice?
According to the ruling in Medalla vs. Sto. Tomas, 208 SCRA 351, the Civil Service Commission
cannot dictate to the appointing power whom to appoint. Its function is limited to determining whether or
not the appointee meets the minimum qualification requirements prescribed for the position. Otherwise,
it would be encroaching upon the discretion of the appointing power.
(1998) The Constitution distinguishes between two types of owned and/or controlled
corporations: those with original charters and those which are subsidiaries of such corporations.
In which of the following rule/rules is such a distinction made? Consider each of the following
items and explain briefly your answer, citing pertinent provisions of the Constitution. (1) The rule
prohibiting the appointment to certain government positions, of the spouse and relatives of the President
within the fourth degree of consanguinity or affinity. [2%]
Section 13. Article VII of the Constitution, which prohibits the President from appointing his
spouse and relatives within the fourth degree of consanguinity or affinity does not distinguish between
government corporations with original charters and their subsidiaries, because the prohibition applies to
both.
2. The rule making it incompatible for members of Congress to hold offices or employment
in the government. [2%]
Section 13, Article VII of the Constitution, which prohibits Members of Congress from holding any
other office during their term without forfeiting their seat, does not distinguish between government
corporations with original charters and their subsidiaries, because the prohibition applies to both.
3. The rule prohibiting members of the Constitutional Commissions, during their tenure,
to be financially interested in any contract with or any franchise or privilege granted by the
government, [2%]
Section 2, Article IX-A of the Constitution, which prohibits Members of the Constitutional
Commissions from being financially interested in any contract with or any franchise or privilege granted
by the Government, does not distinguish between government corporations with original charters and their
subsidiaries, because the prohibition applies to both.
4. The rule providing for post audit by the COA of certain government agencies. [2%]
Section 2(1), Article IX-D of the Constitution which provides for post audit by the Commission on
audit of government corporations, does not distinguish between government corporations with original
charters and their subsidiaries, because the provision applies to both.
5. The rule requiring Congress to provide for the standardization of compensation of
government officials and employees. [2%]
Section 5, Article IX-B of the Constitution, which provides for the standardization of the
compensation of government officials and employees, distinguishes between government corporations and
their subsidiaries, for the provision applies only to government corporations with original charters.
(1999) Luzviminda Marfel, joined by eleven other retrenched employees, filed a complaint
with the Department of Labor and Employment (DOLE) for unpaid retrenchment or separation pay,
underpayment of wages and non-payment of emergency cost of living allowance. The complaint
was filed against Food Terminal, Inc. Food Terminal Inc. moved to dismiss on the ground of lack
of jurisdiction, theorizing that it is a government-owned and controlled corporation and its
employees are governed by the Civil Service Law and not by the Labor Code. Marfel opposed the
motion to dismiss, contending that although Food Terminal, Inc. is a corporation owned and
controlled by the government earlier created and organized under the general corporation law as
"The Greater Manila Food Terminal, Inc.", it has still the marks of a private corporation: it directly
hires its employees without seeking approval from the Civil Service Commission and its personnel
are covered by the Social Security System and not the Government Service Insurance System, The
question posed in the petition for certiorari at bar is whether or not a labor law claim against a
government-owned or controlled corporation like the Food Terminal, Inc. falls within the
jurisdiction of the Department of Labor and Employment or the Civil Service Commission? Decide
and ratiocinate. (4%)
The claim of the retrenched employees falls under the jurisdiction of the National Labor Relations
Commission and not under the jurisdiction of the Civil Service Commission. As held in Lumanta v.
National Labor Relations Commission, 170 SCRA 79, since Food Terminal, Inc. was organized under the
Corporation Law and was not created by a special law in accordance with Section 2(1), Article IX-B of the
Constitution, it is not covered by the civil service.
(2003) A corporation, a holder of a certificate of registration issued by the Securities and
Exchange Commission, is owned and controlled by the Republic of the Philippines. The Civil
Service Commission (CSC), in a memorandum-order, directs the corporation to comply with Civil
Service Rules in the appointment of all of its officers and employees. The memorandum-order of
the CSC is assailed by the corporation, as well as by its officers and employees, before the court.
How should the case be resolved?
The memorandum-order of the Civil Service Commission should be declared void. As held in
Gamogamo v. PNOC Shipping and Transit Corporation. 381 SCRA 742 (2002). under Article IX-B, Section
2(1) of the 1987 Constitution government-owned or controlled corporations organized under the
Corporation Code are not covered by the Civil Service Law but by the Labor Code, because only
government-owned or controlled corporations with original charters are covered by the Civil Service.
(1994) Pedro Cruz, the City Engineer of Baguio, retired. To fill the vacant position, the City
Mayor appointed Jose Reyes, a civil engineer who formerly worked under Cruz but had been
assigned to the Office of the Mayor for the past five years. Vicente Estrada, the Assistant City
Engineer filed a protest with the Civil Service Commission claiming that being the officer next in
rank he should have been appointed as City Engineer. Who has a better right to be appointed to
the contested position?
On the assumption that Jose Reyes possesses the minimum qualification requirements prescribed
by law for the position, the appointment extended to him is valid. Consequently, he has a better right than
Vicente Estrada. The claim of Estrada that being the officer next in rank he should have been appointed
as City Engineer is not meritorious. It is a settled rule that the appointing authority is not limited to
promotion in filling up vacancies but may choose to fill them by the appointment of persons with civil
service eligibility appropriate to the position. Even if a vacancy were to be filled by promotion, the concept
of "next in rank" does not import any mandatory requirement that the person next in rank must be
appointed to the vacancy. What the civil service law provides is that if a vacancy is filled by promotion,
the person holding the position next in rank thereto "shall be considered for promotion." Espanol v. Civil
143
Service Commission 206 SCRA 715.
ALTERNATIVE ANSWER;
Neither Jose Reyes nor Vicente Estrada has a better right to be appointed City Engineer. As held
in Barrozo vs. Civil Service Commission, 198 SCRA 487, the appointing authority is not required to appoint
the one next-in-rank to fill a vacancy. He is allowed to fill it also by the transfer of an employee who 144
possesses civil service eligibility.
(1993) How may the following be removed from office: Officers and employees in the Civil
Service
Under Art. IX-B. Sec. 2(3) of the Constitution, officers and employees in the Civil Service may only
be removed for cause as provided by law and after observance of due process. Their removal must be
effected by the appropriate disciplinary authority in accordance with Ch. 7 secs. 47-48 of Book V of the
Administrative Code of 1987 and the Civil Service Rules and Regulations.
(1997) A, while an incumbent Governor of his province, was invited by the Government of
Cambodia as its official guest. While there, the sovereign king awarded Governor A with a
decoration of honor and gifted him with a gold ring of insignificant monetary value, both of which
he accepted. Was Governor A's acceptance of the decoration and gift violative of the Constitution?
Yes, it violated Section 8, Article IX-B of the Constitution. For his acceptance of the decoration of
honor and the gold ring from the Government of Cambodia to be valid, Governor A should first obtain the
consent of Congress.
(1988) Exercising power he claims had been granted him by the Executive Order on the
reorganization of the government, the Commissioner of Customs summarily dismissed two hundred
sixty-five officials and employees of the Bureau of Customs. Most of the ousted employees appealed
to the Civil Service Commission claiming their ouster illegal. The Civil Service Commission, after
hearing, later ordered the Commissioner of Customs to reinstate most of those dismissed. Instead
of following the order of the Civil Service Commission, Commissioner Mison intends to bring for
review before the Supreme Court, the same decision of the Commission. (1) If you were the counsel
for the Commissioner of Customs, how would you justify his dismissal of customs officials and
employees?
I would invoke the resolution in Jose v. Arroyo, G.R. No. 78435, Aug. 11, 1987, in which the
Supreme Court held that under Art. XVIII, sec, 16 of the Constitution, career service employees may be
removed "not for cause but as a result of the reorganization pursuant to Proclamation No. 3 dated March
25, 1986 and the reorganization following the ratification of this Constitution." By virtue of this provision,
it was held that the reorganization of the Bureau of Customs under Executive Order No, 127 may continue
even after the ratification of the Constitution, and career service employees may be separated from the
service without cause as a result of such reorganization.
If on the other hand, you were a counsel for the dismissed officials and employees, how
would you sustain the order of the Civil Service Commission reinstating most of them? State your
reasons.
I would argue that art. XVIII, sec. 16 does not really authorize the removal of career service
employees but simply provides for the payment of separation, retirement, and other benefits accruing to
them under the applicable laws. The reference to career service employees separated "as a result of the
reorganization following the ratification of this Constitution" is only to those separated as a result of
reorganization of the structure and functions of government (e.g., as a result of abolition of offices) as
distinguished from the reorganization of personnel which is what is referred to therein as "the
reorganization pursuant to Proclamation No. 3 dated March 25, 1986." For the power of the government
to terminate the employment of elective and appointive officials pursuant to Art. III, sec. 2 of Proclamation
No. 3 (otherwise known as the Provisional Constitution), through the appointment or designation of their
successors has been repeatedly held to have ended on February 2, 1987, when the new Constitution took
effect. (De Leon v. Esguerra, 153 SCRA 602 (1987); Reyes v. Ferrer G.R. No. 77801, Dec. 11, 1987;
Osias v. Ferrer, G.R, No. 77049, March 28, 1988), Moreover, such replacement of incumbents can only be
for cause as prescribed by Executive Order No. 17, dated May 28, 1986. Since the summary dismissals in
question are not for cause, the removal of the Bureau of Customs officials violates art. IX, B, sec, 2(3) of
the Constitution.
(2005) Ricardo was elected Dean of the College of Education in a State University for a
term of five (5) years unless sooner terminated. Many were not pleased with his performance. To 145
appease those critical of him, the President created a new position, that of Special Assistant to the
President with the rank of Dean, without reduction in salary, and appointed Ricardo to said position
in the interest of the service. Contemporaneously, the University President appointed Santos as
Acting Dean in place of Ricardo. Does the phrase "unless sooner terminated" mean that the position
of Ricardo is terminable at will?
No, the term "unless sooner terminated" could not mean that his position is terminable at will.
Security of tenure means that dismissal should only be for cause, as provided by law and not otherwise.
(Palmera v. CSC, G.R. No. 110168, August 4, 1994)
ALTERNATIVE ANSWER:
No, his position is not terminable at will. Ricardo's contract of employment has a fixed term of
five years. It is not an appointment in an acting capacity or as officer-in-charge. A college dean appointed
with a term cannot be separated without cause. Ricardo, with a definite term of employment, may not
thus be removed except for cause. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18,1970)
Was Ricardo removed from his position as Dean of the College of Education or merely
transferred to the position of Special Assistant to the President? Explain.
Ricardo was removed from his position as dean. Having an appointment with a fixed term, he
cannot, without his consent, be transferred before the end of his term. He cannot be asked to give up his
post nor appointed as dean of another college, much less transferred to another position even if it be
dignified with a dean's rank. More than this, the transfer was a demotion because deanship in a university,
being an academic position which requires learning, ability and scholarship, is more exalted than that of
a special assistant who merely assists the President, as the title indicates. The special assistant does not
make authoritative decisions unlike the dean who does so in his own name and responsibility. The position
of dean is created by law, while the special assistant is not so provided by law; it was a creation of the
university president. (Sta. Maria v. Lopez, G.R. No. L-30773, February 18, 1970)
(1999) What is the meaning and guarantee of security of tenure? (2%)
According to Palmera v. Civil Service Commission, 235 SCRA 87, SECURITY OF TENURE means
that no officer or employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process.
COMELEC
ELECTION LAWS
(2019) Candidate X, a naturalized Filipino citizen, ran for Congressman £or the
Lone District of Batanes. After a close electoral contest, he won by a slim margin of
500 votes. His sole opponent, Y, filed an election protest before the Commission on
Elections (COMELEC), claiming that X should be disqualified to run for said position
because he is not a natural-born citizen. While the case was pending, X was proclaimed
by the Provincial Election Supervisor of Batanes as the duly elected Congressman of
the province. Distinguish between natural-born and naturalized citizen under the 1987
Constitution, (2%)
In general, natural-born citizens are those who are citizens of the Philippines from
birth without having to perform any act to acquire or perfect their Philippine citizenship. As
an exception, those born before January 17, 1973, of Filipino mothers who elect Philippine
Citizenship upon reaching the age of majority are also natural-born citizens although they
perform a certain act to perfect their Philippine citizenships. Naturalized citizens on the
other hand, are those who have undergone naturalization procedure in accordance with law.
Simply put, all naturalized citizens have performed a certain act to acquire or perfect their
Philippine citizenships, while some natural-born citizens have and some have not (Art. IV.
Sec. 2. Const.).
Is X qualified to run for Congress? Explain. (1%)
No, Candidate X is not qualified. Under the Constitution, no person shall be a
Member
of the House of Representatives unless he is a natural-born citizen of the
Philippines (Art. IV. Sec. 2. Const.). Candidate X is a naturalized Filipino.
Did X's proclamation divest the COMELEC of its jurisdiction to decide the case and
vest the House of Representatives Electoral Tribunal (HRET) jurisdiction to hear the case?
Explain. (2%)
This question should be considered a bonus for having several errors which would
confuse the examinees. First, an election protest (or even quo warranto) can be filed only
after proclamation, within ten (10) days therefrom. In the given set of facts, it was filed before
proclamation. Second, ineligibility such as in citizenship is not a proper ground for an
election protest. II is a ground for a petition for quo warranto or a petition for the denial of
due course to or cancellation of certificate of candidacy (COC). In the given set of facts, it
states that the ground used for the election protest was because Candidate X is not a
natural-born Filipino citizen. Lastly, since the issue involves eligibility of a candidate and
the case was filed before proclamation, the case must have referred to a petition for the
denial of due course to or cancellation of COC. However, this is filed within five (5) days from
the last day for filing of COC, but not later than twenty-five (25) days from the time of filing
of! he COC subject of the petition. In the given set of facts, it appears that the case was filed
way after the prescribed period or after the election but before proclamation. If the case is an
election protest filed within 10 days from proclamation, then there will be no
issue and the
COMELEC retains its jurisdiction until it decides the case. The same goes with petition for quo
warrant. But if the case filed was for the denial of due course to or cancellation
of COC,
proclamation would ipso jure divest the COMELEC of its jurisdiction in favor of the House of
Representatives Electoral Tribunal provided the winner, aside from proclamation, has taken the
proper oath, and assumed the office. Otherwise, the COMELEC may still continue in hearing
and deciding the case (Reyes v. COMELEC. G.R. No. 207264. June 25, 2013).
(2019) H, a naturalized American citizen who later became a dual citizen under
Republic Act No. 9225 (the Citizenship Retention and Re-Acquisition Act), decided to
run for Congress and thus, filed a certificate of candidacy (CoC). A citizen argued that
H is ineligible for the position because of his status as a dual citizen. H responded that
his act of filing a CoC amounted to his renunciation of foreign citizenship, rendering
him eligible for the position. Was H ‘s filing of a CoC sufficient to renounce foreign
citizenship? Explain. (2.5%)
No. While the Supreme Court has previously declared that the filing by a person with
dual citizenship of a certificate of candidacy is already considered a renunciation of foreign
citizenship, such ruling was already adjudged superseded by the enactment of R.A. No. 9225
on August 29, 2003 which provides for the additional condition of a personal and sworn
renunciation of foreign citizenship for those who desire to run for elective public office in the
Philippines (Sobejana-Condon v. Comelec, G.R. No. 198742. August 10, 2012)
Assuming that H is a dual citizen because his parents are Filipino citizens and
he was born in California, USA, was filing of a CoC sufficient to renounce his foreign
citizenship? Explain. (2.5%)
YES. H's dual citizenship is from birth without performing another act such as
swearing allegiance thereto to be naturalized. The candidate who have Filipino parents,
146
became a citizen of the foreign state where he was born under the principal of jus soli and
had not taken an oath of allegiance to said foreign state. A dual citizen from birth seeking
public office in the Philippines does not need to execute a personal and sworn
renunciation of foreign citizenship. His COC which states that he renounces any and all
foreign citizenships suffices (Cordora v. Comelec, G.R No. 176947, February 19, 2009:
Valles v. Comelec, C.R. No. 137000. August 9. 2000)
(2019) Atty. G ran for Governor of the Province of Pampanga, while his close
friend, Atty. M, ran for Mayor of the Municipality of Guagua, Pampanga. They both
won convincingly. Eventually, the losing candidates timely filed election protests.
The losing gubernatorial candidate, Mr. A, filed his protest before the Regional Trial
Court of Pampanga (RTC), whereas the losing mayoralty candidate, Mr. B, filed his
protest before the Municipal Trial Court of Guagua, Pampanga (MTC). What are the
term limits for the positions of Atty. G and Atty. M? (1%)
The term of office of both positions is three (3) years and for not more than three (3)
consecutive terms in the same position (Sec. 43, LGC)
Does the RTC have jurisdiction over the case filed by Mr. A? Explain. (2%)
No. It is the Comelec which has jurisdiction over election contests for any regional,
provincial or city official (Sec. 250, OEC)
Does the MTC have jurisdiction over the case filed by Mr. B? Explain. (2%)
No. It is the RTC which has jurisdiction over election contests for municipal official
(Sec. 251. OEC)
(2019) W, the incumbent Congressman of the Province of Albay, decided to run
for Governor. He filed his certificate of candidacy (CoC) for Governor, without
resigning from his post and continued exercising his duties as Congressman, such as
attending plenary sessions and committee bearings in the House of Representatives.
One of W's fiercest critics, X, claimed that W should not be dispensing the functions
of a Congressman since he is deemed ipso facto resigned as such upon his filing of a
CoC for Governor of Albay. Is X's argument correct? Explain. (2.5%)
No. If the person is holding an elective office, he shall not be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy for the same or any other
elected office or position, and can still continue to hold the office. In fine, an elected official
may run for another position without forfeiting his seat. (Quinto v. COMELEC, G.R. No. 189698,
February 22, 2010; RA 9006, Sec. 14 repealing Sec. 67 of the Omnibus Election Code)
Assuming that W is instead, an incumbent Undersecretary of the Department of
National Defense, what is the effect of the filing of his CoC for the position of Governor
of Albay to said post? Explain. (2.5%)
The effect is that he shall be considered ipso facto resigned from his office and must
vacate the same at the start of the day of the filing of his certification of candidacy (Quinto v.
COMELEC. G.R. No. 189698, February 22, 2010)
[2018] Two petitions for cancellation of Certificate of Candidacy (CoC)/Denial of Due
Course were filed with the Comelec against two candidates running as municipal mayors of
different towns. The first petition was against Anselmo. Years ago, Anselmo was charged and
convicted of the crime of rape by final judgment, and was sentenced to suffer the principal penalty
of reclusion perpetua which carried perpetual absolute disqualification. While Anselmo was in
prison, the President commuted his sentence and he was discharged from prison. The second
petition was against Ambrosio. Ambrosio’s residency was questioned because he was allegedly a
“green card holder,” i.e., a permanent resident of the US, as evidenced by a certification to this
effect from the US Embassy. Acting on the recommendations of its Law Department, the Comelec
147
en banc motu proprio issued two resolutions granting the petitions against Anselmo and Ambrosio.
Both Anselmo and Ambrosio filed separate petitions with the Supreme Court assailing the
resolutions cancelling their respective CoCs. Both claimed that the Comelec en banc acted with
grave abuse of discretion amounting to lack or excess of jurisdiction because the petitions should
have first been heard and resolved by one of the Comelec’s Divisions. Are Anselmo and Ambrosio
correct? (5%)
148
Anselmo is incorrect. The rule is every quasi-judicial matter must first be tackled by a division
subject to appeal by way of a Motion for Reconsideration to the COMELEC en banc. In Jalosjos v.
COMELEC (G.R. No. 205033, June 18, 2013), it was determined that a cancellation on the basis of
perpetual disqualification is a matter that can be taken judicial notice of. When it cancels a CoC on that
ground, it is acting in performance of an administrative function and, thereof, the rule in Article IX,
Sectiion 3 does not apply. Ambrosio, on the other hand, is correct that the petition for the cancellation of
his CoC should have been first heard and resolved by the Comelec Division. Cancellation proceedings
involve the COMELEC’s quasi-judicial functions. The Constitution mandates, in the exercise of its
adjudicatory or quasi-judicial powers, to hear and decide cases first by division and, upon motion for
reconsideration, by the COMELEC en banc (Bautista v. Comelec, G.R. Nos. 154796-97, October 23, 2003).
(2015) How do you differentiate the petition filed under Section 68 from the petition filed
under Section 78, both of the Omnibus Election Code?
The two remedies available to prevent a candidate from running in an electoral race are under
Section 68 and under Section 78 of the Omnibus Election Code. The candidate who is disqualified based
on the grounds under Section 68 (i.e., prohibited acts of candidates, and the fact of a candidate’s
permanent residency in another country when that fact affects the residency requirement of a candidate)
is merely prohibited to continue as a candidate. On the other hand, a candidate whose certificate is
cancelled or denied due course based on a statement of a material representation in the said certificate
that is false under Section 78, is not treated as a candidate at all, as if he/she never filed a Certificate of
Candidacy. (Talaga v. COMELEC)
[2018] In 1990, Agripina migrated to Canada and acquired Canadian Citizenship. In 2008,
Agripina retired and returned to the Philippines to permanently reside in her hometown of Angeles,
Pampanga. A month after returning to the Philippines, Agripina took her oath of allegiance and
executed a sworn renunciation of her Canadian citizenship in accordance with R.A. No. 9225. In
2009, Agripina filed here certificate of candidacy for Congress for the 2010 elections. Agripina’s
political rivals lost no time in causing the filing of various actions to question her candidacy. They
questioned her eligibility to run as member of Congress. Since Agripina had to take an oath under
R.A. No. 9225, it meant that she needed to perform an act to perfect her Philippine citizenship.
Hence, they claimed that Agripina could not be considered a natural-born citizen. Agripina raised
the defense that, having complied with the requirements of R.A. No. 9225, she had reacquired, and
was deemed never to have lost, her Philippine citizenship. Is Agripina disqualified to run for
Congress for failing to meet the citizenship requirement? (2.5%)
Agripina is eligible to run as a member of the the Congress. Repatriation results in the recovery
of a person’s original nationality. This means that a naturalized Filipino who lost his citizenship will be
restored to his prior status as a Filipino citizen. If she were originally a natural-born citizen before she
lost her Philippine citizenship, she would be restored to her former status as a natural-born Filipino
(Bengson III vs. HRET, G.R. 142840, May 7, 2007. See also: Parreno v. Commission on Audit, G.R. No.
162224, June 7, 2007, and Tabasa v. Court of Appeals, G.R. No. 125793 August 29, 2006). RA 9225
makes distinction between those natural-born Filipinos who became foreign citizens before and after the
effectivity of RA No. 9225. For those who were naturalized in a foreign country, they shall be deemed to
have reacquired their Philipine citizenship which was lost pursuant to CA 63. In the case of those who
became foreign citizens after RA 9225 took effect, they shall retain Philippines citizenship despite having
acquired foreign citizenship, provided they take the oath of allegiance under the new law.
Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of RA
9225, she belongs to the first category of natural-born Filipinos who lost their Philippine citizenship by
naturalization in a foreign coutry, under the first paragraph of Section 3. As the new law allows dual
citizenship, she was able to reacquire her Philippine citizenship by taking the required oath of allegiance
(See Bengson v. HRET and as affirmed by Poe-Llamanzares v. COMELEC, G.R. No. 221697, March 8, 2016).
[2018] The 2016 mayoralty race in the City of Ardania included Arnaldo and Anacleto as
contenders. Arnaldo filed a petition with the Comelec to cancel Anacleto’s Certificate of Candidacy
(CoC) for misrepresenting himself as Filipino citizen. Arnaldo presented as evidence a copy of 149
Anacleto’s Spanish passport and a certification from the Bureau of Immigration (BI) showing that
Anacleto used the same passport several times to travel to and from Manila and Madrid or
Barcelona.
In his Comment, Anacleto claimed that, a year prior to filing his CoC, he had complied with
all the requirements of R.A. No. 9225 (Citizenship Retention and Re-acquisition Act of 2003) to
reacquire his Philippine Citizenship by taking an oath of allegiance and executing a sworn
renunciation of his Spanish citizenship. He defended the use of his Spanish passport subsequent
to taking his oath of allegiance to the Philippines as a practical necessity since he had yet to obtain
his Philippine passport despite reacquiring his Philippine citizenship. Even after he secured his
Philippine passport, he said he had to wait for the issuance of Schengen visa to allow him to travel
to Spain to visit his wife and minor children. (a) Based on the allegations of the parties, is there
sufficient ground to cancel Anacleto’s CoC? (2.5%)
(a) The sole act of using a foreign passport does not divest Anacleto of his Filipino citizenship
which he acquired by repatriation. By representing himself as a Spanish citizen, however, Anacleto
voluntarily and effectively reverted to his ealier status as a dual citizen. Such reversion was not
retroactive; it took place the instant Anacleto represented himself as a Spanish citizen by using his
Spanish passport. He is, thus, disqualified for being a dual citizen, and his CoC should be cancelled
(Maquiling v. Comelec, G.R. No. 195649, April 16, 2013). [Note: The use of a foreign passport amounts to
a recantation of the Oath of Renunciation required to qualify one to run for an elective position].
(2014) Rosebud is a natural-born Filipino woman who got married to Rockcold, a citizen of
State Frozen. By virtue of the laws of Frozen, any person who marries its citizens would
automatically be deemed its own citizen. After ten years of marriage, Rosebud, who has split her
time between the Philippines and Frozen, decided to run for Congress. Her opponent sought her
disqualification, however, claiming that she is no longer a natural-born citizen. In any event, she
could not seek elective position since she never renounced her foreign citizenship pursuant to the
Citizenship Retention and Reacquisition Act (R.A. No. 9225). Is Rosebud disqualified to run by
reason of citizenship? (4%)
Rosebud remained a natural born Filipino citizen even if under the laws of the Frozen, she became
a citizen of it because of her marriage to Rockcold. Under Section 4, Article IV of the Constitution, she
retained her Philippine citizenship. Rosebud cannot seek elective office. Under Section 5(2) of RA No. 9225,
even those who retained their Philippine citizenship by birth and acquired foreign citizenship by virtue of
marriage to a foreign spouse are required to renounce their foreign citizenship (Sobejana- Condon vs
COMELEC 678 SCRA 267 (2012))
ALTERNATIVE ANSWER
No, Rosebud is not disqualified. She became a dual citizen, not on the basis of the provisions of
RA No. 9225, but by reason of the automatic operation of the citizenship laws of State Frozen, of which
her husband Rockcold, was a citizen. The requirement regarding the renunciation of her foreign
citizenship under that law cannot therefore be made to apply to her. It does not appear that she ever
renounced her natural-born Filipino citizenship upon her marriage to Rockcold. Accordingly, she cannot
be considered as ever having lost it. She is therefore not disqualified to run for Congress by reason of
citizenship.
(2016) Onofre, a natural born Filipino citizen, arrived in the United States in 1985. In 1990,
he married Salvacion, a Mexican, and together they applied for and obtained American citizenship
in 2001. In 2015, the couple and their children --Alfred, 21 years of age, Robert, 16, and Marie, 14,
who were all born in the U.S. -- returned to the Philippines on June 1, 2015. On June 15, 2015,
informed that he could reacquire Philippine citizenship without losing his American citizenship,
Onofre went home to the Philippines and took the oath of allegiance prescribed under R.A. No.
9225. On October 28, 2015, he filed a Certificate of Candidacy to run in the May 9, 2016 elections
for the position of Congressman in his home province of Pala wan, running against re-electionist
Congressman Profundo. A. Did Onofre's reacquisition of Philippine citizenship benefit his wife,
Salvacion, and their minor children and confer upon them Filipino citizenship? Explain your
answer. (2.5%)
150
A. The reacquisition of the Philippine citizenship by Onofre did not automatically make his
American wife, Salvacion, a Filipino citizen. Nowhere does Republic Act No. 9225 provide that the foreign
wife of a former Filipino citizen who reacquired his Filipino citizenship will automatically become a Filipino
citizen. Robert, who is 16 years old, and Marie, who is 14 years old, also became Filipino citizens. The
unmarried children below eighteen (18) years of age, of those who reacquire Philippine citizenship are also
deemed citizen of the Philippines. (Section 4 of Republic Act No. 9225).
B. Before the May 9, 2016 elections, Profundo's lawyer filed a Petition to Deny Due Course
or to Cancel the Certificate of Candidacy against Onofre. What grounds can he raise in his Petition
to support it? Explain your answer. (2.5%)
B. The lawyer of Congressman Profundo can ask for the cancellation of the certificate of candidacy
on the ground that he did not execute an affidavit renouncing his American citizenship as required by
Section 5(2) of Republic Act No. 9225 and he lacked one-year residence in the Philippines as required by
Section 6, Article VI of the Constitution.
[2018] The province of Amaya is one of the smallest provinces in the Philippines with only
one legislative district composed of four municipalities: Uno, Dos, Tres, and Cuatro. Andres, a
resident and registered voter of Cuatro municipality, and and was elected as member of Sanguniang
Panlalawigan (SP) of Amaya in the 2010 and 2013 local elections. While Andres was serving his
second term as SP member, a law was enacted re-apportioning the four towns of Amaya into two
legislative districts: Uno and Dos comprising the First District, and Tres and Cuatro comprising of
the Second District. In 2016 local election, Andres ran and was elected as member of the SP of
Amaya representing the Second District. Andres seeks your legal advise regarding his intention to
run as a member of SP of Amaya for the Second District in the next local elections in 2019. What
will you advise Andres? (2.5%)
My advice is for him not to run for SP member, because doing so violates the limit of three
consecutive terms upon local elective officials. In the cases of Latasa v. COMELEC (G.R. 154829, December
10, 2003) and Naval v. COMELEC (G.R. No. 207851, July 8, 2014), the Court ruled that the three-term
limit applies notwithstanding any reapportionment, renaming, or reclassification of any local government
unit. The clear intent of the farmers of the Constitution was to limit the term to three consecutive elections
to the same position.
[2016] Sec. 8, Article X of the 1987 Constitution provides that no elective official shall serve
for more than three (3) consecutive terms. Rule and explain briefly the reason if the official is
prohibited to run for another term in each of the following situations: A. if the official is a ViceMayor who assumed the position of Mayor for the unexpired term under the Local Government
Code.
In computing the three term limit, only the term for which the local official was elected should be
considered. The second sentence of Section 8, Article X of the Constitution states that the voluntary
renunciation shall not be considered as interruption of the continuity of the service for the full term for
which he was elected. (Borja v. Commission on Elections, 295 SCRA 157 [1998]).
B. if the official has served for three consecutive terms and did not seek a 4th term but who
won in a recall election;
A mayor who served three consecutive terms and did not seek a fourth term but ran and won in
the recall election can serve. Because the recall election was not an immediate re-election. (Socrates v.
Commission on Elections, 391 SCRA 547 [2002]).
C. if the position of Mayor of a town is abolished due to conversion of the town to a city;
If the municipality in which a mayor served for three consecutive terms was converted to a city,
he cannot run as city mayor in the first election. For purposes of applying the three term limit, the office
of the municipal mayor should not be considered as different from that of the city mayor. (Latasa v.
Commission on Election, 417 SCRA 601[2003]).
D. if the official is preventively suspended during his term but was exonerated; and
The temporary inability of an elective official to exercise his functions due to preventive suspension
is not an interruption of his term, because it did not involve loss of title to the office. (Aldovino, Jr. v.
Commission on Elections, 609 SCRA 234 [2009]).
E. if the official is proclaimed as winner and assumes office but loses in an election protest.
(5%)
If a candidate was proclaimed for three consecutive terms but did not serve it in full because of
loss in an election protest he is not disqualified. (Lonzanida v. Commission on Elections, 311 SCRA 602
[1991]).
(2001) In the May 1992 elections, Manuel Manalo and Segundo Parate were elected as Mayor
and Vice Mayor, respectively. Upon the death of Manalo as incumbent municipal mayor, Vice Mayor
Segundo Parate succeeded as mayor and served for the remaining portion of the term of office. In
the May 1995 election, Segundo Parate ran for and won as mayor and then served for the full term.
In the May 1998 elections, Parate ran for reelection as Mayor and won again. In the May 2001
election, Segundo Parate filed his certificate of candidacy for the same position of mayor, but his
rival mayoralty candidate sought his disqualification alleging violation of the three- term limit for
local elective officials provided for in the Constitution and in the Local Government Code. Decide
whether the disqualification case will prosper or not. (5%)
The disqualification case should be dismissed. As held in Borja vs. COMELEC, 295 SCRA 157
(1996), in computing the three-term limitation imposed upon elective local officials, only the term for
which he was elected to should be considered. The term which he served as a result of succession should
not be included. It is not enough that the official has served three consecutive terms. He must have been
elected to the same position three consecutive times.
(2008) Abdul ran and won in the May 2001, 2004, and 2007 elections for Vice-Governor of
Tawi-Tawi. After being proclaimed Vice- Governor in the 2004 elections, his opponent, Khalil, filed
an election protest before the Commission on Election. Ruling with finality on the protest, the
COMELEC declared Khalil as the duly elected Vice- Governor though the decision was promulgated
only in 2007, when Abdul had fully served his 2004-2007 term and was in fact already on his 20072010 term as Vice- Governor. Abdul now consults you if he can still run for Vice-Governor of TawiTawi in the forthcoming May 2010 election on the premise that he could not be considered as
having served as Vice-Governor from 2004- 2007 because he was not duly elected to the post, as
he assumed office merely as presumptive winner and that presumption was later overturned when
COMELEC decided with finality that had lost in the May 2004 elections. What will be your advice?
(3%).
I will advise Abdul that he can no longer run for Vice-Governor in the forthcoming May 2010
election because there is no interruption of service of his 2004-2007 term. He is considered to have already
served and thereof it is counted in the consecutiveness of his term of office. (Ong v. Alegre, Jan. 23, 2006).
Abdul also consults you whether his political party can validly nominate his wife as
substitute candidate for Vice-Governor of Tawi-Tawi in May 2010 election in case the COMELEC
disqualifies him and denies due course to or cancels his certificate of candidacy in view of a false
material representation therein. What will be your advice? (3%)
I will advise him that his wife can be a substitute if his wife is a member of the political party and
is certified by such political party that she is going to substitute Abdul as candidate for Vice- Governor
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and that the substitution must be made within the prescribed period provided by law. Provided further
that his wife is eligible to hold public office meaning she has all the qualifications and none of the
disqualifications.
(2005) Manuel was elected Mayor of the Municipality of Tuba in the elections of 1992, 1995
and 1998. He fully served his first two terms, and during his third term, the municipality was
converted into the component City of Tuba. The said charter provided for a hold- over and so 152
without interregnum Manuel went on to serve as the Mayor of the City of Tuba. In the 2001
elections, Manuel filed his certificate of candidacy for City Mayor. He disclosed, though, that he
had already served for three consecutive terms as elected Mayor when Tuba was still a municipality.
He also stated in his certificate of candidacy that he is running for the position of Mayor for the
first time now that Tuba is a city. Reyes, an adversary, ran against Manuel and petitioned that he
be disqualified because he had already served for three consecutive terms as Mayor. The petition
was not timely acted upon, and Manuel was proclaimed the winner with 20,000 votes over the
10,000 votes received by Reyes as the only other candidate. It was only after Manuel took his oath
and assumed office that the COMELEC ruled that he was disqualified for having ran and served for
three consecutive terms. As lawyer of Manuel, present the possible arguments to prevent his
disqualification and removal.
As lawyer of Manuel, I would argue that he should not be disqualified and removed because he
was a three-term mayor of the municipality of Tuba, and, with its conversion to a component city, the
latter has a totally separate and different corporate personality from that of the municipality. Moreover,
as a rule, in a representative democracy, the people should be allowed freely to choose those who will
govern them. Having won the elections, the choice of the people should be respected.
How would you rule on whether or not Manuel is eligible to run as Mayor of the newlycreated City of Tuba immediately after having already served for three (3) consecutive terms as
Mayor of the Municipality of Tuba?
Manuel is not eligible to run as mayor of the city of Tuba. The 1987 Constitution specifically
included an exception to the people's freedom to choose those who will govern them in order to avoid the
evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of
a prolonged stay in the same office. To allow Manuel to vie for the position of city mayor after having
served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three consecutive terms as mayor
of the City of Tuba, Manuel would then be possibly holding office as chief executive over the same territorial
jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to
be avoided by the Constitution, if not abhorred by it. (Latasa v. COMELEC, G.R. No. 154829, December
10, 2003)
Assuming that Manuel is not an eligible candidate, rebut Reyes' claim that he should be
proclaimed as winner having received the next higher number of votes.
Reyes cannot be proclaimed winner for receiving the second highest number of votes. The
Supreme Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for
an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold
office, does not entitle the candidate who garnered the second highest number of votes to be declared
elected. The same merely results in making the winning candidate's election a nullity. In the present case,
10,000 votes were cast for private respondent Reyes as against the 20,000 votes cast for petitioner Manuel.
The second placer is obviously not the choice of the people in this particular election. The permanent
vacancy in the contested office should be filled by succession. (Labo v. COMELEC, G.R. No. 105111, July
3,1992)
Reyes could not be proclaimed as winner because he did not win the election. To allow the defeated
candidate to take over the Mayoralty despite his rejection by the electorate is to disenfranchise the
electorate without any fault on their part and to undermine the importance and meaning of democracy
and the people's right to elect officials of their choice. (Benito v. COMELEC, G.R. No. 106053, August 17,
1994)
[2018] The 2016 mayoralty race in the City of Ardania included Arnaldo and Anacleto as
contenders. Arnaldo filed a petition with the Comelec to cancel Anacleto’s Certificate of Candidacy
(CoC) for misrepresenting himself as Filipino citizen. Arnaldo presented as evidence a copy of
Anacleto’s Spanish passport and a certification from the Bureau of Immigration (BI) showing that
Anacleto used the same passport several times to travel to and from Manila and Madrid or
Barcelona. In his Comment, Anacleto claimed that, a year prior to filing his CoC, he had complied
with all the requirements of R.A. No. 9225 (Citizenship Retention and Re-acquisition Act of 2003) 153
to reacquire his Philippine Citizenship by taking an oath of allegiance and executing a sworn
renunciation of his Spanish citizenship. He defended the use of his Spanish passport subsequent
to taking his oath of allegiance to the Philippines as a practical necessity since he had yet to obtain
his Philippine passport despite reacquiring his Philippine citizenship. Even after he secured his
Philippine passport, he said he had to wait for the issuance of Schengen visa to allow him to travel
to Spain to visit his wife and minor children. (b) In case Anacleto’s CoC is properly cancelled, who
should serve as mayor of Ardania City: Arnaldo, who obtained the second highest number of votes,
or Andrea, the duly elected Vice Mayor of the City? (2.5%).
The rule on succession would not apply if the permanent vacancy was caused by one whose
certificate of candidacy was void ab initio. Specifically with respect to dual citizens, their certificates of
candidacy are void ab initio, beacuse they possess “ a substantive [disqualifying circumstance]. . .
[existing] prior to the filing of their certificate of candidacy. “Legally, they should not even be considered
candidates. The votes cast for them should be considered stray and should not be counted.”
In cases of vacancies caused by those with void ab initio certificates of candidacy, the person
legally entitled to the vacant position would be the candidate who garnered the next highest number of
votes among those eligible. In this case, it was Arnaldo (Chua v. COMELEC, G.R. No. 216607, April 5,
2016).
(2015) Gandang Bai filed her certificate of candidacy (COC) for municipal mayor stating
that she is eligible to run for the said position. Pasyo Maagap, who also filed his COC for the same
position, filed a petition to deny due course or cancel Bai's COC under Section 78 of the Omnibus
Election Code for material misrepresentation as before Bai filed her COC, she had already been
convicted of a crime involving moral turpitude. Hence, she is disqualified perpetually from holding
any public office or from being elected to any public office. Before the election, the COMELEC
cancelled Bai's COC but her motion for reconsideration (MR) remained pending even after the
election. Bai garnered the highest number of votes followed by Pasyo Maagap, who took his oath as
Acting Mayor. Thereafter, the COMELEC denied Bai's MR and declared her disqualified for running
for Mayor. P. Maagap asked the Department of Interior and Local Government Secretary to be
allowed to take his oath as permanent municipal mayor. This request was opposed by Vice Mayor
Umaasa, invoking the rule on succession to the permanent vacancy in the Mayor's office. Who
between Pasyo Maagap and Vice Mayor Umaasa has the right to occupy the position of Mayor?
Explain your answer.
Vice Mayor Umaasa has the right to occupy the position of Mayor. This was settled in Talaga v.
COMELEC (G.R. No. 196804 October 9, 2012). where the court upheld that the disqualification of Bai
created a situation of a permanent vacancy in the office of the Mayor. A permanent vacancy is filled
pursuant to the law on succession defined in Section 44 of the LGC which states the “If a permanent
vacancy occurs in the office of the governor or mayor, the vice- governor or vice-mayor concerned shall
become the governor or mayor. “
Pasyo Maagap who garnered only the second highest number of votes lost to Gandang Bai.
Applying the Labo case cited in Talaga, Maagap could not assume office for he was only second placer
despite the disqualification of the Gandang Bai because the second placer was "not the choice of the
sovereign will." Surely, the Court explained, a minority or defeated candidate could not be deemed elected
to the office. There was to be no question that the second placer lost in the election, was repudiated by
the electorate, and could not assume the vacated position. No law imposed upon and compelled the people
of Lucena City to accept a loser to be their political leader or their representative.
The only time that a second placer is allowed to take the place of a disqualified winning candidate
is when two requisites concur, namely: (a) the candidate who obtained the highest number of votes is
disqualified; and (b) the electorate was fully aware in fact and in law of that candidate’s disqualification
as to bring such awareness within the realm of notoriety but the electorate still cast the plurality of the
votes in favor of the ineligible candidate. Under this sole exception, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away
their votes, in which case the eligible candidate with the second highest number of votes may be deemed
elected. The facts of the case at bar did not state the existence of such exception, thus it cannot apply in 154
favor of Maagap simply because the second element was absent.
(2003) In the municipal mayoralty elections in 1980, the candidate who obtained the
highest number of votes was subsequently declared to be disqualified as a candidate and so
ineligible for the office to which he was elected. Would this fact entitle a competing candidate who
obtained the second highest number of votes to ask and to be proclaimed the winner of the elective
office? Reasons.
According to Trinidad v. COMELEC. 315 SCRA 175 [1999], if the candidate who obtained the
highest number of votes is disqualified, the candidate who obtained the second highest number of votes
cannot be proclaimed the winner. Since he was not the choice of the people, he cannot claim any right to
the office.
(1990) A filed a protest with the House Electoral Tribunal questioning the election of B as
Member of the House of Representatives in the 1987 national elections on the ground that B is not
a resident of the district the latter is representing. While the case was pending. B accepted an adinterim appointment as Secretary of the Department of Justice. (1) May A continue with his
election protest in order to determine the real winner in the said elections? State your reason.
No, A may not continue with his protest.
2. Can A, who got the second highest number of votes in the elections, ask that he be
proclaimed elected in place of B? Explain your answer.
No, A cannot ask that he be proclaimed elected in place of B. The votes cast for B were not invalid
votes. Hence, A garnered only the second highest number of votes. Only the candidate who obtained the
majority or plurality of the votes is entitled to be proclaimed elected. On this ground, it was held in Labo
v. COMELEC, 176 SCRA 1, that the fact that the candidate who obtained the highest number of votes is
not eligible does not entitle the candidate who obtained the second highest number of votes to be
proclaimed the winner.
(1992) Edwin Nicasio, born in the Philippines of Filipino parents and raised in the province
of Nueva Ecija, ran for Governor of his home province. He won and he was sworn into office. It was
recently revealed, however, that Nicasio is a naturalized American citizen. 1. Does he still possess
Philippine citizenship?
No, Nicasio no longer possesses Philippine citizenship.
2. If the second-placer in the gubematorial elections files a quo warranto suit against
Nicasio and he is found to be disqualified from office, can the second-placer be sworn into office as
governor?
In accordance with the ruling in Abella us. COMELEC, 201 SCRA 253, the second placer cannot
be sworn to office, because he lost the election. To be entitled to the office, he must have garnered the
majority or plurality of the votes.
3. If, instead, Nicasio had been born (of the same set of parents) in the United States and
he thereby acquired American citizenship by birth, would your answer be different?
Yes, because he will be a dual citizen.
(1996) A and B were the only candidates for mayor of Bigaa, Bulacan in the May 1995 local
elections. A obtained 10,000 votes as against 3,000 votes for B. In the same elections, X got the
highest number of votes among the candidates for the Sangguniang Bayan of the same town. A died
the day before his proclamation. (1) Who should the Board of Canvassers proclaim as elected
mayor, A, B or X? Explain.
In accordance with Benito vs. COMELEC, 235 SCRA 436, it is A who should be proclaimed as
winner, because he was the one who obtained the highest number of votes for the position of mayor, but 155
a notation should be made that he died for the purpose of applying the rule on succession to office. B
cannot be proclaimed, because the death of the candidate who obtained the highest number of votes does
not entitle the candidate who obtained the next highest number of votes to be proclaimed the winner,
since he was not the choice of the electorate. X is not entitled to be proclaimed elected as mayor, because
he ran for the Sangguniang Bayan. Neither B nor X is entitled to discharge the functions of the office of
mayor. B is not entitled to discharge the office of mayor, since he was defeated in the election. X is not
entitled to discharge the office of mayor. Under Section 44 of the Local Government Code, it is the vice
mayor who should succeed in case of permanent vacancy in the office of the mayor. It is only when the
position of the vice mayor is also vacant that the member of the Sangguniang Bayan who obtained the
highest number of votes will succeed to the office of mayor.
(1994) If a candidate for town mayor is an engineer by profession, should votes for him with
the prefix "Engineer" be invalidated as "marked ballots"?
No, a ballot in which the name of a candidate for town mayor who is an engineer which is prefixed
with "engineer" should not be invalidated as a marked ballot. Under Rule No. 12 of the rules for the
appreciation of ballots, ballots which contain such prefixes are valid.
(1991) In connection with the May 1987 Congressional elections, Luis Millanes was
prosecuted for and convicted of an election offense and was sentenced to suffer imprisonment for
six years. The court did not impose the additional penalty of disqualification to hold public office
and of deprivation of the right of suffrage as provided for in Section 164 of the Omnibus Election
Code of the Philippines (B.P. Blg. 881). In April 1991, the President granted him absolute pardon
on the basis of a strong recommendation of the Board of Pardons and Parole. Then for the election
in May 1992, Luis Millanes files his certificate of candidacy for the office of Mayor in his
municipality. Is a petition to disqualify Millanes viable? What are the effects of a petition to
disqualify?
In accordance with Sec. 68 of the Omnibus Election Code, Luis Millanes may be disqualified from
running for mayor as he was convicted of an election offense. Under Sec. 6 of the Electoral Reforms Law,
any candidate who has been declared by final judgment to be disqualified shall not be voted for, and votes
cast for him shall not be counted. If before the election he is not declared by final judgment to be
disqualified and he is voted for and he receives the winning number of votes, the hearing on the question
of disqualification should continue. Upon motion of the complainant or any intervenor, the court or the
COMELEC may order the suspension of the proclamation of the winning candidate if the evidence of his
guilt is strong.
(1999) Under the Local Government Code, name four persons who are disqualified from
running for any elective position. (2%)
Under Section 40 of the Local Government Code, the following are disqualified from running for
any local elective position: (1) Those sentenced by final judgment for an offense involving moral turpitude
or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving
sentence; (2) Those removed from office as a result of an administrative case; (3) Those convicted by final
judgment for violating the oath of allegiance to the Republic of the Philippines; (4) Those with dual
citizenship; (5) Fugitives from justice in criminal or non- political cases here or abroad; (6) Permanent
residents in a foreign country or those who have acquired the right to reside abroad and continue to avail
of the same right after the effectivity of the Local Government Code; and (7) The insane or feeble-minded.
(2002) A, a City Legal Officer, and B, a City Vice-Mayor, filed certificates of candidacy for
the position of City Mayor in the May 14, 2001 elections. (1) Was A ipso facto considered resigned
and, if so, effective on what date? (2%)
A was considered ipso facto resigned upon the filing of his certificate of candidacy, because being
a City Legal Officer, he is an appointive official. Section 66 of the Omnibus Election Code provides that
any person holding a public appointive office shall be considered ipso facto resigned upon the filing of his
certificate of candidacy.
2. Was B ipso facto considered resigned and, if so, effective on what date? (3%)
B is not considered ipso facto resigned. Section 67 of the Omnibus Election Code considers any
elective official ipso facto resigned from office upon his filing of a certificate of candidacy for any office
other than the one he is holding except for President and Vice-President, was repealed by the Fair Election
Act
(2003) (a) Pedro Reyes is an incumbent Vice-Mayor of Quezon City. He intends to run in
the regular elections for the position of City Mayor of Quezon City whose incumbent mayor would
have fully served three consecutive terms by 2004. Would Pedro Reyes have to give up his position
as Vice-Mayor?
No. Section 14 of the Fair Election Act repealed Section 67 of the Omnibus Election Code, which
provided that any elected official, whether national or local, who runs for any office other than the one he
is holding in a permanent capacity, except for President and Vice President, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy. Section 14 of the Fair Election Act
likewise rendered ineffective the first proviso in the third paragraph of Section 11 of Republic Act No.
8436. Consequently, Pedro Reyes can run for Mayor without giving up his position as Vice-Mayor. He will
have to give up his position as Vice-Mayor upon expiration of his term as Vice-Mayor on June 30, 2004.
(b) If Pedro Reyes were, instead, an incumbent Congressman of Quezon City, who intends
to seek the mayoralty post in Quezon City, would your choice of answer above be the same?
The answer is the same if Pedro Reyes is a Congressman of Quezon City, because the repeal of
Section 67 of the Omnibus Election Code covers both elective national and local officials.
(1991) Discuss the disputable presumptions: (a) of conspiracy to bribe voters and
Under Sec, 28 of the Electoral Reforms Law proof that at least one voter in different precincts
representing at least twenty per cent of the total precincts in any municipality, city or province was offered,
promised or given money, valuable consideration or other expenditure by the relatives, leader or
sympathizer of a candidate for the purpose of promoting the candidacy of such candidate, gives rise to a
disputable presumption of conspiracy to bribe voters.
(b) of the involvement of a candidate and of his principal campaign managers in such
conspiracy.
Under Sec. 28 if the proof affects at least 20% of the precincts of the municipality, city or province
to which the public office aspired for by the favored candidate relates, this shall constitute a disputable
presumption of the involvement of the candidate and of his principal campaign managers in each of the
municipalities concerned, in the conspiracy.
(2009) Despite lingering questions about his Filipino citizenship and his one-year residence
in the district, Gabriel filed his certificate of candidacy for congressman before the deadline set by
law. His opponent, Vito, hires you as lawyer to contest Gabriel’s candidacy. Before Election Day,
what action or actions will you institute against Gabriel, and before which court, commission or
tribunal will you file such action/s? Reasons. (2%).
File with COMELEC in division, a petition to deny due course or to cancel Certificate of Candidacy
within 25 days from the time of filing of the COC on the ground of material representation contained in
the certificate is false; or file a petition with the COMELEC in division to cancel the COC because he is a
nuisance candidate. There must be a showing that: (1) The COC was filed to put the election process in a
mockery or disrepute; (2) Cause confusion among voters by similarity of names of registered candidates;
(3) By other circumstances or acts which demonstrate that a candidate has no bona fide intention to run
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for the office for which his certificate of candidacy has been filed, and thus prevent a faithful determination
of the true will of the electorate.
If, during the pendency of such action/s but before election day, Gabriel withdraws his
certificate of candidacy, can he be substituted as candidate? If so, by whom and why? If not, why
or why not?
No. when the candidate who withdraws is an independent candidate, he cannot be substituted.
Under the law, if after the last day for the filing of certificates of candidacy, an official candidate of a
registered or accredited political party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a certificate of candidacy to replace the
candidate who dies, withdrew or was disqualified not later than mid-day of the day of the election (sec.76,
OEC).
Since there is no showing in the present case that Gabriel is a member of a registered political party, in
no moment could he be substituted if he withdraws his COC.
If the action/s instituted should be dismissed with finality before the election, and Gabriel
assumes office after being proclaimed the winner in the election, can the issue of his candidacy
and/or citizenship and residence still be questioned? If so, what action or actions may be filed and
where? If not, why not? (2%)
Yes, a petition for quo warranto may be filed with the House of Representative Electoral Tribunal
questioning his eligibility to continue to hold such elective position. A quo warranto proceeding may be
filed by any citizen of the Philippine questioning the eligibility of an elective officer with respect to his
continued possession of the qualifications of age, citizenship, and residency, as the case may be. Should
the action prosper and a decision be rendered against the elective official, the latter shall be removed from
office leaving the position vacant. Moreover, the Sole judge to hear and decide concerning the election,
returns and qualification of the members of the House of Representative is the HRET. The HRET shall
have jurisdiction over the election contest when the candidate has been proclaimed, taken his oath and
assumed to office.
(1990) A filed a protest with the House Electoral Tribunal questioning the election of B as
Member of the House of Representatives in the 1987 national elections on the ground that B is not
a resident of the district the latter is representing. While the case was pending. B accepted an adinterim appointment as Secretary of the Department of Justice. (1) May A continue with his
election protest in order to determine the real winner in the said elections? State your reason.
No. A may not continue with his protest. There is no dispute as to who was the winner in the
election, as it is not disputed that it was B who obtained the majority. The purpose of the protest is simply
to seek the removal of B from office on the ground that he is ineligible. However, B forfeited his claim to
the position of congressman by accepting an ad interim appointment as Secretary of Justice, the protest
against him has become moot. Nothing will be gained by resolving it. In the case of Purisima v. Solis, 43
SCRA 123, it was held that where a protestant in an election case accepted his appointment as judge, he
abandoned his claim to the public office involved in the protest. Hence, the protest must be dismissed for
having become moot. Similarly, in Perez v Provincial Board of Nueva Ecija, 113 SCRA 187, it was held that
the claim of a petitioner to an appointive office had become moot, because the petitioner had forfeited his
claim to the office by filing a certificate of candidacy for mayor.
(2001) Under the Omnibus Election Code (B.P. 881, as amended), briefly differentiate an
election protest from a quo warranto case, as to who can file the case and the respective grounds
therefor.
An ELECTION PROTEST maybe filed by a losing candidate for the same office for which the winner
filed his certificate of candidacy. A QUO WARRANTO CASE may be filed by any voter who is a registered
voter in the constituency where the winning candidate sought to be disqualified ran for office. In an
election contest, the issues are: (a) who received the majority or plurality of the votes which were legally
cast and (b) whether there were irregularities in the conduct of the election which affected its results. In
a quo warranto case, the issue is whether the candidate who was proclaimed elected should be disqualified
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because of ineligibility or disloyalty to the Philippines.
(2006) Differentiate an election protest from an action for quo warranto. (2.5%)
An ELECTION PROTEST is a proceeding whereby a losing candidate for a particular position
contests the results of the election on grounds of fraud, terrorism, irregularities or illegal acts committed
before, during or after the casting and counting of votes. On the other hand, a PETITION FOR QUO 158
WARRANTO is filed by any registered voter to contest the election of any candidate on grounds of
ineligibility or disloyalty to the Republic of the Philippines.
(1996) As counsel for the protestant, where will you file an election protest involving a
contested elective position in: (A) the barangay? (B) the municipality? (C) the province? (D) the
city? (E) the House of Representatives?
In accordance with Section 2(2), Article IX-C of the Constitution an election protest involving the
elective position enumerated below should be filed in the following courts or tribunals: (1) Barangay Metropolitan Trial Court, Municipal Circuit Trial Court, or Municipal Trial Court; (2) Municipality Regional Trial Court; (3) Province – COMELEC; (4) City – COMELEC; and (5) Under Section 17. Article VI
of the Constitution, an election protest involving the position of Member of the House of Representatives
shall be filed in the House of Representatives Electoral Tribunal.
(2000) In the elections of May 1992, Cruz and Santos were the candidates for the office of
Municipal Mayor, the term of which was to expire on June 30, 1995. Finding that he won by a
margin of 20 votes, the Municipal Board of Canvassers proclaimed Cruz as the duly elected Mayor.
Santos filed an election protest before the Regional Trial Court (RTC) which decided that it was
Santos who had the plurality of 30 votes and proclaimed him the winner. On motion made, the
RTC granted execution pending the appeal of Cruz to the COMELEC (Comelec) and on this basis.
Santos assumed office and served as Municipal Mayor. In time, the Comelec reversed the ruling of
the RTC and instead ruled that Cruz won by a margin of 40 votes and proclaimed him the duly
elected Municipal Mayor. It is now beyond June 30, 1995. Can Cruz still hold office for the portion
of the term he has failed to serve? Why? (3%)
As held in Malaluan v. COMELEC, 254 SCRA 397 (1996). Cruz can no longer hold office for the
portion of the term he failed to serve since his term has expired.
(1995) Due to violence and terrorism attending the casting of votes in a municipality in
Lanao del Sur during the last 8 May 1995 elections, it became impossible to hold therein free,
orderly and honest elections. Several candidates for municipal positions withdrew from the race.
One candidate for Mayor petitioned the COMELEC for the postponement of the elections and the
holding of special elections after the causes of such postponement or failure of elections shall have
ceased. (1) How many votes of the COMELEC Commissioners may be cast to grant the petition?
Explain.
According to Section 7, Article IX-A of the 1987 Constitution, the COMELEC shall decide by a
MAJORITY VOTE of all its members any case or matter brought before it. In Cua vs. COMELEC, 156 SCRA
582, the Supreme Court stated that a two-to-one decision rendered by a Division of the COMELEC and a
three-to-two decision rendered by the COMELEC en banc was valid where only five members took part in
deciding the case.
(2) A person who was not a candidate at the time of the postponement of the elections
decided to run for an elective position and filed a certificate of candidacy prior to the special
elections. May his certificate of candidacy be accepted? Explain.
No, his certificate of candidacy cannot be accepted. Under Section 75 of the Omnibus Election
Code, as a rule in cases of postponement or failure of election no additional certificate of candidacy shall
be accepted.
(3) Suppose he ran as a substitute for a candidate who previously withdrew his candidacy,
will your answer be the same? Explain.
No, the answer will be different. Under Section 75 of the Omnibus Election Code, an additional
certificate of candidacy may be accepted in cases of postponement or failure of election if there was a
substitution of candidates; but the substitute must belong to and must be endorsed by the same party.
The 1st Legislative District of South Cotabato is composed of General Santos and three
municipalities including Polomolok. During the canvassing proceedings before the District Board
of Canvassers in connection with the 2007 congressional elections, candidate MP objected to the 159
certificate of canvass for Polomolok on the ground that it was obviously manufactured, submitting
as evidence the affidavit of mayoralty candidate of Polomolok. The Certificate of canvass for
General Santos was likewise objected to by MP on the basis of the confirmed report of the local
NAMFREL that 10 elections returns from non-existent precincts were included in the certificate.
MP moved that the certificate of canvass for General Santos be corrected to exclude the results
from the non-existent precincts. The District Board of Canvassers denied both objections and ruled
to include the certificate of canvass. May MP appeal the rulings to the COMELEC? Explain. (6%)
NO. COMELEC’s Jurisdiction over pre- proclamation cases pertains only to elections of
regional, provincial and city officials. (Sec. 15, RA 7166) – No pre-proclamation cases in election of
national officials. For purposes of the elections for President, V-President, Senator and Member of the
House of Representatives, no pre- proclamation cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and appreciation of the election returns or the certificates of
canvass, as the case may be.
ALTERNATIVE ANSWER:
(Sec. 20, RA 7166) Yes. a party adversely affected by the ruling of the board shall immediately
inform the board if he intends to appeal said ruling to the COMELEC. The party adversely affected by the
ruling may file a verified notice of appeal with the board within a non-extendible period of 5 days.
(1987) "A" and "B" were candidates for representatives in the 1987 National Elections, "B"
filed a pre-proclamation contest with the COMELEC on the ground that rampant vote buying and
terrorism accompanied the elections. Particulars were supplied of "B's" followers bought-off and
other followers prevented from casting their votes. The COMELEC dismissed the pre-proclamation
contest on the ground that all the returns appear complete and untampered. Determine if the
COMELEC decided correctly and if "B" has any recourse for contesting "A's" election.
The COMELEC correctly dismissed "B's" PRE-PROCLAMATION CONTEST. Such a contest is
limited to claims that the election returns are incomplete or that they contain material defects or that they
have been tampered with, falsified or prepared under duress or that they contain discrepancies in the
votes credited to the candidates, the difference of which affects the result of the election. (Omnibus
Election Code, sees. 243, 234-236) On the other hand, the question whether or not there was terrorism,
vote buying and other irregularities in the elections cannot be the subject of a pre-proclamation contest
but must be raised in a regular election protest. (Sanchez v. COMELEC, GR. No. 78461; Ponce Enrile v.
COMELEC, G.R. Nos. 79146 & 79212, Aug. 12, 1987; Abes v. COMELEC, 21 SCRA 1252 (1967) ) Since
the basis of "B's" petition is that his followers had been bought while others had been prevented from
casting their ballots, his remedy is to file an election contest and this should be brought in the House or
Senate Electoral Tribunal which, under Art. VI, Sec. 17, is the sole judge of the election, returns and
qualifications of members of each House of Congress.
(1988) In election law, what is a pre- proclamation controversy? Where may it be litigated
with finality? After the ultimate winner has been duly proclaimed, does the loser still have any
remedy to the end than he may finally obtain the position he aspired for in the election? Explain.
A PRE-PROCLAMATION CONTROVERSY refers to any question pertaining to or affecting the
proceedings of the board of canvassers which may be raised by any candidate or by any registered political
party or coalition of political parties before the board or directly with the COMELEC, or any matter raised
under secs. 233-236 of the Omnibus Election Code in relation to the preparation, transmission, receipt,
custody or appreciation of the election returns. (Omnibus Election Code, sec, 241). The COMELEC has
exclusive jurisdiction of all pre-proclamation controversies. (Id., sec. 241) Its decisions become executory
after the lapse of 5 days from receipt by the losing party of the decision, unless restrained by the Supreme
Court. (Id., sec. 246)
A loser may still bring an election contest concerning the election, returns, and qualifications of
the candidate proclaimed. In the case of elective barangay officials, the contest may be filed with the
municipal trial courts; in the case of elective municipal officials, in the Regional Trial Court; in the case
of elective provincial and city officials, in the COMELEC (Art. IX, C, sec. 2(2)); in the case of Senators or 160
Congressmen, in the Senate or House Electoral Tribunals (Art. VI, sec. 17); and in the case of the President
and Vice President, in the Presidential Electoral Tribunal. (Art. VII, sec. 4).
(1997) State how (a) pre-proclamation controversies, on the one hand, and (b) election
protests, on the other, are initiated, heard and finally resolved.
A. PRE-PROCLAMATION CONTROVERSIES
1. Questions affecting the composition or proceedings of the board of canvassers may be initiated
in the board of canvassers or directly with the COMELEC.
2. Questions involving the election returns and the certificates of canvass shall be brought in the
first instance before the board of canvassers only, (Section 17, Republic Act No, 2166.)
3. The board of canvassers should rule on the objections summarily. (Section 20, Republic Act
No. 7166.)
4. Any party adversely affected may appeal to the COMELEC. (Section 20. Republic Act No. 7166.)
5. The decision of the Commission on Election may be brought to the Supreme Court on certiorari
by the aggrieved party, (Section 7, Article IX-A of the Constitution.)
All pre-proclamation controversies pending before the COMELEC shall be deemed terminated at
the beginning of the term of the office involved and the rulings of the board of canvassers shall be deemed
affirmed, without prejudice to the filing of an election protest. However, the proceedings may continue
when on the basis of the evidence presented so far, the COMELEC or the Supreme Court determines that
the petition appears to be meritorious. (Section 16, Republic Act No. 7166)
B. ELECTION CONTESTS. An election protest is initiated by filing a protest containing the
following allegations:
1. The protestant is a candidate who duly filed a certificate of candidacy and was voted for in the
election:
2. The protestee has been proclaimed; and
3. The date of the proclamation, (Miro vs. COMELEC, 121 SCRA 466)
The following have jurisdiction over election contests:
1. Barangay officials - Inferior Court;
2. Municipal officials - Regional Trial Court;
3. Regional, provincial, and city officials - COMELEC (Section 2(2), Art. IX-C of the Constitution);
4. Congressman - House of Representatives Electoral Tribunal.
5. Senators - Senate Electoral Tribunal. (Section 1. Article VI of the Constitution);
6. President and Vice President - Supreme Court (Section 4, Article VII of the Constitution).
The decision of the inferior court in election contests involving barangay officials and of the
Regional Trial Court in election contests involving municipal officials are appealable to the COMELEC.
(Section 2(2). Article IX-C of the Constitution.) The decision of the COMELEC may be brought to the
Supreme Court on certiorari on questions of law. (Rivera vs. COMELEC, 199 SCRA 178) The decision of
the COMELEC in election contests involving regional, provincial and city officials may be brought to the
Supreme Court on certiorari (Section 7, Article IX-A and Section 2(2), Article IX-C of the Constitution.)
The decisions of the Senate Electoral Tribunal and of the House of Representatives Electoral Tribunal may 161
be elevated to the Supreme Court on certiorari if there was grave abuse of discretion. (Lazatin vs COMELEC
168 SCRA 391)
(1996) Give three issues that can be properly raised and brought in a pre- proclamation
contest.
According to Section 243 of the Omnibus Election Code, the following issues can be properly
raised.
1. The composition or proceedings of the board of canvassers are illegal;
2. The canvassed election returns are incomplete, contain material defects, approved to be
tampered with, or contain discrepancy in the same returns or in other authenticated copies;
3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are
obviously manufactured or not authentic; and
4. Substitute or fraudulent returns in controverted polling places were canvassed, the results of
which materially affected the standing of the aggrieved candidate or candidates.
However, according to Section 15 of the Synchronized Election Law no pre-proclamation cases
shall be allowed on matters relating to the preparation, transmission, receipt, custody and appreciation
of the election returns or the certificates of canvass with respect to the positions of President, VicePresident, Senator and Member of the House of Representatives. No pre-proclamation cases are allowed
in the case of barangay elections.
(1987) "A", while of legal age and of sound mind, is illiterate. He has asked your advice on
how he can vote in the coming election for his brother, who is running for mayor. This will be the
first time "A" will vote and he has never registered as a voter before. What advice will you give him
on the procedure he needs to follow in order to be able to vote?
The Constitution provides that until Congress shall have provided otherwise, illiterate and
disabled voters shall be allowed to vote under existing laws and regulations (Art, V, Sec. 2). It is necessary
for any qualified voter to register in order to vote. (Omnibus Election Code, Sec. 115) In the case of
illiterate and disabled voters, their voter's affidavit may be prepared by any relative within the fourth civil
degree of consanguinity or affinity or by any member of the board of election inspectors who shall
prepare the affidavit in accordance with the data supplied by the applicant. (Id., sec. 127)
(1994) 1) What is your understanding of the principle of idem sonans as applied in the Election
Law?
Under Rule No. 7 of the rules for the appreciation of ballots in Section 211 of the Omnibus Election
Code, the idem sonans rule means that a name or surname incorrectly written which, when read, has a
sound similar to the name or surname of a candidate when correctly written shall be counted in his favor.
ALTERNATIVE ANSWERS:
Idem sonans literally means the same or similar sound. This principle is made manifest in one of
the rules for the appreciation of ballots embodied in the Omnibus Election Code (Sec. 211, BP 881) stating
that "A name or surname incorrectly written which when read, has a sound similar to the name or
surname of a candidate when correctly written shall be counted in his favor. Thus, if the name as spelled
in the ballot, though different from the correct spelling thereof, conveys to the ears when pronounced
according to the commonly accepted methods, a sound practically Identical with the sound of the correct
name as commonly pronounced, the name thus given is a sufficient designation of the person referred to.
The question whether one name is idem sonans with another is not a question of spelling but of
pronunciation. (Mandac v. Samonte, 49 Phil. 284). Its application is aimed at realizing the objective of
every election which is to obtain the expression of the voters will.
The term means sounding the same or nearly alike. The rule is based on the Idea that the 162
misspelling of a name or lack of skill in writing should not be taken as a ground for rejecting the votes
apparently intended for a candidate, so long as the intention of the voter appears to be clear. The Supreme
Court has ruled that the principle of idem sonans is liberally construed. Corpuz v. Ibay, 84 Phil. 184
(1949).
(2002) Suppose the people of a province want to recall the provincial governor before the
end of his three-year term of office. (1) On what ground or grounds can the provincial governor be
recalled? (2) How will the recall be initiated? (3) When will the recall of an elective local official be
considered effective?
In accordance with Section 69 of the Local Government Code, the Governor can be recalled for
LOSS OF CONFIDENCE. Under Section 70 of the Local Government Code, the recall may be initiated by
a resolution adopted by a majority of all the members of the preparatory recall assembly, which consists
of all the mayors, the vice-mayors, and the sangguniang members of the municipalities and component
cities, or by a written petition signed by at least twenty-five per cent (25%) of the total number of registered
voters in the province. According to Section 72 of the Local Government Code, the recall of an elective
local official shall take effect upon the election and proclamation of a successor in the person of the
candidate receiving the highest number of votes cast during the election on recall.
(2002) Suppose A, a Municipal Mayor, went on a sick leave to undergo medical treatment
for a period of four (4) months. During that time; (1) Will B, the Municipal Vice-Mayor, be performing
executive functions? Why? (2%)
Since the Municipal Mayor is temporarily incapacitated to perform his duties, in accordance with
Section 46(a) of the Local Government Code, the Municipal Vice-Mayor shall exercise his powers and
perform his duties and functions. The Municipal Vice-Mayor will be performing executive functions,
because the functions of the Municipal Mayor are executive.
Will B at the same time be also performing legislative functions as presiding officer of the
Sangguniang Bayan? Why?
The Municipal Vice-Mayor cannot continue as presiding officer of the Sangguniang Bayan while
he is acting Municipal Mayor. In accordance with Gamboa v. Aguirre, 310 SCRA 867 (1999), under the
Local Government Code, the Vice-Municipal Mayor was deprived of the power to preside over the
Sangguniang Bayan and is no longer a member of it. The temporary vacancy in the office of the Municipal
Mayor creates a corresponding temporary vacancy in the Office of the Municipal Vice-Mayor when he acts
as Municipal Mayor. This constitutes inability on his part to preside over the sessions of the Sangguniang
Bayan.
(1995) The Vice Mayor of a municipality filed his certificate of candidacy for the same office
in the last elections. The Municipal Mayor was also running for re-election. Both were official
candidates of the same political party. After the last day for the filing of certificates of candidacy,
the Mayor died. Under these facts: (1) Can the Vice Mayor succeed to the office of Mayor pursuant
to the provisions of the Local Government Code? Explain.
Yes, the vice mayor can succeed to the office of mayor. Under Section 44 of the Local Government
Code, he stands next in line to the office of mayor in case of a permanent vacancy in it. His filing of a
Certificate of Candidacy for Mayor did not automatically result to his being considered resigned (Sec. 67,
Omnibus Election Code).
Assuming that the Vice Mayor succeeds to the position of Mayor after the incumbent died,
which position is now different from the one for which he has filed his certificate of candidacy, can
he still continue to run as Vice Mayor? Explain.
Yes, the vice mayor can continue to run as vice mayor. At the time that he filed his certificate of
candidacy, the vice mayor ran for the same office he was holding. In determining whether a candidate is
running for a position other than the one he is holding in a permanent capacity and should be considered
resigned, it is the office he was holding at the time he filed his certificate of candidacy should be considered.
Is there any legal impediment to the Vice Mayor to replace the re-electionist Mayor who
died? Explain.
There is no legal impediment to the vice mayor running as mayor to replace the vice mayor who
died under Section 77 of the Omnibus Election Code, if a candidate dies after the last day for filing
certificates of candidacy, he may be replaced by a person belonging to his political party. However, it is
required that he should first withdraw his Certificate of Candidacy for Vice-Mayor and file a new Certificate
of Candidacy for Mayor.
(2010) Governor Diy was serving his third term when he lost his governorship in a recall
election. Who shall succeed Governor Diy in his office as Governor?
The candidate who received the highest number of votes in the recall will succeed Governor Diy
(Section 72 of the Local Government Code).
Can Governor Diy run again as governor in the next election?
Yes, because recall election is an interruption of the consecutiveness of the term of office it cannot
be counted. A recall election is a mid-way election and the term is not completed when one is conducted.
The third term of Governor Diy should not be included in computing the three-term limit. (Lonzanida vs.
Commission on Elections, 311 SCRA 602 [1999]).
Can Governor Diy refuse to run in the recall election and instead resign from his position
as governor?
Governor Diy cannot refuse to run in the recall election. He is automatically considered as a duly
registered candidate. (Section 71, Local Government Code).
ALTERNATIVE ANSWER:
YES, Governor Diy is not compelled to run in a recall election. Recall election is called because
the electorate has lost confidence to the elective official. He may instead resign from his position.
(2008) On august 8, 2008, the Governor of Bohol died and Vice-Governor Cesar succeeded
him by operation of law. Accordingly, Benito, the highest ranking member of the Sangguniang
Panlalawigan was elevated to the position of Vice-Governor. By the elevation of Benito to the Office
of Vice-Governor, a vacancy in the Sangguniang Panlalawigan was created. How should the vacancy
be filled?
(sec. 44-46, RA 7160) The vacancy shall be filled in the following manner: (1) If Benito is affiliated
with a political party, the vacancy in the Sangguiniang Panlalawigan shall be filled by a nomination and
certificate of membership of the appointee from the highest official of the political party. (must be filled
with someone who belongs to the political party to maintain the party representation as willed by the
people in the election). (2) If Benito is not affiliated with a political party, the vacancy shall be filled by the
PRESIDENT through the executive secretary.
(2002) A vacancy occurred in the sangguniang bayan of a municipality when X, a member,
died. X did not belong to any political party. To fill up the vacancy, the provincial governor
appointed A upon the recommendation of the sangguniang panlalawigan. On the other hand, for
the same vacancy, the municipal mayor appointed B upon the recommendation of the sangguniang
bayan. Which of these appointments is valid? (5%)
163
As held in Farinas v. Barba, 256 SCRA 396 (1996), neither of the appointments is valid. Under
Section 45 of the Local Government Code, in case of a permanent vacancy in the Sangguniang Bayan
created by the cessation in office of a member who does not belong to any political party, the Governor
shall appoint a qualified person recommended by the Sangguniang Bayan. Since A was not recommended
by the Sangguniang Bayan, his appointment by the Governor is not valid. Since B was not appointed by
the Governor but by the Municipal Mayor, his appointment is also not valid.
COMELEC AS A BODY
(2012) Mayor Pink is eyeing re-election in the next mayoralty race. It was common
knowledge in the town that Mayor Pink will run for re-election in the coming elections. The
deadline for filing of Certificate of Candidacy (CoC) is on March 23 and the campaign period
commences the following day. One month before the deadline, Pink has yet to file her CoC, but she
has been going around town giving away sacks of rice with the words "Mahal Tayo ni Mayor Pink"
printed on them, holding public gatherings and speaking about how good the town is doing, giving
away pink t-shirts with "Kay Mayor Pink Ako" printed on them. Mr. Green is the political opponent
of Mayor Pink. In April, noticing that Mayor Pink had gained advantage over him because of her
activities before the campaign period, he filed a petition to disqualify Mayor Pink for engaging in
an election campaign outside the designated period. Which is the correct body to rule on the
matter? Comelec en banc, or Comelec division? Answer with reasons. (2%)
It is the Commission on elections en banc which should decide the petition. Since it involves the
exercise of the administrative powers of the Commission on Elections, Section 3, Article IX-C of the
Constitution is not applicable. (Baytan vs. Commission on Elections, 396 SCRA 703.)
Rule on the petition. (5%)
The petition should be denied. Under Section 80 of the Omnibus Election Code, to be liable for
premature campaigning he must be a candidate. Unless he filed his certificate of candidacy, he is not a
candidate. (Lanot vs. Commission on Elections, 507 SCRA 114.)
Distinguish briefly between Quo Warranto in elective office and Quo Warranto in appointive
office. (3%)
In quo warranto in elective office, the issue is the ineligibility of the elected candidate. (Section
3(e), Rule 1, Rules of Procedure in Election Cases.) If he is ineligible, the candidate who got the second
highest number of votes cannot be proclaimed elected. (Sinsuat vs. Commission on Elections, 492 SCRA
264.) A voter may file a petition for quo warranto against an elected candidate. The petition should be filed
within ten days after the proclamation of the elected candidate. In quo warranto in appointive office, the
issue is the legality of the appointment. The court will decide who
between the parties has the legal
title to the office. (Nachura, Outline Reviewer in Political Law, p.567.) It is the Solicitor General, a public
prosecutor, or a person claiming to be entitled to the public office can file a petition for quo warranto
against an appointive official. (Section 2 and 5, Rule 66 of the Rules of Court.) The Petition should be filed
within one year after the cause of action accrued. (Section 11, Rule 66 of the Rules of Court.)
(1989) A COMELEC (COMELEC) resolution provides that political parties supporting a
common set of candidates shall be allowed to purchase jointly air time and the aggregate amount
of advertising space purchased for campaign purposes shall not exceed that allotted to other
political parties or groups that nominated only one set of candidates. The resolution is challenged
as a violation of the freedom of speech and of the press. Is the resolution constitutionally
defensible? Explain.
Yes, the resolution is constitutionally defensible. Under Section 4, Article IX-C of the 1987
Constitution, during the election period the COMELEC may supervise or regulate the media of
communication or information to ensure equal opportunity, time, and space among candidates with the
objective of holding free, orderly, honest, peaceful, and credible elections. To allow candidates which are
supported by more than one political party to purchase more air time and advertising space than
candidates supported by one political party only will deprive the latter of equal time and space in the
media.
164
ALTERNATIVE ANSWER:
No. Although the expenditure limitation applies only to the purchase of air time, thus leaving
political parties free to spend for other forms of campaign, the limitation nonetheless results in a direct
and substantial reduction of the quantity of political speech by restricting the number of issues that can
be discussed, the depth of their discussion and the size of the audience that can be reached, through the
broadcast media. Since the purpose of the Free Speech Clause is to promote the widest possible 165
dissemination of information, and the reality is that to do this requires the expenditure of money, a
limitation on expenditure for this purpose cannot be justified, not even for the purpose of equalizing the
opportunity of political candidates. This is the ruling in Buckley vs. Valeo, 424 U.S. 1 (1976), which
invalidated a law limiting the expenditures of candidates for campaigning in the United States. In the
Philippines, a provision of the Tañada-Singson Law, limiting the period for campaigning, was nearly
invalidated on this same principle, except that the majority of court lacked one more vote to make their
decision effective. (See Gonzalez vs. Comelec, 27 SCRA 835 (1969).
(2010) During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested at a
PNP checkpoint for carrying high-powered firearms in his car. He was charged and convicted for
violation of the COMELEC gun ban. He did not appeal his conviction and instead applied for
executive clemency. Acting on the favorable recommendation of the Board of Pardons and Parole,
the President granted him pardon. Is he eligible to run against for an elective position? Explain
Briefly.
Mayor Galicia can run again for an elective office but not immediately. Under Section 40 of the
Local Government Code, he cannot run for an elective office within two (2) years after serving sentence.
Under Section 12 of the Omnibus Election Code, he can run for an elective national office after the
expiration of five (5) years from his service of sentence. The pardon granted to him is invalid. The offense
involved a violation of the Omnibus Election Code and the pardon was granted without the favorable
recommendation of the Commission on Elections. (Section 5, Article IX-C of the Constitution).
ALTERNATIVE ANSWER:
No. Galicia is not eligible to run for an elective position because the executive clemency is not
valid and effective because it was granted with constitutional
infirmity. The Constitution requires
recommendation from the COMELEC before the President may grant executive clemency for offenses
violating election laws.
(1991) In connection with the May 1987 Congressional elections, Luis Millanes was
prosecuted for and convicted of an election offense and was sentenced to suffer imprisonment for
six years. The court did not impose the additional penalty of disqualification to hold public office
and of deprivation of the right of suffrage as provided for in Section 164 of the Omnibus Election
Code of the Philippines (B.P. Blg. 881). In April 1991, the President granted him absolute pardon
on the basis of a strong recommendation of the Board of Pardons and Parole. Then for the election
in May 1992, Luis Millanes files his certificate of candidacy for the office of Mayor in his
municipality. (1) What is the effect of the failure of the court to impose the additional penalty?
No need to expressly impose – they are accessory penalties.
(2) Is the pardon valid?
The pardon is void, since Luis Millanes was convicted for the commission of an election offense
and his pardon was not made upon the recommendation of the COMELEC. Under Article IX, C, Sec. 5 of
the Constitution, no pardon for violation of an election law may be granted without the favorable
recommendation of the COMELEC
(2001) In an election protest involving the position of Governor of the Province of Laguna
between "A", the protestee, and "B", the protestant, the First Division of the COMELEC rendered a
decision upholding B's protest. Can "A" file a petition for certiorari with the Supreme Court under
Rule 65 of the Rules of Court, from the decision of the COMELEC First Division? If yes. Why? If
not what procedural step must he undertake first? (5%)
"A" cannot file a petition for certiorari with the Supreme Court. As held in Mastura vs. COMELEC,
285 SCRA 493 (1998), the Supreme Court cannot review the decisions or resolutions of a division of the
COMELEC. "A" should first file a motion for reconsideration with the COMELEC en banc.
(1998) Suppose a Commissioner of the COMELEC is charged before the Sandiganbayan for
allegedly tolerating violation of the election laws against proliferation of prohibited billboards and
election propaganda with the end in view of removing him from office. Will the action prosper? 166
[5%]
No, the action will not prosper. Under Section 8, Article XI of the Constitution, the Commissioners
of the COMELEC are removable by IMPEACHMENT. As held in the case of in re Gonzales. 160 SCRA 771,
774- 775, a public officer who is removable by impeachment cannot be charged before the Sandiganbayan
with an offense which carries with it the penalty of removal from office unless he is first impeached.
Otherwise, he will be removed from office by a method other than Impeachment.
(2001) Let us suppose that Congress enacted a law which amended the Omnibus Election
Code (particularly Sections 138, 139, 142, 143) by vesting, in the COMELEC the jurisdiction over
inclusion and exclusion cases filed by voters, instead of in the courts (MTC, then RTC). Is the law
valid or not, and why? (5%)
The law granting the COMELEC jurisdiction over inclusion and exclusion cases is
unconstitutional. Under Section 2(3), Article IX- C of the Constitution, the COMELEC cannot decide the
right to vote, which refers to the inclusion and exclusion of voters. Under Section 2(6), Article IX-C of the
Constitution, it can only file petitions in court for inclusion or exclusion of voters.
COMMISSION ON AUDIT
[2017] The Congress establishes by law Philippine Funds, Inc., a private corporation, to
receive foreign donations coming from abroad during national and local calamities and disasters,
and to enable the unhampered and speedy disbursements of the donations through the mere action
of its Board of Directors. Thereby, delays in the release of the donated funds occasioned by the
stringent rules of procurement would be avoided. Also, the releases would not come under the
jurisdiction of the Commission on Audit (COA). A. Is the law establishing Philippine Funds, Inc.
constitutional? Explain.
No. All GOCCs should be subject to COA regardless of their incorporation. Funds received by the
government by means of any of its proprietary act, or through its power of taxation, or through any
gratuitous act shall accrue to the national treasury. All funds accrued to the national treasury are public
funds, subject to the jurisdiction of COA. The Congress are the only governmental department vested with
the power of appropriation and such power cannot be delegated to any department or instrumentalities of
the government.
Can the Congress pass the law that would exempt the foreign grants from the jurisdiction
of the COA? Explain your answer.
No. All donations especially foreign aids/grants cannot be without the jurisdiction of COA.
(2014) Towards the end of the year, the Commission on Audit (COA) sought the remainder
of its appropriation from the Department of Budge t and Management (DBM). However, the DBM
refused because the COA had not yet submitted a report on the expenditures relative to the earlier
amount released to it. And, pursuant to the "no report, no release" policy of the DBM, COA is not
entitled to any further releases in the meantime. COA counters that such a policy contravenes the
guaranty of fiscal autonomy granted by the Constitution. Is COA entitled to receive the rest of its
appropriations even without complying with the DBM policy? (4%)
The Commission on Audit is entitled to receive the rest of its appropriations even without
complying with the policy of the Department of Budget and Management. Section 5, Article IX-A of the
Constitution provides that its approved annual appropriation shall be automatically and regular released.
The Secretary of Budget and Management cannot make the release of the appropriations subject to the
submissions of reports (Civil Service Commission Vs Department of Budget and Management, 464 SCRA
115 (2005))
(2001) The Philippine National Bank was then one of the leading government-owned banks
and it was under the audit jurisdiction of the Commission on Audit (COA). A few years ago, it was
privatized. What is the effect, if any, of the privatization of PNB on the audit Jurisdiction of the 167
COA? (5%)
In accordance with the ruling in Philippine Airlines vs. Commission on Audit, 245 SCRA 39,
(1995), since the Philippine National Bank is no longer owned by the Government, the Commission on
Audit no longer has jurisdiction to audit it as an institution. Under Section 2(2), Article IX-D of the
Constitution, it is government-owned or controlled corporations and their subsidiaries which are subject
to audit by the Commission on Audit. However, in accordance with Section 2(1), Article IX-D of the
Constitution, the Commission on Audit can audit the Philippine National Bank with respect to its accounts
because the Government still has equity in it.
(1998) The Department of National Defense entered into a contract with Raintree
Corporation for the supply of ponchos to the Armed Forces of the Philippines (AFP), stipulating
that, in the event of breach, action may be filed in the proper courts in Manila. Suppose the AFP
fails to pay for delivered ponchos, where must Raintree Corporation file its claim? Why?
Raintree Corporation must file its claim with the Commission on Audit, Under Section 2(1) IX of
the Constitution, the Commission on Audit has the authority to settle all accounts pertaining to
expenditure of public funds. Raintree Corporation cannot file a case in court. The Republic of the
Philippines did not waive its immunity from suit when it entered into the contract with Raintree
Corporation for the supply of ponchos for the use of the Armed Forces of the Philippines. The contract
involves the defense of the Philippines and therefore relates to a sovereign function.
In United States vs. Ruiz, 136 SCRA 487, 492, the Supreme Court held; "The restrictive
application of State immunity is proper only when the proceedings arise out of commercial transactions
of the foreign sovereign. Its commercial activities or economic affairs. Stated differently, a State may be
said to have descended to the level of an individual and can thus be deemed to have tacitly given its
consent to be sued only when it enters into business contracts. It does not apply where the contract relates
to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base
which is devoted to the defense of both the United States and the Philippines, indisputably a function of
the government of the highest order; they are not utilized for nor dedicated to commercial or business
purposes." The provision for venue in the contract does not constitute a waiver of the State Immunity from
suit, because the express waiver of this immunity can only be made by a statute. In Republic us. Purisima
78 SCRA 470, 474, the Supreme Court ruled: "Apparently respondent Judge was misled by the terms of
the contract between the private respondent, plaintiff in his sala and defendant Rice and Corn
Administration which, according to him, anticipated the case of a breach of contract between the parties
and the suits that may thereafter arise. The consent, to be effective though, must come from the State
acting through a duly enacted statute as pointed out by Justice Bengzon in Mobil."
ALTERNATIVE ANSWER:
In accordance with the doctrine of exhaustion of administrative remedies, Raintree Corporation
should first file a claim with the Commission on Audit. If the claim is denied, it should file a petition for
certiorari with the Supreme Court.
ARTICLE X: LOCAL GOVERNMENT
(2016) A law converted the component city of Malumanay, Laguna into a highly urbanized
city. The Local Government Code (LGC) provides that the conversion "shall take effect only after it
is approved by the majority of votes cast in a plebiscite to be held in the political units directly
affected." Before the COMELEC, Mayor Xenon of Malumanay City insists that only the registered
voters of the city should vote in the plebiscite because the city is the only political unit directly
affected by the conversion. Governor Yuri asserts that all the registered voters of the entire
province of Laguna should participate in the plebiscite, because when the LGC speaks of the
"qualified voters therein," it means all the voters of all the political units affected by such
conversion, and that includes all the voters of the entire province. He argues that the income,
population and area of Laguna will be reduced. Who, between Mayor Xenon and Governor Yuri, is
correct? Explain your answer. (5%)
Governor Yuri is correct. All the registered voters of the Province of Laguna should be included in
the plebiscite. The conversion of the City of Malumanay into a highly urbanized city will adversely affect
the Province of Laguna and its residents. The territory of the Province of Laguna will be reduced. Its share
in the internal revenue allotment will be reduced, because the population and land area are included as
basis for determining its share. Once the City of Malumanay becomes a highly urbanized city, the Province
of Laguna will no longer share in the taxes collected by the City of Malumanay. The City of Malumanay
will be under the supervision of the President instead of the Province of Laguna. Decisions of the City of
Malumanay in administrative cases involving barangay officials will no longer be appealable to the
Sanguniang Panlalawigan. The registered voters of the City of Malumanay will no longer be entitled to vote
for provincial officials. To limit the plebiscite to the voters of the City of Malumanay would nullify the
principle of majority rule. (Umali vs. Commission on Elections, 723 SCRA 170 [2014]).
(2015) On August 15, 2015, Congresswoman Dina Tatalo filed and sponsored House Bill No.
5432, entitled "An Act Providing for the Apportionment of the Lone District of the City of
Pangarap." The bill eventually became a law, R.A. No. 1234. It mandated that the lone legislative
district of the City of Pangarap would now consist of two (2) districts. For the 2016 elections, the
voters of the City of Pangarap would be classified as belonging to either the first or second district,
depending on their place of residence. The constituents of each district would elect their own
representative to Congress as well as eight (8) members of the Sangguniang Panglungsod. R.A. No.
1234 apportioned the City's barangays. The COMELEC thereafter promulgated Resolution No. 2170
implementing R.A. No. 1234. Piolo Cruz assails the COMELEC Resolution as unconstitutional.
According to him, R.A. No. 1234 cannot be implemented without conducting a plebiscite because
the apportionment under the law falls within the meaning of creation, division, merger, abolition
or substantial alteration of boundaries of cities under Section 10, Article X o f the 1987
Constitution. Is the claim correct? Explain. (4%)
No, Piolo Cruz’s claim in incorrect. While the Constitution and the Local Government Code
expressly require a plebiscite to carry out any creation, division, merger, abolition or alteration of the
boundary of a local government unit, no plebiscite requirement exists under the apportionment or
reapportionment provision (Bagabuyo v. COMELEC). In the case at bar, RA 1234 merely increased its
representation in the House of Representatives. There was no creation, division, merger, abolition or
alteration of a local government unit that took place. RA 1234 did not bring about any change in the City
of Pangarap’s territory, population and income classification. Hence no plebiscite is required.
(2014) From an existing province, Wideland, Congress created a new province, Hundred Isles,
consisting of several islands, with an aggregate area of 500 square kilometers. The law creating
Hundred Isles was duly approved in a plebiscite called for that purpose. Juan, a taxpayer and a
resident of Wideland, assailed the creation of Hundred Isles claiming that it did not comply with
the area requirement as set out in the Local Government Code, i.e., an area of at least 2,000 square
kilometers. The proponents justified the creation, however, pointing out that the Rules and
Regulations Implementing the Local Government Code states that "the land area requirement shall
not apply where the proposed province is composed of one (1) or more islands." Accordingly, since
the new province consists of several islands, the area requirement need not be satisfied. How
tenable is the position of the proponents? (4%)
The position of the proponents is tenable. The Supreme Court has clarified that, when a province
is composed of one or more islands, its creation need not comply with the 2,000 square kilometer
contiguous territory requirement under the provisions of the Local Government Code. Article 9 (2) of the
Implementing Rules and Regulations of the Local Government Code provided the exemption. Sections 442
and 450 of the Local Government Code exempted municipalities and component cities from the area
requirement if they consist of one or more islands. While there are no similar provisions for provinces,
168
there is no reason why the exemption should not apply to them. There is a greater likelihood that an island
or group of island will form part of the area of a province (Navarro vs Ermita. 648 SCRA 400 (2011))
(2004) MADAKO is a municipality composed of 80 barangays, 30 west of Madako River and
50 easts thereof. The 30 western barangays, feeling left out of economic initiatives, wish to
constitute themselves into a new and separate town to be called Masigla. Granting that Masigla’s
proponents succeed to secure a law in their favor, would a plebiscite be necessary o r n o t ? If 169
it is necessary, who should vote or participate in the plebiscite? Discuss briefly. (5%)
A plebiscite is necessary, because this is required for the creation of a new municipality. (Section
10, Article X of the 1987 Constitution.) The voters of both Madako and Masigla should participate in the
plebiscite, because both are directly affected by the creation of Masigla. The territory of Madako will be
reduced. (Tan v. COMELEC, 142 SCRA 727 [1986). De Facto Public Corporations; Effect (2004) NO. VII MADAKO is a municipality composed of 80 barangays, 30 west of Madako River and 50 easts thereof. The
30 western barangays, feeling left out of economic initiatives, wish to constitute themselves into a new
and separate town to be called Masigla. A law is passed creating Masigla and a plebiscite is made in favor
of the law.
Suppose that one year after Masigla was constituted as a municipality, the law creating it
is voided because of defects. Would that invalidate the acts of the municipality and/or its
municipal officers? Explain briefly. (5%)
Although the municipality cannot be considered as a de facto corporation, because there is no
valid law under which it was created, the acts of the municipality and of its officers will not be invalidated,
because the existence of the law creating it is an operative fact before it was declared unconstitutional.
Hence, the previous acts of the municipality and its officers should be given effect as a matter of fairness
and justice. (Municipality of Malabang v. Benito, 27 SCRA 533 [1969]
(2010) Boundary disputes between and among municipalities in the same province may be
filed immediate with the RTC.
FALSE. Should be referred for settlement to the SANGGUNIANG PANLALAWIGAN concerned (see.
Sec. 118, RA No.7160; Municipality of Sta. Fe vs. Municipality of Artao, 533 SCRA 586 [2007]).
(2005) There was a boundary dispute between Duenas, a municipality, and Passi, an
independent component city, both of the same province. State how the two local government units
should settle their boundary dispute.
Boundary disputes between local government units should, as much as possible, be settled
amicably. After efforts at settlement fail, then the dispute may be brought to the appropriate Regional Trial
Court in the said province. Since the Local Government Code is silent as to what body has exclusive
jurisdiction over the settlement of boundary disputes between a municipality and an independent
component city of the same province, the Regional Trial Courts have general jurisdiction to adjudicate the
said controversy. (Mun. of Kananga v. Madrona, G.R. No. 141375, April 30, 2003)
(1999) What body or bodies are vested by law with the authority to settle disputes
involving: (1) two or more towns within the same province;
Under Section 118(b) of the Local Government Code, boundary disputes involving two or more
municipalities within the same province shall be settled by the sangguniang panlalawigan concerned.
Two or more highly urbanized cities. (1%)
Under Section 118(d) of the Local Government Code, boundary disputes involving two or more
highly urbanized cities shall be settled by the sangguniang panlungsod of the parties.
(1999) On May 17, 1988, the position of Provincial Budget Officer of Province X became
vacant. Pedro Castahon, governor of the province, pursuant to Sec. 1 of E.O. No. 112, submitted
the names of three nominees for the aforesaid position to the Department of Budget Management
(DBM), one of whom was that of Marta Mahonhon. A month later, Castahon informed the DBM that
Mahonhon had assumed the office of PBO and requested that she be extended the appropriate
appointment. The DBM Secretary appointed Josefa Kalayon instead. Castahon protested the
appointment of Kalayon insisting that it is he who had the right to choose the PBO by submitting
the names of his three nominees and Kalayon was not one of them. The DBM countered that none
of the governor's nominees have the necessary qualifications for the position. Specifically,
Mahonhon lacked the five-year experience in budgeting. Hence, the DBM was left with no 170
alternative but to name one who possesses all the requisite qualifications in the person of Kalayon.
It cited Section 6.0 of the DBM Local Budget Circular No. 31 which states, "The DBM reserves the
right to fill up any existing vacancy where none of the nominees of the local chief executive meet
the prescribed requirements." Was the DBM's appointment valid? (2%)
Under Section 1 of Executive Order No. 112, the Provincial Budget Officer must be recommended
by the Governor. Since Josefa Kalayon was not recommended by the Governor, her appointment is not
valid. As held in San Juan v. Civil Service Commission, 196 SCRA 69, if the person recommended by the
Governor is not qualified, what the Secretary of Budget and Management should do is to ask him to
recommend someone who is eligible.
What can you say regarding the above-quoted Section 6.0 of DBM's Local Budget Circular
No. 31? Explain your answers. (2%)
DBM Local Budget Circular No. 31 is not valid, since it is inconsistent with Executive Order No.
112, which requires that the appointee for Provincial Budget Officer be recommended by the Governor.
(Under the Local Government Code, it is now the local chief executive who is empowered to appoint the
budget officer).
(1999) Define devolution with respect to local government units.
Section 17(e) of the Local Government Code defines devolution as the act by which the National
Government confers power and authority upon the various local government units to perform specific
functions and responsibilities.
(1988) Macabebe, Pampanga has several barrios along the Pampanga river. To service the
needs of their residents the municipality has been operating a ferry service at the same river, for
a number of years already. Sometime in 1987, the municipality was served a copy of an order from
the Land Transportation Franchising and Regulatory Board (LTFRB), granting a certificate of public
convenience to Mr. Ricardo Macapinlac, a resident of Macabebe, to operate ferry service across the
same river and between the same barrios being serviced presently by the municipality's ferry boats.
A check of the records of the application of Macapinlac shows that the application was filed some
months before, set for hearing, and notices of such hearing were published in two newspapers of
general circulation in the town of Macabebe, and in the province of Pampanga. The municipality
had never been directly served a copy of that notice of hearing nor had the Sangguniang Bayan
been requested by Macapinlac for any operate. The municipality immediately filed a motion for
reconsideration with the LTFRB which was denied. Then they went to the Supreme Court on a
petition for certiorari to nullify the order granting a certificate of public convenience to Macapinlac
on two grounds: (1) Denial of due process to the municipality; and (2) For failure of Macapinlac to
secure approval of the Sangguniang Bayan for him to operate a ferry service in Macabebe. Resolve
the two points in the petition with reasons.
The petition for certiorari should be granted. (1) As a party directly affected by the operation of
the ferry service, the Municipality of Macabebe, Pampanga was entitled to be directly notified by the
LTFRB. (2) It has been held that where a ferry operation lies entirely within the municipality, the prior
approval of the Municipal government is necessary. Once approved, the operator must then apply with
the LTFRB for a certificate of public convenience and shall be subject to LTFRB supervision, (Municipality
of Echague v. Abellera, supra).
(2007) The Provincial Governor of Bataan requested the Department of Budget and
Management (DBM) to release its Internal Revenue Allocation (IRA) of P100 million for the current
budget year. However, the General Appropriations Act provided that the IRA may be released only
if the province meets certain conditions as determined by an Oversight Council created by the
President. Is this requirement valid?
No, this requirement is not valid. Under the 1987 Constitution, it is provided that “local
government units shall have a just share, as determined by law, in the national taxes which shall
be automatically released to them.” As held in the case of Alternative Center for Organizational
Reforms and Development, et.al. v. Zamora, G.R. No. 144256 (June 08, 2005), a basic feature of local 171
fiscal autonomy is the automatic release of the shares of LGUs in the national internal revenue. The Local
Government Code specifies further that the release shall be made directly to the LGU concerned within
five (5) days after every quarter of the year and “shall not be subject to any lien or holdback that may be
imposed by the national government for whatever purpose.”
The Provincial Governor is a party-mate of the President. May the Bataan Representative
instead file a petition to compel the DBM to release the funds?
Yes. A congressman from a particular LGU may validly have standing to demand that IRA for his
province be released in accordance with the Constitution and the Local Government Code. As a
representative of his province, he has a responsibility towards his constituencies who can expect no less
than faithful compliance with the Constitution. Moreover, the issue presented could be characterized as
involving transcendental importance to the people and the local government units which had been
guaranteed greater local autonomy.
(2006) State whether or not the law is constitutional. Explain briefly. (1) A law fixing the
terms of local elective officials, other than barangay officials, to 6 years. (2%)
The law is invalid. Under Article X, Section 8 of the 1987 Constitution, "the term of office of elective
local officials, except barangay officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms." The law clearly goes against the aforesaid
constitutional requirement of three year terms for local officials except for barangay officials.
(2010) Define / Explain. (1) De facto municipal corporation
DE FACTO MUNICIPAL CORPORATION. De facto municipal corporation is a public corporation
that exists although it has not complied with the statutory requirements like: (1) Authorization by a valid
law (2) A colorable and bona fide attempt to organize under a valid law (3) An assumption of powers
conferred under the law (4) It primarily attends to the needs of the general welfare.
(2) Municipal corporation by estoppels
MUNICIPAL CORPORATION BY ESTOPPELS - A municipal corporation by estoppels is a
corporation which is so defectively formed as not to be a de facto corporation but is considered a
corporation in relation to someone who dealt with it and acquiesced in its exercise of its corporate functions
or entered into a contract with it. (Martin, Public Corporations, 1985 ed.p.20)
(2009) The Municipality of Bulalakaw, Leyte, passed ordinance
no. 1234, authorizing
the expropriation of two parcels of land situated in the poblacion as the site of a freedom park, and
appropriating the funds needed therefor. Upon review, the Sangguniang Panlalawigan of Leyte
disapproved the ordinance because the municipality has an existing freedom park which, though
smaller in size, is still suitable for the purpose, and to pursue expropriation would be needless
expenditure of the people’s money. Is the disapproval of the ordinance correct? Explain you answer.
(2%).
The Local Government Unit can exercise the power of eminent domain only pursuant to an
ordinance. Ordinances passed by legislative body of a municipality are subject to review by the
Sangguniang Panlalawigan. The review by the SP is only to determine whether or not the ordinance is
beyond the power conferred upon the Sanguniang Bayan (Municipality). The SP will declare the ordinance
invalid if it goes beyond the power granted to it. The power of eminent domain is granted to the
Municipality and it is within their competence to determine the necessity to expropriate private property
for public purpose. This determination is not within the review powers of the SP. Therefore, the disapproval
of the ordinance is incorrect.
(2010) The Sangguniang Panlungsod of Pasay City passed an ordinance requiring all disco
pub owners to have all their hospitality girls tested for the AIDS virus. Both disco pub owners and
the hospitality girls assailed the validity of the ordinance for being violative of their constitutional
rights to privacy and to freely choose a calling or business. Is the ordinance valid? Explain.
The ordinance is a valid exercise of police power. The right to privacy yields to certain paramount
rights of the public and defers to the exercise of police power. The ordinance is not prohibiting the disco
pub owners and the hospitality girls from pursuing their calling or business but is merely regulating it.
(Social Justice Society vs. Dangerous Drugs Board, 570 SCRA 410 [2008]). This ordinance is a valid
exercise of police power, because its purpose is to safeguard public health. (Beltran vs. Secretary of Health,
476 SCRA 168 [2005]).
ALTERNATIVE ANSWER:
Jurisprudence dictates that an ordinance to be a valid exercise of police power it: (1) Must not
contravene the constitution; (2) Must not be unfair nor oppressive; (3) Must be reasonable; (4) Must not
prohibit what is allowed but may regulate; (5) Must be applicable within its territorial jurisdiction or limits;
(6) Must be general in application and consistent with public policy; (7) And that the interest of the general
public requires the interference and that the means employed is reasonably necessary for the
accomplishment of its purpose. Under the present case, the objective of the ordinance is to secure the
health and safety of its populace. AIDS is an incurable disease that is very harmful to the health. However,
how good the intention is the exercise of police power is not absolute. The interference has to be lawful
which is absent in the present case.
(1997) Due to over-crowding in the public market in Paco, Manila, the City Council passed
an ordinance allowing the lease to vendors of parts of the streets where the public market is located,
provided that the lessees pay to the city government a fee of P50 per square meter of the area
occupied by the lessees. The residents in the area complained to the Mayor that the lease of the
public streets would cause serious traffic problems to them. The Mayor cancelled the lease and
ordered the removal of the stalls constructed on the streets. Was the act of the Mayor legal?
The cancellation of the lease and the removal of the stalls are valid. As held in Macasiano vs.
Diokno, 212 SCRA 464, the lease of public streets is void, since they are reserved for public use and are
outside the commerce of man.
(2003) An aggrieved resident of the City of Manila filed mandamus proceedings against the
city mayor and the city engineer to compel these officials to remove the market stalls from certain
city streets which they had designated as flea markets. Portions of the said city streets were leased
or licensed by the respondent officials to market stallholders by virtue of a city ordinance. Decide
the dispute.
The petition should be granted. In accordance with Macasiano v. Diokno. 212 SCRA 464 [1992],
since public streets are properties for public use and are outside the commerce of man, the City Mayor
and the City Engineer cannot lease or license portions of the city streets to market stallholders.
ALTERNATIVE ANSWER:
The petition should be denied. Under Section 21(d)of the Local Government Code, a city may by
ordinance temporarily close a street so that a flea market may be established.
(1994) Johnny was employed as a driver by the Municipality of Calumpit, Bulacan. While
driving recklessly a municipal dump truck with its load of sand for the repair of municipal streets,
Johnny hit a jeepney. Two passengers of the jeepney were killed. The Sangguniang Bayan passed
an ordinance appropriating P300,000 as compensation for the heirs of the victims. Is the municipal
ordinance valid?
The ordinance appropriating P300,000.00 for the heirs of the victims of Johnny is void. This
172
amounts to appropriating public funds for a private purpose. Under Section 335 of the Local Government
Code, no public money shall be appropriated for private purposes.
ALTERNATIVE ANSWER
Upon the foregoing considerations, the municipal ordinance is null and void for being ultra vires.
The municipality not being liable to pay compensation to the heirs of the victims, the ordinance is utterly 173
devoid of legal basis. It would in fact constitute an illegal use or expenditure of public funds which is a
criminal offense. What is more, the ordinance does not meet one of the requisites for validity of municipal
ordinances, i.e., that it must be in consonance with certain well-established and basic principles of a
substantive nature, to wit: it does not contravene the Constitution or the law, it is not unfair or oppressive.
It is not partial or discriminatory. It is consistent with public policy, and it is not unreasonable.
(1987) State whether or not the following city ordinances are valid and give reasons in
support of your answers: An ordinance on business establishments to raise funds for the
construction and maintenance of roads in private subdivisions, which roads are open for use by
segments of the public who may have business inside the subdivision.
The ordinance is valid. The charge on the business establishments is not a tax but a SPECIAL
ASSESSMENT. Hence, the holding in Pascual v. Secretary of Public Works, 110 Phil. 331 (1960), that
public funds cannot be appropriated for the construction of roads in a private subdivision, does not apply.
As held in Apostolic Prefect V. City Treasurer of Baguio, 71 Phil. 547 (1941), special assessments may
be charged to property owners benefited by public works, because the essential difference between a tax
and such assessment is precisely that the latter is based wholly on benefits received. However, if the
ordinance levies a tax on all business establishments located outside the private subdivision, then it is
objectionable on the ground that it appropriate private funds for a public purpose. (Pascual v. Secretary
of Public Works, supra)
(1987) An ordinance prohibiting barbershop operators from rendering massage service to
their customers in a separate room.
The ordinance is valid. In Velasco v, Villegas, 120 SCRA 658 (1983) such ordinance was upheld
on the ground that it is a means of enabling the City of Manila to collect a fee for operating massage clinics
and of preventing immorality which might be committed by allowing the construction of separate rooms
in barber shops.
(1991) The province of Palawan passes an ordinance requiring all owners/operators of
fishing vessels that fish in waters surrounding the province to invest ten percent (10%) of their net
profits from operations therein in any enterprise located in Palawan. NARCO Fishing Corp., a
Filipino corporation with head office in Navotas, Metro Manila, challenges the ordinance as
unconstitutional. Decide the case.
The ordinance is invalid. The ordinance was apparently enacted pursuant to Article X, Sec. 7 of
the Constitution, which entitles local governments to an equitable share in the proceeds of the utilization
and development of the national wealth within their respective areas. However, this should be made
pursuant to law. A law is needed to implement this provision and a local government cannot constitute
itself unto a law. In the absence of a law the ordinance in question is invalid.
(1988) Jose Y. Sabater is a real estate developer. He acquires raw lands and converts them
into subdivisions. After acquiring a lot of around 15 hectares in Cabanatuan City, he caused the
preparation of a subdivision plan for the property. Before he was able to submit the subdivision
plan to the Bureau of Lands and/or Land Registration Commission for verification and/or approval,
he was informed that he must first present the plan to the City Engineer who would determine
whether the zoning ordinance of the Cabanatuan City had been observed. He was surprised when
he was asked to pay the city government a service fee of P0.30 per square meter of land, covered
by his subdivision plan. He was even more surprised when informed that a fine of P200.00 and/or
imprisonment for not exceeding six months or both, have been fixed in the ordinance as penalty
for violation thereof. Believing that the city ordinance is illegal, he filed suit to nullify the same.
Decide the case with reasons.
The ordinance is null and void. In Villacorta v. Bernardo, 143 SCRA 480 (1986) the Supreme
Court held that a municipal ordinance cannot amend a national law in the guise of implementing it. In
this case, the requirement actually conflicts with sec. 44 of Act No. 496 because the latter does not require
subdivision plans to be submitted to the City Engineer before they can be submitted for approval to, and
verification by, the Land Registration Commission and/or the Bureau of Lands.
(1995) PAGCOR decided to operate a casino in Tacloban City under authority of P.D. No. 174
1869. It leased a portion of a building belonging to Ellen McGuire renovated and equipped it in
preparation for its inauguration. The Sangguniang Panlungsod of Tacloban City enacted an
ordinance prohibiting the operation of casinos in the City and providing penalty for its violation.
Ellen McGuire and PAGCOR assailed the validity of the ordinance in court. How would you resolve
the issue? Discuss fully.
The ordinance should be declared invalid. As held in Magtajas vs. Pryce Properties Corporation.
Inc., 234 SCRA 255. such an ordinance contravenes Presidential Decree No. 1869, which authorizes the
Philippine Amusement and Gaming Corporation to operate casinos within the territorial Jurisdiction of
the Philippines, because it prevents the said corporation from exercising the power conferred on it to
operate a casino in Tacloban City. The power of Tacloban City to suppress gambling and prohibited
games of chance excludes of chance permitted by law. Implied repeals are not favored. (Basco v. PAGCOR)
(1991) The municipality of Alcoy, Cebu, passed Ordinance No. 10, series of 1991, requiring
owners, administrators, or tenants of buildings and premises to keep and maintain them in sanitary
condition, and should they fail to do so, cause them to be cleared and kept in sanitary condition
and the cost thereof to be assessed against the owner, administrator or tenant, as the case may be,
which cost shall constitute a lien against the property. It further penalizes violation thereof with
a fine not exceeding One Thousand Pesos (P1,000.00) or imprisonment for one (1) year at the
discretion of the court. Is the ordinance valid?
The ordinance is valid insofar as it requires owners, administrators, or tenants of buildings and
premises to keep and maintain them in sanitary condition and provides that should they fail to do so, the
municipality shall cause them to be cleaned and the cost shall be assessed against the owner,
administrator, or tenant and shall be a lien against the property. This is expressly authorized by Sec.
149(kk) of the Local Government Code. However, the penalty for the violation of the ordinance is invalid,
because it is excessive. The penalty in this case is a fine not exceeding P1,000 or imprisonment for one
year, in the discretion of the court. Under Sec. 149 (c) of the Local Government Code, however, the penalty
for the violation of a municipal ordinance cannot exceed a fine of P1,000.00 or Imprisonment for six
months, or both at the discretion of the court.
(1996) How does the local legislative assembly override the veto by the local chief executive
of an ordinance? On what grounds can a local chief executive veto an ordinance? How can an
ordinance vetoed by a local chief executive become a law without it being overridden by the local
legislative assembly?
Under Sections 54 (a) and 55 (c) of the Local Government Code, the local legislative assembly can
override the veto of the local chief executive by two-thirds vote of all its members. Under Section 55[a] of
the Local Government Code, the local chief executive may veto an ordinance on the ground that it is ULTRA
VIRES or PREJUDICIAL TO THE PUBLIC WELFARE. Pursuant to Section 54(b) of the Local Government
Code, an ordinance vetoed by the local chief executive shall be deemed approved if he does not
communicate his veto to the local legislative assembly within 15 days in the case of a province and 10
days in the case of a city or a municipality. Likewise, if the veto by the local executive has been overridden
by the local legislative assembly, a second veto will be void. Under Section 55(c) of the Local Government
Code, the local chief executive may veto an ordinance only once.
(1995) The Municipality of Binangonan, Rizal, passed a resolution authorizing the operation
of an open garbage dumpsite in a 9- hectare land in the Reyes Estate within the Municipality's
territorial limits. Some concerned residents of Binangonan filed a complaint with the Laguna Lake
Development Authority (LLDA) to stop the operation of the dumpsite due to its harmful effects on
the health of the residents. The LLDA conducted an on-site investigation, monitoring, testing and
water sampling and found that the dumpsite would contaminate Laguna de Bay and the surrounding
areas of the Municipality. The LLDA also discovered that no environmental clearance was secured
by the Municipality from the Department of Environment and Natural Resources (DENR) and the
LLDA as required by law. The LLDA therefore issued to the Binangonan municipal government a
cease and desist order to stop the operation of the dumpsite. The Municipality of Binangonan filed
a case to annul the order issued by the LLDA. (1) Can the Municipality of Binangonan invoke police
power to prevent its residents and the LLDA from interfering with the operation of the dumpsite 175
by the Municipality? Explain.
No, the Municipality of Binangonan cannot invoke its police power. According to Laguna Lake
Development Authority vs. Court of Appeals, 231 SCRA 292, under Republic Act No, 4850, the Laguna
Lake Development Authority is mandated to promote the development of the Laguna Lake area, including
the surrounding Province of Rizal, with due regard to the prevention of pollution. The Laguna Lake
Development Authority is mandated to pass upon and approve or disapprove all projects proposed by local
government offices within the region.
Can the LLDA justify its order by asserting that the health of the residents will be adversely
affected. Explain.
Yes, the Laguna Lake Development Authority can justify its order. Since it has been authorized
by Executive Order No. 927 to make orders requiring the discontinuance of pollution, its power to issue
the order can be inferred from this. Otherwise, it will be a toothless agency. Moreover, the Laguna Lake
Development Authority is specifically authorized under its Charter to issue cease and desist orders.
(1993) Mayor Alfredo Lim closed the funhouses in the Ermita district suspected of being
fronts for prostitution. To determine the feasibility of putting up a legalized red light district, the
city council conducted an inquiry and invited operators of the closed funhouses to get their views.
No one honored the Invitation. The city council issued subpoenas to compel the attendance of the
operators but which were completely disregarded. The council declared the operators guilty of
contempt and issued warrants for their arrest. The operators come to you for legal advice, asking
the following questions: (1) Is the council empowered to issue subpoenas to compel their
attendance?
The city council is not empowered to issue subpoenas to compel the attendance of the operators
of the fun-houses in the Ermita district. There is no provision in the Constitution, the Local Government
Code, or any law expressly granting local legislative bodies the power to subpoena witnesses. As held in
Negros Oriental II Electric Cooperative, Inc. vs. Sangguniang Panlungsod of Dumaguete, 155 SCRA 421,
such power cannot be implied from the grant of delegated legislated power. Such power is Judicial. To
allow local legislative bodies to exercise such power without express statutory basis would violate the
doctrine of separation of powers.
Does the council have the power to cite for contempt?
The city council does not have the power to cite for contempt. There is likewise no provision in
the Constitution, the Local Government Code, or any other laws granting local legislative bodies the power
to cite for contempt. Such power cannot be deemed implied in the delegation of legislative power to local
legislative bodies, for the existence of such power poses a potential derogation of individual rights.
(2005) The Sangguniang Bayan of the Municipality of Santa, Ilocos Sur passed Resolution
No. 1 authorizing its Mayor to initiate a petition for the expropriation of a lot owned by Christina
as site for its municipal sports center. This was approved by the Mayor. However, the Sangguniang
Panlalawigan of Ilocos Sur disapproved the Resolution as there might still be other available lots
in Santa for a sports center. Nonetheless, the Municipality of Santa, through its Mayor, filed a
complaint for eminent domain. Christina opposed this on the following grounds: (a) the
Municipality of Santa has no power to expropriate; (b) Resolution No. 1 has been voided since the
Sangguniang Panlalawigan disapproved it for being arbitrary; and (c) the Municipality of Santa has
other and better lots for that purpose. Resolve the case with reasons. (5%)
Under Section 19 of R.A. No. 7160, the power of eminent domain is explicitly granted to the
municipality, but must be exercised through an ordinance rather than through a resolution. (Municipality
of Paranaque v. V.M. Realty Corp., G.R. No. 127820, July 20, 1998) The Sangguniang Panlalawigan of
Ilocos Sur was without the authority to disapprove Resolution No. 1 as the municipality clearly has the
power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate said
resolution. The only ground upon which a provincial board may declare any municipal resolution,
ordinance or order invalid is when such resolution, ordinance or order is beyond the powers conferred
upon the council or president making the same. Such is not the situation in this case. (Moday v. Court 176
of Appeals, G.R. No. 107916, February 20, 1997) The question of whether there is genuine necessity for
the expropriation of Christina's lot or whether the municipality has other and better lots for the purpose
is a matter that will have to be resolved by the Court upon presentation of evidence by the parties to the
case.
(2003) Can a Barangay Assembly exercise any police power?
No, the Barangay Assembly cannot exercise any police power. Under Section 398 of the Local
Government Code, it can only recommend to the Sangguniang Barangay the adoption of measures for the
welfare of the barangay and decide on the adoption of an initiative.
(2003) Can the Liga ng mga Barangay exercise legislative powers?
The Liga ng mga Barangay cannot exercise legislative powers. As stated in Bito-Onon v.
Fernandez. 350 SCRA 732 [2001], it is not a local government unit and its primary purpose is to determine
representation of the barangays in the sangunians; to ventilate, articulate, and crystallize issues affecting
barangay government administration; and to secure solutions for them through proper and legal means.
(2010) Re-classification of land by a local government unit may be done through a
resolution.
FALSE. Re-classification of land must be done through an ORDINANCE (Section 2, Local
Government Code; Department of Agrarian Reform vs. Polo Coconut Plantation Company, Inc., 564 SCRA
78[2008]).
(1991) The Municipality of Sibonga, Cebu, wishes to enter into a contract involving
expenditure of public funds. What are the legal requisites therefor?
The following are the legal requisites for the validity of a contract to be entered into by the
Municipality of Sibonga, which involves the expenditure of public funds: (1) The contract must be within
the power of the municipality; (2) The contract must be entered into by the proper officer, i.e., the mayor,
upon resolution of the Sangguniang Bayan pursuant to Section 142 of the Local Government Code; and
(3) In accordance with Sec. 606 of the Revised Administrative Code, there must be an appropriation of the
public funds; and in accordance with Sec. 607, there must be a certificate of availability of funds issued
by the municipal treasurer; and the contract must conform with the formal requisites of written contracts
prescribed by law.
(1995) What are the conditions under which a local executive may enter into a contract in
behalf of his government unit?
The following are the conditions under which a local executive may enter into a contract in behalf
of the government until:
1. The local government unit must have the power to enter into the particular contract;
2. Pursuant to Section 22(c) of the Local Government Code, there must be a prior authorization
by the sangguniang concerned, and a legible copy of the contract shall be posted at a conspicuous place
in the provincial capitol or the city, municipal or barangay hall.
3. In accordance with Sections 46 and 47, Chapter 8, Subtitle B. Book V of the 1987
Administrative Code, if the contract Involves the expenditure of public funds, there must be an
appropriation therefore and a certificate of availability of funds by the treasurer of the local government
unit.
4. The contract must conform with the formal requisites of written contracts prescribed by law.
5. Pursuant to Section 2068 of the Revised Administrative Code, if a province is a party to a
contract conveying title to real property, the contract must be approved by the President. Under Section
2196 of the Revised Administrative Code, if a municipality is a party to a contract conveying real property 177
or any Interest in it or creating a lien upon it, the contract must be approved by the provincial governor.
(1999) The Province of X required the National Development Company to pay real estate
taxes on the land being occupied by NDC and the latter argued that since it is a government-owned
corporation, its properties are exempt from real estate taxes. If you were the Judge, how would you
decide the case? Reason out. (2%)
In National Development Company v. Cebu City, 215 SCRA 382, the Supreme Court held that the
National Development Company was not liable for real estate tax on the property belonging to the
government which it occupies. However, Section 234 of the Local Government Code subsequently
withdrew the exemption from real property taxes of government-owned or controlled corporations. If I
were the Judge, I would hold the National Development Company liable for real estate taxes.
(1999) Under the Constitution, what are the three main sources of revenues of local
government units? (2%)
The following are the main sources of revenues of local government units under the Constitution:
(1) Taxes, fees, and charges. (Section 5, Article X); (2) Share in the national taxes. (Section 6, Article X);
(3) Share in the proceeds of the utilizations and development of the national wealth within their areas.
(Section 7, Article X}
(1990) XYZ, a corporation organized under the laws of Hongkong, with 100% foreign equity,
obtained from the Securities and Exchange Commission a license to operate a prawn hatchery
project on a piece of land leased from the City of Dagupan. The land was formerly a park and plaza
belonging to the City and was converted by the City to derive much needed funds. (1) May the City
of Dagupan lawfully convert the park to prawn ponds and lease the same? Explain your answer.
Yes, the City of Dagupan may lawfully convert the park into prawn ponds and lease them. A city
may close a park and plaza and once the property has been withdrawn from public use, it falls within the
commerce of man and may be leased. Section 10 of the Local Government Code provides: "A local
government unit may likewise, through its head acting pursuant to a resolution of its sanggunian and in
accordance with existing law and the provisions of this Code, close any barangay, municipal, city or
provincial road, street, alley park or square. No such way or place or any part thereof shall be closed
without indemnifying any person prejudiced thereby. A property thus withdrawn from public use may be
used or conveyed for any purpose for which other real property belonging to the local unit concerned might
be lawfully used or conveyed." In Favis v. City Baguio, 27 SCRA 1060, it was held that the City of Baguio
could close a street and lease it since it had become patrimonial property. Likewise, in Cebu Oxygen and
Acetylene Company, Inc. a Berceles, 66 SCRA 481, it was held that the City of Cebu could close a street
and sell it thereafter.
2. May the City of Dagupan and XYZ corporation validly enter into the lease contract for
the prawn ponds? Answer with reasons.
Since the City of Dagupan has the power to convert the park into prawn ponds it can also lease
it to XYZ even though XYZ is a 100%- foreign corporation. The operation of a prawn hatchery does not
involve exploitation of natural resources within the meaning of Sections 2 and 3, Article XII of the 1987
Constitution. (Secretary of Justice, Op. No. 3, s. 1988) Since the portion of the park had been withdrawn
from public use, it could be disposed for any lawful purpose including leasing it to a foreign corporation.
ARTICLE XI: ACCOUNTABILITY OF PUBLIC OFFICERS
OFFICE OF THE OMBUDSMAN
(2019) Who are the impeachable officers under the 1987 Constitution? Briefly
explain the process of impeaching them thereunder. (5%)
The President, the Vice-President, the Members of the Supreme Court, the Members
of the Constitutional Commissions, and the Ombudsman are the impeachable officers (Art.
XI. Sec. 2, Const.). The process of impeachment is laid down in Art XI, Sec. 3, of the
Constitution. In summary: (1) A verified complaint for impeachment may be filed by any
Member of the House
of Representatives or by any citizen upon a resolution or endorsement
by any Member thereof, which shall be included in the Order of Business within ten session
days, and referred to the proper Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its Members, shall submit its report to
the House, within sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House within ten session
days from receipt thereof; (2) A vote of at least one-third of all the Members of the House shall
be necessary either to affirm a favorable resolution with the Articles of impeachment of the
Committee, or override its contrary resolution. The vote of each Member shall be recorded; (3)
In case the verified complaint or resolution of impeachment is filed by at least one-third of
all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed; and (4) The Senate shall have the sole power
to try and decide all cases of impeachment. When sitting for that purpose, the Senators
shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief
Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted
without the concurrence of two-thirds of all the Members of the Senate.
(2019) Mayor X and his City Administrator, Y, are political buddies who
assumed their respective offices in 2010. Sometime in January 2012, Y proposed to
Mayor X the entry into a ₱5,000,000.00 loan agreement with ABC Foundation, a nonstock and non-profit organization in which the two had a long-standing personal
involvement. The loan agreement was duly executed in the same year but was never
authorized and approved by the Sangguniang Panlungsod. It was further found that
the same constituted a fraudulent scheme to defraud the City Government.
Meanwhile. Mayor X won another term during the May 2013 Elections and Y
continued on as his City Administrator. A year after, or in May 2014, administrative
charges for grave misconduct, serious dishonesty, and conduct prejudicial to the best
interest of the service were filed against them before the Office of the Ombudsman.
In defense, Mayor X argued that his subsequent reelection in May 2013 absolved him
from any administrative liability for any alleged anomalous activity during his first
term in office.
Y raised the same defense of condonation, having been retained by Mayor X as
City Administrator for a second term. On December 10, 2015, the Ombudsman rendered
its ruling in the case, finding both Mayor X and Y administratively liable. Citing the
Supreme Court ‘s Decision in Carpio-Morales v. Court of Appeals (G.R. Nos. 217126-27),
which was initially promulgated on November 10, 2015, the Ombudsman rejected their
defense of condonation. With the motions for reconsideration of Mayor X and Y having
been denied by the Ombudsman
on March 10, 2016, they elevated thee matter to the
Court of Appeals.
Did the Ombudsman err in not giving credence to the defense of condonation
as raised by Mayor X? Explain. (2%)
Yes, the Ombudsman erred in its ruling. Although the SC in Carpio-Morales vs. CA.
G.R. Nos. 217126-27 10 November 2015 has abandoned the condonation doctrine, the
same, however, is prospective in effect. Hence, a public official can benefit from this
doctrine if re-elected to office before 10 November 2015 by the same body politic electing
the person. (See also Aguilar v Benlot G.R. No. 232806, January 21, 2019).
178
How about Y? Can he validly invoke the condonation doctrine to absolve him
of the charge? Explain. (3%)
No. The condonation doctrine would not apply to appointive officials since, as to
them there is no sovereign will to disenfranchise (Carpio-Morales vs. CA, G.R. Nos. 21712627, 10 November 2015. citing Civil Service Commission v. Sojo, 577 Phil. 52, 72 [2008)
[2018] Ascertain the constitutionality of the following acts: (1) An investigation conducted
by the Ombudsman against a Commissioner of the Commission on Audit for serious misconduct.
The act is constitutional. Article XI, Section 13(1) of the Constitution expressly gives the
Ombudsman the power to investigate on its own or on complaint by any person, any act or omission of
any public official, employee, office or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient.
ALTERNATIVE ANSWER:
(a) The act is constitutional. Although a Commissioner of any of the Constitutional Commissions
is removable only through impeachment, this rule does not preclude the Ombudsman from conducting
an investigation into the alleged serious misconduct committed by impeachable officials for the purpose
of filing a verified complaint for impeachment (RA 6770, Section 22; Carpio-Morales v. CA, G.R. No.
217126-27, 10 Nov. 2015).
ANOTHER ALTERNATIVE ANSWER:
(a) The act is unconstitutional since serious misconduct is not a ground for impeachment. Given
the limited facts of the case, it cannot be assumed that serious misconduct in this case amounts to
betrayal of public trust.
(2) A law prohibiting any court, other than the Supreme Court, from issuing a writ of
injunction against an investigation being conducted by the Ombudsman.
The law is unconstitutional. The power to issue injunctive writs is part of judicial power. The rules
governing the exercise of this power are within the powers of the Supreme Court to promulgate. The law
thereof is an encroachment of the Court’s rule-making power (Carpio-Morales v. CA, G.R. No. 217126-27,
10 Nov. 2015).
(3) A law prohibiting any appeal from the decision or final order of the Ombudsman in an
administrative proceeding, except through a petition for review on certiorari filed before the
Supreme Court.
The law is unconstitutional. In Fabian v. Desierto (G.R. No. 129742, 16 September 1998), the
Court invalidated Section 27 of R.A. 6770 insofar as it provided for appeal by certiorari under Rule 45 from
the decisions or orders of the Ombudsman in administrative cases. Section 27 of R.A. 6770 had the effect,
not only of increasing the appellate jurisdiction of the Supreme Court without its advice and concurrence
in violation of Section 30, Article VI of the Constitution; it is also inconsistent with Section 1, Rule 45 of
the Rules of Court which provides that a petition for review on certiorari shall apply only to a review of
“judgements or final orders of the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the
Regional Trial Court, or other courts authorized by law”. In the absence of concurrence by the Supreme
Court, such a law would be unconstitutional.
[2018] State whether or not the following acts are constitutional: The appointment by the
President as Deputy Ombudsman of a lawyer who has been engaged in the practice of law for five
years.
The appointment can be upheld, because only the Ombudsman is required under the Constitution
to have been engaged in the practice of law for at least ten years prior to his appointment. (Article XI,
Section 8)
179
(2004) Director WOW failed the lifestyle check conducted by the Ombudsman's Office
because WOWs assets were grossly disproportionate to his salary and allowances. Moreover, some
assets were not included in his Statement of Assets and Liabilities. He was charged of graft and
corrupt practices and pending the completion of investigations, he was suspended from office for
six months. Aggrieved, WOW petitioned the Court of Appeals to annul the preventive suspension
order on the ground that the Ombudsman could only recommend but not impose the suspension.
Moreover, according to WOW, the suspension was imposed without any notice or hearing, in 180
violation of due process. Is the petitioner's contention meritorious? Discuss briefly. (5%)
The contention of Director WOW is not meritorious. The suspension meted out to him is preventive
and not punitive. Section 24 of Republic Act No. 6770 grants the Ombudsman the power to impose
preventive suspension up to six months. Preventive suspension maybe imposed without any notice or
hearing. It is merely a preliminary step in an administrative investigation and is not the final determination
of the guilt of the officer concerned. (Garcia v. Mojica, 314 SCRA 207 [1999]).
For his part, the Ombudsman moved to dismiss WOWs petition. According to the
Ombudsman the evidence of guilt of WOW is strong, and petitioner failed to exhaust administrative
remedies. WOW admitted he filed no motion for reconsideration, but only because the order
suspending him was immediately executory. Should the motion to dismiss be granted or not?
Discuss briefly. (5%)
The motion to dismiss should be denied. Since the suspension of Director WOW was immediately
executory, he would have suffered irreparable injury had he tried to exhaust administrative remedies
before filing a petition in court (University of the Philippines Board of Regents v. Rasul, 200 SCRA 685
[19910- Besides, the question involved is purely legal. (Azarcon v. Bunagan, 399 SCRA 365 [2003]).
(1996) An administrative complaint for violation of the Anti-Graft and Corrupt Practices
Act against X was filed with the Ombudsman. Immediately after taking cognizance of the case and
the affidavits submitted to him, the Ombudsman ordered the preventive suspension of X pending
preliminary investigation. X questioned the suspension order, contending that the Ombudsman
can only suspend preventively subordinate employees in his own office. Is X correct? Explain.
No, X is not correct. As held in Buenaseda vs. Flavier, 226 SCRA 645. under Section 24 of Republic
Act No. 6770, the Ombudsman can place under preventive suspension any officer under his disciplinary
authority pending an investigation. The moment a complaint is filed with the Ombudsman the respondent
is under his authority. Congress intended to empower the Ombudsman to suspend all officers, even if
they are employed in other offices in the Government. The words "subordinate" and "in his bureau" do not
appear in the grant of such power to the Ombudsman.
(2003) A group of losing litigants in a case decided by the Supreme Court filed a complaint
before the Ombudsman charging the Justices with knowingly and deliberately rendering an unjust
decision in utter violation of the penal laws of the land. Can the Ombudsman validly take
cognizance of the case? Explain.
No, the Ombudsman cannot entertain the complaint. As stated in the case of in re: Laureta. 148
SCRA 382 [1987], pursuant to the principle of separation of powers, the correctness of the decisions of
the Supreme Court as final arbiter of all justiciable disputes is conclusive upon all other departments of
the government; the Ombudsman has no power to review the decisions of the Supreme Court by
entertaining a complaint against the Justices of the Supreme Court for knowingly rendering an unjust
decision.
ALTERNATIVE ANSWER:
Article XI, Section 1 of the 1987 Constitution provides that public officers must at all times be
accountable to the people. Section 22 of the Ombudsman Act provides that the Office of the Ombudsman
has the power to investigate any serious misconduct allegedly committed by officials removable by
impeachment for the purpose of filing a verified complaint for impeachment if warranted. The Ombudsman
can entertain the complaint for this purpose.
[2018] Agnes was allegedly picked up by a group of military men headed by Gen.
Altamirano, and was brought to several military camps where she was interrogated, beaten, mauled,
tortured, and threatened with death if she would not confess her membership in the New People’s
Army (NPA) and point to the location of NPA camps. She suffered for several days until she was
released after she signed a document saying that she was a surrenderee, and was not abducted or
harmed by the military. After she was released, and alleging that her rights to life, liberty and
security had been violated and continued to be threatened by violation of such rights, she filed 181
with the Supreme Court (the Court) a Petition for the Writs of Amparo and Habeas Data with prayers
for Temporary Protection Orders, Inspection of the Place, and Production of Documents and
Personal Properties. The case was filed against President Amoyo (who was the President of the
Philippines when the abduction, beating, mauling, and life threats were committed). General
Altamirano, and several military men whom Agnes was able to recognize her ordeal. The Court,
after finding the petition to be in order, issued the writ of amparo and the writ of habeas data and
directed the respondents to file a verified return on the writs, and directed the Court of Appeals
(CA) to heal the petition. The respondents duly filed their return on the writs and produced the
documents in their possession. After heating, the CA ruled that there was no more need to issue
the temporary protection orders since the writ of amparo had already been issued, and dismissed
the petition against the President Amoyo on the ground that he was immune from suit during his
incumbency as President. Agens appealed the CA ruling to the Court. The appeal was lodged after
President Amoyo’s term had ended. (a) Was the CA correct in saying that the writ of amparo
rendered unnecessary the issuance of the temporary protection order? (2.5%)
Yes. The writ of amparo is an extraordinary and independent remedy that provides rapid judicial
relief, as it partakes of a summary proceeding and requires only substantial evidence to make appropriate
interim and permanent reliefs to the petitioner. It serves both preventative and curative reliefs addresing
extrajudicial abduction and torture. Temporary protection orders are merely intended to assist the Court
before it can arrive at the judicious determination of the amparo petition. A temporary protection order,
being an interim relief, can only be granted before final adjudication on the amparo case is made. The
privilege of the writ of amparo, once granted, already entails the protection of the aggrieved party. Thus,
since the writ of amparo was already granted and issued, there is no more need to issue a temporary
protection order (Yano v. Sanchez, G.R. No. 186640, Feb. 11, 2010; Rodriguez v. Macapagal-Arroyo, G.R.
Nos. 191805 & 193160, Nov. 15, 2011).
Will President’s immunity from suit continue even after his term has ended, considering
that the events covered by the Petition took place during his term? (2.5%)
No. The presidential immunity from suit exists only in concurrence with the President’s
incumbency. A non-sitting President cannot claim immunity even if the acts complained of were
committed while he was still a sitting president. The reason for this is that if the immunity is not granted
while he is in office, he might be spending all his time in attending to litigations. After his term, he can
already attend to them (Estrada v. Desierto, G.R. Nos. 146710-15, 146738, April 3, 2001; Rodgriquez v.
Macapagal-Arroyo, G.R. Nos. 191805 & 193160, Nov. 15, 2011).
[2017] B. May a complaint for disbarment against the Ombudsman prosper during her
incumbency? Explain.
A complaint for disbarment cannot be filed against the Ombudsman during her incumbency.
Article XI, Section 8 of the 1987 Constitution imposes membership of the Philippine Bar as a qualification
to be an Ombudsman. The ombudsman is removable only by impeachment. If he were to be disbarred, he
would be removed from office without undergoing impeachment.
C. Sec. 3, Art. XI of the Constitution states that "[n]o impeachment proceedings shall be
initiated against the same official more than once within a period of one year." What constitutes
initiation of impeachment proceedings under the provision? (3%)
It is held in the case of Francisco vs House of Representatives 415 SCRA 44; G.R. No. 160261; 10
Nov 2003, that an impeachment complaint is initiated when a verified complaint is filed and referred to
the Committee on Justice for action.
(2014) The one-year-bar rule in impeachment proceedings is to be reckoned from the time
the (1%)
Impeachment complaint is referred to the Committee on Justice.
(2000) Is cronyism a legal ground for the impeachment of the President? Explain. (5%)
Yes, cronyism is a legal ground for the impeachment of the President. Under Section 2, Article XI
of the Constitution, betrayal of public trust is one of the grounds for Impeachment. This refers to violation
of the oath of office and includes cronyism which involves unduly favoring a crony to the prejudice of
public interest, (Record of the Constitutional Commission, Vol. II, p. 272)
(2013) As a leading member of the Lapiang Mandirigma in the House of Representatives,
you were tasked by the party to initiate the moves to impeach the President because he entered
into an executive agreement with the US Ambassador for the use of the former Subic Naval Base by
the US Navy, for free, i.e., without need to pay rent nor any kind of fees as a show of goodwill to
the U.S. because of the continuing harmonious RP- US relations. Cite at least two (2) grounds for
impeachment and explain why you chose them. (6%)
The President can be impeached for culpable violation of the Constitution and betrayal of public
trust. The Supreme Court has already ruled that the provision in Article XVIII, Section 25 of the
Constitution requires a treaty even for the mere temporary presence of foreign troops in the Philippines
(Bayan vs. Zamora, 342 SCRA 499). The President cannot claim, therefore, that he acted in good faith.
(Report of the Special Committee in the Impeachment of President Quirino, Congressional Record of the
House of Representatives, Vol. IV, p. 1553). Betrayal of public trust includes violation of the oath of the
office of the President (Record of the Constitutional Commission, Vol. II, p.272). In his oath of office, the
President swore to preserve and defend the Constitution (Article VII, Section 5 of the 1987 Constitution).
ALTERNATIVE ANSWER:
The President can be impeached for culpable violation of the Constitution and graft and corruption
(Article XI, Section2). By entering into the executive agreement, the President has violated Section 3(d) of
the Anti-Graft and Corrupt Practices Act because of the injury to the Republic of the Philippines.
ALTERNATIVE ANSWER:
The two grounds for impeachment suitable to the case of the president are: (1) Graft and
Corruption. It is stated under Section 3(j) of Republic Act No. 3019 (Anti-Graft and Corrupt Practices Act),
that one corrupt practice of a public officer includes knowingly approving or granting any license, permit,
privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit,
privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled.
Since the President gave the U.S. Navy the privilege to use the former Subic Naval Base for free without
need to pay rent nor any kind of fees.
(2) Culpable Violation of the Constitution. The president knowingly violated the provision stated
in Section 11, Article XII of the Constitution which provides that no franchise, certificate, or any other
form of authorization for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines at least sixty
per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or
authorization be exclusive in character or for a longer period than 50 years.
(2012) A verified impeachment complaint was filed by two hundred (200) Members of the
House of Representatives against Madam Chief Justice Blue. The complaint was immediately
transmitted to the Senate for trial. Madam Chief Justice Blue challenges such immediate
transmittal to the Senate because the verified complaint 1) not included in the order of business of
the House, 2) was not referred to the House Committee on Justice for hearing and consideration
for sufficiency in form and substance, and 3) was not submitted to the House Plenary for
consideration as enumerated in Paragraph (2), Section 3, Article XI of the 1987 Constitution. Decide
with reasons. (5%)
182
Since the verified complaint was filed by 200 Members of the House of Representatives and they
constituted at least one third of its Members, it need not undergo the procedure in Paragraph 2, Section
3, Article XI of the Constitution. The verified complaint constitutes the Articles of Impeachment, and trial
by the Senate should proceed forthwith (Section 3(4), Article XI of the Constitution).
What is the purpose of Impeachment? Does conviction prevent further prosecution and
punishment? Explain. (3%)
183
The purpose of impeachment is not to punish but only to remove a public officer to secure the
people against gross political misdemeanors. (Bernas, The 1987 Constitution of the Philippines, A
Commentary, 2009 ed., p. 1150.) Conviction does not prevent further prosecution and punishment. The
person convicted is subject to prosecution and punishment according to law. (Section 3(7), Article XI of
the Constitution.)
(2000) Alcantara was elected barangay chairman and later president of the Association of
Barangay Councils in his municipality. In that capacity, he was appointed by the President as
member of the Sangguniang Bayan of his municipality. Later, the Secretary of Interior and Local
Governments appointed Alcantara as member of the Sangguniang Panlalawigan of their province to
meet a reorganizational contingency, and Mendoza took his place in the Sangguniang Bayan.
Alcantara then wrote a letter of resignation from the Sangguniang Bayan addressed to
the
Mayor of the municipality, ceased functioning as member thereof and assumed office and
performed his functions as member of the Sangguniang Panlalawigan. Later, the reorganization of
the Sangguniang Panlalawigan and the appointment of Mendoza were voided. Can Alcantara
reassume office as member of the Sangguniang Bayan or has he lost it because of resignation?
abandonment? Explain. (5%)
Alcantara cannot reassume office as member of the Sangguniang Bayan. As held in Sangguniang
Bayan of San Andres v. Court of Appeals, 284 SCRA 276 (1998), Alcantara should be deemed to have
abandoned his position as member of the Sangguniang Bayan. His intention to abandon his position is
shown by his failure to perform his function as member of the Sangguniang Bayan, his failure to collect
the salary for the position, his failure to object to the appointment of his replacement, and his failure to
initiate any act to reassume his post after the reorganization of the Sangguniang Bayan was voided.
Alcantara effected his intention by his letter of resignation, his assumption of office as member of the
Sangguniang Panlalawigan, his discharge of his duties as its member, and his receipt of the salary for
such post. Alcantara cannot be deemed to have lost his office as member of the Sangguniang Bayan by
resignation. Under Section 82 of the Local Government Code, the resignation should be submitted to the
Sangguniang Bayan. He submitted it to the Mayor instead, and the resignation was not accepted.
(2000) A provincial governor duly elected to office was charged with disloyalty and
suspended from office pending the outcome of the formal investigation of the charges against him.
The Secretary of Interior and Local Governments found him guilty as charged and removed him
from office. He filed a petition before the Supreme Court questioning his removal. While the case
was pending before the Supreme Court, he filed his certificate of candidacy for the position of
Governor and won, and was proclaimed Governor. He claims his reelection to the position of
Governor has rendered the pending administrative case against him moot and academic. Is he
correct? Explain. (5%)
Yes, the re-election of the governor has rendered the pending administrative case against him
moot. As explained in Aguinaldo v. Santos, 212 SCRA 768 (1992), a local elective official cannot be removed
from office for misconduct committed during his previous term, because each term is separate and the
people by re-electing him are deemed to have forgiven his misconduct.
(1999) A City Assistant Treasurer was convicted of Estafa through falsification of public
document. While serving sentence, he was granted absolute pardon by the President. (1) Assuming
that the position of Assistant City Treasurer has remained vacant, would he be entitled to a
reinstatement without the need of a new appointment? Explain. (2%)
As held in Monsanto v. Factoran, 170 SCRA 190, pardon merely frees the individual from all the
penalties and legal disabilities imposed upon him because of his conviction. It does not restore him to the
public office relinquished by reason of the conviction.
(2) If later the same position becomes vacant, could he reapply and be reappointed? Explain.
(2%)
The Assistant City Treasurer can reapply and be appointed to the position, since the pardon
removed the disqualification to hold public office.
184
ALTERNATIVE ANSWER:
The Assistant City Treasurer cannot reapply and be appointed to the position, Under Article 36 of
the Revised Penal Code, a pardon does not restore the right to hold public office unless such right be
expressly restored by the pardon;
(2009) Maximo, an employee of the Department of education, is administratively charged
with dishonesty and gross misconduct. During the formal investigation of the charges, the
Secretary of Education preventively suspended him for a period of 60 days. On the 60 th day of the
preventive suspension, the Secretary rendered a verdict, finding Maximino guilty, and ordered his
immediate dismissal from the service. Maximino appealed to the Civil Service Commission which
affirmed the Secretary’s decision. Maximo then elevated the matter to the Court of Appeals. The
CA reversed the CSC decision, exonerating Maximino. The secretary of education then petitions
the Supreme Court for the review of the CA decision. (1) Is the Secretary of Education a proper
party to seek the review of the CA decision exonerating Maximino? Reasons (2%)
The Secretary of Education is not the proper party to seek review of the decision of the Court of
Appeals, because he is the one who heard the case and imposed the penalty. Being the disciplinary
authority, the Secretary of Education should be impartial and should not actively participate in
prosecuting Maximino (National Appellate Board of the National Police Commission vs. Mamauag, 446
SCRA 624 [2005]).
(2) If the SC affirms the CA decision, is Maximino entitled to recover back salaries
corresponding to the entire period he was out of the service? Explain your answer.
As a general rule, Maximo is not entitled to recover back salaries corresponding to the entire
period he was out of the service because of the NO WORK NO PAY RULE. But if it is found that he is
illegally dismissed or suspended he is entitled to back wages and other monetary benefits from the time
of his illegal dismissal or suspension up to his reinstatement.
ALTERNATIVE ANSWER:
Maximo cannot recover back salaries during his preventive suspension. The law does not provide
for it. Preventive suspension is not a penalty. During the preventive suspension, he was not yet out of
service. However, he is entitled to back wages from the time of his dismissal until his reinstatement. The
enforcement of the dismissal pending appeal was punitive, and he was exonerated (Gloria vs. Court of
Appeals, 306 SCRA 287 [1999]).
(2001) Alfonso Beit, a supply officer in the Department of Science and Technology (DOST),
was charged administratively. Pending investigation, he was preventively suspended for 90 days.
The DOST Secretary found him guilty and meted him the penalty of removal from office. He
appealed to the Civil Service Commission (CSC). In the meantime, the decision was executed
pending appeal. The CSC rendered a decision which modified the appealed decision by imposing
only a penalty of reprimand, and which decision became final. Can Alfonso Belt claim salary for the
period that his case was pending investigation? Why? (3%)
Alfonso Beit cannot claim any salary for the period of his preventive suspension during the
pendency of the investigation. As held in Gloria vs. Court of Appeals, 306 SCRA 287 (1997), under Section
52 of the Civil Service Law, the provision for payment of salaries during the period of preventive suspension
during the pendency of the investigation has been deleted. The preventive suspension was not a penalty.
Its imposition was lawful, since it was authorized by law.
Can he claim salary for the period that his case was pending appeal? Why? (2%)
If the penalty was modified because Alfonso Beit was exonerated of the charge that was the basis
for the decision ordering his dismissal, he is entitled to back wages, otherwise, this would be tantamount
to punishing him after exoneration from the charge which caused his dismissal. [Gloria vs. Court of 185
Appeals, 3O6 SCRA 287 (1997)]. If he was reprimanded for the same charge which was the basis of the
decision ordering his dismissal, Alfonso Belt is not entitled to back wages, because he was found guilty,
and the penalty was merely commuted. (Dela Cruz vs. Court of Appeals, 305 SCRA 303 (1998)].
(1990) In 1986, F, then the officer-in-charge of Botolan, Zambales, was accused of having
violated the Anti-Graft and Corrupt Practices Act before the Sandiganbayan. Before he could be
arraigned, he was elected Governor of Zambales. After his arraignment, he was put under preventive
suspension by the Sandiganbayan "for the duration of the trial". (1) Can F successfully challenge
the legality of his preventive suspension on the ground that the criminal case against him involved
acts committed during his term as officer-in-charge and not during his term as Governor?
No, F cannot successfully challenge the legality of his preventive suspension on the ground that
the criminal case against him involve acts committed during his term as OIC and not during his term
as governor because suspension from office under Republic Act 3019 refers to any office that the
respondent is presently holding and not necessarily to the one which he holds when he committed the
crime with which he is charged. This was the ruling in Deloso v. Sandiganbayan 173 SCRA 409.
(2) Can F validly object to the foretasted duration of his suspension?
Yes, F can validly object to the duration of the suspension. In Deloso u. Sandiganbayan, 173
SCRA 409, it was held that the imposition of preventive suspension for an indefinite period of time is
unreasonable and violates the right of the accused to due process. The people who elected the governor
to office would be deprived of his services for an indefinite period, and his right to hold office would be
nullified. Moreover, since under Section 42 of the Civil Service Decree the duration of preventive
suspension should be limited to ninety (90) days, equal protection demands that the duration of preventive
suspension under the Anti-Graft and Corrupt Practices Act he also limited to ninety (90) days.
(2002) Simeon Valera was formerly a Provincial Governor who ran and won as a Member of
the House of Representatives for the Second Congressional District of lloilo. For violation of
Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. No.3019), as amended, allegedly
committed when he was still a Provincial Governor, a criminal complaint was filed against him
before the Office of the Ombudsman for which, upon a finding of probable cause, a criminal case
was filed with the Sandiganbayan. During the course of trial, the Sandiganbayan issued an order of
preventive suspension for 90 days against him. Representative Valera questioned the validity of
the Sandiganbayan order on the ground that, under Article VI, Section 16(3) of the Constitution,
he can be suspended only by the House of Representatives and that the criminal case against him
did not arise from his actuations as a member of the House of Representatives. Is Representative
Valera's contention correct? Why? (5%)
The contention of Representative Valera is not correct. As it held in Santiago v. Sandiganbayan,
356 SCRA 636, the suspension contemplated in Article VI, Section 16(3) of the Constitution is a
punishment that is imposed by the Senate or House of Representatives upon an erring member, it is
distinct from the suspension under Section 13 of the Anti-Graft and Corrupt Practices Act, which is not a
penalty but a preventive measure. Since Section 13 of the Anti-Graft and Corruption Practices Act does
not state that the public officer must be suspended only in the office where he is alleged to have committed
the acts which he has been charged, it applies to any office which he may be holding.
(2004) CTD, a Commissioner of the National Labor Relations Commission (NLRC), sports a
No. 10 car plate. A disgruntled litigant filed a complaint against him for violation of the Anti-Graft
and Corrupt Practices Act before the Ombudsman. CTD now seeks to enjoin the Ombudsman in a
petition for prohibition, alleging that he could be investigated only by the Supreme Court under its
power of supervision granted in the Constitution. He contends that under the law creating the
NLRC, he has the rank of a Justice of the Court of Appeals, and entitled to the corresponding
privileges. Hence, the OMB has no jurisdiction over the complaint against him. Should CTD's
petition be granted or dismissed? Reason briefly.
The petition of CTD should be dismissed. Section 21 of the Ombudsman Act vests the Office of
the Ombudsman with disciplinary authority over all elective and appointive officials of the government,
except officials who may be removed only by impeachment, Members of Congress, and the Judiciary. 186
While CTD has the rank of a Justice of the Court of Appeals, he does not belong to the Judiciary but to
the Executive Department. This simply means that he has the same compensation and privileges as a
Justice of the Court of Appeals. If the Supreme Court were to investigate CTD, it would be performing a
non-judicial function. This will violate the principle of separation of powers. (Noblejas v. Teehankee, 23
SCRA 405 [1968])
(2000) In the elections of May 1992, Cruz and Santos were the candidates for the office of
Municipal Mayor, the term of which was to expire on June 30, 1995. Finding that he won by a
margin of 20 votes, the Municipal Board of Canvassers proclaimed Cruz as the duly elected Mayor.
Santos filed an election protest before the Regional Trial Court (RTC) which decided that it was
Santos who had the plurality of 30 votes and proclaimed him the winner. On motion made, the
RTC granted execution pending the appeal of Cruz to the COMELEC (Comelec) and on this basis.
Santos assumed office and served as Municipal Mayor. In time, the Comelec reversed the ruling of
the RTC and instead ruled that Cruz won by a margin of 40 votes and proclaimed him the duly
elected Municipal Mayor. (1) It is now beyond June 30, 1995. Can Cruz still hold office for the
portion of the term he has failed to serve? Why? (3%)
Cruz can no longer hold office for the portion of the term he failed to serve since his term has
expired.
Was Santos a usurper and should he pay back what he has received while holding the office
as Municipal Mayor? Why?
Santos was not a usurper. He was a de facto officer, since he had a color of election to the office
of Municipal Mayor by virtue of the decision in the election protest. Hence, he is entitled to the emoluments
of the office.
(2004) AVE ran for Congressman of QU province. However, his opponent, BART, was the
one proclaimed and seated as the winner of the election by the COMELEC. AVE filed seasonably a
protest before HRET (House of Representatives Electoral Tribunal). After two years, HRET reversed
the COMELEC’s decision and AVE was proclaimed finally as the duly elected Congressman. Thus,
he had only one year to serve in Congress. Can AVE collect salaries and allowances from the
government for the first two years of his term as Congressman? Should BART refund to the
government the salaries and allowances he had received as Congressman? What will happen to the
bills that BART alone authored and were approved by the House of Representatives while he was
seated as Congressman? Reason and explain briefly. (5%)
AVE cannot collect salaries and allowances from the government for the first two years of his term,
because in the meanwhile BART collected the salaries and allowances. BART was a de facto officer while
he was in possession of the office. To allow AVE to collect the salaries and allowances will result in making
the government pay a second time. (Mechem, A Treatise on the Law of Public Offices and Public Officers,
[1890] pp. 222-223.) BART is not required to refund to the government the salaries and allowances he
received. As a de facto officer, he is entitled to the salaries and allowances because he rendered services
during his incumbency. (Rodriguez v. Tan, 91 Phil. 724 119520. The bills which BART alone authored
and were approved by the House of Representatives are valid because he was a de facto officer during his
incumbency. The acts of a de facto officer are valid insofar as the public is concerned. (People v. Garcia,
313 SCRA 279 [19990.
(2002) Suppose a public officer has committed a violation of Section 3 (b) and (c) of the
Anti- Graft and Corrupt Practices Act {RA No, 3019), as amended, by receiving monetary and other
material considerations for contracts entered into by him in behalf of the government and in
connection with other transactions, as a result of which he has amassed illegally acquired wealth.
(1) Does the criminal offense committed prescribe?
A violation of Section 3(b) and (c) of the Anti-Graft and Corrupt Practices Act prescribes. As held
in Presidential Ad-Hoc Fact-Finding Committee on Behest Loans v. Desierto, 317 SCRA 272 (1999), Article
XI, Section 15 of the Constitution does not apply to criminal cases for violation of the Anti-Graft and
Corrupt Practices Act.
Does the right of the government to recover the illegally acquired wealth prescribe?
Article XI, Section 15 of the Constitution provides that the right of the State to recover properties
unlawfully acquired by public officials or employees, or from them or from their nominees or transferees,
shall not be barred by prescription.
(1990) The Secretary of Public Works, after an investigation, ordered the demolition of the
fishpond of X as a nuisance per se on the ground that it encroached on navigable rivers and impeded
the use of the rivers. The Secretary submitted to the President of the Philippines a report of said
investigation, which report contained clearly libelous matters adversely affecting the reputation of
X, a well- known civic and religious leader in the community. The Supreme Court later found that
the rivers were man-made and were constructed on private property owned by X. (1) May X recover
damages from the Secretary of Public Works for the cost involved in rebuilding the fishponds and
for lost profits? State your reason.
No, X cannot recover damages from the Secretary of Public Works. The Secretary of Public Works
ordered the demolition of the fishpond in the performance of his official duties. He did not act in bad faith
or with gross negligence. He issued the order only after due investigation. In Mabutol v. Pascual, 124
SCRA 876, it was held that the members of the Ad Hoc Committee created to implement Presidential
Decree No. 296 and Letter of Instruction No, 19, which ordered the demolition of structures obstructing
public waterways, could' not be sued for damages although they ordered the demolition of a building that
encroached upon a creek, because the public officers concerned did not act in bad faith.
Suppose X files a libel suit against the Secretary of Public Works. Will the said libel suit
prosper? Explain your answer.
No, the libel suit will not prosper. The report submitted by the Secretary of Public Works to the
President constitutes privileged communication, as it was sent in the performance of official duty. Article
354 of the Revised Penal Code provides: "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: “A private communication made by any person to another in the performance of any legal, moral
or social duty;" In Deano v. Godinez, 12 SCRA 483, it was held that a report sent by a public official to his
superior is privileged communication, because its submission is pursuant to the performance of a legal
duty. Besides, in sending his report, the Secretary of Public Works acted in the discharge of his official
duties. Hence, he was acting in behalf of the Republic of the Philippines and within the scope of his
authority According to the ruling in Sanders v. Veridiano, 162 SCRA 88, a suit brought against a public
official for writing a letter which is alleged to be libelous but which was written while he was acting as
agent of the government and within the scope of his authority is actually a suit against the State without
its consent.
ALTERNATIVE ANSWER:
The question does not specify how the libel was committed. If the libelous statement was not
relevant to the report on the alleged illegal encroachment of the river, the fact that it was made in the
course of an official report does not immunize the Secretary of Public Works from liability for libel.
(1995) A City Mayor in Metro Manila was designated as Member of the Local Amnesty Board
(LAB) as allowed under the Rules and Regulations Implementing Amnesty Proclamation Nos. 347
and 348. as amended by Proclamation No. 377. The LAB is entrusted with the functions of receiving
and processing applications for amnesty and recommending to the National Amnesty Commission
approval or denial of the applications. The term of the Commission and, necessarily, the Local
Amnesty Boards under it expires upon the completion of its assigned tasks as may be determined
187
by the President. May the City Mayor accept his designation without forfeiting his elective position
in the light of the provision of Sec. 7, 1st par. Art. IX-B of the 1987 Constitution which pertinently
states that "[N]o elective official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure?" Discuss fully.
No, the City Mayor may not accept his designation without forfeiting his elective positions. As
stated in Flores vs. Drilon 223 SCRA 568, it is the intention of Section 7, Article X-B of the 1987 188
Constitution that local elective officials should devote their full time to their constituents. While second
paragraph of Section 7, Article IX-B of the 1987 Constitution allows appointive officials to hold other
offices when allowed by law or by the primary functions of their positions, no such exception is made in
the first paragraph, which deals with elective officials. It is the Intention of the 1987 Constitution to be
more stringent with elective local officials.
ALTERNATIVE ANSWER:
Yes, he may accept such designation without forfeiting his mayorship. The Constitutional
provision being cited contemplates a "public office or position". It is believed that the Local Amnesty Board
is not such an office since it is merely an ad hoc body. Besides, it is believed that its functions are not
"sovereign" in character which is one of the elements of a public office.
(1989) Assume that under the charter of the City of Manila, the City Mayor has the power
to investigate city officials and employees appointed by him and in connection therewith,
administer oath, take testimony and issue subpoenas. The mayor issued an executive order
creating a committee, chaired by "X", to investigate anomalies involving licensed inspectors of the
License Inspection Division of the Office of the City Treasurer, In the course of its investigation,
"X" subpoenaed "Y", a private citizen working as bookkeeper of Asia Hardware. "Y" refused to appear
contending that the Committee of "X" has no power to issue subpoenas. Decide.
Yes, the committee has no power to issue subpoenas according to Carmelo vs, Ramos, 6 SCRA
836. In creating the committee, the mayor did not grant it the power to issue subpoenas. Besides, the
mayor cannot delegate his power to issue subpoenas.
(2002) X was elected provincial governor for a term of three years. He was subsequently
appointed by the President of the Philippines serving at her pleasure, as concurrent Presidential
Assistant for Political Affairs in the Office of the President, without additional compensation. Is
X's appointment valid? (5%)
The appointment of X is not valid, because the position of Presidential Assistant for Political Affairs
is a public office. Article IX-B Section 7 of the Constitution provides that no elective official shall be eligible
for appointment or designation in any capacity to any public office or position during his tenure. As held
in Flores v. Drilon, 223 SCRA 568 (1993), since an elective official is ineligible for an appointive position,
his appointment is not valid.
(1998) Suppose Congress passed a law to implement the Constitutional principle that a
public office is a public trust, by providing as follows:
"No employee of the Civil Service shall be excused from attending and testifying or from
producing books, records, correspondence, documents or other evidence in any administrative
investigation concerning the office in which he is employed on the ground that his testimony or
the evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture;
but his testimony or any evidence produced by him shall not be used against him in criminal
prosecution based on the transaction, matter or thing concerning which is compelled, after
invoking his privilege against self-incrimination, to testify or produce evidence. Provided, however,
that such individual so testifying shall not be exempt from prosecution and punishment for perjury
committed in so testifying nor shall he be exempt from demotion or removal from office. Any
employee who refuses to testify or produce any documents under this Act shall be dismissed from
the service,"
Suppose further, that Ong, a member of the Professional Regulatory Board, is required to
answer questions in an investigation regarding a LEAKAGE in a medical examination.
No, Ong cannot refuse to answer the question on the ground that he would incriminate himself,
since the law grants him immunity and prohibits the use against him in a criminal prosecution of the
testimony or evidence produced by him. As stated by the United States Supreme Court in Brown vs.
Walker. 161 U.S. 591, 597, what the constitutional prohibition against self-incrimination seeks to prevent
is the conviction of the witness on the basis of testimony elicited from him. The rule is satisfied when he 189
is granted immunity.
ALTERNATIVE ANSWER:
In accordance with Evangelista vs. Jarencio, 68 SCRA 99, 107-108, If Ong is being cited merely
as a witness, he may not refuse to answer. However, if the question tends to violate his right against selfincrimination, he may object to it. On the other hand, under the ruling in Chavez vs. Court of Appeals, 24
SCRA 663, 680, if he is a respondent, Ong may refuse to answer any question because of his right against
self-incrimination.
Can Ong refuse to answer questions on the ground that he would incriminate himself?
No Ong cannot argue that the Civil Service Commission inferred his guilt from his refusal to
answer. He was not dismissed because of his involvement in the leakage in the medical examination but
for his refusal to answer. This is a violation of the law. He could be compelled to answer the question on
pain of being dismissed in case of his refusal, because he was granted immunity. In Lefkowitz vs. Turley.
414 U.S. 70, 84, the United States Supreme Court held: "Furthermore, the accommodation between the
interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure
testimony if immunity is supplied and testimony is still refused. This is recognized by the power of courts
to compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment.
Shilitani v. United States, 384 US 364. 16 L Ed 2d 622. 86 5 Ct 1531 (1966). Also, given adequate
immunity the State may plainly insist that employees either answer questions under oath about the
performance of their job or suffer the loss of employment."
Suppose he refuses to answer, and for that reason, is dismissed from the service, can he
plausibly argue that the Civil Service Commission has inferred his guilt from his refusal to answer
in violation of the Constitution? Suppose, on the other hand, he answers the question and on the
basis of his answers, he is found guilty and is dismissed. Can he plausibly assert that his dismissal
is based on coerced confession?
Jes Ong can argue that his dismissal was based on coerced confession. In Garrity vs. New Jersey,
385 U.S. 493, 500, the United States Supreme Court held: "We now hold the protection of the individual
under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal
proceedings of statements obtained under threat of removal from office, and that it extends to all, whether
they are policemen or other members of the body politic."
(1996) A, an employee of the National Treasurer, retired on January 10, 1996. Before she
could collect her retirement benefits, the National Treasurer discovered that A had been negligent
in the encashment of falsified treasury warrants. It appears, however, that A had received all money
and property clearances from the National Treasurer before her retirement. Can the National
Treasurer withhold the retirement of A pending determination of her negligence in the encashment
of the falsified treasury warrants? Explain.
In accordance with Tantuico vs. Domingo, 230 SCRA 391 and Cruz us. Tantuico, 166 SCRA 670,
the National Treasurer cannot withhold the payment of the retirement benefits of A pending determination
of her liability for negligence in the encashment of the falsified treasury warrants, because her retirement
benefits are exempt from execution.
ARTICLE XII: NATIONAL ECONOMY AND PATRIMONY
(2015) (1) Distinguish the President's authority to declare a state of rebellion from the
authority to proclaim a state of national emergency. (2%)
The authority to declare a state of rebellion emanates from the President’s powers as Chief
Executive (Sec. 4, Chapter 2, Book II, Administrative Code of 1997). Its declaration is deemed harmless
and without legal significance (Canlakas v. Executive Secretary). In declaring a state of national emergency
in PP1017, President Arroyo did not only rely on Sec. 18, Art. VII of the Constitution, but also on Sec. 17,
Article Xll of the Constitution, calling for the exercise of awesome powers which cannot be deemed as 190
harmless or without legal significance [David v. Macapagal -Arroyo, supra].
[2017] A bank acquired a large tract of land as the highest bidder in the foreclosure sale of
the mortgaged assets of its borrower. It appears that the land has been originally registered under
the Torrens system in 1922 pursuant to the provisions of the Philippine Bill of 1902, the organic
act of the Philippine Islands as a colony of the USA. Sec. 21 of the Philippine Bill of 1902 provided
that "all valuable mineral deposits in public lands in the Philippine Islands, both surveyed and
unsurveyed, are hereby declared to be free and open to exploration, occupation and purchase,
and the land in which they are found to occupation and purchase, by citizens of the United States,
or of said Islands." Sec. 27 of the law declared that a holder of the mineral claim so located was
entitled to all the minerals that lie within his claim, but he could not mine outside the boundary
lines of his claim.
The 1935 Constitution expressly prohibited the alienation of natural resources except
agricultural lands. Sec. 2, Art. XII of the 1987 Constitution contains a similar prohibition, and
proclaims that all lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. This provision enunciates the Regalian Doctrine. May
the Government, on the basis of the Regalian Doctrine enunciated in the constitutional provisions,
deny the bank its right as owner to the mineral resources underneath the surface of its property as
recognized under the Philippine Bill of 1902? Explain.
The government cannot deny the bank its right as owner of the mineral resources underneath the
surface of the property. The mining rights acquired under the Philippine Bill of 1902 before the effectivity
of the 1935 Constitution were vested rights that cannot be impaired by the government.
ALTERNATIVE ANSWER
No. The government may not deny the mineral right vested upon the bank. Pursuant to the
Philippine Bill of 1902, therefore, once a mining claim was made or a mining patent was issued over a
parcel of land in accordance with the relative provisions of the Philippine Bill of 1902, such land was
considered private property and no longer part of the public domain. The claimant or patent holder was
the owner of both the surface of the land and of the minerals found underneath. Since the 1902 Philippine
Bill recognized private ownership over the minerals underneath, the subsequent ratification of 1935 and
1987 Constitutions cannot take it away vested right had already set in.
(2016) Sec. 11, Art. XII of the Constitution, provides: "No franchise, certificate or any other
form of authorization for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the Philippines at least
sixty per centum of whose capital is owned by such citizens xx x." Does the term "capital"
mentioned in the cited section refer to the total common shares only, or to the total outstanding
capital stock, or to both or "separately to each class of shares, whether common, preferred nonvoting, preferred voting or any class of shares?" Explain your answer. (5%)
The term “capital” mentioned in Section 11, Article XII of the Constitution refers to the total
outstanding capital stock of public utilities. The requirement that at least sixty percent of the capital must
be owned by Filipino citizens applies separately to each class of shares, whether common, preferred, nonvoting, preferred voting, or any class of shares. Mere legal title is not enough. Full beneficial ownership of
sixty percent of the outstanding capital stock is required. (Gamboa v. Teves, 652 SCRA 690, [2011])
(2015) Pursuant to its mandate to manage the orderly sale, disposition and privatization of
the National Power Corporation's (NPC) generation assets, real estate and other disposable assets,
the Power Sector Assets and Liabilities Management (PSALM) started the bidding process for the
privatization of Angat Hydro Electric Power Plant (AHEPP). After evaluation of the bids, K-Pop
Energy Corporation, a South Korean Company, was the highest bidder. Consequently, a notice of
award was issued to K- Pop. The Citizens' Party questioned the sale arguing that it violates the
constitutional provisions on the appropriation and utilization of a natural resource which should
be limited to Filipino citizens and corporations which are at least 60% Filipino-owned. The PSALM
countered that only the hydroelectric facility is being sold and not the Angat Dam; and that the 191
utilization of water by a hydroelectric power plant does not constitute appropriation of water from
its natural source of water that enters the intake gate of the power plant which is an artificial
structure. Whose claim is correct? Explain.
PSALM’s claim is correct. Under the Water Code, a foreign company may not be said to be
“appropriating” our natural resources if it utilizes the waters collected in the dam and converts the same
into electricity through artificial devices such as the hydroelectric facility as in the case at bar. Since the
NPC remains in control of the operation of the dam by virtue of water rights granted to it, there is no legal
impediment to foreign-owned companies undertaking the generation of electric power using waters already
appropriated by the NPC, the holder of the water permit. With the advent of privatization of the electric
power industry which resulted in its segregation into four sectors, NPC’s generation and transmission
functions were unbundled. Hence the acquisition by a foreign company of the hydroelectric facility did not
violate any constitutional provision (IDEALS v. PSALM, GR No. 192088).
(2015) BD Telecommunications, Inc. (BDTI), a Filipino-owned corporation, sold its 1,000
common shares of stock in the Philippine Telecommunications Company (PTC), a public utility, to
Australian Telecommunications (AT), another stockholder of the PTC which also owns 1,000
common shares. A Filipino stockholder of PTC questions the sale on the ground that it will increase
the common shares of AT, a foreign company, to more than 40% of the capital (stock) of PTC in
violation of the 40% limitation of foreign ownership of a public utility. A T argues that the sale
does not violate the 60-40 ownership requirement in favor of Filipino citizens decreed in Section
II, Article XII of the 1987 Constitution because Filipinos still own 70% of the capital of the PTC.
AT points to the fact that it owns only 2,000 common voting shares and 1,000 non-voting preferred
shares while Filipino stockholders own 1,000 common shares and 6,000 preferred shares, therefore,
Filipino stockholders still own a majority of the outstanding capital stock of the corporation, and
both classes of shares have a par value of Php 20.00 per share. Decide. (5%)
AT’s contention does not hold water. The determination of the percentage of Filipino ownership in
a corporation is no longer primarily based on the number of apparent shares of a stockholder, nor to the
class of stock a shareholder holds. In the latest ruling of the Supreme Court in Narra Nickel Mining v.
Redmont Consolidated Mines (G.R. No. 195580 January 28, 2015), the computation of the total percentage
of the Filipino ownership in a corporation is applied to BOTH (a) the total outstanding shares of stock
entitled to vote in the election of directors; AND (b) the total number of outstanding shares of stock,
whether or not entitled to vote in the election of directors. In Narra v. Redmont, foreign corporations have
resorted to elaborate corporate layering as to make it appear that there is compliance with the minimum
Filipino ownership in the Constitution. The corporate layering employed by certain foreign corporation
was evidently designed to circumvent the constitutional caveat allowing only Filipino citizens and
corporations 60%-owned by Filipino citizens to explore, develop, and use the country’s natural resources.
The application of the Control Test and the Grandfather Rule must be applied where doubts or various
indicia that the "beneficial ownership" and "control" of the corporation do not in fact reside in Filipino
shareholders but in foreign stakeholders. Hence, AT cannot claim that PTC is Filipino-owned based only
on the apparent number of stocks belonging to Filipinos.
(2004) EAP is a government corporation created for the purpose of reclaiming lands
including foreshore and submerged areas, as well as to develop, improve, acquire, lease and sell
any and all kinds of lands. A law was passed transferring title to EAP of lands already reclaimed in
the foreshore and offshore areas of MM Bay, particularly the so-called Liberty Islands, as alienable
and disposable lands of the public domain. Titles were duly issued in EAP's name. Subsequently,
EAP entered into a joint venture agreement (JVA) with ARI, a private foreign corporation, to develop
Liberty Islands. Additionally, the JVA provided for the reclamation of 250 hectares of submerged
land in the area surrounding Liberty Islands. EAP agreed to sell and transfer to ARI a portion of
Liberty Islands and a portion of the area to be reclaimed as the consideration for ARI's role and
participation in the joint venture, upon approval by the Office of the President. Is there any
constitutional obstacle to the sale and transfer by EAP to ARI of both portions as provided for in
the JVA? (5%)
ARI cannot acquire a portion of Liberty Islands because, although EAP has title to Liberty Islands
and thus such lands are alienable and disposable land, they cannot be sold, only leased, to private 192
corporations. The portion of the area to be reclaimed cannot be sold and transferred to ARI because the
seabed is inalienable land of the public domain. (Section 3, Article XII of the 1987 Constitution; Chavez v.
Public Estates Authority, 384 SCRA 152 [2002]).
(1999) What is meant by National Patrimony? Explain the concept of National Patrimony?
(2%)
According to Manila Prince Hotel V. Government Service Insurance System, 267 SCRA 408, the
national patrimony refers not only to our natural resources but also to our cultural heritage.
(2009) Aliens are absolutely prohibited from owning private lands in the Philippines.
FALSE. Aliens can acquire private lands in the Philippines through hereditary succession
(intestate succession only [Sec. 7, Art. XII]) and former natural-born citizens can also be a transferee but
with limitations. 5,000 square meters for urban and 3 hectares for rural (Sec.8 Art. XII).
(1987) On March 1, 1987, "ABC" Corporation, a company engaged in the export trade,
applied for judicial confirmation of its title over ten hectares of timber lands. The company bought
the land from "X" who in turn inherited it from his father "Y". The latter had been in open,
notorious, public and continued possession of the land since 1925. On what valid grounds can you,
as Solicitor General, oppose the application?
As Solicitor General, I can oppose the application for confirmation of title on the ground that
under Art. XII, Sec. 3 timber lands cannot be alienated. The ruling in Director of Lands v. IAC, 146 SCRA
509 (1986), and Director of Lands v, Bengzon, No. 54045, July 28, 1987, reiterated in Director of Lands
v. Manila Electric Co., G.R, No. 57461, Sept. 11, 1987, to the effect that a corporation is entitled to the
confirmation of imperfect title to lands acquired by it from private individuals who have possessed the
same for 30 years, under bona fide claim of ownership, for the reason that such persons are presumed to
have performed all conditions essential to a government grant and, therefore, are entitled to the issuance
of a certificate of title, applies only to agricultural lands.
(2000) a) Andy Lim, an ethnic Chinese, became a naturalized Filipino in 1935. But later he
lost his Filipino citizenship when he became a citizen of Canada in 1971. Wanting the best of both
worlds, he bought, in 1987, a residential lot in Forbes Park and a commercial lot in Binondo. Are
these sales valid? Why? (3%)
No, the sales are not valid. Under Section 8, Article XII of the Constitution, only a natural- born
citizen of the Philippines who lost his Philippine citizenship may acquire private land. Since Andy Lim was
a former naturalized Filipino citizen, he is not qualified to acquire private lands.
(2002) A, a Filipino citizen, and his wife B, a Japanese national, bought a five-hectare
agricultural land from X, a Filipino citizen. The couple later executed a deed of donation over the
same land in favor of their only child C. A year later, however, C died in vehicular accident without
leaving a last will and testament. Now, X brought suit to recover the land on the ground that B,
being an alien, was not qualified to buy the land when B and A jointly bought the land from him
and that, upon the death of C, the land was inherited by his parents but B cannot legally acquire
and/or inherit it. How should the case be decided? If X filed the suit against C when the latter was
still alive, would your answer be the same? Why? (5%)
X cannot recover the land whether from C or A and B. Under Article IV, Section 1 (2) of the
Constitution, C is a Filipino citizen since his father is a Filipino. When A and B donated the land to C, it
became property of a Filipino citizen. As held in Halili v. Court of Appeals, 287 SCRA 465 (1998), the sale
of land to an alien can no longer be annulled if it has been conveyed to a Filipino citizen. Since C left no
will and his parents are his heirs, in accordance with Article XII, Section 7 of the Constitution, B can
acquire the land by hereditary succession.
(1989) Maria, a natural-born Filipino citizen, went to the United States in 1965 to work as
a nurse. With her savings, she bought a parcel of land consisting of 1,000 square meters in a
residential subdivision in Metro Manila. She had the said property titled in her name in 1970. In 193
July, 1972, Maria acquired American citizenship by naturalization. Two months later, she married
her Canadian boyfriend. (1) Can Maria validly sell this parcel of land to the younger sister of her
husband who is also a Canadian citizen?
No, Maria cannot validly sell the parcel of land to the younger sister of her husband who is a
Canadian citizen. Under Section 7, Article XII of the 1987 Constitution, as a general rule, aliens cannot
acquire private land since pursuant to Section 2, in relation to Section 3, Article XII, of the 1987
Constitution they are not qualified to acquire or hold lands of the public domain. Under Section 7,
Article XII of the 1987 Constitution, an alien can acquire public land by hereditary succession. Under
Section 8, Article XII of the 1987 Constitution, a natural-born Philippine citizen who lost his Philippine
citizenship may be a transferee of private land. The younger sister of the husband of Maria is not acquiring
the private land by hereditary succession but by sale. Neither is she a former natural-born Philippine
citizen who lost her Philippine citizenship. Consequently, neither of the exceptions found in the abovementioned provisions is applicable to her.
Supposing Maria's husband dies and she decides to reside in the Philippines permanently,
can Maria buy the parcel of land consisting of 400 square meters neighboring her own?
No, Maria cannot buy the adjoining parcel of land. Under Section 2 of Batas Pambansa Blg. 185,
a natural-born Philippine citizen who lost his Philippine citizenship, may acquire only up to 1,000 square
meters of private urban land. Since Maria has previously acquired a parcel of land with an area of 1,000
square meters, she can no longer purchase any additional parcel of urban land.
ALTERNATIVE ANSWER
Yes, she can acquire the adjacent land which has an area of 400 square meters since the law
limits acquisition of lands to 1,000 square meters after the loss of Philippine citizenship.
(1994) A and B leased their residential land consisting of one thousand (1,000) square
meters to Peter Co, a Chinese citizen, for a period of fifty (50) years. In 1992, before the term of
the lease expired. Co asked A and B to convey the land to him as the contract gave him the option
to purchase said land if he became a naturalized Filipino citizen. Co took his oath as a Filipino
citizen in 1991. (1) Was the contract of lease for a period of fifty (50) years valid considering that
the lessee was an alien?
As held in Philippine Banking Corporation vs. Lui She. 21 SCRA 52, the lease of a parcel of land
with an option to buy to an alien is a virtual transfer of ownership to the alien and falls within the scope
of the prohibition in Section 7, Article XII of the Constitution against the acquisition of private lands by
aliens.
(2) What is the effect of the naturalization of Peter Co as a Filipino citizen on the validity
of the option to purchase given him?
Because of the naturalization of Peter Co as a Filipino citizen, he can exercise the option to
purchase the land. In accordance with the ruling in Yap vs. Grageda, 121 SCRA 244. since he is qualified
to own land, the policy to preserve lands for Filipinos will be achieved.
(1995) In June 1978 spouses Joel and Michelle purchased a parcel of land. Lot No. 143,
Cadastral Survey No. 38-D, with an area of 600 square meters for their residence in Cainta, Rizal,
from Cecille who by herself and her predecessor-in-interest had been in open, public, peaceful,
continuous and exclusive possession of the property under a bona fide claim of ownership long
before 12 June 1945. At the time of purchase, the spouses Joel and Michelle were then natural
born Filipino citizens. In February 1987 the spouses filed an application for registration of their
title before the proper court. This time however Joel and Michelle were no longer Filipino citizens.
The government opposed their application for registration alleging that they have not acquired
proprietary rights over the subject lot because of their subsequent acquisition of Canadian
citizenship, and that unregistered lands are presumed to be public lands under the principle that
lands of whatever classification belong to the State under the Regalian doctrine, hence, they still
pertain to the State. How will you resolve the issues raised by the applicants and the oppositor? 194
Discuss fully.
The argument of the government that unregistered lands are presumed to be public lands is
utterly unmeritorious. As held in Republic vs. Court of Appeals. 235 SCRA 562, in accordance with Section
48 of the Public Land Act, since the predecessors-in- interest of Joel and Michelle had been in open,
public, peaceful, continuous and exclusive possession of the land under a bona fide claim of ownership
long before June 12. 1945, their predecessors- in-interest had acquired the land, because they were
conclusively presumed to have performed all conditions essential to a government grant. The land ceased
to be a part of the public domain. It is alienable and disposable land. Joel and Michelle acquired the rights
of their predecessors-in-interest by virtue of the sale to them.
Joel and Michelle can have the land registered in their names. They were natural-born Filipino
citizens at the time of their acquisition of the land. In any event they were Filipino citizens at the time of
their acquisition of the land. Their becoming Canadian citizens subsequently is immaterial. Article XII,
Sec. 8 of the 1987 Constitution presupposes that they purchased the land after they lost Filipino
citizenship. It does not apply in this case at all.
(1994) John Smith, a US national, was married to Petra de Jesus, a Filipino citizen, on
June 5, 1980. Two (2) years later, Petra purchased a parcel of residential land from Jose Cruz using
her own funds. The Deed of Sale states that the land was sold to "Petra married to John Smith" and
was registered as such. With the knowledge of John Smith, Petra administered the land, leasing
parts thereof to several individuals. Three (3) years later, Petra, without the knowledge of John
Smith, sold the land to David Perez. Upon learning of the transaction, John Smith filed a case to
annul the Deed of Sale. Citing Art. 160 of the Civil Code, he argued that said sale was without his
consent, the property being conjugal as it was purchased at the time he was married to Petra. He
presented the Deed of Sale executed by Petra stating that she is married to John Smith. He wants
to recover at least his conjugal share. (1) Is John Smith entitled to his conjugal share?
No, John Smith is not entitled to his conjugal share in the land. Firstly, since it was acquired with
the personal funds of Petra de Jesus, in accordance with the ruling in Mirasol vs. Lim, 59 Phil. 701, the
presumption that the property is conjugal has been rebutted. Secondly, a declaration that John Smith is
entitled to a conjugal share in the land will violate the prohibition against the conveyance of private lands
to aliens embodied in Section 7, Article XII of the Constitution.
(2) May the Deed of Sale executed by Petra in favor of David Perez be annulled?
The Deed of Sale cannot be annulled. As held in Cheesman vs. Intermediate Appellate Court, 193
SCRA 93. to accord to John Smith, an alien, the right to have a decisive vote as to the disposition of the
land would permit an indirect contravention of the constitutional prohibition against the acquisition of
private lands by aliens.
(1987) The Philippine entered into a Treaty of Friendship, Comity and Commerce with
Indonesia with the following provisions: (1) The nationals of each contracting State admitted to
the practice of law in said State, to practice law without taking the bar examinations in the other
contracting State; and (2) The nationals of each contracting State to engage in retail trade business
in the territory of the other contracting State. Is the treaty valid?
The treaty is valid. Art. XII, Sec. 14 provides that the practice of all professions in the Philippines
shall be limited to Filipino citizens, save in cases prescribed by law. Here the treaty has the force of law.
Art. XII. Sec. 10 provides that Congress shall reserve to citizens of the Philippines or to corporations or
associations at least 60% of the capital of which is owned by such citizens certain areas of investment.
There can be no question then as to the validity of the Nationalization of Retail Trade Law, the
constitutionality of which was sustained in Ichong v. Hernandez, 101 Phil. 1155 (1957) even in the absence
of a similar express grant of power to Congress under the 1935 Constitution. Although Congress can
repeal or amend such law, it may not be amended by a treaty in view of Art. XII, Sec. 22 which declares
acts of circumvent or negate any provisions of this Art. XII to be inimical to national interest and subject
the offenders to criminal and civil sanctions. For then the Retail Trade Nationalization Law becomes part
of Art. XII, having been passed pursuant to the mandate in Sec. 10. However, it may also be plausibly
argued that a treaty may amend a prior law and treaty of friendship, comity and commerce with Indonesia 195
may be deemed to have created an exception in the Nationalization of Retail Trade Law in favor of
Indonesian citizen.
(1994) In the desire to improve the fishing methods of the fishermen, the Bureau of
Fisheries, with the approval of the President, entered into a memorandum of agreement to allow
Thai fishermen to fish within 200 miles from the Philippine sea coasts on the condition that
Filipino fishermen be allowed to use Thai fishing equipment and vessels, and to learn modern
technology in fishing and canning. (1) Is the agreement valid?
No. Only Filipinos may fish in exclusive economic zone.
(2) Suppose the agreement is for a joint venture on the same area with a Thai oil corporation
for the exploration and exploitation of minerals with the Thai corporation providing technical and
financial assistance. Is the agreement valid?
The President can enter into a memorandum of agreement with a Thai oil corporation involving
technical and financial assistance for the exploration and exploitation of minerals, but there should be no
Joint venture. Section 2, Article XII of the Constitution authorizes the President to enter into agreements
with foreign-owned corporations involving technical or financial assistance for the exploration,
development, and utilization of minerals. However, the same provision states the joint venture for the
exploration, development and utilization of natural resources may be undertaken only with Filipino
citizens, or corporations or associations at least sixty per cent of whose capital is owned by Filipino citizen.
(1992) The Philippine Commodities Office (PCO), a government agency, wishes to establish
a direct computer and fax linkup with trading centers in the United States. The advanced
technology of a private company, Philippine Pacific Telecommunications, is necessary for that
purpose but negotiations between the parties have failed. The Republic, in behalf of the PCO, files
suit to compel the telecommunications company to execute a contract with PCO for PCO's access
and use of the company's facilities. Decide. If the case will not prosper, what alternative will you
propose to the Republic?
The action will not prosper. As held in Republic of the Philippines vs. Philippine Long Distance
Telephone Company, 26 SCRA 620, parties cannot be compelled to enter into a contract. However, since
under Section 18, Article XII of the Constitution, the State may expropriate public utilities, the Republic
of the Philippines may compel the Philippine Pacific Telecommunications to allow access to its facilities.
If the Republic of the Philippines can take title to the facilities of Philippine Pacific Telecommunications
by its power of expropriation, there is no reason why it cannot use such power to impose only a burden
upon Philippine Pacific Telecommunication without loss of title.
(2001) A is an alien. State whether, in the Philippines, he: (1) Can be a lessee of a private
agricultural land, (3%)
Yes, an alien can be a lessee of private agricultural land. As stated in Krivenko vs. Register of
Deeds of Manila, 79 Phil. 461 (1947), aliens can lease private agricultural land, because they are granted
temporary rights only and this is not prohibited by the Constitution.
(2006) State whether or not the following laws are constitutional. Explain briefly. (1) A law
prohibiting Chinese citizens from engaging in retail trade. (2%)
The law is invalid as it singles out and deprives Chinese citizens from engaging in retail trade. In
Ichong v. Hernandez, G.R. No. L-7995, May 31,1957, the court held that the Treaty of Amity between the
Republic of the Philippines and the Republic of China guarantees equality of treatment to the Chinese
nationals "upon the same terms as the nationals of any other country." Thus, the court ruled therein that
the nationals of China are not discriminated against because nationals of all other countries, except those
of the United States, who are granted special rights by the Constitution, are all prohibited from engaging
in the retail trade. In the case at bar, the law discriminates only against Chinese citizens and thus violates
the equal protection clause.
(2%)
A law creating a state corporation to exploit, develop, and utilize compressed natural gas. 196
The law is valid as under Article XII, Section 2 of the 1987 Constitution, the exploration,
development, and utilization of natural resources shall be under the full control and supervision of the
State. It is also provided that the State may directly undertake such activities or it may enter into coproduction, joint venture or sharing agreements with Filipino citizens or corporations or associations, at
least 60% Filipino-owned. Furthermore, the President may enter into agreements with foreign-owned
corporations involving technical or financial assistance for large-scale exploration, development, and
utilization of minerals, petroleum and other mineral oils, according to terms and conditions provided by
law. A state corporation, unlike a private corporation, may be created by special law and placed under the
control of the President, subject to such conditions as the creating statute may provide.
ARTICLE XIII: SOCIAL JUSTICE AND HUMAN RIGHTS
AGRARIAN REFORM LAW
(1992) Teodoro Luzung is engaged in the business of prawn farming. The prawns are
nurtured in his fishponds in Mindoro and, upon harvest, are immediately frozen for export.
Congress passed the Comprehensive Agrarian Reform Law of 1988 which provides among others
that all private lands devoted to agriculture shall be subject to agrarian reform. The law includes
under the term "agriculture" the following activities: cultivation of the soil, planting of crops,
growing of fruit trees, raising of livestock, poultry or fish. The Department of Agrarian Reform
issued an implementing order which provides that commercial farms used for aqua-culture,
including salt-beds, fishponds and prawn farms are within the scope of the law. Can the law be
declared unconstitutional? Decide.
As held in Luz Farms vs. Secretary of the Department of Agrarian Reform, 192 SCRA 51, the law is
unconstitutional insofar as it included livestock, poultry and swine raising. In the definition of the
agricultural land which the Constitutional Commission adopted in connection with agrarian reform, lands
devoted to such purposes were not included. However, both the law and the implementing order are
constitutional insofar as they included fishponds. The definition of agricultural land which the
Constitutional Commission adopted included fishponds.
COMMISSION ON HUMAN RIGHTS
(1992) Walang Sugat, a vigilante group composed of private businessmen and civic leaders
previously victimized by the Nationalist Patriotic Army (NPA) rebel group, was implicated in the
torture and kidnapping of Dr. Mengele, a known NPA sympathizer. Does the Commission on Human
Rights have the power to investigate and adjudicate the matter?
Under Section 18, Article XIII of the Constitution, the Commission on Human Rights has the
power to investigate all forms of human rights violations involving civil and political rights and to monitor
the compliance by the government with international treaty obligations on human rights. As held in Carino
vs. Commission on Human Rights, 204 SCRA 483, the Commission on Human Rights has no power to
decide cases involving violations of civil and political rights. It can only investigate them and then refer
the matter to the appropriate government agency.
ALTERNATIVE ANSWER:
If what is referred to in the problem is the Commission on Human Rights under the United
National Economic and Social Council, the case may be investigated by the Commission based on a special
procedure for fact-finding and inquiry based on the consent of the States concerned. However, this does
not constitute investigation in the usual sense of the term, with no objective of establishing culpability.
The Commission on Human Rights is not empowered to make adjudications.
(1997) About a hundred people occupied a parcel of land in Quezon City belonging to the
city government and built shanties thereon which they utilized for dwelling, sari-sari stores, etc.
The City Mayor issued an order directing the occupants to vacate the structures within five days 197
from notice, otherwise they would be evicted and relocated and their shanties removed, in order
that the parcel of land could be converted into a park for public use and enjoyment. The inhabitants
of the parcel of land complained to the Commission on Human Rights urging that the Mayor of
Quezon City be stopped from doing what he has threatened to do. The Commission on Human
Rights, after conducting an investigation and finding that the shanties of petitioners were already
being demolished by then, ordered the Quezon City Mayor and persons implementing his order to
cease and desist from demolishing petitioners' shanties under pain of contempt. What have you to
say on the validity of the actuation of the Commission on Human Rights in relation to that of the
Quezon City Mayor?
The actuation of the Commission on Human Rights is void. In Simon vs. Commission on Human
Rights, 229 SCRA 117. the Court held that the Commission on Human Rights has no power to issue a
restraining order or a writ of injunction and has no power to cite for contempt for violation of the
restraining order or a writ of preliminary injunction. The cease and desist order, according to the Court,
is a semantic interplay for a restraining order. Its power to cite for contempt should be understood to
apply only to violations of its adopted operational guidelines and rules of procedure essential to carry out
its investigatorial powers, which it is constitutionally authorized to adopt.
(2001) In order to implement a big government flood control project, the Department of
Public Works and Highways (DPWH) and a local government unit (LGU) removed squatters from the
bank of a river and certain esteros for relocation to another place. Their shanties were demolished.
The Commission on Human Rights (CHR) conducted an investigation and issued an order for the
DPWH and the LGU to cease and desist from effecting the removal of the squatters on the ground
that the human rights of the squatters were being violated. The DPWH and the LGU objected to the
order of the CHR. Resolve which position is correct. Reasons.
The position of the Department of Public Works and Highways and of the local government unit
is correct. As held in Export Processing Zone Authority V. Commission on Human Rights, 208 SCRA125
(1992), no provision in the Constitution or any law confers on the Commission on Human Rights
jurisdiction to issue temporary restraining orders or writs of preliminary injunction. The Commission on
Human Rights has no judicial power. Its powers are merely investigatory.
(2005) Squatters and vendors have put up structures in an area intended for a People's Park,
which are impeding the flow of traffic in the adjoining highway. Mayor Cruz gave notice for the
structures to be removed, and the area vacated within a month, or else, face demolition and
ejectment. The occupants filed a case with the Commission on Human Rights (CHR) to stop the
Mayor's move. The CHR then issued an "order to desist" against Mayor Cruz with warning that he
would be held in contempt should he fail to comply with the desistance order. When the allotted
time lapsed, Mayor Cruz caused the demolition and removal of the structures. Accordingly, the
CHR cited him for contempt. (1) What is your concept of Human Rights? Does this case involve
violations of human rights within the scope of the CHR's jurisdiction?
Under the Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights and International Covenant on Civil and Political Rights, the scope of human
rights includes "those that relate to an individual's social, economic, cultural, political and civil relations...
along with what is generally considered to be his inherent and inalienable rights, encompassing almost all
aspects of life."
In the case at bar, the land adjoins a busy national highway and the construction of the squatter
shanties impedes the flow of traffic. The consequent danger to life and limb cannot be ignored. It is
paradoxical that a right which is claimed to have been violated is one that cannot, in the first place, even
be invoked, if it is, in fact, extant. Based on the circumstances obtaining in this instance, the CHR order
for demolition do not fall within the compartment of human rights violations involving civil and political
rights intended by the Constitution. (Simon v. Commission on Human Rights, G.R. No. 100150, January
5, 1994)
Can the CHR issue an "order to desist" or restraining order?
The CHR may not issue an "order to desist" or restraining order. The constitutional provision
directing the CHR to provide for preventive measures to those whose human rights have been violated or
need protection may not be construed to confer jurisdiction on the Commission to issue a restraining
order or writ of injunction for, it that were the intention, the Constitution would have expressly said so.
Jurisdiction is conferred only by the Constitution or by law. It is never derived by implication. (Export
Processing Zone Authority vs. Commission on Human Rights, G.R. No. 101476, April 14, 1992)
Is the CHR empowered to declare Mayor Cruz in contempt? Does it have contempt powers
at all?
The CHR does not possess adjudicative functions and therefore, on its own, is not empowered to
declare Mayor Cruz in contempt for issuing the "order to desist." However, under the 1987 Constitution,
the CHR is constitutionally authorized, in the exercise of its investigative functions, to "adopt its
operational guidelines and rules of procedure, and cite for contempt for violations thereof in accordance
with the Rules of Court." Accordingly, the CHR, in the course of an investigation, may only cite or hold
any person in contempt and impose the appropriate penalties in accordance with the procedure and
sanctions provided for in the Rules of Court. (Carino v. Commission on Human Rights, G.R. No. 96681,
December 2, 1991)
LABOR
(1988) Because of the marked increase in the incidence of labor strikes and of work
stoppages in industrial establishments, Congress intending to help promote industrial peace,
passed, over the objections of militant labor unions, an amendment to the Labor Code, providing
that no person who is or has been a member of the Communist Party may serve as an officer of any
labor organization in the country. An association of former NPAs (New People’s Army) who had
surrendered, availed of amnesty, and are presently leading quiet and peaceful lives, comes to you
asking what could be done against the amendment. What would you advise the association to do?
Explain.
In PAFLU v. Secretary of Labor, 27 SCRA 40 (1969) the Supreme Court upheld the validity of sec.
23 of the Industrial Peace Act requiring labor unions to submit, within 60 days of the election of its officers,
affidavits of the latter that they are not members of the Communist Party, against the claim that the
requirement unduly curtailed freedom of assembly and association. The Court pointed out that the filing
of the affidavits was merely a condition for the acquisition by a labor organization of legal personality and
the enjoyment of certain rights and privileges which the Constitution does not guarantee. On the other
hand, the requirement constitutes a valid exercise of the State's police power to protect the public against
abuse, fraud and impostors.
But the disqualification of members of the CPP and its military arm, the NPA, from being officers
of a labor union would (1) nullify the amnesty granted by the President with the concurrence, it may be
assumed, of the majority of the members of Congress and (2) permit the condemnation of the former NPA
members without judicial trial in a way that makes it contrary to the prohibition against the enactment
of bill of attainder and ex post facto law. The amnesty granted to the former NPAs obliterated their offense
and relieved them of the punishment imposed by law. (Barrioquinto v, Fernandez, 82 Phil. 642 (1949)).
The amendment would make them guilty of an act, that of having been former members of the NPA, for
which they have already been forgiven by Presidential amnesty.
For these reasons, I would advise the association to work for the veto of the bill and, if it is not
vetoed but becomes a law, to challenge it in court.
(1988) Hearings before a congressional committee have established that many firms at the
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Bataan Export Processing Zone had closed down or pulled out because of unstable labor conditions
resulting in so many strikes. To remedy the situation and inject vitality to the export expansion
program, some congressional leaders and business executives propose that strike-free export zones
be established. Do you believe that under the present Constitution, it is legally possible to put up
such a strike-free export processing zone in the country? Why or why not?
No. The fact that many firms at the Bataan EPZA have been forced to close down by unstable 199
labor condition brought about by strike does not justify the ban on strike. The Constitution guarantees
the rights of workers to engage in "peaceful concerted activities, including the right to strike in accordance
with law." (Art. XIII, sec. 3). It is illegal strikes which can be prohibited but not all strikes. For strike is
labor's legitimate weapon. In the absence of a compelling interest of the state (such as health and safety,
e.g., the prohibition of strike in hospitals and industries indispensable to the national interest) it cannot
be prohibited.
(1993) Congressman Cheng says he is one of the co-authors of the Subic Bay Metropolitan
Authority Charter. He declares that the SBMA is the answer to rapid economic growth and the
attainment of the President's Philippine 2000" dream. However, Cheng is worried that foreign
capital might be slow in coming in due to unstable working conditions resulting from too many
strikes. To remedy this situation. Cheng proposes an amendment to SBMA law declaring it as a
strike-free zone or total ban on strikes. Is this proposal legally defensible? Explain briefly.
Art. XIII. sec. 3 of the Constitution guarantees the right of all workers to engage in peaceful
concerted activities, including the right to strike in accordance with law. Thus, a law cannot totally prohibit
the right to strike but can only regulate the exercise thereof. His proposal to ban strikes totally in the
Subic Special Economic and Freeport Zone is, therefore unconstitutional.
ALTERNATIVE ANSWER:
While the Constitution guarantees to workers the right to engage in peaceful concerted activities,
Including the right to strike, such right can only be exercised in accordance with law. The phrase "in
accordance with law" was Inserted precisely to Indicate that in some exceptional cases workers would not
have the right to strike if it is prohibited by law. Hence, the proposal to ban strikes totally in the Subic
Special Economic and Freeport Zone is constitutional. (Social Security System Employees Association vs.
Court of Appeals, 175 SCRA 686, July 28. 1989; Manila Public School Teachers Association v. Laguio,
200 SCRA 323 (1991)).
SOCIAL JUSTICE UNDER THE PRESENT CONSTITUTION
(1995) Discuss the concept of social justice under the 1987 Constitution. 2. How does it
compare with the old concept of social Justice under the 1973 Constitution? Under the 1935
Constitution?
Section 10, Article II of the 1987 Constitution provides. "The State shall promote social justice in
all phases of national development". As stated in Marquez vs. Secretary of Labor, 171 SCRA 337, social
justice means that the State should assist the underprivileged. Without such help, they might not be able
to secure justice for themselves. Since the provision on social justice in the 1987 Constitution covers all
phases of national development, it is not limited to the removal of socio-economic inequities but also
includes political and cultural inequities. The 1987 Constitution elaborated on the concept of social justice
by devoting an entire article, Article XIII, to it.
ALTERNATIVE ANSWER
Section 5, Article II of the 1935 Constitution provided, "The promotion of social justice to Insure
the well-being and economic security of all the people should be the concern of the State." While this
provision embodied the concept of social justice as an obligation of the State to alleviate the plight of the
underprivileged by removing Inequities, it simply made a general policy declaration and focused on social
and economic inequities. In the 1987 Constitution, social Justice is conceptualized as a set of specific
economic, social and cultural rights. The 1987 Constitutional provision on social justice includes all
phases of national development. It includes economic, political, social and cultural rights.
In Calalang v. Williams, et. al. 70 Phil. 726, social justice was defined as "neither communism nor
despotism, nor atomism, nor anarchy, but the humanization of laws and the equalization of social and
economic forces by the State so that justice in its rational and objectively secular conception may at least
be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the
government of measures calculated to insure economic stability of all the competent elements of society,
through the maintenance of a proper economic and social equilibrium in the interrelations of the members
of the community,"
200
On the other hand, Section 6, Article II of the 1973 Constitution provided. The State shall promote
social justice to ensure the dignity, welfare, and security of all the people. Toward this end. the State shall
regulate the acquisition, ownership, use, enjoyment, and disposition of private property, and equitably
diffuse property ownership and profits." This provision expounded on the concept of social justice by
expressly mentioning the regulation of property and the equitable diffusion of ownership.
WOMEN
(2000) What are the provisions of the Constitution on women?
The following are the provisions of the Constitution on women:
1. "It (the State) shall equally protect the life of the mother and the life of the unborn from
conception." (Section 12, Article II)
2. The State recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men." (Section 14, Article II)
3. "The State shall protect working women by providing safe and healthful working conditions,
taking into account their maternal functions, and such faculties and opportunities that will enhance their
welfare and enable them to realize their full potential in the service of the nation." (Section 14, Article XIII)
ARTICLE XIV: EDUCATION, SCIENCE AND TECHNOLOGY, ARTS
(2013) Bobby, an incoming third year college student, was denied admission by his
university, a premiere educational institution in Manila, after he failed in three major subjects in
his sophomore year. The denial of admission was based on the university's rules and admission
policies. Unable to cope with the depression that his non-admission triggered, Bobby committed
suicide. His family sued the school for damages, citing the school's grossly unreasonable rules that
resulted in the denial of admission. They argued that these rules violated Bobby's human rights
and the priority consideration that the Constitution gives to the education of the youth. You are
counsel for the university. Explain your arguments in support of the university's case. (6%)
I shall argue that under Article XIV, Section 5(2) of the 1987 Constitution, the educational
institution enjoys academic freedom. Academic freedom includes its rights to prescribe academic
standards, policies and qualification for the admission of a student (University of San Agustin, Inc. vs.
Court of Appeals, 230 SCRA 761)
ALTERNATIVE ANSWER:
The claim of Bobby’s family is not meritorious. It is provided under Section 5(2), Article XIV of the
1987 Constitution that Academic Freedom shall be enjoyed in all institutions of higher learning. Colleges,
publicly- or privately-owned, if they offer collegiate courses, enjoy academic freedom. From the standpoint
of the educational institution, the university has the freedom to determine “who may teach; what may
be taught, how it shall be taught; and who may be admitted to study” (Sweezy v. State of New
Hampshire, 354 U.S. 234).
(2008) As a reaction to the rice shortage and the dearth of mining engineers. Congress
passed a law requiring graduates of public science high schools henceforth to take up agriculture
or mining engineering as their college course. Several students protested, invoking their freedom
to choose their profession. Is the law constitutional?
The law is unconstitutional because creating occupation against the will of the student in making
a living is a form of involuntary servitude, not constitutionally encourage. The Constitution provides that
every citizen has the right to select a profession or a course of study, subject to a fair, reasonable and
equitable admission and academic requirements. Although the freedom to choose a profession can be
regulated, the limitation should not be oppressive, unreasonable and unfair so as to restrict the freedom 201
of choice. It is not for the State to decide what a student would take up in college. But if it were for national
security in order to defend the State then a compulsory rendition of military service may be made through
a law.
(2007) The 1987 Constitution has increased the scope of academic freedom recognized
under the previous Constitution.
The statement is true. The 1987 Constitution provides that academic freedom shall be enjoyed in
all institutions of higher learning. This is more expansive in scope than the 1973 Constitution which
stated that: All institutions of higher learning shall enjoy academic freedom. While the 1973 Charter
suggests that academic freedom was institutional in the sense that it belonged to the colleges and
universities, the present Charter gives the guaranty to all other components of the institution, including
faculty and possibly students.
ALTERNATIVE ANSWER:
The statement is false. The scope of academic freedom remains the same. Article XIV, Section 5
(2) of the Constitution provides that academic freedom shall be enjoyed in all institutions of higher
learning. As it held in UP. Board of Regents V. Court of Appeals, G.R. No. 134629, August 31, 1999, “This
(provision) is nothing new. The 1935 and the 1973 Constitution likewise provided for academic
freedom or, more precisely, for the institutional autonomy of universities and institutions of higher
learning.”
(1987) "X", a son of a rich family, applied for enrolment with the San Carlos Seminary in
Mandaluyong, Metro Manila. Because he had been previously expelled from another seminary for
scholastic deficiency, the Rector of San Carlos Seminary denied the application without giving any
grounds for the denial. After "X" was refused admission, the Rector admitted another applicant,
who is the son of a poor farmer who was also academically deficient. Give your decision on the
appeal of "X" from the Rector's denial of "X's" application.
The seminary has institutional autonomy which gives it the right, all things being equal, to choose
whom it will admit as student. (Garcia v. Faculty of Admission, Loyola School of Theology, 68 SCRA 277
(1975); Villar v. Technological Institute of the Philippines, 135 SCRA 706 (1985); Tangonan v. Cruz Pano,
137 SCRA 245 (1985). This autonomy is sufficiently large to permit in this case the seminary to choose
between the rich man's son and the poor man's son.
The preference given to the poor man's son is justified. Not only is the seminary entitled to choose
whom it will admit because it enjoys institutional autonomy (Art. XIV, Sec. 5(2) but the choice made in
this case is a wise and judicious one. The rich man's son had been expelled from another school because
of academic delinquency. Despite of the economic advantage and opportunity he had, he still failed in his
school work, warranting a finding that he cannot really do school work. On the other hand, the poor man's
son may be academically deficient precisely as a result of poverty so that if relieved of its effects it is
probable he will do better in school. The democratization of wealth and power, implicit in Art. XIII, Sec. 1,
and justifies the decision of the Rector in this case.
(1993) Ting, a student of Bangkerohan University, was given a failing grade by Professor
Mahigpit. Ting confronted Professor Mahigpit at the corridor after class and a heated argument
ensued. Cooler heads prevented the verbal war ending in physical confrontation. Mahigpit left the
campus and went shopping in a department store. Ting saw Mahigpit and without any warning
mauled the latter. Mahigpit filed an administrative complaint against Ting before the Dean of
Students for breach of university rules and regulations. The Dean set the complaint for hearing.
However, Ting filed a petition before the RTC to prohibit the Dean and the school from
investigating him contending that the mauling incident happened outside the school premises and
therefore, outside the school's jurisdiction. The school and the Dean answered that the school can
investigate Ting since his conduct outside school hours and even outside of school premises affect
the welfare of the school; and furthermore, the case involves a student and faculty member. If you
were the judge, how would you decide the case?
If I were the Judge, I would dismiss the petition. In Angeles v Sison, 112 SCRA 26, it was held 202
that a school can subject to disciplinary action a student who assaulted a professor outside the school
premises, because the misconduct of the student involves his status as, a student or affects the good
name or reputation of the school. The misconduct of Ting directly affects his suitability as a student.
(1999) A. What is Academic Freedom? Discuss the extent of Academic Freedom enjoyed by
institutions of higher learning. (2%)
According to Reyes v. Court of Appeals, 194 SCRA 402, academic freedom is the freedom of a
faculty member to pursue his studies in his particular specialty and thereafter to make known or publish
the result of his endeavors without fear that retribution would be visited on him in the event that his
conclusions are found distasteful or objectionable by the powers that be, whether in the political,
economic, or academic establishments. In Garcia v. Faculty Admission Committee, 68 SCRA 277, it was
held that the academic freedom of an institution of higher learning includes the freedom to determine who
may teach, what may be taught, how it shall be taught, and who may be admitted to study. Because of
academic freedom, an institution of higher learning can refuse to re-enroll a student who is academically
deficient or who has violated the rules of discipline. Academic freedom grants institutions of higher
learning the discretion to formulate rules for the granting of honors. Likewise, because of academic
freedom, an institution of higher learning can close a school.
(1999) What is the rule on the number of aliens who may enroll in educational institutions
in the Philippines. Give the exception to the rule. May such institutions accept donations from
foreign students under the pretext that such donations are to be used to buy equipment and
improve school facilities? Explain. (2%)
Under Section 4(2), Article XIV of the Constitution, no group of aliens shall comprise more than
one-third of the enrollment in any school. The exception refers to schools established for foreign diplomatic
personnel and their dependents and, unless otherwise provided by law, for other foreign temporary
residents. Educational institutions may accept donations from foreign students. No provision in the
Constitution or any law prohibits it.
(2007) (a) For purposes of communication and instruction, the official languages of the
Philippines are English and Filipino, until otherwise.
The statement is false. Article XIV, Section 7 of the 1987 Constitution provides that for “purposes
of communication and instruction, the official languages of the Philippines are Filipino and, until
otherwise provided by law, English.” Thus, while Filipino will always be an official language, Congress
may, by law, remove English as the other official language. Hence, the statement is false as the
continuation of English as an official language is subject to the control and discretion of Congress.
ALTERNATIVE ANSWER:
The statement is true. To be more precise, however, what is only to remain as official until
otherwise provided by law is English. Filipino will always be an official language under the Charter.
(1987) The requirement that school children participate in flag ceremonies has been the
subject of controversy. On the one hand it is the view that the requirement violates religious
freedom; on the other is the Supreme Court decision that because of relevant provisions of the
1935 Constitution the flag salute may be validly required. Which of the above finds support on
1987 Constitution? Cite at least two provisions to prove your point.
The view that flag salute may validly be required finds support in the following provisions of the
1987 Constitution:
1. Art, XIV, Sec. 3(2), which provides that all educational institutions shall inculcate in students,
among other civil virtues, patriotism and nationalism and teach them the rights and duties of citizenship.
Thus considerably broadening the aims of schools is originally stated in the 1935 Constitution which the
Supreme Court relied upon for its decision in Gerona v. Secretary of Education, 106 Phil. 2 (1959),
upholding the flag salute in the Philippines. The 1935 Constitution simply mentioned the development of
civic conscience and the teaching of the duties of citizenship.
2. Art II, Sec, 13 mandates the State to "inculcate in the youth patriotism and nationalism," while
Sec. 17 requires the State to give priority to education, among other concerns, "to foster patriotism and
nationalism."
(2000) Undaunted by his three failures in the National Medical Admission Test (NMAT), Cruz
applied to take it again but he was refused because of an order of the Department of Education,
Culture and Sports (DECS) disallowing flunkers from taking the test a fourth time. Cruz filed suit
assailing this rule raising the constitutional grounds of accessible quality education, academic
freedom and equal protection. The government opposes this, upholding the constitutionality of the
rule on the ground of exercise of police power. Decide the case discussing the grounds raised. (5%)
As held in Department of Education, Culture and Sports v. San Diego 180 SCRA 533 (1989), the
rule is a valid exercise of police power to ensure that those admitted to the medical profession are qualified.
The arguments of Cruz are not meritorious. The right to quality education and academic freedom are not
absolute. Under Section 5(3), Article XIV of the Constitution, the right to choose a profession is subject to
fair, reasonable and equitable admission and academic requirements. The rule does not violate equal
protection. There is a substantial distinction between medical students and other students. Unlike other
professions, the medical profession directly affects the lives of the people.
(2003) Children who are members of a religious sect have been expelled from their
respective public schools for refusing, on account of their religious beliefs, to take part in the flag
ceremony which includes playing by a band or singing the national anthem, saluting the Philippine
flag and reciting the patriotic pledge. The students and their parents assail the expulsion on the
ground that the school authorities have acted in violation of their right to free public education,
freedom of speech, and religious freedom and worship. Decide the case.
The students cannot be expelled from school. As held in Ebralinag v. The Division Superintendent
of Schools of Cebu. 219 SCRA 256 [1993], to compel students to take part in the flag ceremony when it is
against their religious beliefs will violate their religious freedom. Their expulsion also violates the duty of
the State under Article XIV, Section 1 of the Constitution to protect and promote the right of all citizens
to quality education and make such education accessible to all.
(2010) To instill religious awareness in the Students of Dona Trinidad High School, a public
school in Bulacan, the Parent- Teachers Association of the
school contributed funds for the
construction of a grotto and a chapel where ecumenical religious services and seminars are being
held after school hours. The use of the school grounds for these purposes was questioned by a
parent who does not belong to any religious group. As his complaint was not addressed by the school
officials, he filed an administrative complaint against the principal before the DECS. Is the principal
liable?
The principal is liable. Although the grotto and the chapel can be used by different religious sects
without discrimination, the land occupied by the grotto and the chapel will be permanently devoted to
religious use without being required to pay rent. This violates the prohibition against the establishment
of religion enshrined in Section 5 of the Bill of Rights. (Opinion No.12 of the Secretary of Justice dated
February 2, 1979). Although religion is allowed to be taught in public elementary and high schools, it
should be without additional cost to the government. (Section 3(3), Article XIV of the Constitution).
(2009) An educational institution 100% foreign-owned may be validly established in the
Philippines.
TRUE. If it is established by religious groups and mission boards. (Sec.4(2), Art. XIV). As a general
rule, educational institution must be owned exclusively to citizens of the Philippines or qualified
203
corporation at least 60% of the capital of which is owned by Filipino citizen. However, 100% foreign owned
educational institution may be established here in the Philippines for religious groups and mission boards.
(2007) The Department of Education (DepEd) requires that any school applying for a tuition
fee increase must, as a condition for the increase, offer full tuition scholarships to students from
low-income families. The Sagrada Familia Elementary School is a Catholic school and has applied
for a tuition fee increase. Under this regulation by the DepEd, it will end up giving tuition 204
scholarships to a total of 21 students next year. At a cost of P50,000 per student, the school will
lose a total of P1.05 million for next year. Is this DepEd requirement valid?
The requirement is valid. Under Section 7 of Presidential Decree No. 451, as a condition to the
grant of any increase in tuition, private schools with a total enrollment at least 1,000 are required to
provide scholarships to poor but deserving students at the rate of one scholarship for every 500 students
enrolled.
ALTERNATIVE ANSWER:
No. It constitutes deprivation of property without due process of law. The law is confiscatory as it
unduly shifts the burden of providing for the welfare of the poor to the private sector. The objective may
be laudable but the means would be arbitrary and unreasonable. (Quezon City V. Judge Ericta, G.R. No.
34195, June 24, 1983).
If instead the DepEd requires a full tuition scholarship for the highest ranking students in
each grade, determined solely on the basis of academic grades and rank, will the DepEd requirement
be valid?
No, would still constitute a deprivation of property without due process of law. (Balacuit v. CFI,
G.R. no. 38429, June 30, 1988).
ALTERNATIVE ANSWER:
Yes. Here, the matter may be considered as a reasonable regulation exacted from those who seek
some form of accommodation from the government. (Telebap v. COMELEC, G.R. No. 132922, April 21,
1998). In exchange for what they get as a concession from the State, these institutions may be required
to shoulder part of the cost of promoting quality education for deserving citizens.
ALTERNATIVE ANSWER:
The requirement will be void, because under section 7 of Presidential Decree No. 44, the grant of
scholarships by the private schools to the students with scholastic distinctions is left to the determination
of the private schools.
(2008) The principal of Jaena High School, a public school, wrote a letter to the parents
and guardians of all the school’s pupils, informing them that the school was willing to provide
religious instruction to its Catholic students during class hours, through a Catholic priest.
However, students who wished to avail of such religious instruction needed to secure the consent
of their parents and guardians in writing. Does the offer violate the constitutional prohibition
against the establishment of religion?
No. the offer is valid, under the constitution, at the option expressed in writing by the parents or
guardians, religion shall be allowed to be taught to their children or wards in public elementary and high
schools within the regular class hours by instructors designated or approved by the religious authorities
of the religion to which the children or wards belong, without additional cost to the Government (Sec. 3(3),
Art. XIV).
The parents of evangelical Christian students, upon learning of the offer, demanded that
they too be entitled to have their children instructed in their own religious faith during class hours.
The principal, a devout Catholic, rejected the request. As counsel for the parents of the evangelical
students how would you argue in support of their position? (3%)
The rejection made by the principal is in violation equal protection of the laws. The option given
by the constitution to teach religion in public schools is without distinction to what religion should only
be taught. It does not discriminate neither should the principal. For classification to be valid the following
requisite must be present: (1) Classification is based on substantial distinction; (2) It must be germane to
the purpose of the law; (3) Must apply equally
to all members of the same class; (4) Not limited to
existing conditions
(1999) What is the constitutional provision concerning the teaching of religion in the
elementary and high schools in the Philippines? Explain. (2%)
Under Section 3(3), Article XIV of the Constitution, at the option expressed in writing by the
parents or guardians, religion shall be allowed to be taught to their children or wards in public elementary
and high schools within the regular class hours by instructors designated or approved by the religious
authorities to which the children or wards belong, without additional cost to the Government.
(1994) The Department of Education, Culture and Sports Issued a circular disqualifying
anyone who fails for the fourth time in the National Entrance Tests from admission to a College of
Dentistry. X who was thus disqualified, questions the constitutionality of the circular. (1) Did the
circular deprive her of her constitutional right to education?
No, the circular disqualifying anyone who fails for the fourth time in the National Entrance Tests
from admission to the College of Dentistry did not deprive X of her constitutional right to education. As
held in Department of Education, Culture and Sports vs. San Diego, 180 SCRA 533, this right is not
absolute. Section 5(3). Article XIV of the Constitution provides that the right to choose a profession or
course of study is subject to fair, reasonable and equitable admission and academic requirements.
Requiring that those who will enroll in a College of Dentistry should pass the National Entrance Test is
valid, because it is intended to ensure that only those who are qualified to be dentists are admitted for
enrollment.
Did the circular violate the equal protection clause of the Constitution?
No, the circular did not violate the equal protection clause of the Constitution. ...
ARTICLE XVI: GENERAL PROVISIONS
(2021) A news agency incorporated under Philippine laws won two international awards for
its stand on freedom of expression. One of its founding directors even won the Nobel Peace Prize.
For championing free expression, it received a substantial investment offer from a British
philanthropist. The investment offer comes in the form of funds which can cover at least 80% of
the news agency's operations, both in print and online. In exchange, however, the British
philanthropist would acquire 51% of the news agency's outstanding common and voting stocks, as
well as get a seat for the philanthropist's nominee in the news agency's governing board. Are the
conditions of the investment constitutional? Explain briefly.
The conditions of the investment are unconstitutional. Under Article 16, Section 11 of the 1987
Constitution, the ownership and management of mass media shall be limited to citizens of the
Philippines, or to corporations, cooperatives or associations, wholly-owned and managed by such
citizens.
Here, British philanthropist’s proposal is to acquire 51% of the news agency's outstanding
common and voting stocks, as well as get a seat for the philanthropist's nominee in the news agency's
governing board. Under the proposal, the news agency shall become a foreign-owned mass media
corporation, and the management of it shall be run by the philanthropist as member of the board. Hence,
the conditions of the investment are unconstitutional for mass media and its management are reserved
only for Filipino citizens, corporations, cooperatives or associations, wholly-owned and managed by such
citizens.
[2018] Annika sued the Republic of the Philippines, represented by the Director of the
205
Bureau of Plant Industry, and asked for the revocation of a deed of donation executed by her in
favor of said Bureau. She alleged that, contrary to the terms of the donation, the donee failed to
install lighting facilities and a water system on the property donated, and to build an office building
and parking lot thereon, which should have been constructed and made ready for occupancy on or
before the date fixed in the deed of donation. The Republic invoked state immunity and moved for
the dismissal of the case on the ground that it had not consented to be sued. Should the Republic’s
motion be granted? (2.5%)
206
The motion of the Republic should be granted. There appears to be no consent on the part of the
State to be sued. In Section 3, Article XVI of the Constitution it is provided that: “The State shall not be
sued without its consent.”
That no consent was given by the Republic is shown by the fact that the Bureau or the Government
did seem to have complied with the demands of the deed of donation. Compliance with the state immunity
is essential for two reasons: (1) It is required as a provision for the Constitution; and (2) Immunity is an
essential element of state sovereignty.
ALTERNATIVE ANSWER:
The motion should be denied. The doctrine of governmental immunity from suit cannot serve as
an instrument for perpetrating an injustice on a citizen. Here, the alleged failure to abide by the conditions
under which a donation was given should not prove an insuperable obstacle to a civil action, the consent
likewise being presumed when the State entered into a contract. Under the circumstances, the
fundamental postulate of non-suability of the state cannot stand in the way (Santiago vs. Republic, G.R.
No. L-48214, December 19, 1978).
[2017] Under the doctrine of immunity from suit, the State cannot be sued without its
consent. How may the consent be given by the State? Explain your answer.
The consent to be sued is given by the State either expressly or impliedly. There is express consent
when there is a law enacted by the Congress expressly granting to sue the State or any of its agencies.
There is implied consent when the State enters into a private contract, unless the contract is merely
incidental to the performance of a governmental function; when the State enters into an operation that is
essentially a business operation, unless the business operation is merely incidental to the performance of
a governmental function; or when the State sues a private party, unless the suit is entered into only toresist
a claim.
The doctrine of immunity from suit in favor of the State extends to public officials in the
performance of their official duties. May such officials be sued nonetheless to prevent or to undo
their oppressive or illegal acts, or to compel them to act? Explain your answer.
Yes. Although the immunity from suit of the State can be extended to public officials in the
performance of their official functions and duties, the rule is not absolute at all. The suit against the
government officer must be in a case in which the ultimate liability will belong to the officer, not to the
government. Public officials cannot hide under the veil of state immunity for the acts performed in
connection with official duties where they have acted ultra vires or where there is a showing of bad faith
or grave and patent negligence. In this case, the public official may be prevented or ordered to undo the
oppressive or illegal act or compelled to perform an act which is legal. It is not the public official per se
but his performance in line with his duty which is being compelled or prevented thru petition for
mandamus or prohibition.
Do government-owned or -controlled corporations also enjoy the immunity of the State
from suit? Explain your answer.
A GOCC may be sued. A suit against it is not a suit against the State, because it has a separate
juridical personality.
(2013) In the last quarter of 2012, about 5,000 container vans of imported goods intended
for the Christmas Season were seized by agents of the Bureau of Customs. The imported goods were
released only on January 10,2013. A group of importers got together and filed an action for
damages before the Regional Trial Court of Manila against the Department of Finance and the
Bureau of Customs. The Bureau of Customs raised the defense of immunity from suit and,
alternatively, that liability should lie with XYZ Corp. which the Bureau had contracted for the lease
of ten (10) high powered van cranes but delivered only five (5) of these cranes, thus causing the
delay in its cargo-handling operations. It appears that the Bureau, despite demand, did not pay
XYZ Corp. the Php 1.0 Million deposit and advance rental required under their contract. Will the 207
action by the group of importers prosper? (5%)
No, the action of the group of importers will not prosper. The primary function of the Bureau of
Customs is governmental, that of assessing and collecting lawful revenues from imported articles and all
other tariff and customs duties, fees, charges, fines and penalties (Mobil Philippines Exploration, Inc. vs.
Customs Arrastre Service, 18 SCRA 120).
ALTERNATIVE ANSWER
No. The action by the group of importers will not prosper because the Supreme Court said that
the Bureau of Customs, being an unincorporated agency without a separate judicial personality, enjoys
immunity from suit. It is invested with an inherent power of sovereignty, namely the power of taxation; it
performs governmental functions (Farolan v. Court of Tax Appeals, 217 SCRA 298). Moreover, the Bureau
of Customs is a part of the Department of Finance, with no personality of its own apart from that of the
national government. Its primary function is governmental, that of assessing and collecting lawful
revenues from imported articles and all other tariff and customs duties, fees, charges, fines, and penalties
(Sec. 602, RA 1937). This clearly explains the reason why the Department of Finance also enjoys immunity
from suit.
Can XYZ Corp. sue the Bureau of Customs to collect rentals for the delivered cranes?
No, XYZ corporation cannot sue the Bureau of Customs to collect rentals for the delivered cranes.
The contract was a necessary incident to the performance of its governmental function. To properly collect
the revenues and customs duties, the Bureau of Customs must check to determine if the declaration of
the importers tallies with the landed merchandise. The cranes are needed to haul the landed merchandise
to a suitable place for inspection (Mobil Philippines Exploration, Inc. vs. Customs Arrastre Service, 18
SCRA 120).
ALTERNATIVE ANSWER:
No, XYZ corporation cannot sue the Bureau of Customs because it has no personality separate
from that of the Republic of the Philippines (Mobil Philippines Exploration, Inc. vs. Customs Arrastre
Service, 18 SCRA 120).
ALTERNATIVE ANSWER:
No. Even in the exercise of proprietary functions incidental to its primarily governmental
functions, an unincorporated agency, in this case the Bureau of Customs, still cannot be sued
without its consent (Mobil Philippines Exploration V. Customs Arrastre Service, 18 SCRA 1120).
ALTERNATIVE ANSWER:
Yes, XYZ Corporation may sue the Bureau of Customs because the contract is connected with a
proprietary function, the operation of the arrastre service (Philippine Refining Company vs. Court of
Appeals, 256 SCRA 667). Besides, XYZ Corporation leased its van cranes, because the Bureau of Customs
should not be allowed to invoke state immunity from suit (Republic vs. Unimex-Micro Electronics GmBH,
518 SCRA 19).
(2013) The Ambassador of the Republic of Kafiristan referred to you for handling, the case
of the Embassy's Maintenance Agreement with CBM, a private domestic company engaged in
maintenance work. The Agreement binds CBM, for a defined fee, to maintain the Embassy's
elevators, air-conditioning units and electrical facilities. Section 10 of the Agreement provides that
the Agreement shall be governed by Philippine laws and that any legal action shall be brought before
the proper court of Makati. Kafiristan terminated the Agreement because CBM allegedly did not
comply with their agreed maintenance standards. CBM contested the termination and filed a
complaint against Kafiristan before the Regional Trial Court of Makati. The Ambassador wants you
to file a motion to dismiss on the ground of state immunity from suit and to oppose the position
that under Section 10 of the Agreement, Kafiristan expressly waives its immunity from suit. Under
these facts, can the Embassy successfully invoke immunity from suit? (6%)
208
Yes, the Embassy can invoke immunity from suit. Section 10 of the Maintenance Agreement is
not necessarily a waiver of sovereign immunity from suit. It was meant to apply in case the Republic of
Kafiristan elects to sue in the local courts or waives its immunity by a subsequent act. The establishment
of a diplomatic mission is a sovereign function. This encompasses its maintenance and upkeep. The
Maintenance Agreement was in pursuit of a sovereign activity (Republic of the Indonesia vs. Vinzon, 405
SCRA 126).
ALTERNATIVE ANSWER:
No, the embassy cannot invoke immunity from suit, because it has been provided under Section
10 of their charter of agreement that Kafiristan expressly waived its immunity from suit. This is supported
by the provision on Section 3, Article XVI of the 1987 Constitution, which says that the State may not be
sued without its consent. Since consent was expressly given from their charter of agreement, the embassy
cannot invoke immunity from suit.
(2009) The Municipality of Pinatukdao is sued for damages arising from injuries sustained
by a pedestrian who was hit by a glass pane that fell from a dilapidated window frame of the
municipal hall. The municipality files a motion to dismiss the complaint, invoking state immunity
from suit. Resolve the motion with reasons. (3%).
State immunity as defense will not prosper because under the law, a municipal corporation can
be sued and be sued as expressly provided under the local government code. Furthermore, under the civil
code, it can also be held liable for damages for the death of, or injury suffered by, any person by reason of
the defective condition of roads, streets, bridges, public buildings and other public works under their
control or supervision (art. 2189). In the present case, the municipal building is under their control and
supervision, thus, no immunity from suit.
(1999) (1) What do you understand by state immunity from suit? Explain. (2%)
STATE IMMUNITY FROM SUIT means that the State cannot be sued without its consent. A
corollary of such principle is that properties used by the State in the performance of its governmental
functions cannot be subject to judicial execution.
(2) How may consent of the state to be sued be given? Explain. (2%)
Consent of the State to be sued may be made expressly as in the case of a specific, express
provision of law as waiver of State immunity from suit is not inferred lightly (e.g. C.A. 327 as amended by
PD 1445} or impliedly as when the State engages in proprietary functions (U.S. v. Ruiz, U.S. v. Guinto) or
when it files a suit in which case the adverse party may file a counterclaim (Froilan v. Pan Oriental
Shipping) or when the doctrine would in effect be used to perpetuate an injustice (Amigable v. Cuenca, 43
SCRA 360).
(1999) The employees of the Philippine Tobacco Administration (PTA) sued to recover
overtime pay. In resisting such claim, the PTA theorized that it is performing governmental
functions. Decide and explain. (2%)
As held in Philippine Virginia Tobacco Administration V. Court of Industrial Relations, 65 SCRA
416, the Philippine Tobacco Administration is not liable for overtime pay, since it is performing
governmental functions. Among its purposes are to promote the effective merchandising of tobacco so that
those engaged in the tobacco industry will have economic security, to stabilize the price of tobacco, and
to improve the living and economic conditions of those engaged in the tobacco industry.
(1991) In February 1990, the Ministry of the Army. Republic of Indonesia, invited bids for
the supply of 500,000 pairs of combat boots for the use of the Indonesian Army. The Marikina Shoe
Corporation, a Philippine corporation, which has no branch office and no assets in Indonesia,
submitted a bid to supply 500,000 pairs of combat boots at U.S. $30 per pair delivered in Jakarta
on or before 30 October 1990. The contract was awarded by the Ministry of the Army to Marikina
Shoe Corporation and was signed by the parties in Jakarta. Marikina Shoe Corporation was able to
deliver only 200,000 pairs of combat boots in Jakarta by 30 October 1990 and it received payment 209
for 100,000 pairs or a total of U.S. $3,000,000.00. The Ministry of the Army promised to pay for
the other 100,000 pairs already delivered as soon as the remaining 300,000 pairs of combat boots
are delivered, at which time the said 300,000 pairs will also be paid for. Marikina Shoe Corporation
failed to deliver any more combat boots.
On 1 June 1991, the Republic of Indonesia filed an action before the Regional Trial Court
of Pasig. Rizal, to compel Marikina Shoe Corporation to perform the balance of its obligations under
the contract and for damages. In its Answer, Marikina Shoe Corporation sets up a counterclaim for
U.S. $3,000,000.00 representing the payment for the 100,000 pairs of combat boots already
delivered but unpaid. Indonesia moved to dismiss the counterclaim, asserting that it is entitled to
sovereign Immunity from suit. The trial court denied the motion to dismiss and issued two writs
of garnishment upon Indonesian Government funds deposited in the Philippine National Bank and
Far East Bank. Indonesia went to the Court of Appeals on a petition for certiorari under Rule 65 of
the Rules of Court. How would the Court of Appeals decide the case?
The Court of Appeals should dismiss the petition insofar as it seeks to annul the order denying
the motion of the Government of Indonesia to dismiss the counterclaim. The counterclaim in this case is
a compulsory counterclaim since it arises from the same contract involved in the complaint. As such it
must be set up otherwise it will be barred. Above all, as held in Froilan vs. Pan Oriental Shipping Co., 95
Phil. 905, by filing a complaint, the state of Indonesia waived its immunity from suit. It is not right that it
can sue in the courts but it cannot be sued. The defendant therefore acquires the right to set up a
compulsory counterclaim against it. However, the Court of Appeals should grant the petition of the
Indonesian government insofar as it sought to annul the garnishment of the funds of Indonesia which
were deposited in the Philippine National Bank and Far East Bank. Consent to the exercise of jurisdiction
of a foreign court does not include waiver of the separate immunity from execution. (Brownlie, Principles
of Public International Law, 4th ed., p. 344.) Thus, in Dexter vs. Carpenter vs. Kunglig Jarnvagsstyrelsen,
43 Fed 705, it was held the consent to be sued does not give consent to the attachment of the property of
a sovereign government.
(1996) The Republic of the Balau (formerly Palau Islands) opened and operated in Manila an
office engaged in trading Balau products with Philippine products. In one transaction, the local
buyer complained that the Balau goods delivered to him were substandard and he sued the Republic
of Balau, before the Regional Trial Court of Pasig, for damages. How can the Republic of Balau
invoke its sovereign immunity? Explain.
The Republic of Balau can invoke its sovereign Immunity by filing a motion to dismiss in
accordance with Section l(a), Rule 16 of the Rules of Court on the ground that the court has no jurisdiction
over its person. According to the Holy See vs. Rosario, 238 SCRA 524, in Public International Law, when
a State wishes to plead sovereign immunity in a foreign court, it requests the Foreign Office of the State
where it is being sued to convey to the court that it is entitled to immunity. In the Philippines, the practice
is for the foreign government to first secure an executive endorsement of its claim of sovereign immunity.
In some cases, the defense of sovereign immunity is submitted directly to the local court by the foreign
government through counsel by filing a motion to dismiss on the ground that the court has no Jurisdiction
over its person.
Will such defense of sovereign immunity prosper? Explain.
No, the defense of sovereign Immunity will not prosper. The sale of Balau products is a contract
involving a commercial activity. In United States vs. Ruiz, 136 SCRA 487 and United States vs. Guinto,
182 SCRA 644, it was stated that a foreign State cannot invoke Immunity from suit if it enters into a
commercial contract. The Philippines adheres to RESTRICTIVE SOVEREIGN IMMUNITY.
(1989) A property owner filed an action directly in court against the Republic of the
Philippines seeking payment for a parcel of land which the national government utilized for a road
widening project. Can the government invoke the doctrine of non-suitability of the state?
No, the government cannot invoke the doctrine of state of immunity from suit. As held in
Ministerio vs. Court of First Instance of Cebu, 40 SCRA 464, when the government expropriates property
for public use without paying just compensation, it cannot invoke its immunity from the suit. Otherwise, 210
the right guaranteed in Section 9, Article III of the 1987 Constitution that private property shall not be
taken for public use without just compensation will be rendered nugatory.
In connection with the preceding question, can the property owner garnish public funds to
satisfy his claim for payment? Explain your answers.
No, the owner cannot garnish public funds to satisfy his claim for payment, Section 7 of Act No.
3083 prohibits execution upon any judgment against the government. As held in Republic vs. Palacio, 23
SCRA 899, even if the government may be sued, it does not follow that its properties may be seized under
execution.
ALTERNATIVE ANSWER:
No, funds of the government on deposit in the bank cannot be garnished for two reasons: Under
Art. II, Sec. 29 (1) public funds cannot be spent except in pursuance of an appropriation made by law,
and 2. essential public services will be impaired if funds of the government were subject to execution,
(Commissioner of Public Highways vs. San Diego, 31 SCRA 616 (1970)). The remedy of the prevailing party
is to have the judgment credit in his favor included in the general appropriations law for the next year.
(1994) Johnny was employed as a driver by the Municipality of Calumpit, Bulacan. While
driving recklessly a municipal dump truck with its load of sand for the repair of municipal streets,
Johnny hit a jeepney. Two passengers of the jeepney were killed. The Sangguniang Bayan passed
an ordinance appropriating P300,000 as compensation for the heirs of the victims. Is the
municipality liable for the negligence of Johnny?
Yes, the Municipality of Calumpit is liable for the negligence of its driver Johnny. Under Section
24 of the Local Government Code, local government units are not exempt from liability for death or injury
to persons or damage to property.
ALTERNATIVE ANSWER:
No, the municipality is not liable for the negligence of Johnny, the prevailing rule in the law of
municipal corporations is that a municipality is not liable for the torts committed by its regular employees
in the discharge of governmental functions. The municipality is answerable only when it is acting in a
proprietary capacity.
In the case at bar, Johnny was a regular employee of the Municipality of Calumpit as driver of its
dump truck; he committed a tortious act while discharging a governmental function for the municipality,
i.e., driving recklessly the said truck loaded with sand for the repair of municipal streets. Undoubtedly
then, Johnny as driver of the dump truck was performing a duty or task pertaining to his office. The
construction or maintenance of public streets are admittedly governmental activities. At the time of the
accident, Johnny was engaged in the discharge of governmental functions.
Hence, the death of the two passengers of the jeepney - tragic and deplorable though it may be
imposed on the municipality no duty to pay monetary compensation, as held in Municipality of San.
Fernando v. Firme, 195 SCRA 692.
(1992) The Northern Luzon Irrigation Authority (NLIA) was established by a legislative
charter to strengthen the irrigation systems that supply water to farms and commercial growers in
the area. While the NLIA is able to generate revenues through its operations, it receives an annual
appropriation from Congress. The NLIA is authorized to "exercise all the powers of a corporation
under the Corporation Code." Due to a miscalculation by some of its employees, there was a massive
irrigation overflow causing a flash flood in Barrio Zanjera. A child drowned in the incident and his
parents now file suit against The NLIA for damages. May the NLIA validly invoke the immunity of
the State from suit? Discuss thoroughly.
No, the Northern Luzon Irrigation Authority may not invoke the immunity of the State from suit,
because, as held in Fontanilla vs. Maliaman, 179 SCRA 685 and 194 SCRA 486, irrigation is a proprietary
function. Besides, the Northern Luzon Irrigation Authority has a juridical personality separate and distinct 211
from the government, a suit against it is not a suit against the State. Since the waiver of the immunity
from suit is without qualification, as held in Rayo vs. Court of First Instance of Bulacan, 110 SCRA 456,
the waiver includes an action based on a quasi-delict.
(1987) "X" filed a case against the Republic of the Philippines for damages caused his yacht,
which was rammed by a navy vessel.
"X" also sued in another case the Secretary of Public Works and the Republic of the Philippines
for payment of the compensation of the value of his land, which was used as part of the tarmac of the
Cebu International Airport, without prior expropriation proceedings.
The Solicitor General moved to dismiss the two cases invoking state immunity from suit
Decide.
The government cannot be sued for damages considering that the agency which caused the
damages was the Philippine Navy. Under Art. 2180 of the Civil Code, the state consents to be sued for a
quasi-delict only when the damage is caused by its special agents. Hence, the Solicitor General's motion
should be granted and the suit brought by "X" be dismissed. But the government CANNOT INVOKE the
state's immunity from suit when it confiscates private property. As held in Ministerio v. Court of First
Instance. 40 SCRA 464 (1971), which also involved the taking of private property without the benefit of
expropriation proceeding, "The doctrine of governmental immunity from suit cannot serve as an
instrument for perpetrating an injustice on a citizen. When the government takes any property for public
use, which is conditional upon the payment of just compensation, to be judicially ascertained, it makes
manifest that it submits to the jurisdiction of the court." The Solicitor General's motion to dismiss should,
therefore, be denied.
(1997) It is said that "waiver of immunity by the State does not mean a concession of its
liability". What are the implications of this phrase?
The phrase that waiver of immunity by the State does not mean a concession of liability means
that by consenting to be sued, the State does not necessarily admit it is liable. As stated in Philippine
Rock Industries, Inc. vs. Board of Liquidators, 180 SCRA 171, in such a case the State is merely giving
the plaintiff a chance to prove that the State is liable but the State retains the right to raise all lawful
defenses.
(1993) Devi is the owner of a piece of land. Without prior expropriation or negotiated sale,
the national government used a portion thereof for the widening of the national highway. Devi filed
a money claim with the Commission on Audit which was denied. Left with no other recourse, Devi
filed a complaint for recovery of property and/or damages against the Secretary of Public Works
and Highways and the Republic of the Philippines. The defendant moved for dismissal of the
complaint contending that the government cannot be sued without its consent. The RTC dismissed
the complaint. On appeal, how would you decide the case.
The order dismissing the complaint should be reversed. In Ministerio v. Court of First Instance of
Cebu, 40 SCRA 464, it was held that when the government takes property from a private landowner
without prior expropriation or negotiated sale, the landowner may maintain a suit against the government
without violating the doctrine of government Immunity from suit. The government should be deemed to
have waived impliedly its immunity from suit. Otherwise, the constitutional guarantee that private
property shall not be taken for public use without just compensation will be rendered nugatory.
(1987) State whether or not the following city ordinances are valid and give reasons in
support of your answers: (1) An ordinance prescribing the use of the local dialect as medium of
instruction in the primary grades.
The ordinance, which prescribes the use of the local dialect as medium of instruction in the
primary grades, is invalid. The Constitution provides in Art XIV, Sec. 7 for the use of regional dialect as
auxiliary medium of instruction. If the ordinance prescribes the use of local dialect not as auxiliary, but
as exclusive language of instruction, then it is violative of the Constitution for this additional reason. The
ordinance would thus allow more dialects to be used than it is desirable and make the quest for national 212
unity more difficult.
(1996) Can the Judge-Advocate General of the Armed Forces of the Philippines be appointed
a Trustee of the Government Service Insurance System? Explain.
No, the Judge Advocate General of the Armed Forces of the Philippines cannot be appointed as
trustee of the Government Service Insurance System. Under Section 5(4). Article XVI of the Constitution,
no member of the Armed Forces of the Philippines in the active service shall at any time be appointed or
designated in any capacity to a civilian position in the Government, including government-owned or
controlled corporations.
(2009) A law making “Bayan Ko” the new national anthem of the Philippines, in lieu of
Lupang Hinirang is constitutional.
TRUE. Under the constitution, Congress may, by law, adopt a NEW NAME FOR THE COUNTRY,
A NATIONAL ANTHEM, OR A NATIONAL SEALS, which shall all be truly reflective and symbolic of the
ideals, history and traditions of the people. Such law shall take effect only upon its ratification by the
people in a NATIONAL REFERENDUM (Section 2, Article XVI of the Constitution).
ARTICLE XVII: AMENDMENTS OR REVISIONS
(2021) Both the House of Representatives and the Senate passed a bill which: (a) increases
the number of Supreme Court Justices from 15 to 20; (b) assigns the five most senior Justices,
including the Chief Justice, exclusively to a Special Division that will tackle only constitutional
cases; and (c) removes from the Supreme Court En Banc the power to hear and decide cases
involving alleged violations of the Constitution. The Chief Presidential Legal Counsel advises the
President to veto the bill, arguing that the law is unconstitutional because its contents should be
the subject of constitutional amendment rather than of legislation. Is the Chief Presidential Legal
Counsel's argument constitutionally sound? Explain briefly. (Do tasks B and C)
The argument is constitutionally sound. Under Article 17, Section 1 of the 1987 Constitution, any
amendment of the Constitution may be proposed by the Congress, upon vote of ¾ of all its members or
by a constitutional convention.
Here the bill is to amend the provisions of the Constitution as to the number of Supreme Court
justices, and the creation of a special division and its jurisdiction. They are clearly intended to amend the
current provisions of the Constitution under Judicial Department. Hence, the argument is constitutionally
sound for the proper way of the amending the Constitution is either by congress acting as constitutional
convention or by a separate constitutional convention called for that purpose.
(2019) A proposal to change a provision of the 1987 Constitution has been put
forth as follows: Original Text: "The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government authority emanates from them"
Proposed Text: "The Philippines is a democratic and socialist State. Sovereignty
resides in the party and all government authority emanates from it." Is this an
amendment or a revision? Explain. (2.5%)
This is a revision. Using the qualitative test, the proposal will accomplish such far
reaching changes in the nature of our basic governmental plan as to amount to a revision. A
change in the nature of the basic governmental plan also includes changes that jeopardize the
traditional form of government and the system of check and balances (Lambino v.
COMELEC, G.R. No. 174153. October 25. 2006)
Briefly explain the process to revise the 1987 Constitution. (2.5%)
There are two basic steps in this process: (1) Proposal - a revision of the
Constitution may be proposed by (a) The Congress, upon a vote of three-fourths of all its
Members; or (b) A constitutional convention. The Congress may, by a vote of two-thirds of
all its Members, call a constitutional convention, or by a majority vote of all its Members,
submit to the electorate the question of calling such a convention; and (2) Ratification - the 213
revision shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the approval of
such amendment or revision. (Art. XVII. Secs. 1,3 & 4. Const.)
[2017) A priority thrust of the Administration is the change of the form of government
from unitary to federal. The change can be effected only through constitutional amendment or
revision. What are the methods of amending the Constitution? Explain.
The following are the methods of amending the Constitution: (1) BY CONSTITUTIONAL
CONVENTION, where Article XVII, Section 3 of the Constitution states, "The Congress may, by a vote of
two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members,
submit to the electorate the question of calling such a convention." Both houses shall vote separately,
and the members includes all those within the jurisdiction of the Congress; (2) BY CONSTITUTIONAL
ASSEMBLY, composed of all members of the bicameral Philippine Congress (Senate and the House of
Representatives). It is convened by Congress to propose amendments to the 1987 Constitution. Under
Article XVII of the Constitution of the Philippines, amendments pass upon a vote of three fourths of all
members of Congress, but it is not clear if the Congress should vote as a single body, or as separate
houses; (3) AMENDMENTS TO THE CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE upon a petition of at least twelve per centum of the total number of
registered voters, of which every legislative district must be represented by at least three per centum of
the registered votes therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.
Cite at least three provisions of the Constitution that need to be amended or revised to
effect the change from unitary to federal, and briefly explain why?
The following Constitutional provisions that should be amended to effect the change from unitary
to federal are: (1) Article X, Sec 3 must be omitted because the legislature will no longer define the scope
of the powers of the government; (2) Article X, Sec 4 will have to be omitted. The President will no longer
have the power of supervision over local governments; and (3) Article X, Sec 5 must be omitted. Congress
will no longer be allowed to impose limitations on the power of taxation of local governments.
(2014) With the passage of time, the members of the House of Representatives increased
with the creation of new legislative districts and the corresponding adjustments in the number of
party-list representatives. At a time when the House membership was already 290, a great number
of the members decided that it was time to propose amendments to the Constitution. The Senators,
however, were cool to the idea. But the members of the House insisted. They accordingly convened
Congress into a constituent assembly in spite of the opposition of the majority of the members of
the Senate. When the votes were counted, 275 members of the House of Representatives approved
the proposed amendments. Only 10 Senators supported such proposals. The proponents now claim
that the proposals were validly made, since more than the required three-fourths vote of Congress
has been obtained. The 14 Senators who voted against the proposals claim that the proposals
needed not three-fourths vote of the entire Congress but each house. Since the required number of
votes in the Senate was not obtained, then there could be no valid proposals, so argued the
Senators. Were the proposals validly adopted by Congress? (5%)
The proposals were not validly adopted, because the ten (10) Senators who voted in favor of the
proposed amendments constituted less than three-fourths of all the Members of the Senate. Although
Section 1, Article XVII of the Constitution did not expressly provide that the Senate and the House of
Representatives must vote separately, when the Legislature consists of two (2) houses, the determination
of one house is to be submitted to the separate determination of the other house (Miller vs Mardo, 2 SCRA
898 (1961))
(2014) Several citizens, unhappy with the proliferation of families dominating the political
landscape, decided to take matters into their own hands. They proposed to come up with a people’s
initiative defining political dynasties. They started a signature campaign for the purpose of coming
up with a petition for that purpose. Some others expressed misgivings about a people’s initiative
for the purpose of proposing amendments to the Constitution, however. They cited the Court’s 214
decision in Santiago v. Commission on Elections, 270 SCRA 106 (1997), as authority for their
position that there is yet no enabling law for such purpose. On the other hand, there are also those
who claim that the individual votes of the justices in Lambino v. Commission on Elections, 505
SCRA 160 (2006), mean that Santiago’s pronouncement has effectively been abandoned. If you were
consulted by those behind the new attempt at a people’s initiative, how would you advise them?
(4%)
I shall advise those starting a people’s initiative that initiative to pass a law defining political
dynasties may proceed as their proposal is to enact a law only and not to amend the Constitution. The
decision in Santiago vs COMELEC, 270 SCRA 106 (1997), which has not been reversed, upheld the
adequacy of the provisions in R.A. 6735 on initiative to enact a law.
ALTERNATIVE ANSWER
I shall advise those starting a people’s initiative that the ruling in Santiago vs COMELEC that
there is as yet no enabling law for an initiative has not been reversed. According to Section 4 (3), Article
VIII of the Constitution, a doctrine of law laid down in a decision rendered by the Supreme Court en banc
may not be reversed except by it acting en banc. The majority opinion in Lambino vs COMELEC (505
SCRA 160 (2006), refused to re-examine the ruling in Santiago vs COMELEC (270 SCRA 106 (1997)),
because it was not necessary for deciding the case. The Justices who voted to reverse the ruling constituted
the minority.
(2007) An amendment to the Constitution shall be valid upon a vote of three-fourths of all
the Members of the Congress.
The statement is false. First, an amendment proposed by Congress must be approved by at least
three-fourths (3/4) vote of the members of the Senate and of the House of Representatives voting
separately. It is inherent in a bicameral legislature for two houses to vote separately (II Record of the
Constitutional Commission 493). Second, the amendment shall be valid only when ratified by a majority
of the votes cast in a plebiscite (Constitution, Art. XVII, sec.4).
(2009) What are the essential elements of a valid petition for a people’s initiative to
amend the 1987 constitutions?
The essential elements of a valid petition for a people’s initiative are: (1) The people must
author and sign the entire proposal; no agent or representative can sign in their behalf; (2) The proposal
must be embodied in the petition; and (3) The number of people who petitioned must be at least 12% of
the total number registered voter, of which every legislative district must be represented by at least 3% of
the registered voter therein; (4) Any amendment through people’s initiative shall be valid when ratified by
a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days nor later than 90
days after the certification by the Commission on Election of the sufficiency of the petition.
(2004) An amendment to or a revision of the present Constitution may be proposed by a
Constitutional Convention or by the Congress upon a vote of three-fourths of all its members. Is
there a third way of proposing revisions of or amendments to the Constitution? If so, how?
There is no third way of proposing revisions to the Constitution; however, the people through
initiative upon petition of at least twelve per cent of the total number of registered, voters, of which every
legislative district must be represented by at least three per cent of the registered voters in it, may directly
propose amendments to the Constitution. This right is not operative without an implementing law. (Section
2, Article XVII of the 1987 Constitution.)
(1997) State the various modes of, and steps in, revising or amending the Philippine
Constitution.
There are three modes of amending the Constitution. Under Section 1, Article XVIII of the
Constitution. Congress may by three-fourths vote of all its Members propose any amendment to or revision
of the Constitution.
1. Under the same provision, a constitutional convention may propose any amendment to or
revision of the Constitution. According to Section 3, Article XVII of the Constitution. Congress may by a
two-thirds vote of all its Members call a constitutional convention or by a majority vote of all its Members
submit the question of calling such a convention to the electorate.
2. Under Section 2. Article XVII of the Constitution, the people may directly propose amendments
to the Constitution through initiative upon a petition of at least twelve per cent of the total number of
registered voters, of which every legislative district must be represented by at least three per cent of the
registered voters therein.
3. According to Section 4, Article XVII of the Constitution, to be valid any amendment to or revision
of the Constitution must be ratified by a majority of the votes cast in a plebiscite.
(2005) The present Constitution introduced the concepts and processes of Initiative and
Referendum. Compare and differentiate one from the other. (3%)
INITIATIVE is the power of the people to propose amendments to the Constitution or to propose
and enact legislations through an election called for the purpose. Under the 1987 Constitution, the people
through initiative can propose amendments to the Constitution upon a petition of at least twelve per
centum of the total number of registered voters, of which every legislative district must be represented by
at least three per centum of the registered voters therein. REFERENDUM is the power of the electorate to
approve or reject a legislation through an election called for the purpose. (Sec. 3, R.A. No. 6735 [1989]).
On the other hand, the Local Government Code (R.A. No. 7160) defines LOCAL INITIATIVE as the legal
process whereby the registered voters of a local government unit may directly propose, enact, or amend
any ordinance (Sec. 120) and LOCAL REFERENDUM as the legal process whereby the registered voters of
the local government units may approve, amend or reject any ordinance enacted by the Sanggunian. (Sec.
126)
ARTICLE XVIII: TRANSITORY PROVISIONS
(1996) Under the executive agreement entered into between the Philippines and the other
members of the ASEAN, the other members will each send a battalion-size unit of their respective
armed forces to conduct a combined military exercise in the Subic Bay Area. A group of concerned
citizens sought to enjoin the entry of foreign troops as violative of the 1987 Constitution that
prohibited the stationing of foreign troops and the use by them, of local facilities. As the Judge,
decide the case. Explain.
As a judge, I shall dismiss the case. What Section 25, Article XVII of the Constitution prohibits in
the absence of a treaty is the stationing of troops and facilities of foreign countries in the Philippines. It
does not include the temporary presence in the Philippines of foreign troops for the purpose of a combined
military exercise. Besides, the holding of the combined military exercise is connected with defense, which
is a sovereign function. In accordance with the ruling in Baer vs. Tizon, 57 SCRA 1, the filing of an action
interfering with the defense of the State amounts to a suit against the State without its consent.
(1988) The Secretary of Justice had recently ruled that the President may negotiate for a
modification or extension of military bases agreement with the United States regardless of the "no
nukes" provisions in the 1987 Constitution. The President forthwith announced that she finds the
same opinion "acceptable" and will adopt it. The Senators on the other hand, led by the Senate
President, are skeptical, and had even warned that no treaty or international agreement may go
into effect without the concurrence of two-thirds of all members of the Senate. A former senator
had said, "it is completely wrong, if not erroneous," and "is an amendment of the Constitution by
215
misinterpretation." Some members of the Lower House agree with Secretary Ordonez, while others
lament the latter's opinion as "questionable, unfortunate, and without any basis at all." Do you or
do you not agree with the aforementioned ruling of the Department of Justice? Why?
No. The Constitution provides that if foreign military bases, troops or facilities are to be allowed
after the expiration of the present Philippine-American Military Bases Agreement in 1991, it must be
"under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority 216
of the votes cast by the people in a national referendum." (Art. XVIII, sec. 25) A mere agreement, therefore,
not a treaty, without the concurrence of at least 2/3 of all the members of the Senate will not be valid (Art.
VII, sec. 21, Art. XVIII, sec. 4). With respect to the provision allowing nuclear weapons within the bases,
the Constitution appears to ban such weapons from the Philippine territory. It declares as a state policy
that "the Philippines, consistent with the national interest, adopts and pursues a policy of freedom from
nuclear weapons in its territory." (Art, II, sec. 8) However, the deliberations of the Constitutional
Commission would seem to indicate that this provision of the Constitution is "not something absolute nor
100 percent without exception." It may therefore be that circumstances may justify a provision on nuclear
weapons.
ADMINISTRATIVE LAW
(2019) The unabated rise of criminality and the reported identification of
delinquent children loitering
in the wee hours of the night prompted City Z to
implement a curfew ordinance. Minors unaccompanied or unsupervised on the streets
by their parents or guardians between 10:00 P.M. to 5:00 A.M. may be apprehended by
law enforcers subject to certain exclusive exceptions. These exceptions are: 1. minors
running lawful errands, such as buying of medicines, using of telecommunications
facilities for emergency purposes and the like; 2. night school students; and 3. Minors
working at night. Minors apprehended for violation of the curfew ordinance shall be
required to undergo counseling, accompanied by their parents/guardians. Does the
curfew ordinance violative the primary right and duty of parents to rear their
children? Explain. (2.5%)
No, it does not. While parents have the primary role in child-rearing, it should be
stressed that when actions concerning the child have a relation to the public welfare or the
well-being of the child, the state may act to promote these legitimate interests. Thus, in
cases in which harm to the physical or mental health of the child or to public safety, peace,
order, or welfare is demonstrated, these legitimate state interests may override the parents'
qualified right to control the upbringing of their children. As parents patriae, the State has
the inherent right and duty to aid parents in the moral development of their children (Samahan
ng mga Progresibong Kabataan (SPARK) v. Quezon City, C.R. No. 225442, August 8, 2017).
Does the curfew ordinance infringe any of the minors ‘fundamental rights?
Explain. (2.5%)
No, it does not. The ordinance has passed the two prongs of the strict scrutiny test: (1)
The ordinance is necessary to achieve compelling state interest- that is, there is a compelling
interest to promote juvenile safety and prevent juvenile crime in the concerned locality; and (2)
the least restrictive means to protect such interest or the means chosen is narrowly tailored to
accomplish the interest - That is, the ordinance provides for adequate exceptions that enable
minors to freely exercise their fundamental rights during the prescribed curfew hours, and
therefore, narrowly drawn to achieve the State's purpose (Samahan ng mga Progresibong
Kabataan (SPARK) v. Quezon City, C.R. No. 225442, August 8, 2017).
(2016) Section 8 of P.D. No. 910, entitled "Creating an Energy Development Board, defining
its powers and functions, providing funds therefor and for other purposes," provides that: "All fees,
revenues and receipts of the Board from any and all sources x x x shall form part of a Special Fund
to be used to finance energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President." The
Malampaya NGO contends that the provision constitutes an undue delegation of legislative power
since the phrase "and for such other purposes as may be hereafter directed by the President" gives
the President unbridled discretion to determine the purpose for which the funds will be used. On
the other hand, the government urges the application of ejusdem generis. A. Explain the
"completeness test" and "sufficient standard test." (2.5%)
[A] The “completeness test means” that the law sets forth the policy to be executed, carried out,
or implemented by the delegate. (Abakada Guro Party List v. Ermita, 469 SCRA 1 [2005]). The “sufficient 217
standard test” means the law lays down adequate guidelines or limitations to map out the boundaries of
the authority of the delegate and prevent the delegate from running riot. The standard must specify the
limits of the authority of the delegate, announce the legislative policy and identify the condition under
which it is to be implemented. (Abakada Guro Party List v. Ermita, 469 SCRA 1 [2005]).
B. Does the assailed portion of section 8 of PD 910 hurdle the two (2) tests? (2.5%)
The assailed portion of the Presidential Decree No. 910 does no satisfy the two tests. The phrase
“and for such other purposes as may be hereafter directed by the President” gives the President unbridled
discretion to determine the purpose for which the funds will be used. An infrastructure is any basic facility
needed by society. The power to determine what kind of infrastructure to prioritize and fund is a power to
determine the purpose of the appropriation and is an undue delegation of the power to appropriate.
(Belgica v. Ochoa, Jr., 710 SCRA 1 [2013]) The assailed provision does not fall under the principle of
ejusdem generis. First, the phrase “energy resource development and exploitation programs and projects
of the government states a singular and general class. Second, it exhausts the class it represents. (Belgica
v. Ochoa, Jr., 710 SCRA 1 [2013])
(2015) The Secretary of the Department of Environment and Natural Resources (DENR)
issued Memorandum Circular No. 123-15 prescribing the administrative requirements for the
conversion of a timber license agreement (TLA) into an Integrated Forestry Management Agreement
(IFMA). ABC Corporation, a holder of a TLA which is about to expire, claims that the conditions for
conversion imposed by the said circular are unreasonable and arbitrary and a patent nullity because
it violates the non- impairment clause under the Bill of Rights of the 1987 Constitution. ABC
Corporation goes to court seeking the nullification of the subject circular. The DENR moves to
dismiss the case on the ground that ABC Corporation has failed to exhaust administrative remedies
which is fatal to its cause of action. If you were the judge, will you grant the motion? Explain. (4%)
The motion by the DENR to dismiss the case for ABC’s failure to exhaust administrative remedies
should be set aside. The rule on exhaustion of administrative remedies applies only to decisions of
administrative agencies made in the exercise of their quasi-judicial powers [Association of Philippine
Coconut Desiccators v. Philippine Coconut Authority, G.R. No. 110526, February 10, 1 9981. Thus, where
what is assailed is the validity or constitutionality of a rule or regulation issued by the administrative
agency in the performance of its quasi-legislative function, the regular courts have jurisdiction to pass
upon the same (Smart communications v. National telecommunications commission, G.R. No. 151908,
August 12, 2003).
(1991) For being notoriously undesirable and a recidivist, Jose Tapulan, an employee in
the first level of the career service in the Office of the Provincial Governor of Masbate, was
dismissed by the Governor without formal investigation pursuant to Section 40 of the Civil Service
Decree (P.D. No. 807} which authorizes summary proceedings in such cases. As a lawyer of Jose
what steps, if any, would you take to protect his rights?
Section 40 of the Civil Service Decree has been repealed by Republic Act No. 6654. As lawyer of
Jose Tapulan, I will file a petition for mandamus to compel his reinstatement. In accordance with the
ruling in Mangubat us. Osmena, G.R No. L-12837, April 30, 1959, 105 Phil. 1308, there is no need to
exhaust all administrative remedies by appealing to the Civil Service Commission, since the act of the
governor is patently Illegal.
(2000) Explain the doctrine of exhaustion of administrative remedies. (2%)
The doctrine of exhaustion of administrative remedies means that when an adequate remedy is
available within the Executive Department, a litigant must first exhaust this remedy before he can resort
to the courts. The purpose of the doctrine is to enable the administrative agencies to correct themselves if
they have committed an error. (Rosales v. Court of Appeals, 165 SCRA 344 [19881)
B. Give at least three (3) exceptions to its application. (3%)
The following are the exceptions to the application of the doctrine of exhaustion of administrative
remedies: (1) The question involved is purely legal; (2) The administrative body is in estoppel; (3) The act 218
complained of is patently illegal; (4) There is an urgent need for Judicial intervention; (5) The claim involved
is small; (6) Grave and irreparable injury will be suffered; (7) There is no other plain, speedy and adequate
remedy; (8) Strong public interest is involved; (9) The subject of the controversy is private law; (10) The
case involves a quo warranto proceeding (Sunville Timber Products, Inc. v. Abad. 206 SCRA 482 {1992);
(11) The party was denied due process (Samahang Magbubukid ng Kapdula, Inc. v. Court of Appeals, 305
SCRA 147 [1999]); 12. The decision is that of a Department Secretary. (Nazareno v. Court of Appeals, G.R.
No. 131641, February 23. 2000); 13. Resort to administrative remedies would be futile (University of the
Philippines Board of Regents v. Rasul 200 SCRA 685 [1991]); 14. There is unreasonable delay (Republic
v, Sandiganbayan, 301 SCRA 237 [1999]); 15. "The action involves recovery of physical possession of
public land (Gabrito u. Court of Appeals, 167 SCRA 771 {1988]); 16. The party is poor (Sabello v.
Department of Education, Culture and Sports, 180 SCRA 623 [1989]); and 17. The law provides for
immediate resort to the court (Rulian v Valdez, 12 SCRA 501 [1964]).
(1996) Distinguish the doctrine of primary jurisdiction from the doctrine of exhaustion of
administrative remedies.
The doctrine of primary jurisdiction and the doctrine of exhaustion of administrative remedies
both deal with the proper relationships between the courts and administrative agencies. The doctrine of
exhaustion of administrative remedies applies where a claim is cognizable in the first instance by an
administrative agency alone. Judicial interference is withheld until the administrative process has been
completed. As stated in Industrial Enterprises, Inc. vs. Court of Appeals, 184 SCRA 426. The doctrine
of primary jurisdiction applies where a case is within the concurrent jurisdiction of the court and an
administrative agency but the determination of the case requires the technical expertise of the
administrative agency. In such a case, although the matter is within the jurisdiction of the court, it must
yield to the jurisdiction of the administrative case.
2) Does the failure to exhaust administrative remedies before filing a case in court oust said
court of jurisdiction to hear the case? Explain.
No, the failure to exhaust administrative remedies before filing a case in court does not oust the
court of jurisdiction to hear the case. As held in Rosario vs. Court of Appeals, 211 SCRA 384, the failure
to exhaust administrative remedies does not affect the jurisdiction of the court but results in the lack of
a cause of action, because a condition precedent that must be satisfied before action can be filed was not
fulfilled.
(1991) On the basis of a verified report and confidential information that various electronic
equipment, which were illegally imported into the Philippines, were found in the bodega of the
Tikasan Corporation located at 1002 Binakayan St., Cebu City, the Collector of Customs of Cebu
issued, in the morning of 2 January 1988, a Warrant of Seizure and Detention against the
corporation for the seizure of the electronic equipment. The warrant particularly describes the
electronic equipment and specifies the provisions of the Tariff and Customs Code which were
violated by the importation. The warrant was served and implemented in the afternoon of 2 January
1988 by Customs policemen who then seized the described equipment. The inventory of the seized
articles was signed by the Secretary of the Tikasan Corporation. The following day, a hearing officer
in the Office of the Collector of Customs conducted a hearing on the confiscation of the equipment.
Two days thereafter, the corporation filed with the Supreme Court a petition for certiorari,
prohibition and mandamus to set aside the warrant, enjoin the Collector and his agents from
further proceeding with the forfeiture hearing and to secure the return of the confiscated
equipment, alleging therein that the warrant issued is null and void for the reason that, pursuant
to Section 2 of Article III of the 1987 Constitution, only a judge may issue a search warrant. In his
comment to the petition, the Collector of Customs, through the Office of the Solicitor General,
contends that he is authorized under the Tariff and Custom Code to order the seizure of the
equipment whose duties and taxes were not paid and that the corporation did not exhaust
administrative remedies. Should the petition be granted?
No. No search warrant from court needed.
B. If the Court would sustain the contention of the Collector of Customs on the matter of 219
exhaustion of administrative remedies, what is the administrative remedy available to the
corporation?
As pointed out in Chia us. Acting Collector of Customs, 177 SCRA 753, the administrative remedy
available under Section 2313 of the Tariff and Customs Code is to appeal to the Commissioner of Customs,
from whose decision an appeal to the Court of Tax Appeals lies.
(2015) A law provides that the Secretaries of the Departments of Finance and Trade and
Industry, the Governor of the Central Bank, the Director General of the National Economic
Development Authority, and the Chairperson of the Philippine Overseas Construction Board shall
sit as ex- officio members of the Board of Directors (BOD) of a government owned and controlled
corporation (GOCC). The other four (4) members shall come from the private sector. The BOD issues
a resolution to implement a new organizational structure, staffing pattern, a position classification
system, and a new set of qualification standards. After the implementation of the Resolution, Atty.
Dipasupil questioned the legality of the Resolution alleging that the BOD has no authority to do
so. The BOD claims otherwise arguing that the doctrine of qualified political agency applies to the
case. It contends that since its agency is attached to the Department of Finance, whose head, the
Secretary of Finance, is an alter ego of the President, the BOD's acts were also the acts of the
President. Is the invocation of the doctrine by the BOD proper? Explain. (4 %)
The contention of the BOD is proper. Under the doctrine of qualified political agency or alter ego
principle, all executive and administrative organizations are adjuncts of the Executive Department, the
heads of the various executive, and, except in cases where the Chief Executive is required by the
Constitution or law to act in person or the exigencies of the situation demand that he acts personally, the
multifarious executive and administrative functions of the Chief Executive are performed by and through
the executive departments, and the acts of the Secretaries of Executive departments when performed and
promulgated in the regular course of business or unless disapproved or reprobated by the Chief Executive,
are presumptively the acts of the Chief Executive (Villena v. Secretary of the lnterior, No. 46574, April 21,
1939).
Under our governmental set-up, corporations owned or controlled by the government… partake
of the nature of government bureaus or offices, which are administratively supervised by (one) “whose
compensation and rank shall be that of a head of an Executive Department” and who “shall be responsible
to the President of the Philippines under whose control his functions ... shall be exercised.” (Executive
Order No. 386 of December 22, 1950, section 1, issued under the Reorganization Act of 1950). (in Namarco
v. Arca, 29 SCRA 648). Through the Secretary of Finance, any act of the BOD shall be subject to the
constitutional power of control by the President over all executive departments, bureaus and offices.
(2001) Give the two (2) requisites for the judicial review of administrative decision/actions,
that is, when is an administrative action ripe for Judicial review? (5%)
The following are the conditions for ripeness for judicial review of an administrative action: (1) The
administrative action has already been fully completed and, therefore, is a final agency action; and (2) All
administrative remedies have been exhausted. [Gonzales, Administrative Law, Rex Bookstore: Manila, p.
136 (1979)].
(1988) Apex Logging Co. and Batibot Logging Co. are adjacent timber concession holders in
Isabela. Because of boundary conflicts, and mutual charges of incursions into their respective
concession areas, the Bureau of Forestry ordered a survey to establish on the ground their common
boundary. The Bureau of Forestry's decision in effect favored Batibot. Apex appealed to the
Department of Natural Resources and Environment and this department reversed the decision of
the Bureau of Forestry and sustained Apex. It was the turn of Batibot to appeal to the Office of the
President. The Office of the President through an Asst. Executive Secretary sustained the
Department of Natural Resources and Environment. On a motion for reconsideration by Batibot,
however, an Asst. Executive Secretary other than the one who signed the decision affirming the
decision of the Department of Natural Resources and Environment decided for Batibot, Dissatisfied
with the Administrative action on the controversy. Apex filed an action with the Regional Trial
Court against Batibot, the Director of Forestry, and the Asst. Executive Secretaries insisting that
a judicial review of such divergent administrative decisions is necessary to determine the correct 220
boundary line of the licensed areas in question.
Batibot moved to dismiss the action, but the Regional Trial Court denied the same and even
enjoined enforcement of the decision of the Office of the President. Batibot's motion for
reconsideration was likewise denied. Batibot then filed a petition for certiorari and prohibition to
review and annul the orders of the Regional Trial Court. Do you believe the petition for certiorari
and prohibition is meritorious? Why or why not?
The petition for certiorari and prohibition is meritorious. The order of the trial court must
accordingly be set aside. As held in a similar case, Lianga Bay Logging Co. v. Enage, 152 SCRA 80 (1987),
decisions of administrative officers should not be disturbed by the courts except when the former have
acted without or in excess of their jurisdiction or with grave abuse of discretion. The mere suspicion of
Apex that there were anomalies in the nonrelease of the first "decision" and its substitution of a new one
by another Assistant Executive Secretary does not justify judicial review. Mere beliefs, suspicions and
conjectures cannot overcome the presumption of regularity of official action.
(1997) Are government-owned or controlled corporations within the scope and meaning of
the "Government of the Philippines"?
Section 2 of the Introductory Provision of the Administrative Code of 1987 defines the government
of the Philippines as the corporate governmental entity through which the functions of government are
exercised throughout the Philippines, including, same as the contrary appears from the context, the
various arms through which political authority is made effective in the Philippines, whether pertaining to
the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local
government. Government owned or controlled corporation are within the scope and meaning of the
Government of the Philippines if they are performing governmental or political functions.
(2003) The President abolished the Office of the Presidential Spokesman in Malacanang
Palace and a long-standing Bureau under the Department of Interior and Local Governments. The
employees of both offices assailed the action of the President for being an encroachment of
legislative powers and thereby void. Was the contention of the employees correct? Explain.
The contention of the employees is not correct. As held in Buklod ng Kawaning EHB v. Zamora.
360 SCRA 718 [2001], Section 31, Book III of the Administrative Code of 1987 has delegated to the
President continuing authority to reorganize the administrative structure of the Office of the President to
achieve simplicity, economy and efficiency. Since this includes the power to abolish offices, the President
can abolish the Office of the Presidential Spokesman, provided it is done in good faith. The President can
also abolish the Bureau in the Department of Interior and Local Governments, provided it is done in good
faith because the President has been granted continuing authority to reorganize the administrative
structure of the National Government to effect economy and promote efficiency, and the powers include
the abolition of government offices. (Presidential Decree No. 1416, as amended by Presidential Decree No.
1772; Larin v. The Executive Secretary. 280 SCRA 713 [1997]).
(2000) The Maritime Industry Authority (MARINA) issued new rules and regulations
governing pilotage services and fees, and the conduct of pilots in Philippine ports. This it did
without notice, hearing nor consultation with harbor pilots or their associations whose rights and
activities are to be substantially affected. The harbor pilots then filed suit to have the new MARINA
rules and regulations declared unconstitutional for having been issued without due process. Decide
the case. (5%)
The issuance of the new rules and regulations violated due process. Under Section 9, Chapter II,
Book VII of the Administrative Code of 1987, as far as practicable, before adopting proposed rules, an
administrative agency should publish or circulate notices of the proposed rules and afford interested
parties the opportunity to submit their views; and in the fixing of rates, no rule shall be valid unless the
proposed rates shall have been published in a newspaper of general circulation at least two weeks before
the first hearing on them. In accordance with this provision, in Commissioner of Internal Revenue v CA,
261 SCRA 236 (1996), it was held that when an administrative rule substantially increases the burden of
those directly affected, they should be accorded the chance to be heard before its issuance.
ALTERNATIVE ANSWER:
Submission of the rule to the University of the Philippines Law Center for publication is
mandatory. Unless this requirement is complied with, the rule cannot be enforced.
(2005) State with reason(s) which of the following is a government agency or a government
instrumentality: Department of Public Works and Highways; Bangko Sentral ng Pilipinas; Philippine
Ports Authority; Land Transportation Office; Land Bank of the Philippines. (5%)
An INSTRUMENTALITY refers to any agency of the national government not integrated within the
departmental framework, vested with special functions or jurisdiction by law, with some if not all corporate
powers, administering special funds, and enjoying operational autonomy, usually through a charter. (Iron
and Steel Authority v. Court of Appeals, G.R. No. 102976, October 25, 1995) AGENCY under the
administrative code is any department, bureau, office, commission, authority or officer of the national
government, authorized by law or executive order to make rules, issue licenses, grant rights or privileges,
and adjudicate cases; research institutions with respect to licensing functions; government corporations
with respect to functions regulating private rights, privileges, occupation or business, and officials in the
exercise of the disciplinary powers as provided by law. There is NO PRACTICAL DISTINCTION between an
instrumentality and agency, for all intents and purposes. A distinction, however, may be made with
respect to those entities possessing a separate charter created by statute.
1. DPWH is an agency. It does not possess a separate charter. 2. BSP is an instrumentality
because it was incorporated under the new Central Bank Law (R.A. No. 7653) 3. PPA can be defined as
both an instrumentality and an agency because it was incorporated by special law and it has its own
charter, yet it is integrated with the DOTC; 4. LTO is an agency. It is an office of the DOTC. 5. LBP is an
instrumentality having a charter under a special law and is a government financial institution (GFI)
independent of any department of government.
(2006) What is a quasi-judicial body or agency? (2.5%)
A quasi-judicial body or agency is an administrative body with the power to hear, determine or
ascertain facts and decide rights, duties and obligations of the parties by the application of rules to the
ascertained facts. By this power, quasi- judicial agencies are enabled to interpret and apply implementing
rules and regulations promulgated by them and laws entrusted to their administration.
PUBLIC INTERNATIONAL LAW
(2021) The United Nations General Assembly unanimously passed a Resolution expressing
the commitment of its members to pass laws and related policies that would provide incentives for
all citizens of the planet to change their lifestyles so that the impending disasters brought about
by climate change can be avoided or mitigated. As the principal legal adviser to the Secretary of
Foreign Affairs, you are asked this query: Is this General Assembly Resolution a valid source of
State obligation under international law? Explain briefly.
The General Assembly Resolution is a valid source of State obligation under International law.
Under the principle of pacta sunc servanda, every treaty in force is binding upon the parties to it and
must be performed by them in good faith.
Here, the United General Assembly issued a resolution expressing the commitment of its members
to pass laws and related policies to mitigate the effect of climate change. The Philippines is a member of
the United Nation, and as member, we are bound to by the treaty stipulations. Hence, the Philippine
221
should pass laws and related policies align with the GA resolution.
(2019) Define the following terms: Jus cogens
S
Jus cogens is a peremptory (absolute) norm of general international law accepted
and recognized by the international community as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.
Principle of double criminality
Under the double criminality rule, the extraditable offense must be criminal under
the laws of both the requesting and the requested states. This simply means that the
requested state comes under no obligation to surrender the person if its laws do not regard
the conduct covered by the request for extradition as criminal (Government of Hong Kong
Special Administrative Region (HKSAR) v. Munoz, G.R. No. 207342, August 16, 2016).
Act of State doctrine (2%)
Under this doctrine, courts of one country will not sit in judgment on the acts of the
government of another in due deference to the independence of sovereignty of every
sovereign state (PCGG v. Sandiganbayan, G.R. No. 124772, August 14, 2007).
Precautionary principle (2%)
Under this principle, in order to protect the environment, the precautionary approach
shall be widely applied by States according to their capabilities. Where there are threats
of
serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent environmental degradation (Principle 15 of the
Rio Declaration).
(2019) Under the United Nations Convention on the Law of the Sea (UNCLOS),
what are the rights of the Philippines within the following areas: Contiguous zone (2%)
Within the contiguous zone, the coastal state may exercise control necessary to: (1)
prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within
its territory or territorial sea; and (2) punish infringement of the above laws and regulations
committed within its territory or territorial sea (Article 3 3, UNCLOS).
Exclusive economic zone (2%)
Within the exclusive economic zone, the coastal state has:
(1) sovereign rights for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or non-living, of the waters superjacent
to the seabed
and of the seabed and its subsoil, and with regard to other activities for
the economic
exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds;
(2) Jurisdiction as provided for in the relevant provisions of this Convention with regard
to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine
scientific research; (iii) the protection and preservation of the marine environment; and (3) Other
rights and duties provided for in this Convention (Article 56. UNCLOS).
(2019) The Humanitarian Services Society (HSS), an international nongovernment organization, assisted the displaced families of Tribe X who had to flee their
home country in order to escape the systematic persecution conducted against them by
their country's ruling regime based on their cultural and religious beliefs. Fearing for their
lives, some of these displaced families with the help of HSS, were able to sail out into the
222
sea on a boat which eventually landed in Palawan. The Philippine Coast Guard intended to
push back the boat with 15 passengers. An affiliate of HSS in the Philippines intervened
on behalf these displaced families, claiming that they are refugees under international
law' and hence, should not be expelled from our territory. May the displaced families
of Tribe X be considered "refugees" under international law? Explain. (3%)
Yes, because under the 1951 Convention Relating to the Status of Refugees, to which
the Philippines is a signatory, a refugee includes one who, as a result of events and owing to
well- founded fear of being persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
[2017] What is the right of legation, and how is it undertaken between states? Explain.
The right of legation is the right accorded to a State to be represented by an ambassador or
diplomatic agent in another State. Right of legation, also known as the right of diplomatic intercourse,
refers to the right of the State to send and receive diplomatic missions, which enables States to carry on
friendly intercourse. It is not a natural or inherent right, but exists only by common consent. No legal
liability is incurred by the State for refusing to send or receive diplomatic representatives. Governed by
the Vienna Convention on Diplomatic Relations (1961). The exercise of the right of legation is one of the
most effective ways of facilitating and promoting intercourse among nations. Through the active right of
sending diplomatic representatives and the passive right of receiving them, States are now able to deal
more directly and closely with each other in the improvement of their mutual intercourse.
Under this right, may a country like Malaysia insist that the Philippines establishes a
consulate in Sabah to look after the welfare of the Filipino migrants in the area? Explain.
No. Malaysia cannot insist as it is not a natural or inherent right. The right of legation is purely
consensual. The Philippines should give its consent. No legal liability is incurred by refusing to send or to
receive a diplomatic representative.
[2017] State A and State B, two sovereign states, enter into a 10-year mutual defense treaty.
After five years, State A finds that the more progressive State B did not go to the aid of State A
when it was threatened by its strong neighbor State C. State B reasoned that it had to be prudent
and deliberate in reacting to State C because of their existing trade treaties. May State A now
unilaterally withdraw from its mutual defense treaty with State B? Explain your answer. (2.5%)
A. State A cannot unilaterally withdraw from its treaty obligations under the principle of pacta
sunt servanda upon which signatory States who entered in treaty must comply with its obligation in good
faith. However, in invoking the principle of rebus sic stantibus, State A can unilaterally withdraw from its
treaty obligation with State B, on the ground that in such withdrawal from the treaty, State A is protecting
its existence from harm.
B. What is the difference between the principles of pacta sunt servanda and rebus sic
stantibus in international law?
Pacta sunt servanda as generally accepted principle of international law, requires compliance of
treaty obligations of signatory states in good faith irrespective of constrains in its enforcement, while rebus
sic stantibus demands the unitary withdrawal or severance in the enforcement of state's treaty obligations,
when impossibility to comply intervenes. Under this principle of international law, if the change in
fundamental circumstance affects a signatory state, and to comply with the treaty provisions would
seriously jeopardize its own existence, a withdrawal is allowed because its fundamental right to exist is
stronger than its duty to comply with the treaty.
C. Are the principles of pacta sunt servanda and rebus sic stantibus relevant in the treaty
relations between State A and State B?
Yes. State A and B who are both signatories to the Mutual Defense Treaty must comply with their
treaty agreements as it is a norm in International law applying the principle of pacta sunt servanda. State
223
B is also correct in invoking the principle of rebus sic stantibus in his relationship with State A. The
principle of rebus sic stantibus can be invoked by a signatory state ina treaty when there is a vital change
in the fundamental circumstance, and said change and circumstance will affect the signatory state that
for it to continue to comply with his treaty obligation would seriously jeopardize its own existence. Also the
change in the fundamental circumstance has not been foreseen by state B during the time it entered into
a treaty agreement with state A.
What about in the treaty relations between State B and State C? Explain your answer.
As to the relations between State b and State C, both as signatories to their trade treaties must
comply with their treaty obligations under the principle of pacta sunt servanda. However, both states
cannot invoke the principle of Rebus sic stantibus sincethere is no fundamental change or circumstances
present that could affect or jeopardize their existence as a sovereign state.
(2016) The USS Liberty, a warship of the United States (U.S.), entered Philippine archipelagic
waters on its way to Australia. Because of the negligence of the naval officials on board, the vessel
ran aground off the island of Pala wan, damaging coral reefs and other marine resources in the area.
Officials of Palawan filed a suit for damages against the naval officials for their negligence, and
against the U.S., based on Articles 30 and 31 of the United Nations Convention on the Law of the
Sea (UNCLOS). Article 31 provides that the Flag State shall bear international responsibility for any
loss or damage to the Coastal State resulting from noncompliance by a warship with the laws and
regulations of the coastal State concerning passage through the territorial sea. The U. S.
Government raised the defenses that: [a] The Philippine courts cannot exercise jurisdiction over
another sovereign State, including its warship and naval officials. (2.5%)
The defenses raised by the U.S. Government are not valid. [A] This defense relies on sovereign
immunity from suit as advanced by the U.S. Government. But the suit file by the Officials of Palawan
draws its strength from Article 30 and 31 of the UN Convention on the Law of the Sea (UNCLOS). However,
the U.S. defense is defeated by the UNCLOS through the application of Article 32 which provides: “With
such exceptions as are contained in subsection A and in Articles 30 and 31, nothing in the Convention
affects the immunities of warships and other government ships operated for non-commercial purposes.
[emphasis added]” In reality the supreme relevance of Article 32 quoted above is actualized by quoting
an existing U.S. government document sourced from Dispatch Supplement, Law of the Sea Convention:
Letters of Transmittal and Submittal and Commentary, as follows: “Article 32 provides, in effect that the
only rules in the Convention derogating from the immunities of warships and government ships operated
for nongovernment purposes are those found in Articles 17-26, 30 and 31 (February 1995, Vol. 6,
Supplement No. 1 p.12).
[b] The United States is not a signatory to UN CLOS and thus cannot be bound by its
provisions. (2.5%) Rule on the validity of the defenses raised by the U.S., with reasons.
[B] The U.S. Government turns to the defense that it is not bound by the UNCLOS for the reason
that it is not a State Party or a signatory. However, to be bound by the principle, it does not have to be a
party to a treaty or convention. If it has the normative status of a customary norm of international law, it
is binding on all states. This appears to be holding of the principle of immunity of warship in question, as
upheld by the U.S. Government in the document cited above (Ibid., at p.17). It states from the UNCLOS,
thus: The Convention protects and strengthens the key principle of sovereign immunity for warships.
Although not a new concept, sovereign immunity is a principle or of vital importance to the United States.
The Convention provides for a universally recognized formulation of this principle. Article 32 provides that,
with such exceptions as are contained in subsection A and in Articles 30 and 31 nothing in the Convention
affects the immunities of warships.
[2018] Andreas and Aristotle are foreign nationals working with the Asian Development
Bank (ADB) in its headquarters in Manila. Both were charged with criminal acts before the local
trial courts. Andreas was caught importing illegal drugs into the country as part of his “personal
effects” and was thus charged with violations of Comprehensive Dangerous Act of 2002. Before the
criminal proceedings could commence, the President had him deported as an undesirable alien.
Aristotle was charged with grave oral defamation for uttering defamatory words against a colleague
224
at work. In his defense, Aristotle claimed diplomatic immunity. He presented as proof a
communication from the Department of Foreign Affairs stating that, pursuant to the Agreement
between the Philippine Government and the ADB, the bank’s officers and staff are immune from
legal processes with respect to acts performed by them in their official capacity. (b) Is Aristotle’s
claim of diplomatic immunity proper? (2.5%)
The claim of diplomatic immunity is improper. Courts cannot blindly adhere to and take on its 225
face the communication from the DFA that Aristotle is covered by an immunity. The DFA’s determination
that a certain person is covered by immunity is only preliminary and has no binding effect on courts.
Besides, slandering a person cannot possibly be covered by immunity agreement because our laws do not
allow the commission of a crime, such as defamation, under the guise of official duty. Under the Vienna
Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from criminal jurisdiction of the
receiving state except in the case of an action relating to any professional or commercial activity exercised
by the diplomatic agent outside his official functions in the recieving state. The commission of a crime is
not part of official duty (Liang vs. People, G.R. No. 125865, March 26, 2001).
[2017] A. Ambassador Robert of State Alpha committed a very serious crime while he
headed his foreign mission in the Philippines. Is he subject to arrest by Philippine authorities?
A. As a general rule, he is not subject to arrest. Being an Ambassador of a foreign Sate, he is
immune from arrest and exempted from criminal prosecution by virtue of their diplomatic immunity,
which is also absolute in nature. Through their diplomatic immunity, they are exempted from criminal
prosecutions except when the very serious crime relates to crimes against international law.
B. Extradition is the process pursuant to a treaty between two State parties for the
surrender by the requested State to the custody of the requesting State of a fugitive criminal
residing in the former. However, extradition depends on the application of two principles – the
principle of specialty and the dual criminality principle. Explain these principles. (4%)
B. In principle of specialty, a person extradited to the requesting state may be tried and punished
only for the offense for which extradition had been sought and granted. While in principle of dual
criminality, the crime subject of request for extradition must be punishable in both the requesting state
and the requested state.
C. The President signs an agreement with his counterpart in another country involving
reciprocity in the treatment of each country's nationals residing in the other's territory. However,
he does not submit the agreement to the Senate for concurrence. Sec. 21, Art. VII of the
Constitution provides that no treaty or international agreement shall be valid and effective without
such concurrence. Is the agreement signed by the President effective despite the lack of Senate
concurrence?
C. Yes. The agreement entered into by the President is executive agreement which needs no
concurrence of the Senate, not a treaty or international agreement as provided in Sec. 21, Art. VII of the
Constitution.
(2014) Ambassador Gaylor is State Juvenus’ diplomatic representative to State Hinterlands.
During one of his vacations, Ambassador Gaylor decided to experience for himself the sights and
sounds of State Paradise, a country known for its beauty and other attractions. While in State
Paradise, Ambassador Gaylor was caught in the company of children under suspicious
circumstances. He was arrested for violation of the strict anti-pedophilia statute of State Paradise.
He claims that he is immune from arrest and incarceration by virtue of his diplomatic immunity.
Does the claim of Ambassador Gaylor hold water? (4%)
Ambassador Gaylor cannot invoke his diplomatic immunity. In accordance with Paragraph 1,
Article 31 of the Vienna Convention of Diplomatic Relations, since State Paradise is not his receiving state,
he does not enjoy diplomatic immunity within its territory. Under Paragraph 1, Article 40 of the Vienna
Convention of Diplomatic Relations, he cannot be accorded diplomatic immunity in State Paradise,
because he is not passing through it take up or return to his post or to return to State Juvenus.
A foreign ambassador to the Philippines leased a vacation house in Tagaytay for his personal
use. For some reason, he failed to pay rentals for more than one year. The lessor filed an action for
the recovery of his property in court. Can the foreign ambassador invoke his diplomatic immunity
to resist the lessor's action? (3%)
No, the foreign ambassador cannot invoke his diplomatic immunity to resist the action, since he
is not using the house in Tagaytay City for the purposes of his mission but merely for vacation. Under 226
Article 3(l)(a) of the Vienna Convention on Diplomatic Relations, a diplomatic agent has no immunity in
case of a real action relating to private immovable property situated in the territory of the receiving State
unless he holds it on behalf of the sending State for purposes of the mission.
b. The lessor gets hold of evidence that the ambassador is about to return to his home
country. Can the lessor ask the court to stop the ambassador's departure from the Philippines?
No, the lessor cannot ask the court to stop the departure of the ambassador from the Philippines.
Under Article 29 of the Vienna Convention, a diplomatic agent shall not be liable to any form of arrest or
detention.
(2001) Dr. Velen, an official of the World Health Organization (WHO) assigned in the
Philippines, arrived at the Ninoy Aquino International Airport with his personal effects contained
in twelve crates as unaccompanied baggage. As such, his personal effects were allowed free entry
from duties and taxes, and were directly stored at Arshaine Corporation's warehouse at Makati,
pending Dr. Velen's relocation to his permanent quarters.
At the instance of police authorities, the Regional Trial Court (RTC) of Makati issued a
warrant for the search and seizure of Dr. Velen's personal effects in view of an alleged violation of
the Tariff and Custom's Code. According to the police, the crates contained contraband items. Upon
protest of WHO officials, the Secretary of Foreign Affairs formally advised the RTC as to Dr. Velen's
immunity. The Solicitor General likewise joined Dr. Velen's plea of immunity and motion to quash
the search warrant. The RTC denied the motion. Is the denial of the motion to quash proper? (5%)
The denial of the motion is improper. As held in World Health Organization vs. Aquino, 48 SCRA
242 (1972). as an official of the World Health Organization, Dr. Velen enjoyed diplomatic immunity and
this included exemption from duties and taxes. Since diplomatic immunity involves a political question,
where a plea of diplomatic immunity is recognized and affirmed by the Executive Department, it is the
duty of the court to accept the claim of immunity.
(2003) A group of high-ranking officials and rank-and-file employees stationed in a foreign
embassy in Manila were arrested outside embassy grounds and detained at Camp Crame on
suspicion that they were actively collaborating with "terrorists" out to overthrow or destabilize the
Philippine Government. The Foreign Ambassador sought their immediate release, claiming that the
detained embassy officials and employees enjoyed diplomatic immunity. If invited to express your
legal opinion on the matter, what advice would you give?
I shall advice that the high-ranking officials and rank-and-file employees be released because of
their diplomatic immunity. Article 29 of the Vienna Convention on Diplomatic Relations provides: "The
person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention."
Under Article 37 of the Vienna Convention on Diplomatic Relations, members of the administrative and
technical staff of the diplomatic mission, shall, if they are not nationals of or permanent residents in the
receiving State, enjoy the privileges and immunities specified in Article 29. Under Article 9 of the Vienna
Convention on Diplomatic Relations, the remedy is to declare the high-ranking officials and rank-and-file
employees as personae non gratae and ask them to leave.
ALTERNATIVE ANSWER:
Under the Vienna Convention on Diplomatic Relations, a diplomatic agent "shall not be liable to
any form of arrest or detention (Article 29) and he enjoys immunity from criminal jurisdiction (Article 31).
This immunity may cover the "high-ranking officials" in question, who are assumed to be diplomatic
officers or agents. With respect to the "rank-and-file employees" they are covered by the immunity referred
to above, provided they are not nationals or permanent residents of the Philippines, pursuant to Article
37(2) of the said Convention. If the said rank-and-file employees belong to the service staff of the diplomatic
mission (such as drivers) they may be covered by the immunity (even if they are not Philippine nationals
or residents) as set out in Article 37(3), if at the time of the arrest they were in "acts performed in the
course of their duties." If a driver was among the said rank-and-file employees and he was arrested while
driving a diplomatic vehicle or engaged in related acts, still he would be covered by immunity.
(2004) A. MBC, an alien businessman dealing in carpets and caviar, filed a suit against
policemen and YZ, an attache of XX Embassy, for damages because of malicious prosecution. MBC
alleged that YZ concocted false and malicious charges that he was engaged in drug trafficking,
whereupon narcotics policemen conducted a "buy-bust" operation and without warrant arrested
him, searched his house, and seized his money and jewelry, then detained and tortured him in
violation of his civil and human rights as well as causing him, his family and business serious
damages amounting to two million pesos. MBC added that the trial court acquitted him of the drug
charges.
Assailing the court's jurisdiction: YZ now moves to dismiss the complaint, on the ground
that (1) he is an embassy officer entitled to diplomatic immunity; and that (2) the suit is really a
suit against his home state without its consent. He presents diplomatic notes from XX Embassy
certifying that he is an accredited embassy officer recognized by the Philippine government. He
performs official duties, he says, on a mission to conduct surveillance on drug exporters and then
inform local police officers who make the actual arrest of suspects. Are the two grounds cited by
YZ to dismiss the suit tenable?
A. The claim of diplomatic immunity of YZ is not tenable, because he does not possess an
acknowledged diplomatic title and is not performing duties of a diplomatic nature. However, the suit
against him is a suit against XX without its consent. YZ was acting as an agent of XX and was performing
his official functions when he conducted surveillance on drug exporters and informed the local police
officers who arrested MBC. He was performing such duties with the consent of the Philippine government,
therefore, the suit against YZ is a suit against XX without its consent. (Minucher v. Court of Appeals, 397
SCRA 244 [1992]).
(2005) Italy, through its Ambassador, entered into a contract with Abad for the maintenance
and repair of specified equipment at its Embassy and Ambassador's Residence, such as air
conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps. It
was stipulated that the agreement shall be effective for a period of four years and automatically
renewed unless cancelled. Further, it provided that any suit arising from the contract shall be filed
with the proper courts in the City of Manila. Claiming that the Maintenance Contract was
unilaterally, baselessly and arbitrarily terminated, Abad sued the State of Italy and its Ambassador
before a court in the City of Manila. Among the defenses, they raised were "sovereign immunity"
and "diplomatic immunity." (5%)
As counsel of Abad, refute the defenses of "sovereign immunity" and "diplomatic immunity" raised
by the State of Italy and its Ambassador. As counsel for Abad, I will argue that sovereign immunity will
not lie as it is an established rule that when a State enters into a contract, it waives its immunity and
allows itself to be sued. Moreover, there is a provision in the contract that any suit arising therefrom shall
be filed with the proper courts of the City of Manila. On the issue of diplomatic immunity, I will assert
that the act of the Ambassador unilaterally terminating the agreement is tortuous and done with malice
and bad faith and not a sovereign or diplomatic function.
At any rate, what should be the court's ruling on the said defenses?
The court should rule against said defenses. The maintenance contract and repair of the Embassy
and Ambassador's Residence is a contract in jus imperii, because such repair of said buildings is
indispensable to the performance of the official functions of the Government of Italy. Hence, the contract
is in pursuit of a sovereign activity in which case, it cannot be deemed to have waived its immunity from
suit.
On the matter of whether or not the Ambassador may be sued, Article 31 of the Vienna Convention
227
on Diplomatic Relations provides that a diplomatic agent enjoys immunity from the criminal, civil and
administrative jurisdiction of the receiving state except if the act performed is outside his official functions,
in accordance with the principle of functional necessity. In this case, the act of entering into the contract
by the Ambassador was part of his official functions and thus, he is entitled to diplomatic immunity.
(Republic of Indonesia v. Vinzons, G.R. No. 154705, June 26, 2003)
(1990) D, the Ambassador of the Kingdom of Nepal to the Philippines, leased a house in 228
Baguio City as his personal vacation home. On account of military disturbance in Nepal, D did not
receive his salary and allowances from his government and so he failed to pay his rentals for more
than one year. E, the lessor, filed an action for recovery of his property with the Regional Trial
Court of Baguio City. 1. Can the action against D prosper?
Yes, the action can prosper. Article 31 of the Vienna Convention on Diplomatic Relations provides:
"1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall
also enjoy immunity from its civil and administrative jurisdiction, except in the case of: A real action
relating to private immovable property situated in the territory of the receiving State, unless he holds it
on behalf of the sending State for the purposes of the mission;"
The action against the Ambassador is a real action involving private immovable property situated
within the territory of the Philippines as the receiving state. The action falls within the exception to the
grant of immunity from the civil and administrative jurisdiction of the Philippines.
ALTERNATIVE ANSWER;
No, the action will not prosper. Although the action is a real action relating to private immovable
property within the territory of the Philippines, nonetheless, the vacation house may be considered
property held by the Ambassador in behalf of his state (the Kingdom of Nepal) for the purposes of the
mission and, therefore, such is beyond the civil and administrative jurisdiction of the Philippines,
including its courts
2. Can E ask for the attachment of the furniture and other personal properties of D after
getting hold of evidence that D is about to leave the country?
`
No, E cannot ask for the attachment of the personal properties of the Ambassador. Arts. 30 and
31 of the Vienna Convention on Diplomatic Relations provides that the papers, correspondence and the
property of diplomat agents shall be inviolable. Therefore, a writ of attachment cannot be issued against
his furniture and any personal properties. Moreover, on the assumption that the Kingdom of Nepal grants
similar protection to Philippine diplomatic agents. Section 4 of Republic Act No. 75 provides that any writ
or process issued by any court in the Philippines for the attachment of the goods or chattels of the
ambassador of a foreign State to the Philippines shall be void.
3. Can E ask for the court to stop D's departure from the Philippines?
No, E cannot ask the court to stop the departure of the Ambassador of the Kingdom of Nepal from
the Philippines. Article 29 of the Vienna Convention on Diplomatic Relations provides: "The person of a
diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention."
(2005) Adams and Baker are American citizens residing in the Philippines. Adams
befriended Baker and became a frequent visitor at his house. One day, Adams arrived with 30
members of the Philippine National Police, armed with a Search Warrant authorizing the search of
Baker's house and its premises for dangerous drugs being trafficked to the United States of America.
The search purportedly yielded positive results, and Baker was charged with Violation of the
Dangerous Drugs Act. Adams was the prosecution's principal witness. However, for failure to prove
his guilt beyond reasonable doubt, Baker was acquitted.
Baker then sued Adams for damages for filing trumped-up charges against him. Among the
defenses raised by Adams is that he has diplomatic immunity, conformably with the Vienna
Convention on Diplomatic Relations. He presented Diplomatic Notes from the American Embassy
stating that he is an agent of the United States Drug Enforcement Agency tasked with "conducting
surveillance operations" on suspected drug dealers in the Philippines believed to be the source of
prohibited drugs being shipped to the U.S. It was also stated that after having ascertained the
target, Adams would then inform the Philippine narcotic agents to make the actual arrest. a. As
counsel of plaintiff Baker, argue why his complaint should not be dismissed on the ground of
defendant Adams' diplomatic immunity from suit.
As counsel for Baker, I would argue that Adams is not a diplomatic agent considering that he is 229
not a head of mission nor is he part of the diplomatic staff that is accorded diplomatic rank. Thus, the
suit should not be dismissed as Adams has no diplomatic immunity under the 1961 Vienna Convention
on Diplomatic Relations.
As counsel of defendant Adams, argue for the dismissal of the complaint.
As counsel for Adams, I would argue that he worked for the United States Drug Enforcement
Agency and was tasked to conduct surveillance of suspected drug activities within the country with the
approval of the Philippine government. Under the doctrine of State Immunity from Suit, if the acts giving
rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity
of the foreign sovereign from suit without its consent. Adams may not be a diplomatic agent but the
Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory
of Adams and thus he is entitled to the defense of state immunity from suit. (Minucher v. CA, G.R. No.
142396, February 11, 2003)
(1995) Discuss the differences, if any, in the privileges or immunities of diplomatic envoys
and consular officers from the civil or criminal jurisdiction of the receiving state.
Under Article 32 of the Vienna Convention on Diplomatic Relations, a diplomatic agent shall enjoy
immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil
and administrative jurisdiction except in the case of: (a) A real action relating to private immovable
property situated in the territory of the receiving State, unless he holds it on behalf of the sending State
for the purposes of the mission; (b) An action relating to succession in which the diplomatic agent is
invoked as executor, administrator, heir or legatee as a private person and not on behalf of the sending
State; (c) An action relating to any professional or commercial activity exercised by the diplomatic agent
in the receiving State outside his official functions.
On the other hand, under Article 41 of the Vienna Convention on Consular Relations, a consular
officer does not enjoy Immunity from the Criminal jurisdiction of the receiving State. Under Article 43 of
the Vienna Convention on Consular Relations, consular officers are not amenable to the Jurisdiction of
the Judicial or administrative authorities of the receiving State in respect of acts performed in the exercise
of consular functions. However, this does not apply in respect of a civil action either: (a) arising out of a
contract concluded by a consular officer in which he did not contract expressly or impliedly as an agent
of the sending State; or (b) by a third party for damage arising from an accident in the receiving State
caused by a vehicle, vessel, or aircraft.
2. A consul of a South American country stationed in Manila was charged with serious
physical injuries. May he claim Immunity from jurisdiction of the local court? Explain.
No, he may not claim immunity from the jurisdiction of the local court. Under Article 41 of the
Vienna Convention of Consular Relations, consuls do not enjoy immunity from the criminal Jurisdiction
of the receiving State. He is not liable to arrest or detention pending trial unless the offense was
committed against his father, mother, child, ascendant, descendant or spouse. Consuls are not liable to
arrest and detention pending trial except in the case of a grave crime and pursuant to a decision by the
competent judicial authority. The crime of physical Injuries is not a grave crime unless it be committed
against any of the above- mentioned persons. (Schneckenburger v. Moran 63 Phil. 249).
3. Suppose after he was charged, he was appointed as his country's ambassador to the
Philippines. Can his newly-gained diplomatic status be a ground for dismissal of his criminal case?
Explain.
Yes, the case should be dismissed. Under Article 40 of the Vienna Convention on Diplomatic
Relations, if a diplomatic agent is in the territory of a third State, which has granted him a passport visa
if such visa was necessary, while proceeding to take up his post, the third State shall accord him
inviolability and such other immunities as may be required to ensure his transit.
(1997) X, a Secretary and Consul in the American Embassy in Manila, bought from B a
diamond ring in the amount of P50,000.00 which he later gave as a birthday present to his Filipino 230
girlfriend. The purchase price was paid in check drawn upon the Citibank. Upon presentment for
payment, the check was dishonored for insufficiency of funds. Because of X's failure to make good
the dishonored check, B filed a complaint against X in the Office of the City Prosecutor of Manila
for violation of Batas Pambansa Big. 22. After preliminary investigation, the information was filed
against X in the City Court of Manila. X filed a motion to dismiss the case against him on the
ground that he is a Secretary and Consul in the American Embassy enjoying diplomatic immunity
from criminal prosecution in the Philippines. If you were the Judge, how would you resolve the
motion to dismiss?
If I were the Judge, I would grant the motion to dismiss. As consul, X is not immune from criminal
prosecution. Under Paragraph 3 of Article 41 of the Vienna Convention on Consular Relations, a consular
officer is not immune from the criminal jurisdiction of the receiving state. In Schneckenburger vs. Moron,
63 Phil. 249, it was held that a consul is not exempt from criminal prosecution in the country where he
is assigned. However, as secretary in the American Embassy, X enjoys diplomatic immunity from criminal
prosecution. As secretary, he is a diplomatic agent. Under Paragraph 1 of Article 31 of the Vienna
Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from the criminal jurisdiction of
the receiving State.
(2007) In 1993, historians confirmed that during World War II, "comfort women" were forced
into serving the Japanese military. These women were either abducted or lured by false promises
of jobs as cooks or waitresses, and eventually forced against their will to have sex with Japanese
soldiers on a daily basis during the course of the war, and often suffered from severe beatings and
venereal diseases. The Japanese government contends that the "comfort stations" were run as
"onsite military brothels" (or prostitution houses) by private operators, and not by the Japanese
military. There were many Filipina "comfort women." Name at least one basic principle or norm of
international humanitarian law that was violated by the Japanese military in the treatment of the
"comfort women."
The treatment of “comfort women” by the Japanese military violated Article XXVII of the
Geneva Convention (IV), which provides that: “Women shall be especially protected against any attack
on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.”
ALTERNATIVE ANSWER:
The treatment of “comfort women” by the Japanese military violated Article III of the Geneva
Convention (IV) which prohibits outrages upon personal dignity in particular humiliation and degrading
treatment.
ALTERNATIVE ANSWER:
The principle of military necessity was violated. It prohibits the use of any measure that is not
absolutely necessary for the purposes of the war. Military necessity is governed by several constraints: An
attack or action must be intended to help in the military defeat of the enemy, it must be an attack on a
military objective and the harm caused to civilians or civilian property must be proportional and not
excessive in relation to the concrete and direct military advantage anticipated. Having to force women of
the enemy state to serve the sexual needs of the soldiers is not absolutely necessary for the conduct of the
war.
The surviving Filipina "comfort women" demand that the Japanese government apologize
and pay them compensation. However, under the 1951 San Francisco Peace Agreement - the legal
instrument that ended the state of war between Japan and the Allied Forces - all the injured states,
including the Philippines, received war reparations and, in return, waived all claims against Japan
arising from the war. Is that a valid defense?
The defense is not valid. Under the preamble of San Francisco Treaty, Japan undertook to conform
to the protection and observance of human rights. The San Francisco Treaty must yield to the United
Nations Charter which provides for respect of human rights. Article 103 of the United Nations Charter
provides that the obligation of the member-states prevails over any other international agreement. The
waiver in Article 14(a) of the San Francisco Treaty is qualified by Article 14(b), which stated that Japan 231
had no resources presently sufficient to make complete reparation for all such damages and sufferings
and meet its other obligations. Thus, the waiver was operative only while Japan had inadequate resources.
ALTERNATIVE ANSWER:
No, that is not a valid defense. Even if it could be argued that the Philippines, by signing said
Peace Agreement had the right as a state to bring further claims, it had no authority to waive the individual
right to reparations vested directly in its nationals who were victims of sexual slavery. The Philippines can
only validly waive its right to recovery of reparations for injuries to the state. Moreover, there is no defense
for the violation of jus cogens norms.
ALTERNATIVE ANSWER:
No. The claim is being made by the individuals, not by the State and it is recognized that
individuals may also be subjects of international law apart from the state. Further, the San Francisco
Peace Agreement could not be interposed as a valid defense as this could not have been contemplated
therein. The use of “comfort women” was only confirmed long after that Agreement. Moreover, Article
17 (3) of the New Civil Code provides that “prohibitive laws concerning persons, their acts or property,
and those which have for their object public order, policy and good customs, shall not be rendered
ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a
foreign country.
The surviving Filipina "comfort women" sue the Japanese government for damages before
Philippine courts. Will that case prosper?
The Filipina “comfort women” cannot sue Japan for damages, because a foreign State may not
be sued before Philippine courts as a consequence of the principles of independence and equality of States
(Republic of Indonesia vs. Vinzon, 405 SCRA 126 [2003]).
ALTERNATIVE ANSWER:
The case will not prosper in view of the doctrine of sovereign immunity from suit. However, a
person who feels aggrieved by the acts of a foreign sovereign can ask his own government to espouse his
cause through diplomatic channels. The “comfort women” can request the Philippine government,
through the Department of Foreign Affairs, to espouse its claims against the Japanese government. (Holy
See v. Rosario, G.R. No. 101949, December 1, 1994). The sovereign authority of a State to settle the claims
of its national against foreign countries has repeatedly been recognized. This may be made without the
consent of the nationals or even without consultation without them. (Dames and Moore v. Regan, 433
U.S. 654, [1981])
ALTERNATIVE ANSWER:
No. since the Philippines is a signatory to that Agreement, courts may not entertain a suit since
that has been waived by the State. Moreover, it can be argued that there was no state action since the
prostitution houses were being run by private operators, without the control or supervision of the
Japanese government. (Southeast Case, United States v. Wilhelm List, Nuremberg Case No. 7, 1949)
(1991) Select any five (5) of the following and explain each, using examples:
REPRISAL is a coercive measure short of war, directed by a state against another, in retaliation
for acts of the latter and as means of obtaining reparation or satisfaction for such acts. Reprisal involves
retaliatory acts which by themselves would be illegal. For example, for violation of a treaty by a state, the
aggrieved state seizes on the high seas the ships of the offending state.
RETORSION is a legal but deliberately unfriendly act directed by a state against another in
retaliation for an unfriendly though legal act to compel that state to alter its unfriendly conduct. An
example of retorsion is banning exports to the offending state.
The DECLARATORY THEORY OF RECOGNITION is a theory according to which recognition of a 232
state is merely an acknowledgment of the fact of its existence. In other words, the recognized state already
exists and can exist even without such recognition. For example, when other countries recognized
Bangladesh, Bangladesh already existed as a state even without such recognition.
RECOGNITION OF BELLIGERENCY is the formal acknowledgment by a third party of the
existence of a state of war between the central government and a portion of that state. Belligerency exists
when a sizeable portion of the territory of a state is under the effective control of an insurgent community
which is seeking to establish a separate government and the insurgents are in de facto control of a portion
of the territory and population, have a political organization, are able to maintain such control, and
conduct themselves according to the laws of war. For example, Great Britain recognized a state of
belligerency in the United States during the Civil War.
CONTINENTAL SHELF of a coastal state comprises the sea-bed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the
outer edge of the continental margin, or to a distance of 200 nautical miles from the "baselines from which
the breadth of the territorial sea is measured where the outer edge of the continental shelf does not extend
up to that distance.
EXEQUATUR is an authorization from the receiving state admitting the head of a consular post
to the exercise of his functions. For example, if the Philippines appoints a consul general for New York, he
cannot start performing his functions unless the President of the United States issues an exequatur to
him,
The principle of DOUBLE CRIMINALITY is the rule in extradition which states that for a request
to be honored the crime for which extradition is requested must be a crime in both the requesting state
and the state to which the fugitive has fled. For example, since murder is a crime both in the Philippines
and in Canada, under the Treaty on Extradition between the Philippines and Canada, the Philippines can
request Canada to extradite a Filipino who has fled to Canada.
PROTECTIVE PERSONALITY principle is the principle by which the state exercise jurisdiction over
the acts of an alien even if committed outside its territory, if such acts are adverse to the interest of the
national state.
INNOCENT PASSAGE means the right of continuous and expeditious navigation of a foreign ship
through the territorial sea of a state for the purpose of traversing that sea without entering the internal
waters or calling at a roadstead or port facility outside internal waters, or proceeding to or from internal
waters or a call at such roadstead or port facility. The passage is innocent so long as it is not prejudicial
to the peace, good order or security of the coastal state.
JUS COGENS is a peremptory norm of general international law accepted and recognized by the
international community as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character. An example
is the prohibition against the use of force.
(2010) What is the concept of association under international law?
Under international law, an association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to
the other, the principal, while maintaining its international status as a state. Free associations represent
a middle ground between integration and independence. Association under international Law, is a formal
arrangement between a non-self- governing territory and independent State whereby such territory
becomes an associated State with internal self- government, but the independent state is responsible for
foreign relations and defense. For an association to be lawful, it must comply with the general conditions
prescribed in the UN General Assembly Resolution 1541 (XV) of 14 December 160: (1) the population must
consent to the association; and (2) the association must promote the development and well- being of the
dependent state (the non- self-governing territory). Association subject to UN approval. In deciding the
constitutionality of the Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRPMILF Tripoli Agreement on Peace of 2001, the Supreme Court had ruled that the concept of association
under international law is not recognized under the 1987 Constitution as it runs counter to the national 233
sovereignty and territorial integrity of the Republic. (Province of North Cotabato v. GRP Peace Panel on
Ancestral Domain, G.R. No. 183591, Oct. 14, 2008)
(2004) Distinguish: The constitutive theory and the declaratory theory concerning
recognition of states.
According to the CONSTITUTIVE THEORY, recognition is the last indispensable element that
converts the state being recognized into an international person. According to the DECLARATORY
THEORY, recognition is merely an acknowledgment of the pre-existing fact that the state being recognized
is an international person. (Cruz, International Law, 2003 ed.)
(2004) Distinguish briefly but clearly between: The contiguous zone and the exclusive
economic zone.
CONTIGUOUS ZONE is a zone contiguous to the territorial sea and extends up to twelve nautical
miles from the territorial sea and over which the coastal state may exercise control necessary to prevent
infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea. (Article 33 of the Convention on the Law of the Sea.) The EXCLUSIVE ECONOMIC ZONE is
a zone extending up to 200 nautical miles from the baselines of a state over which the coastal state has
sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural
resources, whether living or nonliving, of the waters superjacent to the seabed and of the seabed and
subsoil, and with regard to other activities for the economic exploitation and exploration of the zone.
(Articles 56 and 57 of the Convention on the Law of the Sea.)
(2000) What is the concept of the exclusive economic zone under the UN Convention on
the Law of the Sea? (2%)
The exclusive economic zone under the Convention on the Law of the Sea is an area beyond and
adjacent to the territorial sea, which shall not extend beyond 200 nautical miles from the baselines from
which the territorial sea is measured. The coastal State has in the exclusive economic zone:
1. Sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, if the waters superjacent to the sea-bed and of the seabed
and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone,
such as the production of energy from the water, currents and winds;
2. Jurisdiction as provided in the relevant provisions of the Convention with regard to: (a) the
establishment and use of artificial islands, installations and structures; (b) marine scientific research; and
(c) the protection and preservation of the marine environment;
3. Other rights and duties provided form the Convention. [Article 56 of the Convention of the Law
of the Sea.)
(2003) An Executive Agreement was executed between the Philippines and a neighboring State.
The Senate of the Philippines took it upon itself to procure a certified true copy of the Executive Agreement
and, after deliberating on it, declared, by a unanimous vote, that the agreement was both unwise and
against the best interest of the country. Is the Executive Agreement binding (a) from the standpoint of
Philippine law and (b) from the standpoint of international law? Explain.
As to Philippine law, the Executive Agreement is binding. The Executive Agreement is also binding
from the standpoint of international law. As held in Bavan v. Zamora. 342 SCRA 449 [2000], in
international law executive agreements are equally binding as treaties upon the States who are parties to
them. Additionally, under Article 2{1)(a) of the Vienna Convention on the Law of Treaties, whatever may
be the designation of a written agreement between States, whether it is indicated as a Treaty, Convention
or Executive Agreement, is not legally significant. Still it is considered a treaty and governed by the
international law of treaties.
(2007) Lawrence is a Filipino computer expert based in Manila who invented a virus that
destroys all the files stored in a computer. Assume that in May 2005, this virus spread all over the 234
world and caused $50 million in damage to property in the United States, and that in June 2005,
he was criminally charged before United States courts under their anti-hacker law. Assume that in
July 2005, the Philippines adopted its own anti-hacker law, to strengthen existing sanctions
already provided against damage to property. The United States has requested the Philippines to
extradite him to US courts under the RP-US Extradition Treaty. Is the Philippines under an
obligation to extradite Lawrence? State the applicable rule and its rationale.
The Philippine is under no obligation to extradite Lawrence. Under the principle of dual or double
criminality, the crime must be punishable in both the requesting and requested states to make it
extraditable. In this case, only the United States had anti-hacker law at the time of the commission of
the crime in May 2005. The rational for the principle of dual criminality rests “in part on the basic
principle of reciprocity” and “in part of the maxim nulla poena sine lege.” (LA Shearer, 1971
Extradition in International Law, Manchester University Press, Manchester, p. 137.) Even if there was
no anti-hacker law in the Philippines when the United States requested the extradition of Lawrence, if the
act is similar to malicious mischief under Article 327 of the Revised Penal Code, The Philippines will be
under the obligation to extradite Lawrence (Coquia and Defensor, International law and World
Organizations, 4th ed. P.342).
Assume that the extradition request was made after the Philippines adopted its anti- hacker
legislation. Will that change your answer?
The Philippines will be under the obligation to extradite Lawrence. Both the Philippines and the
United States have an
anti-hacker law. The requirement of double criminality is satisfied even if the
act was not criminal in the requested state at the time of its occurrence if it was criminal at the time that
the request was made (Bassouni, International Extradition, 4th ed. p.469).
ALTERNATIVE ANSWER:
The Philippines is under no obligation to extradite Lawrence. The rule is that the crime must be
punishable in both countries at the time of the commission of the offense. Since there was yet no such
crime in the Philippines at the time when the acts complained of were done, in so far as the Philippines is
concerned, Lawrence did not commit any crime; hence, an extradition of Lawrence is tantamount to an
ex post facto application of the Philippine anti-hacker law, prohibited by section 22, Article III of the 1987
Constitution.
(1993) What is the difference if any between extradition and deportation?
The following are the differences between extradition and deportation:
1. EXTRADITION is effected for the benefit of the state to which the person being extradited will
be surrendered because he is a fugitive criminal in that state, while DEPORTATION is effected for the
protection of the State expelling an alien because his presence is not conducive to the public good.
2. EXTRADITION is effected on the basis of an extradition treaty or upon the request of another
state, while DEPORTATION is the unilateral act of the state expelling an alien.
3. In EXTRADITION, the alien will be surrendered to the state asking for his extradition, while in
DEPORTATION the undesirable alien may be sent to any state willing to accept him.
(1993) 2) Patrick is charged with illegal recruitment and estafa before the RTC of Manila.
He jumped bail and managed to escape to America. Assume that there is an extradition treaty
between the Philippines and America and it does not include illegal recruitment as one of the
extraditable offenses. Upon surrender of Patrick by the U.S. Government to the Philippines, Patrick
protested that he could not be tried for illegal recruitment. Decide.
Under the principle of specialty in extradition, Patrick cannot be tried for illegal recruitment, since
this is not included in the list of extraditable offenses in the extradition treaty between the Philippines
and the United States, unless the United States does not object to the trial of Patrick for Illegal recruitment. 235
(1996) 1) The Extradition Treaty between France and the Philippines is silent as to its
applicability with respect to crimes committed prior to its effectivity. a. Can France demand the
extradition of A, a French national residing in the Philippines, for an offense committed in France
prior to the effectivity of the treaty? Explain.
Yes, France can ask for the extradition of A for an offense committed in France before the
effectivity of the Extradition Treaty between France and the Philippines. In Cleugh vs. Strakosh. 109 F2d
330, it was held that an extradition treaty applies to crimes committed before its effectivity unless the
extradition treaty expressly exempts them. As Whiteman points out, extradition does not define crimes
but merely provides a means by which a State may obtain the return and punishment of persons charged
with or convicted of having committed a crime who fled the jurisdiction of the State whose law has been
violated. It is therefore immaterial whether at the time of the commission of the crime for which extradition
is sought no treaty was in existence. If at the time extradition is requested there is in force between the
requesting and "the requested States a treaty covering the offense on which the request is based, the
treaty is applicable. (Whiteman, Digest of International Law, Vol. 6, pp. 753-754.)
b. Can A contest his extradition on the ground that it violates the ex post facto provision
of the Philippine Constitution?
No, A cannot contest his extradition on the ground that it violates the ex post facto provision of
the Constitution. As held in Wright vs. Court of Appeals, 235 SCRA 341, the prohibition against ex post
facto laws in Section 22, Article III of the Constitution applies to penal laws only and does not apply to
extradition treaties.
(2002) John is a former President of the Republic X, bent on regaining power which he lost
to President Harry in an election. Fully convinced that he was cheated, he set out to destabilize
the government of President Harry by means of a series of protest actions. His plan was to weaken
the government and, when the situation became ripe for a take-over, to assassinate President
Harry. William, on the other hand, is a believer in human rights and a former follower of President
Harry. Noting the systematic acts of harassment committed by government agents against farmers
protesting the seizure of their lands, laborers complaining of low wages, and students seeking free
tuition, William organized groups which held peaceful rallies in front of the Presidential Palace to
express their grievances. On the eve of the assassination attempt, John's men were caught by
members of the Presidential Security Group. President Harry went on air threatening to prosecute
plotters and dissidents of his administration. The next day, the government charged John with
assassination attempt and William with inciting to sedition.
John fled to Republic A. William, who was in Republic B attending a lecture on democracy,
was advised by his friends to stay in Republic B. Both Republic A and Republic B have conventional
extradition treaties with Republic X. If Republic X requests the extradition of John and William,
can Republic A deny the request? Why? State your reason fully. (5%)
Republic A can refuse to extradite John, because his offense is a political offense. John was
plotting to take over the government and the plan of John to assassinate President Harry was part of such
plan. However, if the extradition treaty contains an attendant clause, Republic A can extradite John,
because under the attendant clause, the taking of the life or attempt against the life of a head of state or
that of the members of his family does not constitute a political offense and is therefore extraditable.
ALTERNATIVE ANSWER:
Republic A may or can refuse the request of extradition of William because he is not in its territory
and thus it is not in the position to deliver him to Republic X. Even if William were in the territorial
jurisdiction of Republic A, he may not be extradited because inciting to sedition, of which he is charged,
constitutes a political offense. It is a standard provision of extradition treaties, such as the one between
Republic A and Republic X, that political offenses are not extraditable.
ALTERNATIVE ANSWER:
Republic B can deny the request of Republic X to extradite William, because his offense was not
a political offense. On the basis of the predominance or proportionality test his acts were not directly
connected to any purely political offense.
(2005) (1) The Philippines and Australia entered into a Treaty of Extradition concurred in
by the Senate of the Philippines on September 10, 1990. Both governments have notified each
other that the requirements for the entry into force of the Treaty have been complied with. It took
effect in 1990. The Australian government is requesting the Philippine government to extradite its
citizen, Gibson, who has committed in his country the indictable offense of Obtaining Property by
Deception in 1985. The said offense is among those enumerated as extraditable in the Treaty. For
his defense, Gibson asserts that the retroactive application of the extradition treaty amounts to an
ex post facto law. Rule on Gibson's contention. (5%)
Gibson is incorrect. In Wright v. Court of Appeals, G.R. No.113213, August 15,1994, it was held
that the retroactive application of the Treaty of Extradition does not violate The prohibition against ex post
facto laws, because the Treaty is neither a piece of criminal legislation nor a criminal procedural statute.
It merely provided for the extradition of persons wanted for offenses already committed at the time the
treaty was ratified.
(2004) Distinguish: The flag state and the flag of convenience.
FLAG STATE means a ship has the nationality of the flag of the state it flies, but there must be a
genuine link between the state and the ship. (Article 91 of the Convention on the Law of the Sea.) FLAG
OF CONVENIENCE refers to a state with which a vessel is registered for various reasons such as low or
non-existent taxation or low operating costs although the ship has no genuine link with that state. (Harris,
Cases and Materials on International Law, 5th ed., 1998, p. 425.)
(2010) The dictatorial regime of the President A of the Republic of Gordon was toppled by a
combined force led by Gen. Abe, former royal guards and the secessionist Gordon People’s Army.
The new government constituted a Truth and Reconciliation Commission to look into the serious
crimes committed under President A’s regime. After the hearings, the Commission recommended
that an amnesty law be passed to cover even those involved in mass killings of members of
indigenous groups who opposed President A. International human rights groups argued that the
proposed amnesty law is contrary to international law. Decide with reasons. (4%)
The proposed amnesty law is contrary to international law. The indigenous group may constitute
an ethnic group which is protected by the law on Genocide. If the mass killing was committed with the
intent to destroy (dolusspecialis) the said ethnic group as such, in whole or in part, then the crime of
Genocide was committed. The international norm for the prevention, prosecution and punishment of
Genocide is a peremptory (just cogens) norm of international law and, therefore, non-derogable.
(Prosecutor v. Blagojevich and Jokic, ICTY, January 17, 2005)
Even if the mass killing was not committed with the dolusspecialis to destroy the ethnic group as
such, the same may still constitute the Crime Against Humanity of Extermination if the mass killing was
widespread and systematic or the War Crime of Intentionally Attacking Civilians if the same took place in
the context of or was associated with an armed conflict. The norm for the prevention, prosecution and
punishment of crimes against humanity and war crimes are also customary norms of international and
therefore binding on all States. (Prosecutor v. Stakic, ICTY, July 31, 2003)
Thus, Republic of Gordon has the obligation under international law to prosecute and punish all
those involved in the mass killing of the members of the indigenous group and providing amnesty to those
involved is violative of this obligation.
236
(1988) What is "Genocide," and what is the foremost example thereof in recent history?
"Genocide" refers to any of the following acts, whether committed in time of war or peace, with
intent to destroy in whole or in part national, ethnic, racial or religious group: 1. Killing members of a
group; 2. Causing bodily or mental harm to its members; 3. Deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in whole or in part; 4. Imposing measures to
prevent births within the group; and 5. Forcibly transforming children of the group to another group. (J. 237
SALONGA & P. YAP, PUBLIC INTERNATIONAL LAW 399-400 (1966)).
The foremost example of genocide is the Holocaust (1933-1945) where about 6 million Jews (two
thirds of the Jewish population of Europe before World War II) were exterminated by the Nazis. Along with
the Jews, another 9 to 10 million people (Gypsies and Slavs) were massacred. (WORLD ALMANAC 120
(40th ed., 1987)).
(2008) Under the International law, differentiate hard law from soft law. (3%)
Hard law refers to binding international legal norms or those which have coercive character.
Examples of hard law are the provisions of the: 1. UN Charter 2. The Vienna convention on diplomatic
relations 3. The Geneva Conventions of 1949
Soft law refers to norms that are non- binding in character. Soft law usually serves as a precursor
of hard law. the Universal Declaration of Human Rights (UDHR) is one such example. It was a soft law
when it was adopted by resolution of the UN General Assembly in 1948, but it has led to the development
of Hard Law with the adoption of 2 binding covenants on human rights, i.e., the ICCPR and ICESC.
Examples of soft law are: 1. Resolutions of the UN General Assembly 2. Draft of the International Law
Commission.
ALTERNATIVE ANSWER:
Hard Law” refers to international agreements formalized as treaties, established customary
international law and generally accepted principles common to the major legal systems of the world. “Soft
Law” has reference to international agreements not covered by treaties and therefore not covered by
the Vienna Convention. They are sometimes referred to as “non-treaty agreements” or emerging law.
In addition, “Soft Law” also refers to administrative rules which guide the practice of states in relation
to international organizations. (Pharmaceutical Health Care Assn. vs. Duque, G.R. No. 173034, Oct. 9,
2007.)
(2007) The City Mayor issues an Executive Order declaring that the city promotes
responsible parenthood and upholds natural family planning. He prohibits all hospitals operated by
the city from prescribing the use of artificial methods of contraception, including condoms, pills,
intrauterine devices and surgical sterilization. As a result, poor women in his city lost their access
to affordable family planning programs. Private clinics, however, continue to render family planning
counsel and devices to paying clients. Is the Philippines in breach of any obligation under
international law? Explain.
The acts of the City Mayor may be attributed to the Philippines under the principle of state
responsibility Article 26 of the International Covenant on Civil and Political rights requires that Philippine
law shall prohibit any discrimination and shall guarantee to all persons equal and effective protection
against discrimination on any ground such as social origin, birth or other status. The Executive Order of
the City Mayor discriminates against poor women.
ALTERNATIVE ANSWER:
The Philippines is in breach of its obligations under the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) of which the country is a signatory. Under the
CEDAW, “State Parties shall take all appropriate measures to eliminate discrimination against women
in the field of health care inorder to ensure, on basis of equality of men and women, access to health
care services, including those related to family planning” (Article 12, Section 1) Women shall likewise
have “access to adequate health care facilities, including information, counseling and services in
family planning.” (Article
14, Section 2[b]).
ALTERNATIVE ANSWER:
The Philippines is not in breach of any obligation under international law. The protection of the
life of the unborn from conception is consistent with Article 6(1) of the Convention on the Rights of the
Child, which Recognizes the inherent life of every child. While Article 24(2)(f) of the Convention of the 238
Rights of the Child requires that States Parties to develop family planning, education, and services and
Article 10(h), Article 12(2) and Article 14(b) of the Convention on the Elimination of all forms of
Discrimination against Women requires that States Parties to provide access to information, advice and
services in family planning, they do not prescribe any specific form of such information and services.
(2010) “Freedom from torture is a right which is non-derogable both during peacetime
and in a situation of armed conflict.”
Article 2(2) of the U.N. Convention Against Torture provides that “No exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any
other public emergency, may be invoked as a justification of torture.” Because of the importance of the
values it protects, the prohibition of torture has evolved into a peremptory norm or jus cogens, that is, a
norm that enjoys a higher rank in the international hierarchy than treaty law and even ordinary customary
rules. The most conspicuous consequence of this higher rank is that the norm prohibiting torture cannot
be derogated from by States through international treaties or local or special customs or even general
customary rules not endowed with the same normative force. (Prosecutor v. Furundzija, ICTY, December
10, 1998).
(1999) A. Give three multilateral conventions on Human Rights adopted under the direct
auspices of the United Nations?
The following are multilateral conventions on Human Rights adopted under the direct auspices of
the United Nations: 1. International Covenant on Civil and Political Rights; 2. Convention on the
Elimination of All Forms of Discrimination against Women;
3. Convention on the Rights of the
Child; 4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
5. International Convention on the Elimination of All Forms of Racial Discrimination; 6. Convention on
the Prevention and Punishment of the Crime of Genocide; and 7. International Convention on Economic,
Social, and Cultural Rights
(1992) Walang Sugat, a vigilante group composed of private businessmen and civic leaders
previously victimized by the Nationalist Patriotic Army (NPA) rebel group, was implicated in the
torture and kidnapping of Dr. Mengele, a known NPA sympathizer. Under public international law,
what rules properly apply? What liabilities, if any, arise thereunder if Walang Sugat's involvement
is confirmed.
On the assumption that Dr. Mengele is a foreigner, his torture violates the International Covenant
on Civil and Political Rights, to which the Philippine has acceded. Article 7 of the Covenant on Civil and
Political Rights provides: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment." In accordance with Article 2 of the Covenant on Civil and Political Rights, it is the
obligation of the Philippines to ensure that Dr. Mengele has an effective remedy, that he shall have his
right to such a remedy determined by competent authority, and to ensure the enforcement of such remedy
when granted.
ALTERNATIVE ANSWER:
On the assumption that Dr. Mengele is a foreigner, his claim will have to be directed against the
members of Walang Sugat on the basis of the Philippine law and be addressed to the jurisdiction of
Philippine courts. His claim may be based on the generally accepted principles of international law, which
form part of Philippine law under Section 2, Article II of the Constitution. His claim may be premised on
relevant norms of international law of human rights. Under international law, Dr. Mengele must first
exhaust the remedies under Philippine law before his individual claim can be taken up by the State of
which he is a national unless the said State can satisfactorily show it is its own interests that are directly
injured. If this condition is fulfilled, the said State's claim will be directed against the Philippines as a
subject of international law. Thus it would cease to be an individual claim of Dr. Mengele. Dr. Mengele's
case may concern international law norms on State responsibility. But the application of these norms
require that the basis of responsibility is the relevant acts that can be attributed to the Philippines as a
State. Hence, under the principle of attribution it is necessary to show that the acts of the vigilante group
Walang Sugat can be legally attributed to the Philippines by the State of which Dr. Mengele is a national.
The application of treaty norms of international law on human rights, such as the provision against torture 239
in the International Covenants in Civil and Political Rights pertain to States. The acts of private citizens
composing Walang Sugat cannot themselves constitute a violation by the Philippines as a State.
Does the Commission on Human Rights have the power to investigate and adjudicate the
matter?
Can only investigate, no power of adjudication
(1996) Distinguish civil rights from political rights and give an example of each right.
The term "CIVIL RIGHTS" refers to the rights secured by the constitution of any state or country
to all its Inhabitants and not connected with the organization or administration of government, [Black,
Handbook of American Constitutional Law, 4th ed., 526.) POLITICAL RIGHTS consist in the power to
participate, directly or indirectly, in the management of the government. Thus, civil rights have no relation
to the establishment, management or support of the government. (Anthony vs. Burrow, 129 F 783).
CIVIL RIGHTS defines the relations of individual amongst themselves while POLITICAL RIGHTS
defines the relations of Individuals vis-a-vis the state. CIVIL RIGHTS extend protection to all inhabitants
of a state, while POLITICAL RIGHTS protect merely its citizens. Examples of civil rights are the rights
against involuntary servitude, religious freedom, the guarantee against unreasonable searches and
seizures, liberty of abode, the prohibition against imprisonment for debt, the right to travel, equal
protection, due process, the right to marry, right to return to this country and right to education. Examples
of political rights are the right of suffrage, the right of assembly, and the right to petition for redress of
grievances.
2) What are the relations of civil and political rights to human rights? Explain.
Human rights are broader in scope than civil and political rights. They also include social,
economic, and cultural rights. Human rights are inherent in persons from the fact of their humanity.
Every man possesses them everywhere and at all times simply because he is a human being. On the other
hand, some civil and political rights are not natural rights. They exist because they are protected by a
constitution or granted by law. For example, the liberty to enter into contracts is not a human right but
is a civil right.
1994 The sovereignty over certain islands is disputed between State A and State. These two
states agreed to submit their disputes to the International Court of Justice [ICJ]. Does the ICJ have
jurisdiction to take cognizance of the case?
The International Court of Justice has jurisdiction over the case, because the parties have jointly
submitted the case to it and have thus indicated their consent to its jurisdiction.
Who shall represent the parties before the Court?
Parties to a case may appoint agents to appear before the International Court of Justice in their
behalf, and these agents need not be their own nationals. However, under Article 16 of the Statutes of the
International Court of Justice, no member of the court may appear as agent in any case.
(2010) Compare and contrast the jurisdiction of the International Criminal Court (ICC) and
International Court of Justice (ICJ).
The jurisdiction of the International Criminal Court (ICC) primarily deals with the prosecution of
individuals for core international crimes, while the jurisdiction of the International Court of Justice (ICJ)
deals with contentious proceedings between States. As to subject matter jurisdiction (ratione materiae),
the jurisdiction of the ICC is limited to the most serious crimes of concern to the international community
as a whole, particularly: a. the Crime of Genocide; b. Crimes against Humanity; c. War crimes; and d. the
Crime of Aggression. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised Edition, p. 308).
On the other hand, the jurisdiction of the ICJ covers legal disputes which the States refer to it.
This includes disputes concerning: a. the interpretation of a treaty; b. any question of international law; 240
c. the existence of any fact which, if established, would constitute a breach of an international obligation;
and d. the nature or extent of the reparation to be made for the breach of an international obligation.
(Article 36, ICJ Statute)
The ICJ also has jurisdiction to give an advisory opinion on any legal question as may be requested
by the General Assembly or the Security Council or on legal questions arising within the scope of the
activities of other organs and specialized agencies of the U.N. upon their request and when so authorized
by the General Assembly. (Article 96, U.N. Charter) As to jurisdiction over the persons or parties (ratione
personae), the ICC shall have the power to exercise its jurisdiction over persons for the most serious crimes
of international concern, and shall be complementary to national criminal jurisdictions. (Art. 1, Rome
Statute) On the other hand, only States may be parties in cases before the ICJ and their consent is needed
for the ICJ to acquire jurisdiction. (R. Sarmiento, Public International Law Bar Reviewer, 2009 Revised
Edition, p. 185)
(1994) The State of Nova, controlled by an authoritarian government, had unfriendly
relations with its neighboring state, Ameria. Bresla, another neighboring state, had been shipping
arms and ammunitions to Nova for use in attacking Ameria. To forestall an attack, Ameria placed
floating mines on the territorial waters surrounding Nova. Ameria supported a group of rebels
organized to overthrow the government of Nova and to replace it with a friendly government. Nova
decided to file a case against Ameria in the International Court of Justice. On what grounds may
Nova's causes of action against Ameria be based?
If Nova and Ameria are members of the United Nations, Nova can premise its cause of action on
a violation of Article 2(4) of the United Nations Charter, which