COMPILATION OF
THE POLITICAL
LAW BAR
EXAMINATIONS
QUESTIONS AND
SUGGESTED
ANSWERS
(1987-2018)
*I do not own any of the materials I’ve compiled in this pdf file. It’s
all found in the internet, just have the patience to look for it since
it’s scattered. Giving credits to the authors of these materials. So
sharing all of it for free to all my fellow law students. - Bek
MATERIALS COMPILED:
1) 1987-2006 -> https://www.academia.edu/
7838869/
Bar_Questions_and_Answers_Political_Law_198
7_-_2006
2) 2007-2013 -> https://www.academia.edu/
17187592/Political-Law-Philippine-BarExamination- Questions-and-Suggested-Answers
3) 2014 -> https://www.scribd.com/document/
354434183/2014-Bar-Exams-SuggestedAnswers
4) 2015 -> https://www.academia.edu/
27218891/2015_Bar_Questions_and_Suggested_
Answers_-_POLITICAL_LAW
5) 2016 -> https://www.slideshare.net/
arthurjohngarraton/suggested-answer-tothe-2016- bar-examinations-political-law
6) 2017 -> https://www.scribd.com/document/
366322352/2017-Political-Law-Bar-Qa-Final
7) 2018 UP Law Center Suggested Answers:
Political Law
SUGGESTED ANSWERS
TO BAR EXAMINATION
IN
POLITICAL LAW
ARRANGED BY TOPIC
(1987 – 2006)
Edited and Arranged by:
Atty. Janette Laggui-Icao and
Atty. Alex Andrew P. Icao
(Silliman University College of Law)
July 26, 2005
Updated by:
Romualdo L. Señeris II, LLB.
April 19, 2007
From the ANSWERS TO BAR EXAMINATION QUESTIONS
in POLITICAL LAW by the
UP LAW COMPLEX and
PHILIPPINE ASSOCIATION OF LAW SCHOOLS
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
1
FORWARD
This work is not intended for sale or commerce. This work is freeware. It may be
freely copied and distributed. It is primarily intended for all those who desire to have
a deeper understanding of the issues touched by the Philippine Bar Examinations and
its trend. It is specially intended for law students from the provinces who, very often,
are recipients of deliberately distorted notes from other unscrupulous law schools and
students. Share to others this work and you will be richly rewarded by God in heaven.
It is also very good karma.
We would like to seek the indulgence of the reader for some Bar Questions which
are improperly classified under a topic and for some topics which are improperly or
ignorantly phrased, for the authors are just Bar Reviewees who have prepared this
work while reviewing for the Bar Exams under time constraints and within their
limited knowledge of the law. We would like to seek the reader’s indulgence for a lot
of typographical errors in this work.
The Authors
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
2
TABLE OF CONTENTS
1987 CONSTITUTION OF THE PHILIPPINES ................................................................... 14
Phil Con 87; New Features (1991)..................................................................................... 14
Phil Con 87; People Power (1987)..................................................................................... 14
Phil Con 87; People Power (2000)..................................................................................... 15
Phil Con 87; People Power (2003)..................................................................................... 15
Nature of the Constitution: Constitutional Supremacy (2004) ....................................... 15
Government Presidential Form vs. Parliamentary Form (Q6-2006)............................. 15
ARTICLE I National Territory........................................................................................... 16
Archipelagic Doctrine (1989)............................................................................................... 16
Contiguous Zone vs. Exclusive Economic Zone (2004)................................................. 16
Exclusive Economic Zone; Rights of the Coastal State (1994)..................................... 16
Exclusive Economic Zone; Rights of the Coastal State (Q1-2005) .............................. 17
Flag State vs. Flag of Convenience (2004) ...................................................................... 17
Territory & Government (1996)........................................................................................... 17
Territorial Sea vs. Internal Waters (2004)......................................................................... 17
ARTICLE II Declaration of Principles and State Policies.......................................... 18
Armed Forces; Servant of the People (2003)................................................................... 18
Doctrine of Incorporation; Constitutional Law (1997)...................................................... 18
Doctrine of Incorporation; Pacta Sunt Servanda (2000)................................................. 18
Freedom from Nuclear Weapons; Foreign Military Bases (1988)................................. 18
Philippine Flag (Q4-2006).................................................................................................... 19
Principle of Civilian Supremacy (Q6-2006)....................................................................... 19
State Immunity from Suit (1991)......................................................................................... 19
State Immunity from Suit (1996)......................................................................................... 20
State Immunity from Suit (1989)........................................................................................ 20
State Immunity from Suit (1994)......................................................................................... 21
State Immunity from Suit (1992)......................................................................................... 21
State Immunity from Suit (1999)......................................................................................... 22
State Immunity from Suit (1999)......................................................................................... 22
State Immunity from Suit (1987)......................................................................................... 22
State Immunity vs. Waiver of Immunity (1997) ................................................................ 22
State Immunity from Suit (1993)......................................................................................... 23
State Principles & Policies (1994) ...................................................................................... 23
Transparency; Matters of Public Interest (1989).............................................................. 24
Transparency; Matters of Public Interest (2000).............................................................. 25
ARTICLE III Bill of Rights ................................................................................................... 25
Bill of Attainder (1987).......................................................................................................... 25
Bill of Attainder (1990).......................................................................................................... 26
Custodial Investigation; Extrajudicial Confession (2001) ............................................... 26
Custodial Investigation; Extrajudicial Confession; Police Line-Up (1994) ................... 26
Custodial Investigation; Police Line-Up (1997) ................................................................ 27
Custodial Investigation; Right to Counsel (1988) ............................................................ 27
Custodial Investigation; Right to Counsel (1993) ............................................................ 27
Custodial Investigation; Right to Counsel (2000) ............................................................ 28
Custodial Investigation; Right to Counsel; Receipt of Property Seized (2002)........... 28
Custodial Investigation; Rights (1990)............................................................................... 29
Custodial Investigation; Rights (1993)............................................................................... 29
Custodial Investigation; Rights (1996)............................................................................... 30
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
3
Double Jeopardy (1988) ...................................................................................................... 30
Double Jeopardy (1993) ...................................................................................................... 31
Double Jeopardy (1997) ...................................................................................................... 31
Double Jeopardy (1999) ...................................................................................................... 32
Double Jeopardy (1999) ...................................................................................................... 32
Double Jeopardy (2000) ...................................................................................................... 32
Double Jeopardy (2001) ...................................................................................................... 32
Double Jeopardy (2002) ...................................................................................................... 33
Double Jeopardy; Requisites (1999) ................................................................................. 33
Due Process; Absence of Denial (1999)........................................................................... 33
Due Process; Deportation (1994)....................................................................................... 34
Due Process; Forfeiture Proceedings (1993)................................................................... 35
Due Process; Media Coverage during Hearing (1996)................................................... 35
Due Process; Meeting vs. Hearing (1999)........................................................................ 35
Due Process; Notice by Publication (1988) ...................................................................... 35
Due Process; Permit to Carry Firearm Outside Residence (Q6-2006) ........................ 36
Due Process; PPA-Pilots (2001) ........................................................................................ 36
Due Process; Procedural vs. Substantive (1999)............................................................ 37
Due Process; Provisional Order (1991) ............................................................................ 37
Due Process; Public School Teachers (2002) ................................................................. 37
Due Process; Radio Station (1987) ................................................................................... 38
Due Process; Represented by a Non-Lawyer (1988) ..................................................... 38
Due Process; Substantive (2003) ...................................................................................... 38
Due Process; Suspension of Driver's License (1992)..................................................... 38
Due Process; Urgent Public Need (1987)......................................................................... 39
Eminent Domain; Garnishment (1994).............................................................................. 39
Eminent Domain; Garnishment (1998).............................................................................. 40
Eminent Domain; immunity from suit (2001) .................................................................... 40
Eminent Domain; Indirect Public Benefit (1990) .............................................................. 40
Eminent Domain; Just Compensation (1988) .................................................................. 40
Eminent Domain; Just Compensation (1989) .................................................................. 41
Eminent Domain; Just Compensation (1998) .................................................................. 41
Eminent Domain; Legal Interest (1993) ............................................................................ 41
Eminent Domain; Non-observance of the policy of "all or none" (2000)...................... 42
Eminent Domain; Power to Exercise (2005) .................................................................... 42
Eminent Domain; Public Use (1987).................................................................................. 42
Eminent Domain; Socialized Housing (1996)................................................................... 43
Eminent Domain; Writ of Possession (1993).................................................................... 43
Equal Protection; Alien Employment (1989)..................................................................... 44
Equal Protection; Invidious Discrimination (1987)........................................................... 44
Equal Protection; Invidious Discrimination (1987)........................................................... 45
Equal Protection; Police Power (2000).............................................................................. 45
Equal Protection; Right to Education (1994) .................................................................... 45
Equal Protection; Subsidiary Imprisonment (1989)......................................................... 45
Freedom of Expression; Censorship (2003)..................................................................... 46
Freedom of Expression; Prior Restraint (1988) ............................................................... 46
Freedom of Religion; Convicted Prisoners (1989) .......................................................... 46
Freedom of Religion; Flag Salute (1997) .......................................................................... 47
Freedom of Religion; Flag Salute (2003) .......................................................................... 48
Freedom of Religion; Non-Establishment Clause (1988)............................................... 48
Freedom of Religion; Non-Establishment Clause (1992)............................................... 48
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
4
Freedom of Religion; Non-Establishment Clause (1997)............................................... 49
Freedom of Speech; Ban on Tobacco AD (1992) ........................................................... 49
Freedom of the Press; Actual Malice (2004) .................................................................... 50
Freedom of the Press; Wartime Censorship (1987)........................................................ 50
Impairment Clause; Basic Human Rights (1992) ............................................................ 51
Involuntary Servitude (1993)............................................................................................... 51
Liberty of Abode; Limitations (1998) .................................................................................. 51
Liberty of Abode; Temporary (1996).................................................................................. 52
Non-Imprisonment for Non-Payment of Debt (1993) ...................................................... 52
Police Power; Abatement of Nuisance (2004) ................................................................. 52
Police Power; Ban on Tobacco AD (1992) ....................................................................... 52
Police Power; Zoning Ordinance vs. Non-Impairment of Contracts (1989) ................ 53
Police Power; Zoning Ordinance vs. Non-Impairment of Contracts (2001) ................ 53
Privacy of Communication (2001) ...................................................................................... 53
Privacy of Correspondence (1998) .................................................................................... 54
Privacy of Correspondence; Jail (1989) ............................................................................ 54
Right to Assembly; Permit Application; Freedom Parks (Q2-2006).............................. 54
Right to Assembly; Permit Requirements (1992) ........................................................... 55
Right to Assembly; Public Teachers (2000) ..................................................................... 55
Right to Assembly; Public Teachers (2002) ..................................................................... 56
Right to Travel; Order of Arrest (1991).............................................................................. 56
Rights of the Accused; Counsel of his Choice (Q8-2005).............................................. 56
Rights of the Accused; Presumption of Innocence vs. Presumption of Theft (2004) 57
Rights of the Accused; Right to Bail (1993)...................................................................... 57
Rights of the Accused; Right to Bail; Capital Offense (Q4-2006) ................................. 58
Rights of the Accused; Right to Bail; Deportation Case (1989) .................................... 58
Rights of the Accused; Right to Bail; Matter of Right or a Matter of Discretion (Q72005)....................................................................................................................................... 58
Rights of the Accused; Right to Speedy Trial (2000) ...................................................... 59
Rights of the Accused; Self-Incrimination (1988) ............................................................ 59
Rights of the Accused; Self-Incrimination (1990) ............................................................ 59
Rights of the Accused; Self-Incrimination (1992) ............................................................ 60
Rights of the Accused; Self-Incrimination (2000) ............................................................ 60
Rights of the Accused; Self-Incrimination (Q7-2006)...................................................... 61
Searches and Seizure; Private Individuals (Q8-2005)................................................... 61
Searches and Seizures; Aliens (2001) .............................................................................. 61
Searches and Seizures; Breathalyzer Test (1992).......................................................... 62
Searches and Seizures; Immediate Control (1987) ........................................................ 62
Searches and Seizures; Incidental to Valid Search (1990) ........................................... 62
Searches and Seizures; Place of Search (2001)............................................................. 63
Searches and Seizures; search made by a private citizen (1993)................................ 63
Searches and Seizures; search made by a private citizen (2002)................................ 64
Searches and Seizures; Valid Warrantless Search (2000)............................................ 64
Searches and Seizures; Visual Search (1992) ................................................................ 65
Searches and Seizures; Waiver of Consent (1989) ........................................................ 65
Searches and Seizures; Warrantless Arrests (1993)...................................................... 66
Searches and Seizures; Warrants of Arrest (1991) ........................................................ 66
ARTICLE IV Citizenship ..................................................................................................... 66
Action for Cancellation; Prescription & Effect of Death (1994)...................................... 66
Citizenship; Elected Official (1993) .................................................................................... 67
Dual Allegiance vs. Dual Citizenship (1987) .................................................................... 67
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
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Dual Allegiance vs. Dual Citizenship (1988) .................................................................... 68
Dual Citizenship (1994)........................................................................................................ 68
Effect of Marriage; Filipino (1989)..................................................................................... 69
Effect of Oath of Allegiance (2004) .................................................................................... 69
Effect of Repatriation (1999) ............................................................................................... 70
Effect of Repatriation (2002) ............................................................................................... 70
Effect of Repatriation (2003) ............................................................................................... 70
Effects of Marriages (1999)................................................................................................. 70
Effects of Philippine Bill of 1902 (2001) ............................................................................ 71
Elected Official (1992).......................................................................................................... 71
Electing Philippine Citizenship (Q8-2006) ........................................................................ 71
Electing Philippine Citizenship; When Proper (Q8-2006)............................................... 72
Natural Born Filipino (1989) ................................................................................................ 72
Natural Born Filipino (1998) ................................................................................................ 72
Natural-Born Filipino(1993) ................................................................................................. 73
Naturalization; Cancellation of Citizenship (1998)........................................................... 73
Residency Requirements; Elective Official (Q9-2005).................................................... 73
Status; Illegitimate Child (1990).......................................................................................... 74
Status; Illegitimate Child; Dual Citizenship (1996) .......................................................... 74
Status; Legitimate Child (2003) .......................................................................................... 74
Ways of Reacquiring Citizenship (2000)........................................................................... 75
ARTICLE VI Legislative Department .............................................................................. 75
Appropriation of Public Funds (1988) ................................................................................ 75
Appropriation of Public Funds; Debt Servicing (1992).................................................... 75
Appropriation of Public Funds; Public Purposes (1988)................................................. 75
Commission on Appointments (2002) ............................................................................... 76
Delegation of Powers (2002) .............................................................................................. 76
Delegation of Powers; (Q6-2005)....................................................................................... 76
Delegation of Powers; Completeness Test; Sufficient Standard Test (Q6-2005) ...... 77
Discipline; Modes of Removal (1993)............................................................................... 77
Discipline; Suspension of a Member of the Congress (2002) ....................................... 77
Elected Official; De Facto Officer (2004) .......................................................................... 78
Electoral Tribunal; HRET Members’ Right & Responsibilities (2002) .......................... 78
Electoral Tribunal; Senate; Jurisdiction (1990) ................................................................ 79
Foreign Affairs; Role of House of Rep (1996) .................................................................. 79
Foreign Affairs; Role of Senate (1994).............................................................................. 79
Investigations in Aid of Legislation (1992) ........................................................................ 79
Law Making; Process & Publication (1993) ...................................................................... 80
Law-Making; Appropriation Bill (1996) .............................................................................. 80
Law-Making; Appropriation Law; Automatic Renewal & Power of Augmentation
(1998)...................................................................................................................................... 80
Law-Making; Appropriation Law; Rider Provision (2001) ............................................... 81
Law-Making; Foreign Affairs; Treaties (1996) .................................................................. 81
Law-Making; Overriding the Presidential Veto (1991) .................................................... 81
Law-Making; Passage of a Law (1988)............................................................................. 82
Legislative Power; Pres. Aquino’s Time (1990) ............................................................... 82
Legislative Powers (1989) ................................................................................................... 82
Loans Extended to Members of Congress (1991)........................................................... 82
Multi-Party System (1999)................................................................................................... 83
Non-Legislative Powers (1988) .......................................................................................... 83
Non-Legislative Powers; Emergency Powers; Requisites (1997)................................. 83
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
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Prohibitions and Inhibitions of Public Office (2004)......................................................... 83
Qualifications; Congressmen (1988) ................................................................................. 84
Qualifications; Congressmen; (1993) ................................................................................ 84
Qualifications; Congressmen; (1999) ................................................................................ 85
Separation of Powers (1988) .............................................................................................. 85
Separation of Powers (2003) .............................................................................................. 85
Three-Term Limit: Congressmen (1996)........................................................................... 86
Three-Term Limit; Congressmen (2001)........................................................................... 86
ARTICLE VII Executive Department ................................................................................ 86
Appointing Power; Acting vs. Permanent Appointment (2003) ..................................... 86
Appointing Power; ad interim appointments (1991) ........................................................ 86
Appointing Power; Ad Interim Appointments (1994) ....................................................... 87
Appointing Power; Appointments Requiring Confirmation; RA 6975-Unconstitutional
(2002)...................................................................................................................................... 87
Appointing Power; Categories of Officials (1999)............................................................ 88
Appointing Power; Kinds of Appointments (1994)........................................................... 88
Appointing Power; Limitations on Presidential Appointments (1997)........................... 89
Appointing Powers; Ad Interim Appointments (Q4-2005) .............................................. 90
Cabinet Members; limitation on accepting additional duties (1996) ............................. 90
Calling-out Power; President (Q1-2006) ........................................................................... 91
Declaration; State of Calamity; Legal Effects (Q1-2005)................................................ 91
Declaration; State of National Emergency (Q1-2006) .................................................... 91
Enter into Contract or Guarantee Foreign Loans (1994)................................................ 91
Enter into Contract or Guarantee Foreign Loans (1999)................................................ 92
Enter into Executive Agreements (2003) .......................................................................... 92
Impose Tariff Rates, Import and Export Quotas (1999).................................................. 92
Martial Law & Suspension of Writ of Habeas Corpus (1987) ........................................ 92
Martial Law; Limitations (2000).......................................................................................... 93
Martial Law; Sufficiency of the Factual Basis (Q3-2006)................................................ 94
Pardoning Power; Amnesty (1993) .................................................................................... 95
Pardoning Power; Amnesty (1995) .................................................................................... 95
Pardoning Power; Breach of Condition; Revocation (Q5-2005).................................... 95
Pardoning Power; Exec Clemency; Pardon (1995)......................................................... 95
Pardoning Power; Executive Clemency (1997) ............................................................... 96
Pardoning Power; Executive Clemency (1999) ............................................................... 96
Pardoning Power; Kinds (1988).......................................................................................... 96
Pardoning Power; Pardon, Conditional (1997) ................................................................ 97
President; Participation; Legislative Process (1996)....................................................... 97
Presidential Immunity from Suit (1997) ............................................................................. 97
Prohibition Against Multiple Positions & Additional Compensation (2002) ................. 97
Prohibition against Multiple Positions by Gov’t Officials (1987) .................................... 98
Suspension of Writ of Habeas Corpus (1997).................................................................. 99
ARTICLE VIII Judicial Department .................................................................................... 99
Cases to be Heard En Banc; Supreme Court (1999)...................................................... 99
Contempt Powers (1996)..................................................................................................... 99
Finality of Void Judgments (1993)...................................................................................... 99
Fiscal Autonomy (1999)..................................................................................................... 100
Function; Continuing Constitutional Convention (2000) ............................................... 100
Issuance of Restraining Orders and Injunctions (1992) ............................................... 100
Judicial & Bar Council (1988)............................................................................................ 101
Judicial & Bar Council (1999)............................................................................................ 101
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
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Judicial Department; Writ of Amparo (1991) .................................................................. 101
Judicial Independence; Safeguard (2000) ...................................................................... 101
Judicial Power (1989)......................................................................................................... 102
Judicial Power (1992)......................................................................................................... 102
Judicial Power (1998)......................................................................................................... 103
Judicial Power; Scope (1994) ........................................................................................... 103
Judicial Review; Locus Standi (1992).............................................................................. 104
Judicial Review; Requisites (1994) .................................................................................. 104
Jurisdiction of HLURB (1993) ........................................................................................... 104
Mandatory Period For Deciding Cases (1989)............................................................... 105
Political Question (1995).................................................................................................... 105
Political Question Doctrine (1997).................................................................................... 105
Political Question: Separation of Powers (2004) ........................................................... 106
Political Question; To Settle Actual Controversies (2004) ........................................... 106
Political Questions (1988).................................................................................................. 106
Pro Hac Vice Cases (1999)............................................................................................... 107
Removal of Lower Court Judges (1993) ......................................................................... 107
Review Executive Acts (1996) .......................................................................................... 107
Supervision; Courts & its Personnel (Q5-2005)............................................................. 108
Taxpayer's Suit; Locus Standi (1995).............................................................................. 108
Term of Office; Justices (1996) ........................................................................................ 108
Votes required for declaring a law unconstitutional (1996) .......................................... 109
ARTICLE IX Constitutional Commissions .................................................................. 109
Rotational Scheme (1999)................................................................................................. 109
Constitutional Commissions & Council (Q7-2006) ........................................................ 109
ARTICLE IX Civil Service Commission........................................................................ 109
Career Service; Characteristics (1999) ........................................................................... 109
Civil Service Commission vs. COA (2004) ..................................................................... 109
Function of CSC (1994) ..................................................................................................... 110
GOCCs Without Original Charter vs. GOCCs With Original Charter (1998)............. 110
Jurisdiction over the GOCCs (1999)................................................................................ 111
Jurisdiction over the GOCCs (2003)................................................................................ 111
Modes of Removal from Office (1993) ............................................................................ 111
Receiving of Indirect Compensation (1997) ................................................................... 111
Security of Tenure (1988).................................................................................................. 112
Security of Tenure (Q5-2005) ........................................................................................... 112
Security of Tenure; Meaning (1999) ................................................................................ 113
ARTICLE IX COMELEC .................................................................................................... 113
Electoral Tribunal; Functions & Composition (Q5-2006) .............................................. 113
Fair Election; Equal Space & Time in Media (1989) ..................................................... 113
Grant of Pardon in Election Offenses (1991) ................................................................. 114
Judicial Review of Decisions (2001) ................................................................................ 114
Removal from Office; Commissioners (1998) ................................................................ 114
Right to Vote; Jurisdiction (2001) ..................................................................................... 114
Election Laws ........................................................................................................................ 114
2nd Placer Rule (2003)..................................................................................................... 114
2nd Placer Rule (1990) ...................................................................................................... 115
2nd Placer Rule; in Quo Warranto Cases (1992) .......................................................... 115
2nd Placer Rule; Rule of Succession (1996) ................................................................ 115
Appreciation of Ballots (1994)........................................................................................... 116
Disqualification; Grounds (1991) ...................................................................................... 116
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
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Disualifications (1999)........................................................................................................ 116
Effect of Filing of Certificate of Candidacy; Appointive Officer vs Elective Officer
(2002).................................................................................................................................... 116
Effect of Filing of Certificate of Candidacy; Fair Election Act (2003).......................... 117
Election Offenses; Conspiracy to Bribe Voters (1991) ................................................. 117
Election Protest (1990) ...................................................................................................... 117
Election Protest vs. Quo Warranto (2001) ...................................................................... 118
Election Protest vs. Quo Warranto (Q5-2006) ............................................................... 118
Election Protest; Jurisdiction (1996) ................................................................................ 118
Expiration of term bars service thereof (2000)............................................................... 118
Petition to Declare Failure of Elections; Requisites & Effects (1995)......................... 118
Pre-Proclamation Contest (1987)..................................................................................... 119
Pre-Proclamation Contest (1988)..................................................................................... 119
Pre-Proclamation Contest vs. Election Contests (1997) .............................................. 120
Pre-Proclamation Contest; Proper Issues (1996).......................................................... 121
Process; Illiterate Voters (1987) ....................................................................................... 121
Process; Principle of Idem Sonans (1994) ..................................................................... 121
Process; Stray Ballot (1994) ............................................................................................. 121
Recall (2002) ....................................................................................................................... 122
Three-Term Limit Rule (2001) .......................................................................................... 122
Three-Term Limit; from Municipality to Newly-Created City (Q9-2005).................... 122
Vacancy; Effect of Vice-Mayor Acting As Mayor (2002)............................................... 123
Vacancy; Rule of Succession (1995)............................................................................... 123
Vacancy; SB; Rule on Succession (2002) ...................................................................... 124
ARTICLE IX Commission on Audit ............................................................................... 124
COA; Jurisdiction (2001).................................................................................................... 124
COA; Money Claims (1998) .............................................................................................. 124
ARTICLE X Local Government ..................................................................................... 125
Appointment of Budget Officer; control vs supervision (1999) .................................... 125
Boundary Dispute Resolution; LGU; RTC’s Jurisdiction (Q10-2005)........................ 126
Boundary Dispute Settlement; Authority; Jurisdiction (1999) ...................................... 126
Creation of New Local Government Units; Plebiscite Requirement (2004) .............. 126
De Facto Public Corporations; Effect (2004).................................................................. 126
Devolution of Power (1999)............................................................................................... 126
Franchise; prior approval of LGU necessary (1988) ..................................................... 126
Law fixing the terms of local elective officials (Q4-2006) ............................................. 127
Ordinance; Use & Lease of Properties; Public Use (1997).......................................... 127
Ordinance; Validity; Closure or Lease of Properties for Public Use (2003) .............. 127
Ordinance; Validity; Compensation; Tortuous Act of an Employee (1994) ............... 127
Ordinance; Validity; Local Taxation vs. Special Assessment (1987) ......................... 128
Ordinance; Validity; Preventing Immorality (1987) ........................................................ 128
Ordinance; Validity; Utilization & Development; National Wealth (1991) .................. 128
Ordinances; Validity; Amending Nat’l Laws (1988) ....................................................... 128
Ordinances; Validity; Gambling Prohibition (1995)........................................................ 129
Ordinances; Validity; Limitation of Penalties (1991) ..................................................... 129
Ordinances; Veto Power (1996) ....................................................................................... 129
Police Power; LLDA (1995)............................................................................................... 130
Power to Issue Subpoena & Cite For Contempt (1993) ............................................... 130
Power; Eminent Domain; LGU; Right to Exercise (Q10-2005).................................... 131
Powers of Barangay Assembly (2003) ............................................................................ 131
Powers; Liga ng mga Barangay (2003)........................................................................... 131
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
9
Requisites; Contracts Involving LGU (1991) .................................................................. 131
Requisites; Contracts involving LGU (1995) .................................................................. 132
Taxation; GOCC Liability For Real Estate Tax (1999).................................................. 132
Taxation; Sources of Revenue (1999)............................................................................. 132
Withdrawal of Public Property from Public Use (1990)................................................. 132
ARTICLE XI Accountability of Public Officers........................................................... 133
Abandonment of Office (2000).......................................................................................... 133
Discipline; Clemency; Doctrine of Condonation (2000) ................................................ 133
Discipline; Effect of Pardon Granted in Favor of Public Officers (1999) .................... 134
Discipline; Preventive Suspension & Appeal; entitlement to salary pendente (2001)
............................................................................................................................................... 134
Discipline; Preventive Suspension (1990) ...................................................................... 134
Discipline; Preventive Suspension (2002) ...................................................................... 135
Elective and Appointive Officials: disciplinary authority (2004) ................................... 135
Elective Public Officer; De Facto Officer (2000) ............................................................ 135
Elective Public Officers; De Facto Officer; effects (2004) ............................................ 136
Graft and Corruption; Prescription of Crime (2002) ...................................................... 136
Impeachment; Cronyism (2000) ....................................................................................... 137
Impeachment; Grounds (1999)......................................................................................... 137
Impeachment; Nature; Grounds; PD 1606 (1988)......................................................... 137
Law of Public Officers; Next-in-Rank Rule (1994)......................................................... 137
Liability For Damages in Performance of Official Functions (1990) ........................... 138
Local Elective Officials; Limitations On Additional Duties (1995) ............................... 139
Ombudsman: Power to Suspend; Preventive Suspension (2004) ............................. 139
Ombudsman; Power to Investigate (2003) ..................................................................... 139
Ombudsman; Power to Suspend; Preventive Suspension (1996) ............................. 140
Power to Issue Subpoena; validity of delegation (1989) .............................................. 140
Prohibition On Elective Officer to Hold Public Office (2002)........................................ 140
Public Office; Public Trust (1998)..................................................................................... 140
Retirement Benefits (1996) ............................................................................................... 141
ARTICLE XII National Economy and Patrimony......................................................... 142
Acquisition and Lease of Public Lands (1998)............................................................... 142
Acquisition of Lands (1987)............................................................................................... 142
Acquisition of Lands (2000)............................................................................................... 143
Acquisition of Lands by Hereditary Succession (2002) ................................................ 143
Acquisition of Lands; Citizenship issue (1989) .............................................................. 143
Acquisition of Lands; Citizenship issue (1994) .............................................................. 144
Acquisition of Lands; Citizenship issue (1995) .............................................................. 144
Acquisition of Lands; Prohibition; acquisition of private lands by aliens (1994) ....... 145
Citizenship Requirement in Management of Advertising Industry (1989) ................. 145
Engagement in Business & Exercise of Profession (1987).......................................... 145
Exploration and Development of Minerals (1994) ......................................................... 146
Expropriation of Public Utilities (1992) ............................................................................ 146
Lease of Private Agricultural Lands (2001) .................................................................... 146
National Economy & Patrimony; Constitutional Prohibition (2004)............................. 147
National Patrimony; definition (1999) .............................................................................. 147
Nationalized Activities (1994)............................................................................................ 147
Ownership Requirement of Mass Media (1989) ............................................................ 148
Chinese citizens; engaging in retail trade (Q4-2006).................................................... 148
Exploration, development, and utilization of natural resources (Q4-2006) ............... 148
ARTICLE XIII Social Justice and Human Rights ......................................................... 148
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Agrarian Reform Law; Coverage (1992) ......................................................................... 148
Commission on Human Rights; Power to investigate (1992) ...................................... 149
Commission on Human Rights; Power to issue TRO (1997) ...................................... 149
Commission on Human Rights; Power to issue TRO (2001) ...................................... 149
Commission on Human Rights; Power; Limitations (Q4-2005)................................... 150
Labor; Right to Self-Organization (1988) ........................................................................ 151
Labor; Right to Strike (1988)............................................................................................. 151
Labor; Right to Strike (1993)............................................................................................. 151
Social Justice under the Present Constitution (1995)................................................... 152
Women (2000)..................................................................................................................... 152
ARTICLE XIV Education, Science and Technology, Arts ......................................... 153
Education; Academic Freedom (1987)............................................................................ 153
Education; Academic Freedom (1989)............................................................................ 153
Education; Academic Freedom (1993)............................................................................ 153
Education; Academic Freedom; Extent (1999) .............................................................. 154
Education; Alien Enrollees & Donors (1999) .................................................................. 154
Education; Duties of State in Re Education (1999)....................................................... 154
Education; Flag Salute (1987) .......................................................................................... 155
Education; Right to Choose Profession (2000).............................................................. 155
Education; Right to Quality Education (2003) ................................................................ 156
Education; Teaching of Religion (1999) .......................................................................... 156
Education; Validity of Academic Requirements (1994) ................................................ 156
ARTICLE XVI General Provisions .................................................................................. 156
General Provisions; Local Dialect (1987)........................................................................ 156
AFP; limitation on accepting additional duties (1996)................................................... 157
ARTICLE XVII Amendments or Revisions .................................................................... 157
People’s Initiative (2004) ................................................................................................... 157
Amendments and Revisions; Modes (1997) .................................................................. 157
REFERENDUM vs. INITIATIVE (Q1-2005) .................................................................... 157
ARTICLE XVIII Transitory Provisions.............................................................................. 158
Transitory Provisions; Foreign Military Bases (1996) ................................................... 158
Transitory Provisions; Foreign Military Bases (1988) ................................................... 158
PUBLIC INTERNATIONAL LAW ........................................................................................ 158
Basic Principles in Public Int’l Law (1991) ...................................................................... 158
Constitutive Theory vs. Declaratory Theory (2004)....................................................... 160
Contiguous Zone vs. Exclusive Economic Zone (2004).............................................. 160
Diplomatic Immunity (2000) .............................................................................................. 160
Diplomatic Immunity (2001) .............................................................................................. 160
Diplomatic Immunity (2003) .............................................................................................. 161
Diplomatic Immunity (2004) .............................................................................................. 161
Diplomatic Immunity; Ambassador (Q3-2005) ............................................................... 162
Diplomatic Immunity; Ambassadors (1990).................................................................... 162
Diplomatic Immunity; Coverage (Q3-2005) .................................................................... 163
Diplomatic Immunity; Diplomatic Envoy and Consular Officers (1995)...................... 164
Diplomatic Immunity; Diplomatic Envoy and Consular Officers (1997)...................... 165
Exclusive Economic Zone (2000)..................................................................................... 165
Executive Agreements; Binding Effect (2003)................................................................ 165
Extradition vs. Deportation (1993).................................................................................... 166
Extradition; Doctrine of Specialty (1993)......................................................................... 166
Extradition; Effectivity of treaty (1996)............................................................................. 166
Extradition; Grounds (2002) .............................................................................................. 167
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Extradition; Retroactive Application (Q2-2005).............................................................. 167
Flag State vs. Flag of Convenience (2004) .................................................................. 168
Genocide (1988) ................................................................................................................. 168
Human Rights (1999) ......................................................................................................... 168
Human Rights; Civil and Political Rights (1992) ............................................................ 168
Human Rights; Civil and Political Rights (1996) ............................................................ 169
Int’l Court of Justice; Jurisdiction Over States................................................................ 170
Int’l Court of Justice; Jurisdiction Over States (1994)................................................... 170
Int’l Court of Justice; Limitations On Jurisdiction (1999) .............................................. 170
Int’l Court of Justice; Parties; Pleadings and Oral Argument (1994) .......................... 170
International Convention; Law of the Sea (2004) .......................................................... 171
International Court of Justice (Q9-2006)......................................................................... 171
International Law vs. Municipal Law; Territorial Principle; International Crimes (Q22005)..................................................................................................................................... 171
Mandates and Trust Territories (2003)............................................................................ 172
Municipal Law vs. International Law (2003) ................................................................... 173
Neutrality of States (1988)................................................................................................. 173
Outer Space; Jurisdiction (2003)...................................................................................... 174
Principle of Auto-Limitation (Q10-2006) .......................................................................... 174
Reciprocity v. Principle of Auto-Limitation (Q10-2006) ................................................. 174
Recognition of States; De Facto vs. De Jure Recognition (1998) .............................. 174
Reparations Agreement; Validity (1992) ......................................................................... 175
Right to Innocent Passage (1999).................................................................................... 175
Right to Transit and Innocent Passage (2004) .............................................................. 176
Rights and Obligation under UN Charter (1991)............................................................ 176
Sources of International Law; Primary & Subsidiary Sources (2003) ........................ 177
Sovereign Immunity of States; Absolute vs. Restrictive (1998) .................................. 177
Sovereignty of States; Natural Use of Territory (1989)................................................. 178
Sovereignty; Definition; Nature (Q10-2006) ................................................................... 178
State Liabilities (1995)........................................................................................................ 179
State Sovereignty; Effective Occupation; Terra Nullius (2000) ................................... 179
Stateless Persons; Effects; Status; Rights (1995)......................................................... 179
Territorial Sea vs. Internal Waters (2004)....................................................................... 180
Use of Force; Exceptions (2003)...................................................................................... 180
Use of Force; Principle of Non-Intervention (1994)....................................................... 181
Use of Force; Right of Self-defense (2002) .................................................................... 182
Use of Force; Self-Defense; Waging War (1998) .......................................................... 182
Use of Force; When allowed (1988) ................................................................................ 183
War; Combatants/ Prisoners of War vs. Mercenaries (1993) ...................................... 183
Wilson doctrine vs. Estrada doctrine (2004)................................................................... 184
ADMINISTRATIVE LAW....................................................................................................... 184
Admin Law; Exhaustion of Administrative Remedies (1991)....................................... 184
Admin Law; Exhaustion of Administrative Remedies (2000)....................................... 184
Admin Law; Exhaustion of Administrative Remedies vs Doctrine of Primary
Jurisdiction (1996) .............................................................................................................. 185
Admin Law; Exhaustion of Administrative Remedies; Exceptions (1991) ................. 185
Admin Law; Judicial Review of Administrative Action (2001) ...................................... 186
Admin Law; Judicial Review of Administrative Decisions (1988)................................ 186
Admin Law; Meaning of “Government of the Philippines” (1997) ............................... 187
Admin Law; Power of the President to Reorganize Administrative Structure (2003)
............................................................................................................................................... 187
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Admin Law; Rules and Regulations; Due Process (2000) ........................................... 187
Government Agency vs. Government Instrumentality (Q7-2005)............................... 188
Quasi-Judicial Body or Agency (Q5-2006) ..................................................................... 188
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13
1987 CONSTITUTION OF THE
PHILIPPINES
Phil Con 87; New Features (1991)
No 1: How is the Bill of Rights strengthened in
the 1987 Constitution?
SUGGESTED ANSWER:
There are several ways in which the Bill of
Rights is strengthened in the 1987 Constitution.
1. New rights are given explicit recognition
such as, the prohibition against detention by
reason of political beliefs and aspirations.
The waiver of Miranda rights is now
required to be made in writing with the
assistance of counsel. The use of solitary,
incommunicado and secret detention places
is prohibited, while the existence of
substandard and inadequate penal facilities
is made the concern of legislation.
2. There is also recognition of the right of
expression, an express prohibition against
the use of torture, a mandate to the State to
provide compensation and rehabilitation for
victims of torture and their families.
3. Some rights have been expanded.
For
instance, free access to courts now
includes access to quasi-judicial bodies and
to adequate legal assistance.
4. The requirements for interfering with some
rights have been made more strict. For
instance, only judges can now issue search
warrants or warrants of arrest. There must
be a law authorizing the Executive
Department to interfere with the privacy of
communication, the liberty of abode, and
the right to travel before these rights may
be impaired or curtailed.
5. The Constitution now provides that the
suspension of the privilege of the writ of
habeas corpus does not suspend the right
to bail, thus resolving a doctrinal dispute of
long standing.
6. The suspension of the privilege of the writ
of habeas corpus and the proclamation of
martial law have been limited to sixty (60)
days and are now subject to the power of
Congress to revoke.
In addition, the
Supreme Court is given the jurisdiction,
upon the petition of any citizen to determine
the sufficiency of the factual basis of the
suspension of the privilege of the writ of
habeas corpus and the proclamation of
martial law.
7. The Supreme Court is empowered to adopt
rules for the protection and enforcement of
constitutional rights.
8. Art. II. Sec. 11 commits the State to a policy
which places value on the dignity of every
human person and guarantees full respect
for human rights.
9. A Commission on Human Rights is created.
10. Under Article XVI. Sec. 5(2) the State is
mandated to promote respect for the
people's rights among the members of the
military in the performance of their duty.
Phil Con 87; People Power (1987)
No. XVIII: The framers of the 1987 Constitution
and the people who ratified it made sure that
provisions institutionalizing people power were
incorporated in the fundamental law, Briefly
discuss at least two such provisions.
SUGGESTED ANSWER:
Art. VI, Sec. 1, while vesting in Congress the
legislative power, nonetheless states that such
conferment of power shall be subject to the
reservation made in favor of the people by
provisions on initiatives and referendum. For
this purpose, Congress is required, as early as
possible, to provide for a system of initiative of
referendum whereby the people can directly
propose and enact laws or approve or reject an
act or law or part thereof passed by the
Congress or the legislative bodies after the
registration of a petition therefor, signed by at
least 10% of the total number of registered
voters, of which every legislative district must
be represented by at least 3% of the registered
voters. (Id., sec. 32) The Constitution also
provides that through initiative, upon a petition
of at least 12% of the total numbers of
registered voters, of which every legislative
district must be represented by at least 3% of
the registered voters therein, amendments to
the Constitution may be directly proposed by
the people.
Art, XIII, sec. 15 states that the state shall
respect the role of independent people's
organization to enable them to pursue and
protect, within the democratic framework, their
legitimate and collective interests and
aspirations through peaceful lawful means. For
this purpose, the Constitution guarantees to
such organizations the right to participate at all
levels of social, political and economic decisionmaking and the state is required to validate the
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
14
establishment of adequate mechanism for this
purpose. (Id., sec, 16)
Phil Con 87; People Power (2000)
No IX. Is the concept of People Power
recognized in the Constitution? Discuss briefly.
(3%)
SUGGESTED ANSWER:
Yes, the concept of People Power is recognized
in the Constitution.
Under Section 32. Article VI of the Constitution,
through initiative and referendum, the people
can directly propose and enact laws or approve
or reject any act or law or part thereof passed
by the Congress or local legislative body after
the registration of a petition therefor signed by
at least ten 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 thereof.
Under Section 16, Article XIII of the
Constitution, the right of the people and their
organizations to effective and reasonable
participation at all levels of social, political and
economic decision-making shall not be
abridged. The State shall, by law facilitate the
establishment
of
adequate
consultation
mechanisms.
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
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.
Phil Con 87; People Power (2003)
No I Is "people power" recognized by the
1987 Constitution? Explain fully.
SUGGESTED ANSWER:
"People power"
Constitution.
is
recognized
in
the
Article III, Section 4 of the 1987 Constitution
guarantees the right of the people peaceable to
assemble and petition the government for
redress of grievances.
Article VI, Section 32 of the 1987 Constitution
requires Congress to pass a law allowing the
people to directly propose and enact laws
through initiative and to approve or reject any
act or law or part of it passed by Congress or a
local legislative body.
Article XIII, Section 16 of the 1987 Constitution
provides that the right of the people and their
organizations to participate at all levels of
social, political, and economic decision-making
shall not be abridged and that the State shall,
by law, facilitate the establishment of adequate
consultation mechanisms.
Article XVII, Section 2 of
provides that subject to
implementing law, the
propose amendments
through initiative.
the 1987 Constitution
the enactment of an
people may directly
to the Constitution
Nature of the Constitution: Constitutional
Supremacy (2004)
(10-a) 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%)
SUGGESTED ANSWER:
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]).
Government Presidential Form vs. Parliamentary Form (Q6-2006)
1.
a) What is the principal identifying feature
of a presidential form of government? Explain.
(2.5%)
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
15
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%)
SUGGESTED ANSWER:
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.
ARTICLE I
National Territory
Archipelagic Doctrine (1989)
No. 20: What do you understand by the
archipelagic doctrine? Is this reflected in the
1987 Constitution?
SUGGESTED ANSWER:
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.
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.
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.)
Exclusive Economic Zone; Rights of the
Coastal State (1994)
No. 11: 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?
SUGGESTED ANSWER:
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
Contiguous Zone vs. Exclusive Economic
communities, to the preferential use of the
Zone (2004)
communal marine and fishing resources, both
(2-a-2) Distinguish: The contiguous zone and
inland and offshore. It shall provide support to
the exclusive economic zone.
such fishermen through appropriate technology
SUGGESTED ANSWER:
and research, adequate financial, production,
CONTIGUOUS ZONE is a zone contiguous to
and marketing assistance, and other services.
the territorial sea and extends up to 12 nautical
The State shall also protect, develop, and
miles from the territorial sea and over which the
conserve such resources. The protection shall
coastal state may exercise control necessary to
extend to offshore fishing grounds of
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
16
subsistence fishermen against foreign intrusion.
Fishworkers shall receive a just share from their
labor in the utilization of marine and fishing
resources.
such as low or non-existent taxation or low
operating costs although the ship has no
genuine link with that state. (Harris, Cases and
Exclusive Economic Zone; Rights of the
Coastal State (Q1-2005)
(c)
Enumerate the rights of the coastal state
in the exclusive economic zone. (3%)
ALTERNATIVE ANSWER:
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.
Territory & Government (1996)
No. 8:
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.
SUGGESTED ANSWER:
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.
Flag State vs. Flag of Convenience (2004)
(2-a-3) Distinguish: The flag state and the flag
of convenience.
SUGGESTED ANSWER:
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.
Territorial Sea vs. Internal Waters (2004)
(2-a-1) Distinguish: The territorial sea and the
internal waters of the Philippines.
SUGGESTED ANSWER:
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
(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
Materials on International Law, 5th ed., 1998, p. 425.)
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.
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
17
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.)
ARTICLE II Declaration of
Principles and State Policies
Armed Forces; Servant of the People (2003)
No I - Article II. Section 3, of the 1987
Constitution expresses, in part, that the "Armed
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?
FIRST ALTERNATIVE ANSWER:
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
separate and distinct from the former. (Record
of the Constitutional Commission, Vol. V, p. 296;
Manalo v. Sistoza. 312 SCR A 239 [1999].)
SECOND 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].)
No. 1; What do you understand by the "Doctrine
of Incorporation" in Constitutional Law?
SUGGESTED ANSWER:
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.
Doctrine of Incorporation; Pacta Sunt
Servanda (2000)
No X. 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%)
SUGGESTED ANSWER:
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.
Freedom from Nuclear Weapons; Foreign
Military Bases (1988)
No. 22: 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.
Doctrine of Incorporation; Constitutional
Law (1997)
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
18
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?
SUGGESTED ANSWER:
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.
Philippine Flag (Q4-2006)
State whether or not the law is constitutional.
Explain briefly.
1. A law changing the design of the
Philippine flag. (2%)
ALTERNATIVE ANSWER:
The law is invalid considering that under Article
XVI, Section 1 of the 1987 Constitution, the flag
of the Philippines shall be red, white, and blue,
with a sun and three stars, as consecrated and
honored by the people and recognized by law.
Since the Constitution itself prescribes the
design, it can only be changed by constitutional
amendment.
ALTERNATIVE ANSWER:
The law is valid, provided that the new design
does not change the elements and color
scheme of the flag as stated in the Constitution,
and the flag is consecrated and honored by the
people. Since the Constitution itself states that
the flag must be recognized by law, it implies
that certain aspects of the flag are subject to
change through legislative action.
Principle of Civilian Supremacy (Q6-2006)
2. What Constitutional provisions institutionalize
the principle of civilian supremacy? (2.5%)
SUGGESTED ANSWER:
The
following
constitutional
provisions
institutionalize
the
principle
of
civilian
supremacy:
a.
Civilian authority is at all times supreme
over the military. [Article II, Section 3]
b.
The installation of the President, the
highest civilian authority, as the
Commander-in-Chief of the military. [Article VII, Section 18]
c.
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)]
d.
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)]
e.
Professionalism in the armed forces.
[Article XVI, Section 5(3)]
f.
Insulation of the AFP from partisan
politics. [Article XVI, Section 5(3)]
g.
Prohibition against the appointment of an
AFP member in the active service to a
civilian position. [Article XVI, Section 5(4)]
h.
Compulsory retirement of officers without
extension of service. [Article XVI, Section
5(5)]
i.
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)]
j.
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)]
The establishment of a police force that is not
only civilian in character but also under the local
executives. [Article XVI, Section 5(7)]
State Immunity from Suit (1991)
No. 13; 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
19
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 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?
SUGGESTED ANSWER:
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.
State Immunity from Suit (1996)
No. 6; 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.
a)
How can the Republic of Balau invoke its
sovereign immunity? Explain.
b) Will such defense of sovereign immunity
prosper? Explain.
SUGGESTED ANSWER:
A) 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.
b) 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, 136SCRA487 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.
State Immunity from Suit (1989)
No. 13: A property owner filed an action directly
in court against the Republic of the Philippines
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
20
seeking payment for a parcel of land which the
national government utilized for a road widening
project.
(1) Can the government invoke the doctrine of
non-suitability of the state?
(2) In connection with the preceding question,
can the property owner garnish public
funds to satisfy his claim for payment?
Explain your answers.
SUGGESTED ANSWER:
(1) 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, 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.
(2) 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:
(2) No, funds of the government on deposit in
the bank cannot be garnished for two reasons:
1. 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.
State Immunity from Suit (1994)
No. 6; 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.
1) Is the municipality liable for the negligence
of Johnny?
2) Is the municipal ordinance valid?
SUGGESTED ANSWER:
1) 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, ie., 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.
State Immunity from Suit (1992)
No. 9: 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.
SUGGESTED ANSWER:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
21
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 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.
State Immunity from Suit (1999)
A. 1.)
What do you understand by state
immunity from suit? Explain. (2%)
2.)
How may consent of the state to be
sued be given? Explain. (2%)
SUGGESTED ANSWER:
1.)
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.) 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).
State Immunity from Suit (1999)
No VI - B. 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%)
SUGGESTED ANSWER:
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.
State Immunity from Suit (1987)
(a) "X" filed a case against the Republic of the
Philippines for damages caused his yacht,
which was rammed by a navy vessel.
(b) "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.
SUGGESTED ANSWER:
(a) 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.
(b) But the government CANNOT INVOKE the
state's immunity from suit. 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.
State Immunity vs. Waiver of Immunity
(1997)
No, 6: 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?
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
22
prove that the State is liable but the State
retains the right to raise all lawful defenses.
State Immunity from Suit (1993)
No 19: 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.
SUGGESTED ANSWER:
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.
State Principles & Policies (1994)
No. 1; What is the state policy on:
a) working women?
b) ecology?
c) the symbols of statehood?
d) cultural minorities?
e) science and technology?
SUGGESTED ANSWER:
a) Section 14, Article XIII of the Constitution
provides: "The State shall protect WORKING
WOMEN by providing safe and healthful
working conditions, taking into account their
maternal functions, and such facilities and
opportunities that will enhance their welfare and
enable them to realize their full potential in the
service of the nation."
b) Section 16, Article II of the Constitution
provides: The State shall protect and advance
the right of the people and their posterity to a
balanced and healthful ECOLOGY in accord
with the rhythm and harmony of nature."
c) Section 1, Article XVII of the Constitution
provides: "The FLAG OF THE PHILIPPINES
shall be red, white, and blue, with a sun and
three stars, as consecrated and honored by the
people and recognized by law."
Section 2, Article XVI of the Constitution states:
The Congress may by law, adopt a new name
for the country, a national anthem, or a national
seal, 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."
d)
Section 22, Article II of the Constitution
provides: The State recognizes and promotes
the rights of INDIGENOUS CULTURAL
COMMUNITIES within the framework of
national unity and development."
Section 5, Article XII of the Constitution reads:
The State, subject to the provisions of this
Constitution and national development policies
and programs, shall protect the rights of
indigenous cultural communities to their
ancestral lands to ensure their economic, social
and cultural well-being.
The Congress may provide for the applicability
of customary laws governing property rights or
relations in determining the ownership and
extent of the ancestral domains."
Section 6, Art. XIII of the Constitution provides:
The State shall apply the principles of
AGRARIAN
REFORM
or
stewardship,
whenever applicable in accordance with law, in
the disposition or utilization of other natural
resources, including lands of the public domain
under lease or concession suitable to
agriculture, subject to prior rights, homestead
rights of small settlers, and the rights of
indigenous communities to their ancestral
lands.
The State may resettle landless farmers and
farm workers in its own agricultural estates
which shall be distributed to them in the manner
provided by law."
Section 17. Article XIV of the Constitution
states: "The State shall recognize, respect and
protect the rights of indigenous cultural
communities to preserve and develop their
cultures, traditions, and institutions. It shall
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
23
consider these rights in the formulation of
national plans and policies."
e)
Section 17, Article II of the Constitution
provides: "The State shall give priority to
EDUCATION, SCIENCE and TECHNOLOGY,
ARTS, CULTURE, and SPORTS to foster
patriotism and nationalism, accelerate social
progress, and promote total human liberation
and development."
Section 14, Article XII of the Constitution reads
in part: "The sustained development of a
reservoir of NATIONAL TALENTS consisting of
Filipino scientists, entrepreneurs, professionals,
managers, high-level technical manpower and
skilled workers and craftsmen shall be
promoted by the State, The State shall
encourage appropriate technology and regulate
Its transfer for the national benefit.
Sub-section 2, Section 3. Article XIV of the
Constitution states: "They (EDUCATIONAL
INSTITUTIONS) shall inculcate patriotism and
nationalism, foster love of humanity, respect for
human rights, appreciation of the role of
national heroes in the historical development of
the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual
values, develop moral character and personal
discipline, encourage critical and creative
thinking, broaden scientific and technological
knowledge, and promote vocational efficiency."
Section 10. Article XIV of the Constitution
declares: "SCIENCE and TECHNOLOGY are
essential for national development and
progress. The State shall give priority to
research
and
development,
invention,
innovation, and their utilization; and to science
and technology education, training, services. It
shall support indigenous, appropriate, and selfreliant scientific and cultural capabilities, and
their application to the country's productive
systems and national life."
Section 11, Article XIV of the Constitution
provides: "The Congress may provide for
incentives, including TAX DEDUCTIONS, to
encourage private participation in programs of
basic
and
applied
scientific
research.
Scholarships, grants-in-aid or other forms of
Incentives shall be provided to deserving
science students, researchers, scientists,
investors, technologists, and specially gifted
citizens."
Section 12, Article XIV of the Constitution
reads: The State shall regulate the transfer and
promote the adaptation of technology from all
sources for the national benefit. It shall
encourage widest participation of private
groups, local governments, and communitybased organizations in the generation and
utilization of science and technology."
NOTE: It is suggested that if an examinee gave a substantive
answer without giving the exact provisions of the Constitution,
then he should be given full credit. Further, one provision
quoted/discussed by the examinee should be sufficient for him
to be given full credit.
Transparency; Matters of Public Interest
(1989)
No. 3: Does the 1987 Constitution provide for a
policy of transparency in matters of public
interest? Explain.
SUGGESTED ANSWER:
Yes, the 1987 Constitution provides for a policy
of transparency in matters of public interest.
Section 28, Article II of the 1987 Constitution
provides:
1. "Subject
to
reasonable
conditions
prescribed by law, the State adopts and
implements a policy of full disclosure of all
its transactions involving public interest,"
2. Section 7, Article III of the 1987 Constitution
states: "The right of the people to
information on matters of public concern
shall be recognized, Access to official
records, and to documents, and papers
pertaining to official acts, transactions, or
decisions, as well as to government
research data used as basis for policy
development, shall be afforded the citizen,
subject to such limitations as may be
provided by law."
3. Section 20, Article VI of the 1987
Constitution reads: "The records and books
of account of the Congress shall be
preserved and be open to the public in
accordance with law, and such books shall
be audited by the Commission on Audit
which shall publish annually an itemized list
of amounts paid to and expenses incurred
for each member."
4. Under Section 17, Article XI of the 1987
Constitution, the sworn statement of assets,
liabilities and net worth of the President, the
Vice-President, the Members of the
Cabinet, the Congress, the Supreme Court,
the Constitutional Commission and other
constitutional offices, and officers of the
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
24
armed forces with general or flag rank filed
upon their assumption of office shall be
disclosed to the public in the manner
provided by law.
5. Section 21, Article XII of the Constitution
declares: "Information on foreign loans
obtained or guaranteed by the government
shall be made available to the public."
6. As held in Valmonte vs. Belmonte, G.R. No.
74930, Feb. 13, 1989, these provisions on
public disclosures are intended to enhance
the role of the citizenry in governmental
decision-making as well as in checking
abuse in government.
Transparency; Matters of Public Interest
(2000)
No V. State at least three constitutional
provisions reflecting the State policy on
transparency in matters of public interest. What
is the purpose of said policy? (5%)
SUGGESTED ANSWER:
The following are the constitutional provisions
reflecting the State policy on transparency in
matters of public interest:
1.
"Subject to reasonable conditions
prescribed by law, the State adopts and
Implements a policy of full public disclosure of
all its transactions involving public interest."
(Section 28, Article II)
2.
The right of the people to information on
matters of public concern shall be recognized.
Access to official records, and to documents,
and papers pertaining to official acts,
transactions, or decisions, as well as to
government research data used as basis for
policy development, shall be afforded to citizen,
subject to such limitations as may be provided
by law." (Section 7, Article III)
3.
The records and books of accounts of the
Congress shall be preserved and be open to
the public in accordance with law, and such
books shall be audited by the Commission on
Audit which shall publish annually an itemized
list of amounts paid to and expenses incurred
for each Member." (Section 20. Article VI)
4.
The Office of the Ombudsman shall have
the following powers, functions, and duties:
XXX
XXX
(6) Publicize matters covered by its
investigation when circumstances so
warrant and with due prudence,"
(Section 12, Article XI)
5.
"A public officer or employee shall, upon
assumption of office, and as often as thereafter
may be required by law, submit a declaration
under oath of his assets, liabilities, and net
worth. In the case of the President, the Vice
President, the Members of the Cabinet, the
Congress, the Supreme Court,
the
Constitutional
Commissions
and
other
constitutional offices, and officers of the armed
forces with general or flag rank, the declaration
shall be disclosed to the public in the manner
provided by law." (Section 17, Article XI)
6.
"Information on foreign loans obtained or
guaranteed by the Government shall be made
available to the public." (Section 21 Article XII)
As explained In Valmonte v. Belmonte,
170 SCRA 256 (1989), the purpose of
the policy is to protect the people from
abuse of governmental power. If access
to information of public concern is
denied, the postulate "public office is a
public trust" would be mere empty
words.
{Note: The examinee should be given
full credit if he gives any three of the
above-mentioned provisions.}
ARTICLE III Bill of Rights
Bill of Attainder (1987)
No. XI: 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.
(a) 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.
(b) 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?
SUGGESTED ANSWER:
(a) 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, 1972February 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 can not
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
25
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.
(b) 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.
Bill of Attainder (1990)
No. 1; 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.
(1) 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.
(2) Said corporation also questioned the
validity of the three executive orders on the
ground that they are bills of attainder and,
therefore, unconstitutional. Decide.
SUGGESTED ANSWER:
(1) Executive Orders Nos. 1, 2 and 14 were
issued in 1986. At that time President Corazon
Aquino exercised legislative power ....
(2) Executive Orders Nos. 1, 2 and 14 are not
bills of attainder. A bill of attainder is a
legislative act which inflicts punishment without
judicial trial. Accordingly, it was held in Bataan
Shipyards and Engineering company. Inc. v.
Presidential Commission on Good Government,
that Executive Orders Nos. 1, 2 and 14 are not
bills of attainder, because they do not inflict any
punishment. On the contrary, they expressly
provide that any judgment that the property
sequestered is ill-gotten wealth is to be made
by a court (the Sandiganbayan) only after trial.
Custodial
Investigation;
Extrajudicial
Confession (2001)
No IX - 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 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%)
FIRST ALTERNATIVE ANSWER:
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.
SECOND 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.
Custodial
Investigation;
Extrajudicial
Confession; Police Line-Up (1994)
No. 10: 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.
1) 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?
2) Can Danny claim that his confession be
excluded on the ground that he was not
afforded his "Miranda" rights?
SUGGESTED ANSWER:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
26
1) 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.
2) 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.
Custodial Investigation; Police Line-Up
(1997)
No. 10: 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?
SUGGESTED ANSWER:
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.
Custodial Investigation; Right to Counsel
(1988)
No. 15: 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.
SUGGESTED 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.
Custodial Investigation; Right to Counsel
(1993)
No. 17; 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:
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27
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.
SUGGESTED ANSWER:
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.
Custodial Investigation; Right to Counsel
(2000)
No XI. 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 effect. Rule on this.
(3%)
SUGGESTED ANSWER:
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).
Custodial Investigation; Right to Counsel;
Receipt of Property Seized (2002)
No VIII. 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 A. The plastic bag and its contents are
inadmissible in evidence being the product
of an illegal search and seizure; (3%) and
B. The receipt he signed is also inadmissible
as his rights under custodial investigation
were not observed. (2%)
Decide the case with reasons.
SUGGESTED ANSWER:
A. It is admissible...
B. 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.
Custodial Investigation; Police Line-up
(1993)
No. 9: Johann learned that the police were
looking for him in connection with the rape of an
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28
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 lineup 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:
2) He should have been informed of his right
to be represented by counsel prior to his
identification via the police line up. Decide.
SUGGESTED ANSWER:
2} 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.
Custodial Investigation; Rights (1990)
No. 9; 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.
(1)
May the said police operatives lawfully
seize the cocaine? Explain your answer.
(2)
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.
(3)
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.
SUGGESTED ANSWER:
(1) Yes, the police operatives may lawfully
seize the cocaine, ....
(2) 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.
(3) The unlicensed firearms stored at 12 Shaw
Boulevard may lawfully be seized ...
Custodial Investigation; Rights (1993)
No. 4: 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:
1) The packages are inadmissible in evidence
being the product of an illegal search and
seizure;
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
29
2) Neither is the receipt he signed admissible,
his rights under custodial investigation not
having been observed. Decide.
SUGGESTED ANSWER:
On the assumption that the issues were timely
raised the answers are as follows:
1) The packages are admissible in evidence. ...
2) 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)].
Custodial Investigation; Rights (1996)
No. 3: 1) 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.
SUGGESTED ANSWER:
1) 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.
Custodial Investigation; Rights (1989)
No. 7: 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.
(1) Was the search without warrant legal?
(2) 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 charged with illegal possession of
prohibited drugs. Is his waiver of the right to
counsel valid?
SUGGESTED ANSWER:
(1) No, the search was not valid, because there
was no probable cause ....
(2) 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.
Double Jeopardy (1988)
No. 21: The Filipino seamen detained at Kota
Kinabalu, allegedly fishing in Malaysian
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.
SUGGESTED 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
30
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
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.
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.
Double Jeopardy (1997)
No. 2: 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.
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.
SUGGESTED ANSWER:
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
How would you rule on A's motion if you were
the Judge?
SUGGESTED ANSWER:
If I were the judge, I would grant the motion.
The dismissal of the first case for failure of the
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:
(1954) (Chinese previously convicted of murder); People v.
Pomeroy, 97 Phil 927 (1955) ( American previously convicted
of rebellion with murder, arson and robbery).
Double Jeopardy (1993)
No. 13: 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.
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31
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.
Double Jeopardy (1999)
A. Discuss the right of every accused against
double jeopardy? (2%)
SUGGESTED ANSWER:
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.
Double Jeopardy (1999)
C. 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%)
SUGGESTED ANSWER:
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.
Double Jeopardy (2000)
No XV. 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.
b)
Would the reversal of the trial court's
assailed dismissal of the case place the
accused in double jeopardy? (3%)
SUGGESTED ANSWER:
b) 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:
b) Since the dismissal of the case is valid, its
reversal will place the accused in double
jeopardy.
Double Jeopardy (2001)
No X - 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
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32
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%)
SUGGESTED ANSWER:
The motion should be granted. As held in Caes
us. 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.
Double Jeopardy (2002)
No IX. 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 (5%)
FIRST ALTERNATIVE 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.
SECOND 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.
Double Jeopardy; Requisites (1999)
B. What are the requisites of double jeopardy?
(2%)
SUGGESTED ANSWER:
As held in Cuison v. Court of Appeals, 289
SCRA 159, for a claim of double jeopardy to
prosper, the following requisites must concur:
(1) a first jeopardy has attached;
(2) the first jeopardy was validly terminated; and
(3) the second is for the same offense.
A first jeopardy attaches:
1. upon a valid complaint or information;
2. before a competent court;
3. after arraignment;
4. a valid entry of plea; and
5. the dismissal or termination of the case
without the express consent of the accused.
Due Process; Absence of Denial (1999)
No VIII - B.
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
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33
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. Questions: 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%)
SUGGESTED ANSWER:
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.
received the evidence, in violation of the "He
who decides must hear" rule. Is he correct?
2) 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?
SUGGESTED ANSWER:
1) No, Stevie is not correct. As held in Adamson
A 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.
Due Process; Deportation (1994)
No. 9: 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
1) On the ground that Stevie was denied due
process because the BID Commissioners who
rendered the decision were not the ones who
2) 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.
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.
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Due Process; Forfeiture Proceedings (1993)
No. 14: 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 were 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.
SUGGESTED ANSWER:
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.
Due Process; Media Coverage during
Hearing (1996)
No 2: 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.
SUGGESTED ANSWER:
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.
Due Process; Meeting vs. Hearing (1999)
No VIII - C.
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? (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.
(4%)
SUGGESTED ANSWER:
a) 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) 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.
Due Process; Notice by Publication (1988)
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35
No. 9: Macabebe, Pampanga has several
barrios along the Pampanga river. To service
the needs of their residentst 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 Tansportation
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:
1. Denial of due process to the municipality;
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.
SUGGESTED ANSWER:
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 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)).
2. Where a ferry operation lies entirely within
the municipality, the prior approval of the
Municipal government is necessary. ....
Due Process; Permit to Carry Firearm
Outside Residence (Q6-2006)
3. Does a Permit to Carry Firearm Outside
Residence (PTCFOR) constitute a property
right protected by the Constitution? (2.5%)
SUGGESTED ANSWER:
No, it is not a property right under the due
process clause of the Constitution. Just like
ordinary licenses in other regulated fields, it
may be revoked any time. It does not confer an
absolute right, but only a personal privilege,
subject to restrictions. A licensee takes his
license subject to such conditions as the
Legislature sees fit to impose, and may be
revoked at its pleasure without depriving the
licensee of any property (Chavez v. Romulo,
G.R. No. 157036, June 9, 2004).
Due Process; PPA-Pilots (2001)
No XIII - 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%)
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
36
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.
Due Process; Procedural vs. Substantive
(1999)
No VIII - A. Give examples of acts of the state
which infringe the due process clause:
1. in its substantive aspect and (1%)
2. in its procedural aspect? (1%)
SUGGESTED ANSWER:
1.)
A law violates substantive due process
when it is unreasonable or unduly oppressive.
For example, Presidential Decree No. 1717,
which cancelled all the mortgages and liens of a
debtor, was considered unconstitutional for
being oppressive.
Likewise, as stated in
Ermita-Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila, 20
SCRA 849, a law which is vague so that men of
common intelligence must guess at its meaning
and differ as to its application violates
substantive due process. As held in Tanada v.
Tuvera, 146 SCRA 446, due process requires
that the law be published.
2.) In State Prosecutors v. Muro, 236 SCRA
505, it was held that the dismissal of a case
without the benefit of a hearing and without any
notice to the prosecution violated due process.
Likewise, as held in People v. Court of Appeals,
262 SCRA 452, the lack of impartiality of the
judge who will decide a case violates
procedural due process.
Due Process; Provisional Order (1991)
No 7 - 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?
SUGGESTED ANSWER:
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.
Due Process; Public School Teachers (2002)
No X - 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).
SUGGESTED ANSWER:
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
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37
it is tainted with deprivation of procedural due
process.
Due Process; Radio Station (1987)
No. XIV: 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.
SUGGESTED ANSWER:
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.
Due Process; Represented by a Non-Lawyer
(1988)
No. 5: 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.
SUGGESTED ANSWER:
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)).
Due Process; Substantive (2003)
2003 No XII - 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?
SUGGESTED ANSWER:
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.
Due Process; Suspension of Driver's
License (1992)
No, 3; 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.
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
38
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 selfincrimination, 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 postsuspension 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.
Due Process; Urgent Public Need (1987)
No. II: 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.
SUGGESTED ANSWER:
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.
Eminent Domain; Garnishment (1994)
No. 14: The Municipality of Antipolo, Rizal,
expropriated the property of Juan Reyes for use
as a public market. The Municipal Council
appropriated Pl,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.
1) What legal action can Juan Reyes take to
collect the balance?
2) Can Juan Reyes ask the Regional Trial
Court to garnish the Municipality's account
with the Land Bank?
SUGGESTED ANSWER:
1)
To collect the balance of Judgment, as
stated in Tan Toco 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.
2)
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
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39
for the lot, its bank account may be garnished
but up to this amount only.
Eminent Domain; Garnishment (1998)
No VI - 2, If the City of Cebu has money in
bank, can it be garnished? [2%]
SUGGESTED ANSWER:
2.
No, the money of the City of Cebu in the
bank cannot be garnished if it came from public
funds. As held in Municipality of Makati vs.
Court of Appeals, 190 SCRA 206, 212, public
funds are exempted from garnishment.
Eminent Domain; immunity from suit (2001)
No III - 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%)
SUGGESTED ANSWER:
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.
Eminent Domain; Indirect Public Benefit
(1990)
No. 2: 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.
(1) As counsel for C Company, give two
constitutional objections to the validity of
the ordinance.
(2) As the judge, rule on the said objections.
SUGGESTED ANSWER:
(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.
Eminent Domain; Just Compensation (1988)
No. 8: 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 Court decided for
expropriation and ordered the payment to Mr.
Rivera at the rate of P100 a square meter
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
40
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.
SUGGESTED 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.
Eminent Domain; Just Compensation (1989)
No, 6: 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.
SUGGESTED 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.
Eminent Domain; Just Compensation (1998)
No VI. 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.
1. What legal remedy, if any, does Carlos
Topico have to recover the balance of P5
million for the taking of his land? [3%]
SUGGESTED ANSWER:
1.
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:
1.
He can file the money claim with the
Commission on Audit.
Eminent Domain; Legal Interest (1993)
No, 5: In expropriation proceedings:
1) What legal interest should be used in the
computation of interest on just compensation?
SUGGESTED ANSWER:
As held in National Power Corporation vs.
Angas. 208 SCRA 542, in accordance with
Article 2209 of the Civil Code, the legal interest
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
41
should be SIX per cent (6%) a year. Central
Bank Circular No. 416, which increased the
legal interest to twelve percent (12%) a year is
not applicable to the expropriation of property
and is limited to loans, since its issuance is
based on Presidential Decree No, 116, which
amended the Usury Law.
Eminent Domain; Non-observance of the
policy of "all or none" (2000)
No VIII. 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 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%)
SUGGESTED ANSWER:
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".
Eminent Domain; Power to Exercise (2005)
(10-2) 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%)
SUGGESTED ANSWERS:
a) 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
ofParanaque v. V.M. Realty Corp., G.R. No.
127820, July 20, 1998)
b) 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)
c) 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.
Eminent Domain; Public Use (1987)
No. XVI: 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
42
declarations, which amount was lower than the
assessed value as determined by the assessor.
The landowners oppose the expropriation on
the grounds that:
(a) the same is not for public use; and
(b) 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?
SUGGESTED ANSWER:
(a) 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 Ardona v. Reyes, 123 SCR A 220 (1983))
(b) 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.
Eminent Domain; Socialized Housing (1996)
No. 4 - 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.
a) 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.
b) 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.
SUGGESTED ANSWER:
a) 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.
b) 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.
Eminent Domain; Writ of Possession (1993)
No, 5: 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?
SUGGESTED ANSWER:
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:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
43
(per Dondee) 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.
Equal Protection; Alien Employment (1989)
No 18: 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?
SUGGESTED ANSWER:
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.
Equal Protection; Invidious Discrimination
(1987)
No. VI: 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:
(1) Whether the Board of Examiners had any
plausible or legal basis for rejecting her
application in 1986. Explain briefly.
(2) Whether the 1987 Constitution guarantees
her the right to admission to take the
coming January 1988 marine officers
examinations. Explain and cite relevant
provisions.
SUGGESTED ANSWER:
(a) 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).
(b) 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.
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
44
Equal Protection; Invidious Discrimination
(1987)
No. 10: "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.
(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.
SUGGESTED ANSWER:
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.
Equal Protection; Police Power (2000)
No IV. 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%)
SUGGESTED ANSWER:
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.
Equal Protection; Right to Education (1994)
No. 12; 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?
2) Did the circular violate the equal protection
clause of the Constitution?
SUGGESTED ANSWER:
1) 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....
2) 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.
Equal Protection; Subsidiary Imprisonment
(1989)
No. 4: "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.
SUGGESTED ANSWER:
(1) 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
45
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.
(2) 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
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.
Freedom of Expression; Censorship (2003)
No IX - 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.
SUGGESTED ANSWER:
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.
Freedom of Expression; Prior Restraint
(1988)
No. 16: 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 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.
SUGGESTED 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.
Freedom of Religion; Convicted Prisoners
(1989)
No. 5: "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.
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
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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.
Freedom of Religion; Limitations (1998)
No XV. - 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%]
SUGGESTED ANSWER:
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 religions 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."
Freedom of Religion; Flag Salute (1997)
No. 12: 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
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
47
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. The teachers, students and pupils
concerned went to Court to have the
memorandum circular declared null and void.
Decide the case.
SUGGESTED ANSWER:
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.
Freedom of Religion; Flag Salute (2003)
No III - 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.
SUGGESTED ANSWER:
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.
Freedom of Religion; Non-Establishment
Clause (1988)
No. 7: - Tawi-Tawi is a predominantly Moslem
province. The Governor, the Vice-Governor,
and members of its Sang-guniang 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
provincemates 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.
SUGGESTED ANSWER:
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 Nonestablishment Clause (art. III, sec. 5) of the
Constitution.
Freedom of Religion; Non-Establishment
Clause (1992)
No. 10: 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.
a) Is the subsidy permissible? Explain,
b) 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?
c) 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?
SUGGESTED ANSWER:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
48
a) 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.
b)
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.
c)
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.
Freedom of Religion; Non-Establishment
Clause (1997)
No. 4: 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?
SUGGESTED ANSWER:
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.
Freedom of Speech; Ban on Tobacco AD
(1992)
No. 1: 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 haveshifted 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.
a) 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.
b) May Cowboy Levy's, a private corporation,
invoke the free speech guarantee in its
favor? Explain.
c) Regardless of your answers above, decide
the constitutionality of the law in question.
SUGGESTED ANSWER:
a) 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
49
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.
b)
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.
c)
The law is constitutional.
exercise of police power, ....
It is a valid
Freedom of the Press; Actual Malice (2004)
(5-a) 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%)
FIRST 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 (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.
SECOND 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.
Freedom of the Press; Wartime Censorship
(1987)
No. XIV: 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:
(a) The action taken against the station on
August 28, 1987;
(b) The cancellation of the franchise of the
station on October 6, 1987.
SUGGESTED ANSWER:
(a) 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 Holme's opinion in Schenck v.
United States, 249 U.S. 47 (1919); New York
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
50
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."
Impairment Clause; Basic Human Rights
(1992)
No. 2: 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.
a) Does this contract impair, or impinge upon,
any constitutionally protected liberty of
Sheila? Explain.
b) If Solidaridad Films tries to enforce this
contract judicially, will this constitutionally
protected liberty prevail? Explain.
SUGGESTED ANSWER:
a) 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.
b) 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.
Involuntary Servitude (1993)
No. 16; - 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.
SUGGESTED ANSWER:
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.
Liberty of Abode; Limitations (1998)
No VIII - 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%]
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
51
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."
Liberty of Abode; Temporary (1996)
No 2: 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 the residents
to transfer their places of abode without a court
order? Explain.
SUGGESTED ANSWER:
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.
Non-Imprisonment for Non-Payment of Debt
(1993)
No 12: 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.
SUGGESTED ANSWER:
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)
Police Power; Abatement of Nuisance (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%)
FIRST ALTERNATIVE ANSWER:
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]).
SECOND 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]).
Police Power; Ban on Tobacco AD (1992)
No. 1: 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 haveshifted marketing efforts to the Third World due
to dwindling sales in the health-conscious
American market,
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
52
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.
of the ordinance is a valid exercise of police
power. It is hazardous to health and comfort to
use the lot for residential purposes, since a
highway crosses the subdivision and the area
has become commercial.
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.
SUGGESTED ANSWER:
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.
Police Power; Zoning Ordinance vs. NonImpairment of Contracts (2001)
No XVIII 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.
Police Power; Zoning Ordinance vs. NonImpairment of Contracts (1989)
No. 12: 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.
SUGGESTED ANSWER:
The case must be dismissed. As held in Ortigas
and Company, Limited Partnership vs. FEATIi
Bank and Trust Company, 94 SCRA 533, such
a restriction in the contract cannot prevail over
the zoning ordinance, because the enactment
"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%)
SUGGESTED ANSWER:
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.
Privacy of Communication (2001)
No XII - "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 taperecorded.
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
53
In the criminal case against "B" for murder, is
the tape-recorded conversation containing his
admission admissible in evidence? Why? (5%)
SUGGESTED ANSWER:
The tape-recorded conversation is not
admissible in evidence. As held in SalcedoOrtanez vs. Court of Appeals, 235 SCRA 111
(1994). Republic Act No. 4200 makes the taperecording 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.
Privacy of Correspondence (1998)
No VII. - 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%)
SUGGESTED ANSWER:
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 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."
Privacy of Correspondence; Jail (1989)
No. 8: 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.
SUGGESTED ANSWER:
The objection of the lawyer must be sustained,
Section 3(1), Article IV of the 1987 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."
There was no court order which authorized the
warden to read the letter of "X". Neither is there
any law specifically authorizing the Bureau of
Prisons to read the letter of "X", Under Section
3(1), Article III of the 1987 Constitution, to
interfere with any correspondence when there
is no court order, there must be a law
authorizing it in the interest of public safety or
order.
The ruling of the United States Supreme Court
in the case of Stroud vs. United States, 251
U.S. 15 is not applicable here, because Section
3(1), Article III of the 1987 Constitution has no
counterpart in the American Constitution.
Hence, in accordance with Section 3(2), Article
III of the 1987 Constitution, the letter is
inadmissible in evidence.
ALTERNATIVE ANSWER:
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.
Right to Assembly; Permit Application;
Freedom Parks (Q2-2006)
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
54
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.
1.
Does the SM have a remedy to contest
the denial of its application for a permit?
(2.5%)
SUGGESTED ANSWER:
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 fortyeight (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).
2.
Does the availability of a Freedom Park
justify the denial of SM's application for a
permit? (2.5%)
SUGGESTED ANSWER:
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%)
SUGGESTED ANSWER:
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).
SUGGESTED ANSWER:
The arrests are unlawful. What is prohibited and
penalized under Sec. 13 (a) and 14 (a) of B.P.
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 can not 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.
Right to Assembly; Permit Requirements
(1992)
No. 4: 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 subjectmatter and purpose of the assembly.
3.
4.
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 League of Nationalist Students questions
the validity of the new regulation. Resolve.
SUGGESTED ANSWER:
The regulation is valid. As held In Rarnento us.
Mal-abanan, 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 nonacademic personnel.
Right to Assembly; Public Teachers (2000)
No XII - 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
55
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.
a) Are employees in the public sector allowed
to form unions? To strike? Why? (3%)
b) 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%)
SUGGESTED ANSWER:
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.
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.
Right to Assembly; Public Teachers (2002)
No X - 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.
SUGGESTED ANSWER:
(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 of the teachers, the teachers committed
acts prejudicial to the best interests of the
service.
Right to Travel; Order of Arrest (1991)
No. 6: 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.
SUGGESTED ANSWER:
The case should be dismissed. Any person
under an order of arrest is under restraint and
therefore he can not 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.
Rights of the Accused; Counsel of his
Choice (Q8-2005)
(1) 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 Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
56
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%)
ALTERNATIVE ANSWER:
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 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)
Rights of the Accused; Presumption of
Innocence vs. Presumption of Theft (2004)
(5-b) 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%)
SUGGESTED ANSWER:
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)).
Rights of the Accused; Right to Bail (1993)
No. 9: 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 lineup and the girl pointed to him as the rapist.
Johann was arrested and locked up in a cell.
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
57
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:
3) He is entitled to bail as a matter of right,
thus the Judge should not have denied his
motion to fix ball outright. Decide.
SUGGESTED ANSWER:
3) 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.
Rights of the Accused; Right to Bail; Capital
Offense (Q4-2006)
State whether or not the law is constitutional.
Explain briefly.
2. A law denying persons charged with
crimes punishable by reclusion perpetua
or death the right to bail. (2%)
SUGGESTED ANSWER:
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.
Rights of the Accused; Right to Bail;
Deportation Case (1989)
No. 15: May an alien invoke the constitutional
right to bail during the pendency of deportation
proceedings?
SUGGESTED ANSWER:
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.
Rights of the Accused; Right to Bail; Matter
of Right or a Matter of Discretion (Q7-2005)
a) State with reason(s) whether bail is a matter
of right or a matter of discretion in the
following cases: (4%)
a) The imposable penalty for the crime
charged is reclusion perpetua and the
accused is a minor;
SUGGESTED ANSWER:
If the accused is a minor where the imposable
penalty for the crime charged is reclusion
perpetua, bail would be a matter of right. Under
Article 68 of the Revised Penal Code, when the
offender is a minor under eighteen years of
age, he is entitled to a penalty, depending on
his age, lower by one or two degrees than that
prescribed by law for the crime committed. The
Constitution withholds the guaranty of bail from
one who is accused of a capital offense where
the evidence of guilt is strong. The obvious
reason is that one who faces a probable death
sentence has a particularly strong temptation to
flee. This reason does not hold where the
accused has been established without objection
to be a minor who by law cannot be sentenced
to death. (Bravo v. Borja, G.R. No. L-65228,
February 18, 1985)
b) The imposable penalty for the crime
charged is life imprisonment and the
accused is a minor;
ALTERNATIVE ANSWER:
If the accused is a minor and the imposable
penalty for the crime charged is life
imprisonment, bail would not be a matter of
right. In the instant case, assuming that
evidence of guilt strong, bail shall be denied as
the privileged mitigating circumstance of
minority is not available for violation of special
laws penalized by life imprisonment.
ALTERNATIVE ANSWER:
Although the Constitution mentions only
reclusion perpetua, Rule 114 of the Rules of
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58
Court adds life imprisonment, and therefore,
applying the PRO REO DOCTRINE, bail would
still be a matter of right, since it is favorable to
the accused.
c) The accused has been convicted of
homicide on a charge of murder and
sentenced to suffer an indeterminate
penalty of from eight (8) years and one (1)
day of prision mayor, as minimum, to twelve
(12) years and four (4) months of reclusion
temporal, as maximum.
SUGGESTED ANSWER:
If the accused has been convicted of homicide
on a charge of murder and sentenced to suffer
imprisonment of from 8 to 12 years, bail is a
matter of discretion. Under Rule 114, Sec. 5,
par. 1 of the Rules of Court, if the decision of
the trial court convicting the accused changed
the nature of the offense from non-bailable to
bailable, the application for bail may be filed
and acted upon by the appellate court.
Admission to bail is discretionary.
Rights of the Accused; Right to Speedy Trial
(2000)
No XV. 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.
a) Would the grant of the motion for
postponement have violated the accused's right
to speedy trial? (2%)
SUGGESTED ANSWER:
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.
Rights of the Accused; Self-Incrimination
(1988)
No. 3: 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?
SUGGESTED ANSWER:
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 can not be made to testify as a
witness for the complainant.
Rights of the Accused; Self-Incrimination
(1990)
No. 4: 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 selfincrimination?
2. In a CRIMINAL CASE, the prosecution
called the accused to the witness stand as
the first witness in view of certain facts
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59
admitted by the accused at the pre-trial.
When should the accused invoke the
privilege against self-incrimination?
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 selfincrimination?
Explain your answers to the three questions.
SUGGESTED ANSWER:
(1) 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) 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) 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.
Rights of the Accused; Self-Incrimination
(1992)
No, 3; 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.
SUGGESTED ANSWER:
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 selfincrimination, 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 postsuspension 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.
Rights of the Accused; Self-Incrimination
(2000)
No XI. b)
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 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
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60
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%)
SUGGESTED ANSWER:
b) 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.
Rights of the Accused; Self-Incrimination
(Q7-2006)
Select the best answer and explain.
1. An accused's right against self-incrimination
is violated in the following cases: (5%)
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.
SUGGESTED ANSWER:
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).
Searches and Seizure; Private Individuals
(Q8-2005)
(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 are 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%)
ALTERNATIVE ANSWER:
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)
Searches and Seizures; Aliens (2001)
No IV - A is an alien. State whether, in the
Philippines, he: Is entitled to the right against
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
61
illegal searches and seizures and against illegal
arrests. (2%)
SUGGESTED ANSWER:
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.
Searches and Seizures; Breathalyzer Test
(1992)
No, 3; 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.
SUGGESTED ANSWER:
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 selfincrimination, 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 postsuspension 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.
Searches and Seizures; Immediate Control
(1987)
No. III: "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.
SUGGESTED ANSWER:
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.
Searches and Seizures; Incidental to Valid
Search (1990)
No. 9; Some police operatives, acting under a
lawfully issued warrant for the purpose of
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62
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.
(1)
May the said police operatives lawfully
seize the cocaine? Explain your answer.
(2)
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.
(3)
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.
SUGGESTED ANSWER:
(1) 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 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.
(2) 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.
(3) 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.
Searches and Seizures; Place of Search
(2001)
No XI - 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%)
SUGGESTED ANSWER:
The contention of Ernani Pelet is valid. As held
in People vs. Court of Appeals, 291SCRA 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.
Searches and Seizures; search made by a
private citizen (1993)
No. 4: 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
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63
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:
1) The packages are inadmissible in evidence
being the product of an illegal search and
seizure; .
2) Neither is the receipt he signed admissible,
his rights under custodial investigation not
having been observed. Decide.
SUGGESTED ANSWER:
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 admissible in evidence. ...
Searches and Seizures; search made by a
private citizen (2002)
No VIII. 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 (1) The plastic bag and its contents are
inadmissible in evidence being the product
of an illegal search and seizure; (3%) and
(2) The receipt he signed is also inadmissible
as his rights under custodial investigation
were not observed. (2%)
Decide the case with reasons.
SUGGESTED ANSWER:
A.
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.
B. It is inadmissible....
Searches and Seizures; Valid Warrantless
Search (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%)
b)
What are the instances when warrantless
searches may be effected? (2%)
SUGGESTED ANSWER:
a)
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.
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
64
b)
A warrantless search may be effected in
the following cases:
a) Searches incidental to a lawful arrest:
b) Searches of moving vehicles;
c) Searches of prohibited articles in plain view:
d) Enforcement of customs law;
e) Consented searches;
f) Stop and frisk (People v. Monaco, 285
SCRA 703 [1998]);
g) Routine searches at borders and ports of
entry (United States v. Ramsey, 431 U.S.
606 [1977]); and
h) Searches of businesses in the exercise of
visitorial powers to enforce police
regulations (New York v. Burger, 482 U.S.
691 (1987]).
Searches and Seizures; Visual Search (1992)
No. 5: 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.
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.
SUGGESTED ANSWER:
a)
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.
b) 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.
Searches and Seizures; Waiver of Consent
(1989)
No. 7: 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?
SUGGESTED ANSWER:
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.
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65
Searches and Seizures; Warrantless Arrests
(1993)
No. 9: 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 lineup 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.
SUGGESTED ANSWER:
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.
equipment. The warrant particularly describes
the electronic equipment and specifies the
provisions of the Tariff and Customs Code
which were violated by the importation.
Searches and Seizures; Warrants of Arrest
(1991)
No. 8: 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
ARTICLE IV
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.
SUGGESTED ANSWER:
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.
Citizenship
Action for Cancellation; Prescription &
Effect of Death (1994)
No. 7: - 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
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66
government of income taxes for the years 1956
to 1959. Said decision of the Tax Court was
affirmed by the Supreme Court in 1969.
Between 1960 and 1970, Enzo had acquired
substantial real property In the Philippines,
(1) Has the action for cancellation of Enzo's
citizenship prescribed?
(2) Can Enzo ask for the denial of the petition
on the ground that he had availed of the
Tax Amnesty for his tax liabilities?
(3) 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?
SUGGESTED ANSWER:
1) No, the action has not prescribed. As held in
Republic vs. Li Yao, 214 SCRA 748, a
certificate of naturalizalion may be cancelled at
any time if it was fraudulently obtained by
misleading the court regarding the moral
character of the petitioner.
2) 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.
3) 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.
Citizenship; Elected Official (1993)
No. 7: 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
greencard 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.
Questions:
(1) Whether or not a green card is proof that
the holder is a permanent resident of the
United States.
(2) 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.
SUGGESTED ANSWER:
1) 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.
2) 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 SCRA229, the waiver should
be manifested by an act independent of and
prior to the filing of his certificate of candidacy.
Dual Allegiance vs. Dual Citizenship (1987)
No. VIII: "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:
a) That he was not a natural born citizen; and
b) That he had "dual allegiance" not only to
the United States but also to the Republic of
China.
Decide.
SUGGESTED ANSWER:
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.
(b)
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
67
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.
Dual Allegiance vs. Dual Citizenship (1988)
No. 13: 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:
(1) 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;
(2) He did not meet the age requirement; and
(3) 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?
SUGGESTED ANSWER:
The first and third grounds have no merit. But
the second is well taken and, therefore, Brown
should be disqualified.
1. 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.
2. 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.
3. 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.
Dual Citizenship (1994)
No. 8: 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.
(1) Was Zeny qualified to run for Governor?
(2) 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?
SUGGESTED ANSWER:
1) 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
68
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 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.
2) 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 can
not qualify to participate in the management of
the Bulletin as Vice-President thereof.
Effect of Marriage; Filipino (1989)
No, 2: (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.
SUGGESTED ANSWER:
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 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 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.
Effect of Oath of Allegiance (2004)
(4-a) 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
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69
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%)
SUGGESTED ANSWER:
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.)
Effect of Repatriation (1999)
No III - 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 Filipinocitizenship by repatriation or by act of
Congress? Explain. (3%)
FIRST ALTERNATIVE ANSWER:
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.
SECOND 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.
Effect of Repatriation (2002)
No I - 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. (5%)
SUGGESTED 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.
Effect of Repatriation (2003)
No IV - 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.
SUGGESTED ANSWER:
Cruz was qualified to run as representative of
the First District of Pampanga. Since his
parents were Filipino citizens, he was a naturalborn 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.
Effects of Marriages (1999)
No III- What are the effects of marriages of:
1. a citizen to an alien; (1%)
2. an alien to a citizen; on their spouses and
children? Discuss. (1%)
SUGGESTED ANSWER:
1.) According to Section 4, Article IV of the
Constitution, Filipino citizens who marry aliens
retain their citizenship, unless by their act or
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70
omission they are deemed, under the law, to
have renounced it.
2) 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.
Effects of Philippine Bill of 1902 (2001)
No I - 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.
Elected Official (1992)
No. 16: 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.
a) Does he still possess Philippine citizenship?
b) 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?
c) 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?
SUGGESTED ANSWER:
a) 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,
b)
2nd placer can’t be sworn to office...
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.
c) 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.
Decide whether Mr. Lacqui Chan suffers from a
disqualification or not. (5%)
SUGGESTED ANSWER:
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.
Electing Philippine Citizenship (Q8-2006)
1.
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
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71
claims that Atty. Emily Go is not a naturalborn citizen, hence, not qualified to be
appointed to the Supreme Court. Is this
contention correct? (5%)
SUGGESTED ANSWER:
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 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.
Electing Philippine Citizenship; When
Proper (Q8-2006)
2.
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%)
SUGGESTED ANSWER:
No, Atty. Chua will not be disbarred. Atty. Chua
is already a Filipino citizen and there was no
need for him to file the affidavit electing Filipino
citizenship. An election of Philippine citizenship
presupposes that the person electing is an
alien. His father, however, already became a
Filipino citizen when Atty. Chua was still a
minor and thus, he was already a Filipino before the age of majority (Co v. HRET, G.R. Nos.
92191-92, July 30,1991).
Natural Born Filipino (1989)
No, 2: (2) 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?
SUGGESTED ANSWER:
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).
Natural Born Filipino (1998)
No IV - 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:
(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%]
(2) Whether Ang is a natural bom citizen of the
Philippines. |5%]
How should this case be
decided?
SUGGESTED ANSWER:
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72
1.
The case is justiciable. (grave abuse of
discretion)...
2. 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;"
Natural-Born Filipino(1993)
No. 1: 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.
SUGGESTED ANSWER:
1) Ernest cannot be disqualified. Section 1,
Article IV of the Constitution provides: "The
following are citizens of the Philippines;
XXX
XXX
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
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."
2) Ernest is not under-aged. (minimum 25 yrs
old)....
Naturalization; Cancellation of Citizenship
(1998)
No X. - 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.
(1) Could Lim Tong Biao raise the defense of
prescription of the action for cancellation of
his Filipino citizenship? [3%]
(2) 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? [2%]
SUGGESTED ANSWER:
1.
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.
2.
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,"
Residency Requirements; Elective Official
(Q9-2005)
(1) 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
73
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)
A Filipino Citizen? Explain.
SUGGESTED ANSWER:
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)
(b) A resident of the locality? Explain.
SUGGESTED ANSWER:
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.
Status; Illegitimate Child (1990)
No. 3: 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.
(1) Before what body should T, the losing
candidate, question the election of Y?
State the reasons for your answer.
(2) Is Y a Filipino citizen? Explain your
answer.
SUGGESTED ANSWER:
(1) T, the losing candidate, should question the
election of Y before the Senate Electoral
Tribunal, ....
(2) 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.
Status; Illegitimate Child; Dual Citizenship
(1996)
No. 8: 2) X was born in the United States of a
Filipino father and a Mexican mother. He
returned to the Philippines when he was twentysix 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.
SUGGESTED ANSWER:
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 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 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.
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. Untied 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.
Status; Legitimate Child (2003)
No IV - 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
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74
lawfully married just two years ago. Is Miguel
Sin a Filipino citizen?
SUGGESTED ANSWER:
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.
Ways of Reacquiring Citizenship (2000)
No XVIII. - 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%)
SUGGESTED ANSWER:
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).
ARTICLE VI
Department
Legislative
Appropriation of Public Funds (1988)
No. 6: - Metropolitan newspapers have reported
that the Philippine Games and Amusement
Corporation
(PAGCOR)
gives
hefty
contributions to Malacanang, to fund "socioeconomic 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.
SUGGESTED 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.
Appropriation of Public Funds; Debt
Servicing (1992)
No 13: 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".
SUGGESTED ANSWER:
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 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.
Appropriation of Public Funds; Public
Purposes (1988)
No. 7: - 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
provincemates 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.
SUGGESTED ANSWER:
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.
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75
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 Nonestablishment Clause (art. III, sec. 5) of the
Constitution.
Commission on Appointments (2002)
No III - 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?
A. A How many seats would the PPP be
entitled to have in the Commission on
Appointments? Explain your answer fully.
(5%)
B. 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%)
SUGGESTED ANSWER:
A. 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 overrepresentation of that political party and underrepresentation of the other political parties.
B. 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.
Delegation of Powers (2002)
No XVII. - 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%)
SUGGESTED ANSWER:
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.
Delegation of Powers; (Q6-2005)
(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. (4%)
SUGGESTED ANSWER:
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76
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)
Delegation of Powers; Completeness Test;
Sufficient Standard Test (Q6-2005)
(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. (4%)
ALTERNATIVE ANSWER:
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)
Discipline; Modes of Removal (1993)
No. 11: - How may the following be removed
from office:
1) Senators & Congressmen
2) Judges of lower courts
3) Officers and employees in the Civil Service
SUGGESTED ANSWER:
1) 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.
2) As to Judges, Art. VIII, sec. 11 of the
Constitution, ....
3) As to Civil Service Employees, Art. IX-B.
Sec. 2(3) of the Constitution....
Discipline; Suspension of a Member of the
Congress (2002)
No II. - 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.
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77
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%)
SUGGESTED ANSWER:
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.
Elected Official; De Facto Officer (2004)
(10-b) 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%)
SUGGESTED ANSWER:
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 [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]).
Electoral Tribunal; HRET Members’ Right &
Responsibilities (2002)
No IV. 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%)
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
78
independence from the political party to which
they belong.
agreement must be concurred in by at least
two-thirds of all the Members of the Senate.
Electoral Tribunal; Senate; Jurisdiction
(1990)
No. 3: 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.
SUGGESTED ANSWER:
(1) 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 of their
respective Members."
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.”
(2) Yes, Y is a natural born Filipino citizen. ....
Foreign Affairs; Role of House of Rep (1996)
No. 7: 5) Can the House of Representatives
take active part in the conduct of foreign
relations, particularly in entering into treaties
and international agreements? Explain.
SUGGESTED ANSWER:
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. Curtiss-Wright 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.
Foreign Affairs; Role of Senate (1994)
No. 13: 1) Under the Constitution, what is the
role of the Senate in the conduct of foreign
affairs?
SUGGESTED ANSWER:
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
Investigations in Aid of Legislation (1992)
No. 8: 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.
SUGGESTED ANSWER:
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)....
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79
The Committee on Accountability of Public
Officers has no power to investigate the
scandal. (no judicial functions)...
measure if the appropriation of public funds is
not its principal purpose and the appropriation
is only incidental to some other objective.
The petitioner can invoke his right against selfincrimination, 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.
Law-Making; Appropriation Law; Automatic
Renewal & Power of Augmentation (1998)
No XI. - 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.
1.
Will that mean paralization of government
operations in the next fiscal year for lack of an
appropriation law? (2%)
Law Making; Process & Publication (1993)
No. 2; Ernest Cheng, a businessman, has no
knowledge of legislative procedure. Cheng
retains you as his legal adviser and asks
enlightenment on the following matters:
(1) When does a bill become a law even
without the signature of the President?
(2) When does the law take effect?
SUGGESTED ANSWER:
1) 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 overriden 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.
2) 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)
Law-Making; Appropriation Bill (1996)
No 5: 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.
SUGGESTED ANSWER:
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
2.
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? [3%]
SUGGESTED ANSWER:
1.
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 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.
SUGGESTED ANSWER:
2.
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
80
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."
Law-Making; Appropriation Law; Rider
Provision (2001)
No VII - 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%)
SUGGESTED ANSWER:
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.
Law-Making; Foreign Affairs; Treaties (1996)
No 5: Are the following bills filed in Congress
constitutional?
2) 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.
SUGGESTED ANSWER:
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.
Law-Making; Overriding the Presidential
Veto (1991)
No. 2: 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.
a) Is option (1) viable? If so. what is the vote
required to override the veto?
b) Is option (2) viable? If not. why not? If
viable, how should the Court decide the
case?
SUGGESTED ANSWER:
(a) 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.
(b)
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
81
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.
Law-Making; Passage of a Law (1988)
No. 12: - 2. 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.
SUGGESTED ANSWER:
A bill passed by Congress may become a law in
any of the following cases:
If it is signed into law by the President. (Art. VI,
sec. 27(1)).
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.)
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.)
Legislative Power; Pres. Aquino’s Time
(1990)
No. 1; - 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.
SUGGESTED ANSWER:
(1) 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
Pama-halaan 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.
(2) Executive Orders Nos. 1, 2 and 14 are not
bills of attainder. ....
Legislative Powers (1989)
No. 14: 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.
SUGGESTED ANSWER:
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.
Loans Extended to Members of Congress
(1991)
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82
No. 9: A. After 2 February 1987, the Philippine
National Bank (PNB) grants a loan to
Congressman X. Is the loan violative of the
Constitution?
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?
SUGGESTED ANSWER:
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.
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.
Multi-Party System (1999)
No XIV - Discuss the merits and demerits of the
multi-party system. (2%)
SUGGESTED ANSWER:
A multi-party system provides voters with a
greater choice of candidates, ideas, and
platforms 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.
Non-Legislative Powers (1988)
No. 12: 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. Kindly name five of the latter.
SUGGESTED ANSWER:
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).
Non-Legislative
Powers;
Emergency
Powers; Requisites (1997)
No. 11: During a period of national emergency.
Congress may grant emergency powers to the
President, State the conditions under which
such vesture is allowed.
SUGGESTED ANSWER:
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.
Prohibitions and Inhibitions of Public Office
(2004)
(3-a) 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
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83
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%)
SUGGESTED ANSWER:
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 quasijudicial 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)
Qualifications; Congressmen (1988)
No. 13: - 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?
SUGGESTED ANSWER:
The first and third grounds have no merit. But
the second is well taken and, therefore, Brown
should be disqualified.
1. 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.
2. 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.
3. 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.
Qualifications; Congressmen; (1993)
No. 1: 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
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84
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 bom Filipino; and (2) he
is underaged. Decide.
SUGGESTED ANSWER:
1) Ernest cannot be disqualified.....
2) 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.
Qualifications; Congressmen; (1999)
No III - C. 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%)
FIRST ALTERNATIVE ANSWER:
C.
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.
SECOND ALTERNATIVE ANSWER:
C. 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, 199C, 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.
Separation of Powers (1988)
No. 25: Can any other department or agency of
the Government review a decision of the
Supreme Court? Why or why not?
SUGGESTED ANSWER:
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.
Separation of Powers (2003)
No II - 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.
SUGGESTED ANSWER:
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
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85
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.
SECOND 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.
Three-Term Limit: Congressmen (1996)
No. 13: 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.
SUGGESTED ANSWER:
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.
Three-Term Limit; Congressmen (2001)
No V - 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 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 60day suspension which was involuntary.
Can 'A', legally continue with his candidacy or is
he already barred? Why? (5%)
SUGGESTED ANSWER:
"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
Appointing Power; Acting vs. Permanent
Appointment (2003)
No V - 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.
SUGGESTED ANSWER:
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.
Appointing Power; ad interim appointments
(1991)
No. 3: - 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 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.
(a) Who is correct?
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86
(b) Did Gen. de Silva violate the Constitution in
immediately assuming office prior to a
confirmation of his appointment?
(c) Are the appointment and designation valid?
SUGGESTED ANSWER:
(a) 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,
(b) 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.
(c) 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.
[Note: May 3, 1991 and May 17, 1992 are
Sundays. However the Committee finds no
relevance in the fact that these are holidays
and therefore decided to ignore this fact.]
SUGGESTED ANSWER:
1) 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.
2) 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.
Appointing Power; Appointments Requiring
Confirmation; RA 6975-Unconstitutional
(2002)
No V - 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.
Appointing Power; Ad Interim Appointments
(1994)
No. 16; 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
Juan Bantay filed a taxpayer's suit questioning
Brigadier General of the Philippine Army. B's
the legality of the appointments and
nomination was confirmed on August 5, 1989
disbursements made. Bantay argues that the
while A's appointment was confirmed on
appointments are invalid inasmuch as the same
September 5, 1989.
have not been confirmed by the Commission on
Who is deemed more senior of the two, A or B?
Appointments, as required under Sections 26
Suppose Congress adjourned without the
and 31 of R.A. No. 6975.
Commission on Appointments acting on
both appointments, can A and B retain their
original ranks of colonel?
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87
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%)
SUGGESTED ANSWER:
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, 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.
Appointing Power; Categories of Officials
(1999)
A.
1.)
What are the six categories of
officials who are subject to the appointing
power of the President? (2%)
2.)
Name the category or categories of
officials whose appointments need confirmation
by the Commission on Appointments? (2%)
SUGGESTED ANSWER:
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.)
2.) 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.
Appointing Power; Kinds of Appointments
(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.
SUGGESTED ANSWER:
1)
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.
2) 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.
3) 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
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88
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 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."
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.
Appointing
Power;
Limitations
on
Presidential Appointments (1997)
No. 7: 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?
SUGGESTED ANSWER:
No. The President was wrong in extending an
ad
interim
appointment
in
favor
of
In other words, the reason for extending a
Commissioner C. In Summers vs. Ozaeta, 81
provisional appointment is not because there is
Phil. 754, it was held that an ad interim
an occasional work to be done and is expected
appointment is a permanent appointment.
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89
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 quasijudicial or administrative functions.
Appointing
Powers;
Ad
Interim
Appointments (Q4-2005)
(1) 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:
(5%)
(a) 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?
ALTERNATIVE ANSWER:
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 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. L65439, November 13,1985)
(b) 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?
SUGGESTED ANSWER:
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)
Cabinet Members; limitation on accepting
additional duties (1996)
1996 No. 7: Can the Secretary of Finance be
elected Chairman of the Board of Directors of
the San Miguel Corporation? Explain.
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
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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.
Calling-out Power; President (Q1-2006)
1.
What do you mean by the "Calling-out
Power" of the President under Section 18,
Article VII of the Constitution? (5%)
SUGGESTED ANSWER:
Under Article VII, Sec. 18 of the 1987
Constitution, whenever it becomes necessary,
the President, 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).
Declaration; State of Calamity; Legal Effects
(Q1-2005)
(b)
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%)
SUGGESTED ANSWER:
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.
Declaration; State of National Emergency
(Q1-2006)
2.
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%)
SUGGESTED ANSWER:
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).
3.
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%)
SUGGESTED ANSWER:
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).
Enter into Contract or Guarantee Foreign
Loans (1994)
No. 13: 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
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91
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.
2)
Is the President bound to submit the
agreement to the Senate for ratification?
SUGGESTED ANSWER:
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.
Enter into Contract or Guarantee Foreign
Loans (1999)
No I - 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%)
SUGGESTED ANSWER:
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.
Enter into Executive Agreements (2003)
No XX - 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
SUGGESTED ANSWER:
(a) 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.
(b) The Executive Agreement is also binding
from the standpoint of international law...
Impose Tariff Rates, Import and Export
Quotas (1999)
No I - 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. (2%)
SUGGESTED ANSWER:
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 framework of the
national
development
program
of
the
Government.
Martial Law & Suspension of Writ of Habeas
Corpus (1987)
No. XVII: 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,
(a) 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:
To suspend the privilege of the writ of
habeas corpus
Proclamation of martial law.
(b)
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.
SUGGESTED ANSWER:
(a) 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
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92
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).
(b) 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
supension 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.
The President may well take comfort in the
following thought: "Government of limited power
need not be anemic government. Assurance
that rights are secure tends to diminish fear and
jealousy of strong government, and, by making
us feel safe to live under it makes for its better
support." (West Vs. State Brd. of Educ. v.
Barnette, 319 U.S. 624 (1943))
Martial Law; Limitations (2000)
No XVII. Declaring a rebellion, hostile groups
have opened and maintained armed conflicts
on the Islands of Sulu and Basilan.
a) To quell this, can the President place under
martial law the islands of Sulu and Basilan?
Give your reasons? (3%)
b) What are the constitutional safeguards on
the exercise of the President's power to
proclaim martial law? (2%)
SUGGESTED ANSWER:
a)
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.
b) The following are the constitutional
safeguards on the exercise of the power of the
President to proclaim martial law:
a) There must be actual invasion or rebellion;
b) The duration of the proclamation shall not
exceed sixty days:
c) 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;
d) Congress may by majority vote of all its
members voting Jointly revoke the
proclamation, and the President cannot set
aside the revocation;
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e) 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;
f) 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;
g) Martial law does not automatically suspend
the privilege of the writ of habeas corpus or
the operation of the Constitution.
h) 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. 213214.)
Martial Law; Sufficiency of the Factual Basis
(Q3-2006)
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.
1. Does Robert have a standing to challenge
Proclamation No. 1018? Explain. (2.5%)
SUGGESTED ANSWER:
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.
2.
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%)
SUGGESTED ANSWER:
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).
3.
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%)
SUGGESTED ANSWER:
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 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).
4.
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%)
SUGGESTED ANSWER:
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
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94
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).
Pardoning Power; Amnesty (1993)
No 20: - 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.
SUGGESTED ANSWER:
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).
Pardoning Power; Amnesty (1995)
No. 5: 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.
3. Instead of a pardon, may the President grant
the accused amnesty if favorably recommended
by the National Amnesty Commission? Explain.
4. May the accused avail of the benefits of
amnesty despite the fact the he continued to
profess innocence? Explain.
SUGGESTED ANSWER:
3.
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.
4. 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.
Pardoning Power; Breach of Condition;
Revocation (Q5-2005)
(1) 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%)
SUGGESTED ANSWER:
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)
Pardoning Power; Exec Clemency; Pardon
(1995)
No. 5: 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
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95
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) Is the pardon of the President valid?
Explain.
(2) Assuming that the pardon is valid, can
Lucas reject it? Explain.
SUGGESTED ANSWER:
1. The pardon is not valid. Under Section 19,
Article VII of the 1987 Constitution, pardon may
be granted only after conviction by final
Judgment.
2. 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.
Pardoning Power; Executive Clemency
(1997)
No.
15;
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?
SUGGESTED ANSWER:
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.
Pardoning Power; Executive Clemency
(1999)
A. What are the constitutional limitations on the
pardoning power of the President? (2%)
B. Distinguish between pardon and amnesty.
(2%)
SUGGESTED ANSWER:
A.
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.
B. 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.
Pardoning Power; Kinds (1988)
No. 24: 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
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96
define the three of them, and differentiate one
from the others.
SUGGESTED ANSWER:
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 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.
Pardoning Power; Pardon, Conditional
(1997)
No. 16; 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?
SUGGESTED ANSWER:
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.
President; Participation; Legislative Process
(1996)
No. 7: Can the President take active part in the
legislative process? Explain.
SUGGESTED ANSWER:
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.
Presidential Immunity from Suit (1997)
No. 13: 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.
SUGGESTED ANSWER:
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 any other person.
Prohibition Against Multiple Positions &
Additional Compensation (2002)
No VI. 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:
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97
a) the issue regarding the holding of multiple
positions? (3%)
b) the issue on the payment of additional or
double compensation?(2%)
Explain your answers fully.
SUGGESTED ANSWER:
(a)
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.
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.
(b)
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.
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.
Prohibition against Multiple Positions by
Gov’t Officials (1987)
No. I: Assume that a law has been passed
creating the Export Control Board composed of:
a. The Secretary of Trade and Industry as
Chairman and as Members:
b. The Chairman of the Senate Committee
on Trade and Industry
c. An Associate Justice of the Supreme
Court designated by the Chief Justice
d. The Commissioner of Customs, and
e. 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.
SUGGESTED ANSWER:
a. 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 is related to his functions
b. 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).
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. 111112(1966))
(c) 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))
(d) The Commissioner of Customs may be
made member of the Board for the same
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
98
reason in the case of the Secretary of Trade
and Industry, under Art. IX, B, Sec. 7.
(e) 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.
Suspension of Writ of Habeas Corpus (1997)
(a) When may the privilege of the writ of
habeas corpus be suspended?
(b) If validly declared, what would be the full
consequences of such suspension?
SUGGESTED ANSWER:
(a)
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.
(b) 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
Cases to be Heard En Banc; Supreme Court
(1999)
No XI - Enumerate the cases required by the
Constitution to be heard en banc by the
Supreme Court? (2%)
SUGGESTED ANSWER:
The following are the cases required by the
Constitution to be heard en banc by the
Supreme Court:
(1)
Cases involving the constitutionality of a
treaty, international
or executive
agreement, or law;
(2)
Cases which under the Rules of Court
are required to be heard en banc.
(3)
Cases involving the constitutionality,
application, or operation of presidential
decrees,
proclamations,
orders,
instructions, ordinances, and other
regulations;
(4)
Cases heard by a division when the
required majority is not obtained;
(5)
Cases where a doctrine or principle of
law previously laid down will be
modified or reversed;
(6)
Administrative cases against judges
when the penalty is dismissal; and
(7)
Election contests for President or VicePresident.
Contempt Powers (1996)
No. 3: 2) On the first day of the trial of a rapemurder case where the victim was a popular 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.
a) 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.
b) 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.
SUGGESTED ANSWER:
2. a) 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.
b) 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.
Finality of Void Judgments (1993)
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99
No. 8; The ABC Realty, Inc, filed a complaint
against Rico for the collection of unpaid
installments on a subdivision lot purchased by
the latter, Rico failed to file an answer, was
declared in default; and after reception of
plaintiffs evidence ex parte, judgment was
rendered against him. The decision became
final, and upon motion by ABC Realty, the
judge issued a writ of execution.
Rico now files a motion to quash the writ and to
vacate the Judgment contending that it is the
Housing and Land Use Regulatory Board
(HLURB) which is vested with original and
exclusive Jurisdiction over cases involving the
real estate business. Rico prays for the
dismissal of the complaint and for the nullity of
the decision. The realty firm opposes the
motion arguing that under BP 129, RTCs have
exclusive and original jurisdiction over cases in
which the amount of controversy exceeds
P20,000.00. Answer the following queries:
1) Who has jurisdiction over the collection suit?
2) The RTC decision, having become final and
executory, can it still be vacated?
SUGGESTED ANSWER:
1} The HLURB
2) Yes, the decision of the Regional Trial Court
can still be vacated, even if it has become final
and executory. Since the Regional Trial Court
had no jurisdiction over the case, the decision is
void.
Fiscal Autonomy (1999)
No XI - What do you understand by the
mandate of the Constitution that the judiciary
shall enjoy fiscal autonomy? Cite the
constitutional provisions calculated to bring
about the realization of the said constitutional
mandate. (2%)
SUGGESTED ANSWER:
Under Section 3, Article VIII of the Constitution,
the fiscal autonomy of the Judiciary means that
appropriations for the Judiciary may not be
reduced by the legislature below the amount
appropriated for the previous year and, after
approval, shall be automatically and regularly
released.
In Bengzon v. Drilon, 208 SCRA 133, the
Supreme Court explained that fiscal autonomy
contemplates a guarantee of full flexibility to
allocate and utilize resources with the wisdom
and dispatch that the needs require. It
recognizes the power and authority to deny,
assess and collect fees, fix rates of
compensation not exceeding the highest rates
authorized by law for compensation and pay
plans of the government and allocate and
disburse such sums as may be provided by law
or prescribed by it in the course of the
discharge of its functions.
Function;
Continuing
Constitutional
Convention (2000)
No I. -- One Senator remarked that the
Supreme Court is a continuing Constitutional
Convention. Do you agree? Explain. (2%)
SUGGESTED ANSWER:
I do not agree that the Supreme Court is a
continuing Constitutional Convention. The
criticism is based on the assumption that in
exercising its power of judicial review the
Supreme Court Is not merely interpreting the
Constitution but is trying to remake the
Government on the basis of the personal
predilections of the Members of the Supreme
Court, this is a power that properly belongs to
the people and their elected representatives.
The Supreme Court cannot decide cases
merely on the basis of the letter of the
Constitution. It has to interpret the Constitution
to give effect to the intent of its framers and of
the people adopting it. In Interpreting the
Constitution, the Supreme Court has to adopt it
to the ever-changing circumstances of society.
When the Supreme Court strikes down an act
of the Legislative or the Executive Department,
it is merely discharging its duty under the
Constitution to determine conflicting claims of
authority.
ALTERNATIVE ANSWER:
To a certain extent, the Supreme Court is a
continuing Constitutional Convention. When a
case is brought in court involving a
constitutional issue. It becomes necessary to
interpret the Constitution, Since the Supreme
Court is supreme within its own sphere, its
interpretation of the Constitution will form part of
the law of the land.
Issuance of Restraining Orders and
Injunctions (1992)
No. 7: 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
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100
Central Bank" in the Bank's exercise of its
regulatory power over specific foreign exchange
transactions.
Would this be a valid measure? Explain.
SUGGESTED ANSWER:
Yes, the measure is valid. In Mantruste
Systems, Inc. vs. Court of Appeals, 179 SCRA
136, the 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.
Judicial & Bar Council (1988)
No. 11: A novel feature of the present
Constitution is the Judicial and Bar Council.
Please state:
1. Its principal function;
2. Its composition; and
3. Who supervises it, and takes care of its
appropriations?
SUGGESTED ANSWER:
1. 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)).
2. 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)).
3, 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)).
Judicial & Bar Council (1999)
No XI - What is the composition of the Judicial
and Bar Council and the term of office of its
regular members? (2%)
SUGGESTED ANSWER:
The Judicial and Bar Council is composed of
the following:
1. The Chief Justice as ex officio chairman;
2. The Secretary of Justice as ex officio
member;
3. A representative of Congress as ex officio
member;
4. A representative of the Integrated Bar;
5. A professor of law;
6. A retired Justice of the Supreme Court; and
7. A representative of the private sector.
(Section 8 (1), Article VIII of the
Constitution)
The term of office of the regular members is
four (4) years. (Section 8(2), Article VIII of the
Constitution)
Judicial Department; Writ of Amparo (1991)
No 1: What is a Constitutional writ of Amparo
and what is the basis for such a remedy under
the Constitution?
SUGGESTED ANSWER:
The writ of Amparo in Mexican law is an
extraordinary remedy whereby an interested
party may seek the invalidation of any
executive, legislative or judicial act deemed in
violation of a fundamental right. The adoption of
such a remedy in the Philippines may be based
on Article VIII, Sec. 5(5) of the Constitution,
which empowers the Supreme Court to
promulgate rules concerning the protection and
enforcement of constitutional rights.
Judicial Independence; Safeguard (2000)
No I. Name at least three constitutional
safeguards to maintain judicial independence.
(3%)
SUGGESTED ANSWER:
The following are the constitutional safeguards
to maintain judicial independence:
(1)
The Supreme Court is a constitutional
body and cannot be abolished by mere
legislation.
(2)
The members of the Supreme Court
cannot be removed except by
impeachment.
(3)
The Supreme Court cannot be deprived
of its minimum jurisdiction prescribed in
Section 5, Article X of the Constitution.
(4)
The appellate jurisdiction of the
Supreme Court cannot be increased by
law without its advice and concurrence.
(5)
Appointees to the Judiciary are
nominated by the Judicial and Bar
Council and are not subject to
confirmation by the Commission on
Appointments.
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101
(6)
The Supreme Court has administrative
supervision over all lower courts and
their personnel.
(7)
The Supreme Court has exclusive
power to discipline Judges of lower
courts.
(8)
The Members of the Judiciary have
security of tenure, which cannot be
undermined by a law reorganizing the
Judiciary.
(9)
Members of the Judiciary cannot be
designated to any agency performing
quasi-Judicial
or
administrative
functions.
(10)
The salaries of Members of the
Judiciary cannot be decreased during
their continuance in office.
(11)
The Judiciary has fiscal autonomy.
(12)
The Supreme Court has exclusive
power to promulgate rules of pleading,
practice and procedure.
(13)
Only
the
Supreme
Court
can
temporarily assign judges to other
stations.
(14)
It is the Supreme Court who appoints all
officials and employees of the Judiciary.
(Cruz, Philippine Political Law, 1995 ed.
(pp. 229-31.)
Judicial Power (1989)
No. 10: Where is judicial power vested? What
are included in such power?
SUGGESTED ANSWER:
According to Section 1, Article VIII of the 1987
Constitution, judicial power is vested in one
Supreme Court and in such lower courts as
may be established by law. It includes the duty
of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.
Judicial Power (1992)
No. 8: 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.
SUGGESTED ANSWER:
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 selfincrimination, ...
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102
Judicial Power (1998)
IV. Andres Ang was born of a Chinese father
and a Filipino mother in Sorsogon, Sorsogon.
on January 20, 1973. In 1988. his father was
naturalizedas 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:
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%]
2. Whether Ang is a natural bom citizen of
the Philippines. |5%]
How should this case be
decided?
SUGGESTED ANSWER:
1.
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.
2. Andres Ang should be considered a natural
born citizen of the Philippines. ....
Judicial Power; Scope (1994)
No. 2: 1} What is the difference, if any. between
the scope of Judicial power under the 1987
Constitution on one hand, and the 1935 and
1973 Constitutions on the other?
SUGGESTED ANSWER:
The scope of judicial power under the 1987
Constitution is broader than its scope under the
1935 and 1973 Constitution because of the
second paragraph of Section 1, Article VIII of
the 1987 Constitution, which states that it
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. As held in Marcos us. Manglapus,
177 SCRA 668. this provision limits resort to the
political question doctrine and broadens the
scope of juridical inquiry into areas which the
courts under the 1935 and the 1973
Constitutions would normally have left to the
political departments to decide.
ALTERNATIVE ANSWER:
Under the 1935 and 1973 Constitutions, there
was no provision defining the scope of judicial
power as vested in the judiciary. While these
Constitutions, both provided for vesture of
judicial power "in one Supreme Court and in
such inferior courts as may be established by
law," they were silent as to the scope of such
power.
The 1987 Constitution, on the other hand, rewrote the provisions on the vesture of judicial
power originally appearing in the 1935 and
1973 Constitutions, as follows:
"The judicial power shall be vested in one
Supreme Court and in such lower courts as
may be established by law.
"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." (Sec. 1.
Art. VIII)
The second paragraph of the cited provision
was not found in the 1935 and 1973
Constitution, it contains a new definition of
judicial power particularly the scope thereof.
The first portion thereof represents the
traditional concept of Judicial power, involving
the settlement of conflicting rights as by law,
which presumably was implicit in the 1935 and
1973 Constitutions. The second (latter) portion
of the definition represents a broadening of the
scope of judicial power or, in the language of
the Supreme Court, conferment of "expanded
Jurisdiction" on the Judiciary (Daza v. Singson,
180 SCRA 496) to enable the courts to review
the exercise of discretion by the political
departments of government. This new
prerogative of the judiciary as now recognized
under the 1987 Constitution was not
constitutionally permissible under the 1935 and
1973 Charters.
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103
Judicial Review; Locus Standi (1992)
No. 6: 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.
a. 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.
b.
Would your answer be different if the
Philippine Power Corporation, a private
company, were to operate the plant? Explain.
SUGGESTED ANSWER:
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.
b)
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.
Judicial Review; Requisites (1994)
No. 2: 2) 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?
SUGGESTED ANSWER:
2) 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 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.
Jurisdiction of HLURB (1993)
No. 8; The ABC Realty, Inc, filed a complaint
against Rico for the collection of unpaid
installments on a subdivision lot purchased by
the latter, Rico failed to file an answer, was
declared in default; and after reception of
plaintiffs evidence ex parte, judgment was
rendered against him. The decision became
final, and upon motion by ABC Realty, the
judge issued a writ of execution.
Rico now files a motion to quash the writ and to
vacate the Judgment contending that it is the
Housing and Land Use Regulatory Board
(HLURB) which is vested with original and
exclusive Jurisdiction over cases involving the
real estate business. Rico prays for the
dismissal of the complaint and for the nullity of
the decision. The realty firm opposes the
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104
motion arguing that under BP 129, RTCs have
exclusive and original jurisdiction over cases in
which the amount of controversy exceeds
P20,000.00. Answer the following queries:
(1) Who has jurisdiction over the collection
suit?
(2) The RTC decision, having become final and
executory, can it still be vacated?
SUGGESTED ANSWER:
1} As held in Estate Developers and Investors
Corporation vs. Court of Appeals, 213 SCRA
353, pursuant to Presidential Decree No. 1344,
it is the Housing and Land Use Regulatory
Board which has jurisdiction over the claim of a
developer against a buyer for the payment of
the balance of the purchase price of a lot. The
jurisdiction of the Regional Trial Court over
cases in which the amount of controversy
exceeds P20,000.00 exists only in all cases
where the case does not otherwise fall within
the exclusive jurisdiction of any other court,
tribunal, person or body exercising Judicial or
quasi-judicial functions,
2) Yes, because it is void....
Mandatory Period For Deciding Cases (1989)
No. 10: (2) 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?
SUGGESTED ANSWER:
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.
Political Question (1995)
No. 13: 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 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.
(1) 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,
(2) 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.
SUGGESTED ANSWER:
1. 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.
2. 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.
Political Question Doctrine (1997)
No. 5; To what extent, if at all, has the 1987
Constitution affected the "political question
doctrine"?
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SUGGESTED ANSWER:
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.
Political Question: Separation of Powers
(2004)
(b) 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%)
SUGGESTED ANSWER:
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.
Political Question; To Settle Actual
Controversies (2004)
(a) 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. (5%)
SUGGESTED ANSWER:
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]).
Political Questions (1988)
No. 23: In accordance with the opinion of the
Secretary of Justice, and believing that it would
be good for the country, the President enters
into an agreement with the Americans for an
extension for another five (5) years of their stay
at their military bases in the Philippines, in
consideration of:
(1) A yearly rental of one billion U.S. dollars,
payable to the Philippine government in
advance;
(2) An undertaking on the part of the American
government to implement immediately the
mini-Marshall plan for the country involving
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106
ten billion U.S. dollars in aids and
concessional loans; and
(3) An undertaking to help persuade American
banks to condone interests and other
charges on the country's out-standing
loans.
In return, the President agreed to allow
American nuclear vessels to stay for short visits
at Subic, and in case of vital military need, to
store nuclear weapons at Subic and at Clark
Field. A vital military need comes, under the
agreement, when the sealanes from the
Persian Gulf to the Pacific, are threatened by
hostile military forces.
No. 11: How may the following be removed
from office:
1) Senators & Congressmen
2) Judges of lower courts
3) Officers and employees in the Civil Service
SUGGESTED ANSWER:
1) As to Sen & Cong, Art. III, section 16(3), of
the Constitution, ...
2) 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.
3) As to Civ Service Empl, Art. IX-B. Sec. 2(3)
of the Constitution, ...
The Nuclear Free Philippine Coalition comes to
you for advice on how they could legally
prevent the same agreement entered into by
the President with the US government from
going into effect. What would you advise them
to do? Give your reasons.
SUGGESTED ANSWER:
If the Agreement is not in the form of a treaty, it
is not likely to be submitted to the Senate for
ratification as required in Art. VII, sec. 21. It
may not, therefore, be opposed in that branch
of the government. Nor is judicial review
feasible at this stage because there is no
justiciable controversy. While Art. VIII, sec. 1,
par. 2 states that judicial power includes the
duty of court of justice 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," it is clear that this provision does
not do away with the political question doctrine.
It was inserted in the Constitution to prevent
courts from making use of the doctrine to avoid
what otherwise are justiciable controversies,
albeit involving the Executive Branch of the
government during the martial law period. On
the other hand, at this stage, no justiciable
controversy can be framed to justify judicial
review, I would, therefore, advice the Nuclear
Free Philippine Coalition to resort to the media
to launch a campaign against the Agreement.
Review Executive Acts (1996)
No. 10: 1) 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.
a) Can the Supreme Court review the
correctness of the action of the President in
commuting the penalty imposed on X?
Explain.
b) Was the action of the President
constitutional and valid? Explain.
SUGGESTED ANSWER:
1. a) 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.
Pro Hac Vice Cases (1999)
No XI What does if mean when a Supreme
Court Justice concurs in a decision pro hac
vice? (2%)
SUGGESTED ANSWER:
When a decision is pro hac vice, it means the
ruling will apply to this particular case only.
b) 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 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.
Removal of Lower Court Judges (1993)
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Supervision; Courts & its Personnel (Q52005)
(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%)
SUGGESTED ANSWER:
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)
Taxpayer's Suit; Locus Standi (1995)
No. 12: 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.
(1) Can the court take cognizance of the
case? Explain.
(2) What are the requisites for a taxpayer's suit
to prosper?
SUGGESTED ANSWER:
1. No, the court cannot take cognizance of the
case. As held in Joya vs. Presidential
Commission on 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.
2.
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.
Term of Office; Justices (1996)
No. 9: 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.
SUGGESTED ANSWER:
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.)
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108
Votes required for declaring a law
unconstitutional (1996)
No. 7: Can five members of the Supreme Court
declare a municipal ordinance unconstitutional?
Explain.
SUGGESTED ANSWER:
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.
ARTICLE IX Constitutional
Commissions
Rotational Scheme (1999)
No XIII - What are the requisites for the
effective operation of the so-called "Rotational
Scheme" for Constitutional Commissions?
(2%)
SUGGESTED ANSWER:
As held in Republic v. Imperial, 96 Phil. 770, for
the effective operation of the rotational scheme
of the Constitutional Commission, the first
Commissioner should start on a common date
and any vacancy before the expiration of the
term should be filled only for the unexpired
balance of the term.
Constitutional Commissions & Council (Q72006)
2. The legislature may abolish this body: (5%)
a. Commission on Appointments
b. Ombudsman
c. Judicial and Bar Council
d. Court of Tax Appeals
e. Commission on Audit
SUGGESTED ANSWER:
The legislature may abolish the d) COURT OF
TAX APPEALS since it is merely a creation of
law unlike the Commission on Appointments,
Ombudsman, Judicial and Bar Council and
Commission on Audit which are all constitutional creations. Thus, the latter agencies may
only be abolished by way of an amendment or
revision of the Constitution.
ARTICLE IX Civil Service
Commission
Career Service; Characteristics (1999)
No IX - What characterizes the career service
and what are included in the career service?
(2%)
SUGGESTED ANSWER:
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.
Civil Service Commission vs. COA (2004)
(9-a) 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),
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109
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%)
SUGGESTED ANSWER:
A. 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]).
Function of CSC (1994)
No. 15 - 2) Can the Civil Service Commission
revoke an appointment by the appointing power
and direct the appointment of an individual of its
choice?
SUGGESTED ANSWER:
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.
GOCCs Without Original Charter vs. GOCCs
With Original Charter (1998)
No II.-- 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%]
2.
The rule making it incompatible for
members of Congress to hold offices or
employment in the government. [2%]
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%]
4.
The rule providing for post audit by the
COA of certain government agencies. [2%]
5.
The rule requiring Congress to provide for
the standardization of compensation of
government officials and employees. [2%]
SUGGESTED ANSWER:
1.
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. 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. 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. 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. Section 5, Article IX-B of the Constitution,
which provides for the standardization of the
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
110
compensation of government officials and
employees,
distinguishes
between
government
corporations
and
their
subsidiaries, for the provision applies only to
government corporations with original
charters.
Jurisdiction over the GOCCs (1999)
No IX - 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%)
SUGGESTED ANSWER:
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.
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?
SUGGESTED ANSWER:
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.
Modes of Removal from Office (1993)
No. 11: How may the following be removed
from office:
1) Senators & Congressmen
2) Judges of lower courts
3) Officers and employees in the Civil Service
SUGGESTED ANSWER:
1) Senators, Cong., Art. III, section 16(3), of the
Constitution, ...
2) Judges, Art. VIII, sec. 11 of the Constitution,
3) 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.
Receiving of Indirect Compensation (1997)
No. 18; 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.
Jurisdiction over the GOCCs (2003)
Was Governor A's acceptance of the decoration
No VII - A corporation, a holder of a certificate
and gift violative of the Constitution?
of registration issued by the Securities and
SUGGESTED ANSWER:
Exchange Commission, is owned and
Yes, it violated Section 8, Article IX-B of the
controlled by the Republic of the Philippines.
Constitution. For his acceptance of the
The Civil Service Commission (CSC), in a
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111
decoration of honor and the gold ring from the
Government of Cambodia to be valid, Governor
A should first obtain the consent of Congress.
Security of Tenure (1988)
No. 10: 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?
2. 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.
SUGGESTED ANSWER:
1.
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.
2. 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.
Security of Tenure (Q5-2005)
(3) 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 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. (5%)
(a)
Does the phrase "unless sooner
terminated" mean that the position of
Ricardo is terminable at will?
ALTERNATIVE ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
112
removed except for cause. (Sta. Maria v.
Lopez, G.R. No. L-30773, February 18,1970)
(b)
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.
SUGGESTED ANSWER:
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)
Security of Tenure; Meaning (1999)
No IX - -What is the meaning and guarantee of
security of tenure? (2%)
SUGGESTED ANSWER:
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.
ARTICLE IX
COMELEC
Electoral Tribunal; Functions & Composition
(Q5-2006)
1. What is the function of the Senate Electoral
Tribunal and the House of Representatives
Electoral Tribunal? (2.5%)
SUGGESTED ANSWER:
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.
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).
Fair Election; Equal Space & Time in Media
(1989)
No. 16: 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.
SUGGESTED ANSWER:
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.
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 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
2. What is the composition of each? (2.5%)
SUGGESTED ANSWER:
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113
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).
Court, from the decision of the COMELEC First
Division? If yes. Why? If not what procedural
step must he undertake first? ( 5%)
SUGGESTED ANSWER:
"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.
Grant of Pardon in Election Offenses (1991)
No. 11 - 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).
Removal from Office; Commissioners (1998)
No IX. - 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? [5%]
SUGGESTED ANSWER:
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, 774775, 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.
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.
(a) What is the effect of the failure of the court
to impose the additional penalty?
(b) Is the pardon valid?
SUGGESTED ANSWER:
(a) No need to expressly impose – they are
accessory penalties.
(b) 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
Judicial Review of Decisions (2001)
No XVI - 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
Right to Vote; Jurisdiction (2001)
No II - 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%)
SUGGESTED ANSWER:
The law granting the COMELEC jurisdiction
over inclusion and exclusion cases is
unconstitutional. Under Section 2(3), Article IXC 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.
Election Laws
2nd Placer Rule (2003)
No VIII - In the municipal mayoralty elections in
Can "A" file a petition for certiorari with the
1980, the candidate who obtained the highest
Supreme Court under Rule 65 of the Rules of
number of votes was subsequently declared to
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114
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.
SUGGESTED ANSWER:
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.
2nd Placer Rule (1990)
No. 7: 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 ad-interim 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.
(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.
SUGGESTED ANSWER:
(1) No, A may not continue with his protest. ....
(2) 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.
2nd Placer Rule; in Quo Warranto Cases
(1992)
No. 16: 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.
a) Does he still possess Philippine citizenship?
b) 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?
c) 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?
SUGGESTED ANSWER:
a) No, Nicasio no longer possesses Philippine
citizenship. ...
b) 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.
c)
Yes because he will be a dual citizen ...
2nd Placer Rule; Rule of Succession (1996)
No. 13: 1) 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.
a) Who should the Board of Canvassers
proclaim as elected mayor, A, B or X?
Explain,
b) Who is entitled to discharge the functions of
the office of the mayor, B or X? Explain.
SUGGESTED ANSWER:
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 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
115
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.
Appreciation of Ballots (1994)
No. 3;
If a candidate for town mayor is an
engineer by profession, should votes for him
with the prefix "Engineer" be invalidated as
"marked ballots"?
SUGGESTED ANSWER:
3)
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.
Disqualification; Grounds (1991)
No. 11 - 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.
(c) Is a petition to disqualify Millanes viable?
(d) What are the effects of a petition to
disqualify?
SUGGESTED ANSWER:
(c) 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.
(d) 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.
Disualifications (1999)
No V - A.2.
Under the Local Government
Code, name four persons who are disqualified
from running for any elective position. (2%)
SUGGESTED ANSWER:
A2.) 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 nonpolitical 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.
Effect of Filing of Certificate of Candidacy;
Appointive Officer vs Elective Officer (2002)
No XIII. 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.
a) Was A ipso facto considered resigned and,
if so, effective on what date? (2%)
b) Was B ipso facto considered resigned and,
if so, effective on what date? (3%)
In both cases, state the reason or reasons for
your answer.
SUGGESTED ANSWER:
A) 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.
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
116
B) 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
Effect of Filing of Certificate of Candidacy;
Fair Election Act (2003)
No X - (a) Pedro Reyes is an incumbent ViceMayor 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(1) Once he files his certificate of
candidacy; or
(2) When the campaign period starts; or
(3) Once and if he is proclaimed winner in
the election; or
(4) Upon his assumption to the elective
office; or
(5) None of the above.
Choose the correct answer
(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 in no.(1) above be the
same? If not, which would be your choice?
SUGGESTED ANSWER:
(a) The correct answer is (5). 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.
(Note: The question did not ask the examinee
to explain the reason for his choice and the
general instructions requires such discussion
only to a "yes" or "no" answer.)
(b) 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.
Election Offenses; Conspiracy to Bribe
Voters (1991)
No. 12: Discuss the disputable presumptions
(a) of conspiracy to bribe voters and (b) of the
involvement of a candidate and of his principal
campaign managers in such conspiracy.
SUGGESTED ANSWER:
(a) 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) 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.
Election Protest (1990)
No. 7: 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 ad-interim 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.
SUGGESTED ANSWER:
(1) 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.
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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.
Election Protest vs. Quo Warranto (2001)
No XVII - 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. (5%)
SUGGESTED ANSWER;
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 because of ineligibility or
disloyalty to the Philippines.
Election Protest vs. Quo Warranto (Q5-2006)
Differentiate an election protest from an action
for quo warranto. (2.5%)
SUGGESTED ANSWER:
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 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.
Election Protest; Jurisdiction (1996)
No, 14: 1) 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?
SUGGESTED ANSWER:
1) 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:
a) Barangay - Metropolitan Trial Court,
Municipal Circuit Trial Court, or
Municipal Trial Court
b) Municipality - Regional Trial Court
c) Province - COMELEC
d) City - COMELEC
e) 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.
Expiration of term bars service thereof
(2000)
No XVI. 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.
a)
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%)
SUGGESTED ANSWER;
a) 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.
Petition to Declare Failure of Elections;
Requisites & Effects (1995)
No. 6: 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
118
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.
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.
3. Suppose he ran as a substitute for a
candidate who previously withdrew his
candidacy, will your answer be the same?
Explain.
SUGGESTED ANSWER:
1. 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 SCRA582, 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. 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.
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.
Pre-Proclamation Contest (1987)
No. VII: "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.
SUGGESTED ANSWER:
The COMELEC correctly dismissed "B's" PREPROCLAMATION 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.
Pre-Proclamation Contest (1988)
No. 18: In election law, what is a preproclamation 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.
SUGGESTED ANSWER:
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).
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119
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 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).
Pre-Proclamation Contest vs. Election
Contests (1997)
No, 17: State how (a) pre-proclamation
controversies, on the one hand, and (b) election
protests, on the other, are initiated, heard and
finally resolved.
SUGGESTED ANSWER:
(A) PRE-PROCLAMATION CONTROVERSIES
a) Questions affecting the composition or
proceedings of the board of canvassers
may be initiated in the board of
canvassers or directly with the
COMELEC.
b) 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.)
c) The board of canvassers should rule on
the objections summarily. (Section 20,
Republic Act No. 7166.)
d) Any party adversely affected may
appeal to the COMELEC. (Section 20.
Republic Act No. 7166.)
e) 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:
a) Barangay officials - Inferior Court;
b) Municipal officials - Regional Trial
Court;
c) Regional, provincial, and city officials COMELEC (Section 2(2), Art. IX-C of
the Constitution);
d) Congressman
House
of
Representatives Electoral Tribunal.
e) Senators - Senate Electoral Tribunal.
(Section 1. Article VI of the
Constitution);
f) 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 be elevated to the Supreme Court
on certiorari if there was grave abuse of
discretion. (Lazatin vs COMELEC 168 SCRA
391)
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120
Pre-Proclamation Contest; Proper Issues
(1996)
No, 14: 2)
Give three issues that can be
properly raised and brought in a preproclamation contest.
SUGGESTED ANSWER:
2) 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, Vice-President, Senator
and Member of the House of Representatives.
No pre-proclamation case are allowed in the
case of barangay elections.
Process; Illiterate Voters (1987)
No. XII: "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?
SUGGESTED ANSWER:
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)
Process; Principle of Idem Sonans (1994)
No. 3; 1) What is your understanding of the
principle of idem sonans as applied in the
Election Law?
SUGGESTED ANSWER:
1) 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:
a) 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.
b) The term means sounding the same or
nearly alike. The rule is based on the Idea that
the 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).
Process; Stray Ballot (1994)
No. 3; 2) What is a "stray ballot"?
SUGGESTED ANSWER:
2)
Under Rule No. 19 of the rules for the
appreciation of ballots in Section 211 of the
Omnibus Election Code, stray ballot is one cast
in favor of a person who has not filed a
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
121
certificate of candidacy or in favor of a
candidate for an office for which he did not
present himself. Although the Code does not
provide for stray ballot, it is presumed that stray
ballot refers to stray vote.
Recall (2002)
No XVI. Suppose the people of a province want
to recall the provincial governor before the end
of his three-year term of office,
A.
On what ground or grounds can the
provincial governor be recalled? (1%)
B. How will the recall be initiated? (2%)
C.
When will the recall of an elective local
official be considered effective? {2%}
SUGGESTED ANSWER:
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.
Three-Term Limit Rule (2001)
No XIX - 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 threeterm 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%)
SUGGESTED ANSWER:
The disqualification case should be dismissed.
As held in Borja vs. COMELEC, 295 SCRA157
(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.
Three-Term Limit; from Municipality to
Newly-Created City (Q9-2005)
2. 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 holdover and so 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. (5%)
(a)
As lawyer of Manuel, present the
possible arguments to prevent his
disqualification and removal.
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
122
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.
(b)
How would you rule on whether or not
Manuel is eligible to run as Mayor of
the newly-created City of Tuba
immediately after having already
served for three (3) consecutive terms
as Mayor of the Municipality of Tuba?
SUGGESTED ANSWER:
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)
(c)
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.
ALTERNATIVE ANSWER:
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)
ALTERNATIVE ANSWER:
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)
Vacancy; Effect of Vice-Mayor Acting As
Mayor (2002)
No XIV. Suppose A, a Municipal Mayor, went
on a sick leave to undergo medical treatment
for a period of four (4) months. During that time
A. Will B, the Municipal Vice-Mayor, be
performing executive functions? Why? (2%)
B. Will B at the same time be also performing
legislative functions as presiding officer of
the Sangguniang Bayan? Why? (3%)
SUGGESTED ANSWER:
A.
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.
B. 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.
Vacancy; Rule of Succession (1995)
No. 7: The Vice Mayor of a municipality filed his
certificate of candidacy for the same office in
the last elections. The Municipal Mayor was
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
123
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 a) Can the Vice Mayor succeed to the office of
Mayor pursuant to the provisions of the
Local Government Code? Explain.
b) 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.
c) Is there any legal impediment to the Vice
Mayor to replace the re-electionist Mayor
who died? Explain,
SUGGESTED ANSWER:
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).
SUGGESTED ANSWER:
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.
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.
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.
What is the effect, if any, of the privatization of
PNB on the audit Jurisdiction of the COA? (5%)
SUGGESTED ANSWER:
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.
Vacancy; SB; Rule on Succession (2002)
No XV. 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%)
ARTICLE IX
Audit
Commission on
COA; Jurisdiction (2001)
No VIII - 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.
COA; Money Claims (1998)
No I. - 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? [ 10%]
SUGGESTED ANSWER:
Raintree Corporation must file its claim with the
Commission on Audit, Under Section 2(1) IX-D
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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
Appointment of Budget Officer; control vs
supervision (1999)
No V - D. 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
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."
(a) Was the DBM's appointment valid? (2%)
(b) What can you say regarding the abovequoted Section 6.0 of DBM's Local Budget
Circular No. 31? Explain your answers. (2%)
SUGGESTED ANSWER:
D. (a) 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.
(b) 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).
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Boundary Dispute Resolution; LGU; RTC’s
Jurisdiction (Q10-2005)
1 - 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. (5%)
SUGGESTED ANSWER:
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)
Boundary Dispute Settlement; Authority;
Jurisdiction (1999)
No V - C. What body or bodies are vested by
law with the authority to settle disputes
involving:
(1) two or more towns within the same
province; (1%)
(2) two or more highly urbanized cities. (1%)
SUGGESTED ANSWER:
1.)
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.
2.)
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.
Creation of New Local Government Units;
Plebiscite Requirement (2004)
NO. VII - MADAKO is a municipality composed
of 80 barangays, 30 west of Madako River and
50 east 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.
Granting that Masigla’s proponents
succeed to secure a law in their favor, would a
plebiscite be necessary or not?
If it is
necessary, who should vote or participate in the
plebiscite?
Discuss briefly. (5%)
SUGGESTED ANSWER:
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 east 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.
B. 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%)
SUGGESTED ANSWER:
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 ofMalabang v. Benito, 27
SCRA 533 [1969]
Devolution of Power (1999)
Define devolution with respect to local
government units.
SUGGESTED ANSWER:
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.
Franchise; prior approval of LGU necessary
(1988)
No. 9: 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 Tansportation
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126
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 the 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.
SUGGESTED ANSWER:
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).
Law fixing the terms of local elective
officials (Q4-2006)
State whether or not the law is constitutional.
Explain briefly.
3. A law fixing the terms of local elective
officials, other than barangay officials, to 6
years. (2%)
SUGGESTED ANSWER:
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.
Ordinance; Use & Lease of Properties;
Public Use (1997)
No. 9: 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?
SUGGESTED ANSWER:
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.
Ordinance; Validity; Closure or Lease of
Properties for Public Use (2003)
No XI - 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.
FIRST ALTERNATIVE ANSWER:
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.
SECOND 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.
Ordinance;
Validity;
Compensation;
Tortuous Act of an Employee (1994)
No. 6; 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,
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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.
1) Is the municipality liable for the negligence
of Johnny?
2) Is the municipal ordinance valid?
SUGGESTED ANSWER:
2) The ordinance appropriating P300,000.00 for
the heirs of the victims of Johnny is void. This
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 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, ie., 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.
Ordinance; Validity; Local Taxation vs.
Special Assessment (1987)
1987 No. V: State whether or not the following
city ordinances are valid and give reasons in
support of your answers:
(b) 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.
SUGGESTED ANSWER:
(b) 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)
Ordinance; Validity; Preventing Immorality
(1987)
(c)
An ordinance prohibiting barbershop
operators from rendering massage service to
their customers in a separate room.
SUGGESTED ANSWER:
(c) 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.
Ordinance;
Validity;
Utilization
&
Development; National Wealth (1991)
No. 5; 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.
SUGGESTED ANSWER:
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.
Ordinances; Validity; Amending Nat’l Laws
(1988)
No. 4: Jose Y. Sabater is a real estate
developer. He acquires raw lands and converts
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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.
SUGGESTED ANSWER:
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.
Ordinances; Validity; Gambling Prohibition
(1995)
No. 4: 2. PAGCOR decided to operate a casino
in Tacloban City under authority of P.D. No.
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.
SUGGESTED ANSWER:
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)
Ordinances; Validity; Limitation of Penalties
(1991)
No. 10: 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?
SUGGESTED ANSWER:
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 can not exceed a fine of P1,000.00
or Imprisonment for six months, or both at the
discretion of the court.
Ordinances; Veto Power (1996)
(1) How does the local legislative assembly
override the veto by the local chief
executive of an ordinance?
(2) On what grounds can a local chief
executive veto an ordinance?
(3) How can an ordinance vetoed by a local
chief executive become a law without it
being overridden by the local legislative
assembly?
SUGGESTED ANSWER:
(1) Under Sections 54 (a) and 55 (c) of the
Local Government Code, the local
legislative assembly can override the veto
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129
of the local chief executive by two-thirds
vote of all its members.
(2) 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.
(3) 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.
Police Power; LLDA (1995)
No. 9: 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 by the Municipality?
Explain.
(2) Can the LLDA justify its order by asserting
that the health of the residents will be
adversely affected. Explain.
SUGGESTED ANSWER:
1. 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.
2.
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.
Power to Issue Subpoena & Cite For
Contempt (1993)
No 6: 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?
(2) Does the council have the power to cite for
contempt?
SUGGESTED ANSWER:
(1) 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
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express statutory basis would violate the
doctrine of separation of powers.
of Appeals, G.R. No. 107916, February 20,
1997)
(2) 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.
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.
Power; Eminent Domain; LGU; Right to
Exercise (Q10-2005)
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%)
SUGGESTED ANSWER:
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 ofParanaque 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
Powers of Barangay Assembly (2003)
Can a Barangay Assembly exercise any police
power?
SUGGESTED ANSWER:
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.
Powers; Liga ng mga Barangay (2003)
Can the Liga ng mga Barangay exercise
legislative powers?
SUGGESTED ANSWER:
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 mga in the
sanggunians; to ventilate, articulate, and
crystallize
issues
affecting
barangay
government administration; and to secure
solutions for them through proper and legal
means.
Requisites; Contracts Involving LGU (1991)
The Municipality of Sibonga, Cebu, wishes to
enter into a contract involving expenditure of
public funds. What are the legal requisites
therefor?
SUGGESTED ANSWER:
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;
(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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
131
certificate of availability of funds issued by
the municipal treasurer; and
(4) The contract must conform with the formal
requisites of written contracts prescribed by
law.
Requisites; Contracts involving LGU (1995)
No. 4: 1. What are the conditions under which a
local executive may enter into a contract in
behalf of his government unit?
SUGGESTED ANSWER:
1. 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 or any Interest in it
or creating a lien upon it, the contract must
be approved by the provincial governor.
Taxation; GOCC Liability For Real Estate
Tax (1999)
No VI - C.
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%)
SUGGESTED ANSWER:
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 occupy.
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.
Taxation; Sources of Revenue (1999)
No V - Under the Constitution, what are the
three main sources of revenues of local
government units? (2%)
SUGGESTED ANSWER:
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}
Withdrawal of Public Property from Public
Use (1990)
No. 8: 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.
(2) May the City of Dagupan and XYZ
corporation validly enter into the lease contract
for the prawn ponds? Answer with reasons.
SUGGESTED ANSWER:
(1) 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
132
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) 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
Abandonment of Office (2000)
No VII. 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 Sanggunlang 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 Sanggunlang
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%)
SUGGESTED ANSWER:
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.
Discipline;
Clemency;
Doctrine
of
Condonation (2000)
No VI. 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%)
SUGGESTED ANSWER:
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.
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
133
Discipline; Effect of Pardon Granted in
Favor of Public Officers (1999)
b)
Can he claim salary for the period that his
case was pending appeal? Why? (2%)
No IV - C. A City Assistant Treasurer was
convicted of Estafa through falsification of
public document. While serving sentence, he
was granted absolute pardon by the President.
SUGGESTED ANSWER;
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%)
2. If later the same position becomes vacant,
could he reapply and be reappointed?
Explain. (2%)
SUGGESTED ANSWER:
C. 1.) 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.
FIRST ALTERNATIVE ANSWER:
2.) The Assistant City Treasurer can
reapply and be appointed to the position, since
the pardon removed the disqualification to hold
public office.
SECOND ALTERNATIVE ANSWER:
2.) 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;
Discipline;
Preventive
Suspension
&
Appeal; entitlement to salary pendente
(2001)
No XV - 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.
a) Can Alfonso Belt claim salary for the period
that his case was pending investigation? Why?
(3%)
a)
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.
b)
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
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)].
Discipline; Preventive Suspension (1990)
No. 6: 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 arrainged, 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?
(2)
Can F validly object to the
aforestated duration of his suspension?
SUGGESTED ANSWER:
(1) 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
134
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 hold when he committed the crime
with which he is charged. This was the ruling in
Deloso v. Sandiganbayan 173 SCRA 409.
(2) 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.
Discipline; Preventive Suspension (2002)
No II. 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%)
SUGGESTED ANSWER:
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.
Elective
and
Appointive
Officials:
disciplinary authority (2004)
2004 (3-b)
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. (5%)
SUGGESTED ANSWER:
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. 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])
Elective Public Officer; De Facto Officer
(2000)
No XVI. In the elections of May 1992, Cruz and
The contention of Representative Valera is not
Santos
were the candidates for the office of
correct As held in Santiago v. Sandiganbayan,
Municipal
Mayor, the term of which was to
356 SCRA 636, the suspension contemplated
expire
on
June
30, 1995. Finding that he won
in Article VI, Section 16(3) of the Constitution is
by
a
margin
of
20
votes, the Municipal Board of
a punishment that is imposed by the Senate or
Canvassers
proclaimed
Cruz as the duly
House of Representatives upon an erring
elected
Mayor.
Santos
filed
an election protest
member, it is distinct from the suspension under
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
135
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.
a)
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%)
b)
Was Santos a usurper and should
he pay back what he has received while holding
the office as Municipal Mayor? Why? (2%)
SUGGESTED ANSWER;
a) Cruz can no longer hold office for the
portion of the term he failed to serve since his
term has expired.
b) 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.
Elective Public Officers; De Facto Officer;
effects (2004)
X-B. 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%)
SUGGESTED ANSWER:
B. 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.
Graft and Corruption; Prescription of Crime
(2002)
No XII. Suppose a public officer has committed
a violation of Section 3 (b) and (c) of the AntiGraft 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.
(a)
Does the criminal offense
committed prescribe? (2%)
(b) Does the right of the government to
recover the illegally acquired wealth prescribe?
(3%)
SUGGESTED ANSWER:
(a)
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
(b)
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
136
nominees or transferees, shall not be barred by
prescription.
Impeachment; Cronyism (2000)
No II. Is cronyism a legal ground for the
impeachment of the President? Explain. (5%)
SUGGESTED ANSWER:
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)
SUGGESTED ANSWER:
1. Impeachment is a method by which persons
holding government
positions
of
high
authority,
prestige,
and dignity and with
definite tenure may be removed from office for
causes closely related to their conduct as public
officials, (V.G. SINCO, PHILIPPINE POLITICAL
LAW 373 (llth ed. 1962)).
The grounds for impeachment are culpable
violation of the Constitution, treason, bribery,
graft and corruption, other high crimes and
betrayal of public trust. (Art. XI, sec. 2).
The officials removable by impeachment
are
the President, Vice President, the
Members of the Supreme Court, Members of
the Constitutional Commissions and the
Ombudsman. (Id.)
Impeachment; Grounds (1999)
No XV - What are the
impeachment. Explain. (2%)
grounds
for
SUGGESTED ANSWER:
Under Section 2, Article XI of the Constitution,
the grounds for impeachment are
1.
Culpable violation of the Constitution means intentional violation of the
Constitution and not violations committed
in good faith.
2.
Treason - the same meaning as in the
Revised Penal Code
3.
Bribery - the same meaning as in the
Revised Penal Code
4.
Graft and Corruption - refers to
prohibited acts enumerated in the AntiGraft and Corrupt Practices Act.
5.
other High Crimes - refer to offenses that
strike at the very life or orderly working of
the government.
6.
and Betrayal of Public Trust - refers to
any violation of the oath of office. (Cruz,
Philippine Political Law, 1998 ed., pp.
336-337; Bernas, The 1987 Constitution
of the Philippines: A Commentary, 1996
ed., pp. 991-992)
Impeachment; Nature; Grounds; PD 1606
(1988)
No. 14: 1. What is impeachment, what are the
grounds therefor, and who are the high officials
removable thereby?
2. Presidential Decree No. 1606
provides that Justices of the Sandiganbayan
may be removed only by impeachment. Is this
Presidential Decree still valid? Why?
2. PD No. 1606, sec. 1, in so far as it provides
for the removal of the members of the
Sandiganbayan only by impeachment must be
deemed to have been rendered inoperative by
the new Constitution which provides that with
the exception of the officials there mentioned,
"All other public officers and employees may be
removed from office as provided by law, but not
by impeachment." Moreover, under Art. VIII,
sec, 11, the power to remove lower court
judges is vested in the Supreme Court en banc
which, by the vote of a majority of the members
who actually take part in the deliberation on the
issues in the case and vote thereon, can
dismiss lower court judges.
Law of Public Officers; Next-in-Rank Rule
(1994)
No. 15 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.
1) Who has a better right to be appointed to the
contested position?
SUGGESTED ANSWER:
1) On the assumption that Jose Reyes
possesses
the
minimum
qualification
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
137
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
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 possesses civil
service eligibility.
Liability For Damages in Performance of
Official Functions (1990)
No. 10: 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 wellknown 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.
(2) Suppose X files a libel suit against the
Secretary of Public Works. Will the said libel
suit prosper? Explain your answer.
(1) 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.
(2) 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:
1. 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
SUGGESTED ANSWER:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
138
immunize the Secretary of Public Works from
liability for libel.
Local Elective Officials; Limitations On
Additional Duties (1995)
No. 10: 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 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,
SUGGESTED ANSWER:
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 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.
Ombudsman: Power to Suspend; Preventive
Suspension (2004)
(6) 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.
A. 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 violation of due
process. Is the petitioner's contention
meritorious? Discuss briefly. (5%)
SUGGESTED ANSWER:
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]).
B. 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%)
SUGGESTED ANSWER:
B. 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 [19910Besides, the question involved is purely legal.
(Azarcon v. Bunagan, 399 SCRA 365 [2003]).
Ombudsman; Power to Investigate (2003)
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139
No II 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.
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.
SUGGESTED ANSWER:
Power to Issue
delegation (1989)
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.
SECOND 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.
Ombudsman; Power to Suspend; Preventive
Suspension (1996)
No. 10: 2)
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.
SUGGESTED ANSWER:
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
Subpoena;
validity
of
No. 17: 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.
SUGGESTED ANSWER:
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.
Prohibition On Elective Officer to Hold
Public Office (2002)
No VII. 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%)
SUGGESTED ANSWER:
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.
Public Office; Public Trust (1998)
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
140
No V. - Suppose Congress passed a law to
Implement the Constitutional principle that a
public office is a public trust, by providing as
follows:
incrimination seeks to prevent is the conviction
of the witness on the basis of testimony elicited
from him. The rule is satisfied when he is
granted immunity.
"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,"
ALTERNATIVE ANSWER:
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.
1. Can Ong refuse to answer questions on the
ground that he would incriminate himself? [4%]
2. Suppose he refuses to answer, and for that
reason, is dismissed from the service, can he
pausibly argue that the Civil Service
Commission has inferred his guilt from his
refusal to answer in violation of the
Constitution? |3%]
3. 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? I3%]
SUGGESTED ANSWER:
1. 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 self-incrimination, 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.
SUGGESTED ANSWER:
2. 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
accomodation
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."
SUGGESTED ANSWER:
3. 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."
1. 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
Retirement Benefits (1996)
constitutional
prohibition
against
selfBAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
141
No. 9: 2)
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.
SUGGESTED ANSWER:
2) 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
Acquisition and Lease of Public Lands
(1998)
Express your agreement or disagreement with
any of the following statements. Begin your
answer with the statement: "I AGREE" or
"DISAGREE" as the case may be.
1.
Anyone, whether Individual,
corporation or association, qualified to acquire
private lands is also qualified to acquire public
lands in the Philippines. [2%]
2. A religious corporation is qualified t
o have lands in the Philippines on which it may
build Its church and make other improvements
provided these are actually, directly and
exclusively used for religious purposes. [2%]
3.
A religious corporation cannot
lease private lands In the Philippines. [2%]
4. A religious corporation can acquire
private lands in the Philippines provided all its
members are citizens of the Philippines. [2%]
5.
A foreign corporation can only
lease private lands in the Philippines. [2%]
SUGGESTED ANSWER:
1. I disagree. Under Section 7, Article
XII of the Constitution, a corporation or
association which is sixty percent owned by
Filipino citizens can acquire private land,
because it can lease public land and can
therefore hold public land. However, it cannot
acquire public land. Under Section 3, Article XII
of the Constitution, private corporations and
associations can only lease and cannot acquire
public land.
Under Section 8, Article XII of the
Constitution, a natural-born Filipino citizen who
lost his Philippine citizenship may acquire
private land only and cannot acquire public
land.
2.
I disagree. The mere fact that a
corporation is religious does not entitle it to own
public land. As held In Register of Deeds vs.
Ung Siu Si Temple, 97 Phil. 58, 61, land tenure
is not indispensable to the free exercise and
enjoyment of religious profession of worship.
The religious corporation can own private land
only if it is at least sixty per cent owned by
Filipino citizens.
3.
I disagree.
Under Section 1 of
Presidential Decree No. 471, corporations and
associations owned by aliens are allowed to
lease private lands up to twenty-five years,
renewable for another period of twenty-five
years upon agreement of the lessor and the
lessee. Hence, even if the religious corporation
is owned by aliens, it can lease private lands.
4.
I disagree. For a corporation' to
qualify to acquire private lands in the
Philippines, under Section 7, Article Xn of the
Constitution in relation to Section 2, Article XII
of the Constitution, only sixty per cent (60%) of
the corporation is required to be owned by
Filipino citizens for it to qualify to acquire private
lands.
5.
I agree. A foreign corporation can
lease private lands only and cannot lease public
land. Under Section 2, Article XII of the
Constitution, the exploration, development and
utilization of public lands may be undertaken
through co-production. Joint venture or
production-sharing agreements only with
Filipino citizen or corporations or associations
which are at least sixty per cent owned by
Filipino citizen.
Acquisition of Lands (1987)
No. XV: On March 1, 1987, "ABC" Corporation,
a company engaged in the export trade, applied
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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?
ANSWER:
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.
accident without
testament.
leaving
a
last
will
and
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%)
SUGGESTED ANSWER:
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.
Acquisition of Lands; Citizenship issue
(1989)
Acquisition of Lands (2000)
No XVIII. - 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%)
SUGGESTED ANSWER:
No, the sales are not valid. Under Section 8,
Article XII of the Constitution, only a naturalborn 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.
Acquisition of Lands
Succession (2002)
by
Hereditary
No. 1: 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
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?
(2) 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?
ANSWER:
(1) No, Maria cannot validly sell the parcel of
land to the younger sister of her husband who
No XI. - A, a Filipino citizen, and his wife B, a
is a Canadian citizen. Under Section 7, Article
Japanese national, bought a five-hectare
XII of the 1987 Constitution, as a general rule,
agricultural land from X, a Filipino citizen. The
aliens cannot acquire private land since
couple later executed a deed of donation over
pursuant to Section 2, in relation to Section 3,
the same land in favor of their only child C. A
Article XII, of the 1987 Constitution they are not
year later, however, C died in vehicular
qualified to acquire or hold lands of the public
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
143
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 above-mentioned
provisions is applicable to her.
(2) 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.
Acquisition of Lands; Citizenship issue
(1994)
No. 17: 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?
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?
ANSWER:
1) 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) 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.
Acquisition of Lands; Citizenship issue
(1995)
No 11; 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? Discuss
fully.
ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
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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.
Acquisition
of
Lands;
Prohibition;
acquisition of private lands by aliens (1994)
No.18; 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?
2) May the Deed of Sale executed by
Petra In favor of David Perez be annulled?
ANSWER:
1) 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)
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 controversion of the
constitutional prohibition against the acquisition
of private lands by aliens.
Citizenship Requirement in Management of
Advertising Industry (1989)
No. 11: (2)
May a foreigner who owns
substantial stockholdings in a corporation
engaged in the advertising industry sit as a
treasurer of said corporation? Cite the
constitutional provision in point.
SUGGESTED ANSWER:
Section 11(1), Article
Constitution provides;
XVI
of
the
1987
(2) No, a foreigner who owns shares of stock in
a corporation engaged in the advertising
industry cannot serve as treasurer in the
corporation, for a treasurer is an executive or
managing officer.
Section 11(2), Article XVI of the 1987
Constitution provides:
"The participation of foreign investors in
the governing body of entities in such
industry shall be limited to their
proportionate share in the capital
thereof, and all the executive and
managing officers of such entities must
be citizens of the Philippines."
Engagement in Business & Exercise of
Profession (1987)
No. IX: 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.
(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?
SUGGESTED ANSWER:
The treaty is valid.
(1) Art. XII, Sec. 14 provides that the practice
of all professions in the Philippines shall be
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
145
limited to Filipino citizens, save in cases
prescribed by law. Here the treaty has the force
of law.
(2) 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 may be deemed to have created an
exception in the Nationalization of Retail Trade
Law in favor of Indonesian citizen.
Exploration and Development of Minerals
(1994)
No. 11: 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?
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?
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.
Expropriation of Public Utilities (1992)
No. 11 - 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?
SUGGESTED ANSWER:
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.
ANSWER;
Lease of Private Agricultural Lands (2001)
1)
No. Only Filipinos may fish in exclusive
economic zone...
No IV - A is an alien. State whether, in the
Philippines, he:
2)
The President can enter into a
memorandum of agreement with a Thai oil
a)
Can be a lessee of a private agricultural
land, (3%)
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
146
SUGGESTED ANSWER;
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.
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.
Nationalized Activities (1994)
1) Give a business activity the equity of which
must be owned by Filipino citizens:
a) at least 60%
National
Economy
&
Patrimony;
Constitutional Prohibition (2004)
(8-b) B.
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%)
SUGGESTED ANSWER:
B. 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 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]).
National Patrimony; definition (1999)
No XII - What is meant by National Patrimony?
Explain the concept of National Patrimony?
(2%)
b) at least 70%
c)
100%
2)
Give two cases in which aliens may be
allowed to acquire equity in a business activity
but cannot participate in the management
thereof?
SUGGESTED ANSWER:
1) a) At least sixty per cent (60%) of the equity
of the entities engaged in the following business
must be owned by Filipino citizens under the
Constitution.
1. Co-production, Joint venture, or
production-sharing agreement with
the State for the exploration,
development, and utilization of
natural resources (Section 2, Article
XII)
2. Operation of a public utility (Section
11, Article XII)
3. Education (Section 4(2), Article XIV)
b) At least seventy percent (70%) of the equity
of business entities engaged in advertising
must be owned by Filipino citizens under the
Constitution. (Section 11(2), Article XVI)
c)
Mass media must be wholly owned by
Filipino citizens under the Constitution (Section
11(1), Article XVI).
2) Under the Constitution, aliens may acquire
equity but cannot participate in the
management of business entities engaged in
the following activities:
1) Public utilities (Section 11, Article
XII)
2) Education (Section 4(2) .Article XIV)
3) Advertising (Section 11(2), Article
XVI)
SUGGESTED ANSWER:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
147
Ownership Requirement of Mass Media
(1989)
No. 11: (1) A domestic corporation with 30%
foreign equity proposes to publish a weekly
magazine for general circulation in Metro
Manila which will feature the lifestyles of the
rich and the famous. May this be done? Cite the
constitutional provision in point.
SUGGESTED ANSWER:
(1) No, the corporation cannot publish a
weekly magazine since it is engaged in the
operation of a mass media and is not wholly
owned by Philippine citizens.
Section 11(1), Article XVI of the 1987
Constitution provides; "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."
Chinese citizens; engaging in retail trade
(Q4-2006)
State whether or not the following laws are
constitutional. Explain briefly.
4. A law prohibiting Chinese citizens from
engaging in retail trade. (2%)
SUGGESTED ANSWER:
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.
Exploration, development, and utilization of
natural resources (Q4-2006)
State whether or not the law is constitutional.
Explain briefly.
5. A law creating a state corporation to
exploit, develop, and utilize compressed
natural gas. (2%)
SUGGESTED ANSWER:
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 co-production, 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; Coverage (1992)
No. 12: 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.
SUGGESTED ANSWER:
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
148
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; Power to
investigate (1992)
No. 15 - 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.
b) Does the Commission on Human
Rights have the power to investigate and
adjudicate the matter?
SUGGESTED ANSWER;
b) 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.
the occupants to vacate the structures within
five days 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?
SUGGESTED ANSWER:
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.
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.
Commission on Human Rights; Power to
issue TRO (1997)
Commission on Human Rights; Power to
issue TRO (2001)
No VI - 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
No. 8 - About a hundred people occupied a
parcel of land in Quezon City belonging to the
city government and built shanties thereon
Resolve which position is correct. Reasons
which they utilized for dwelling, sari-sari stores,
(5%)
etc. The City Mayor issued an order directing
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
149
SUGGESTED ANSWER;
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.
Commission on Human Rights; Power;
Limitations (Q4-2005)
(2) 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. (5%)
(a) What is your concept of Human Rights?
Does this case involve violations of
human rights within the scope of the
CHR's jurisdiction?
SUGGESTED ANSWER:
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."
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)
(b) Can the CHR issue an "order to desist"
or restraining order?
SUGGESTED ANSWER:
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
v.
Commission on Human Rights, G.R.
No. 101476, April 14, 1992)
(c) Is the CHR empowered to declare
Mayor Cruz in contempt? Does it have
contempt powers at all?
SUGGESTED ANSWER:
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
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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
150
Human Rights, G.R.
December 2, 1991)
No.
96681,
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.
Labor; Right to Self-Organization (1988)
No. 2: 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
Peoples 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.
SUGGESTED ANSWER:
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.
Labor; Right to Strike (1988)
No. 1: Hearings before a congressional
committee have established that many firms at
the 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?
SUGGESTED ANSWER:
No. The fact that many firms at the Bataan
EPZA have been forced to close down by
unstable 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.
Labor; Right to Strike (1993)
No. 15: 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.
SUGGESTED ANSWER:
Art. XIII. sec. 3 of the Constitution guarantees
the right of all workers to engage in peaceful
concerted activities, including the right to strike
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
151
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
Constitution (1995)
the
Present
No. 1- 1. 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?
SUGGESTED ANSWER
1. 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 Answers:
a) 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,
b) In the 1987 Constitution, social Justice is
conceptualized as a set of specific economic,
social and cultural rights.
c) The 1987 Constitutional provision on social
justice includes all phases of national
development. It includes economic, political,
social and cultural rights.
SUGGESTED ANSWER
2. 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,"
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.
Note: It is suggested that the examiner
should correlate the answers to both questions
and give credit to answers which state that
there is an expansion of the range of social
Justice in the 1987 Constitution compared to
the 1935 and the 1973 Constitution.
Women (2000)
No IX. b)
What are the provisions of the
Constitution on women? (2%)
SUGGESTED ANSWER:
b) The following are the provisions of the
Constitution on women:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
152
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)
(c) 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 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.
Education; Academic Freedom (1989)
ARTICLE XIV Education,
Science and Technology, Arts
No. 9: What do you understand by academic
freedom?
Education; Academic Freedom (1987)
SUGGESTED ANSWER:
No. X: "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.
According to Sidney Hook, academic freedom
is the freedom of professionally qualified
persons to inquire, discover, publish and teach
the truth as they see it in the field of their
competence without being subject to any
control or authority except the control or
authority of the rational methods by which truths
or conclusions are sought and established in
these disciplines.
xxx
(b) Prepare a brief argument citing
rules, laws, or Constitutional provisions in
support of the Rector's denial of the motion for
reconsideration.
(c) Give your decision on the appeal
of "X" from the Rector's denial of "X's"
application,
SUGGESTED ANSWER:
(b) 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.
In Garcia vs. Faculty Admission
Committee, 68 SCRA 277, it was held that the
academic freedom of institutions of higher
learning involves a wide sphere of autonomy in
deciding their objectives and the best means of
attaining them without outside interference
except when overriding public welfare calls for
some restraint. Thus, a school can determine
for itself who may teach, who may be taught,
how it shall be taught, and who may be
admitted to study. In Tangonon vs. Pano, 137
SCRA 245, it was held that the academic
freedom of an institution of higher learning
includes the right to prescribe academic
standards and to refuse re-enrollment to
students for academic deficiencies and violation
of disciplinary regulations. According to
University of San Carlos vs. Court of Appeals,
G.R. No. 79237, October 18, 1988, academic
freedom includes the right to prescribe
requirements for the conferment of honors.
Education; Academic Freedom (1993)
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
153
No. 18: 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
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.
Academic
Education; Alien Enrollees & Donors (1999)
No II - C. 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%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
Education;
(1999)
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.
Freedom;
C.
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.
Extent
No II - A.
What is Academic Freedom?
Discuss the extent of Academic Freedom
enjoyed by institutions of higher learning. (2%)
SUGGESTED ANSWER:
A. 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.
Education; Duties of State in Re Education
(1999)
No II - B.
Give two duties of the state
mandated by the Constitution regarding
education. (2%)
SUGGESTED ANSWER:
B. Article XIV of the Constitution imposes the
following duties regarding education upon the
State:
1.
In Garcia v. Faculty Admission
Committee, 68 SCRA 277, it was held that the
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
The State shall protect and promote
the right of all citizens to quality
education at all levels and shall take
appropriate steps to make such
education accessible to all. (Section
1)
154
2.
The State shall establish, maintain
and support a complete, adequate,
and integrated system of education
relevant to the needs of the people
and society. [Section 2(1)]
Education; Flag Salute (1987)
No. XIII: 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.
3.
The State shall establish and maintain
a system of free public education in
the elementary and high school
levels. [Section 2(2)]
4.
The State shall establish and maintain
a system of scholarship grants,
student loan programs, subsidies, and
other incentives which shall be
available to deserving students in
both public and private schools,
especially to the underprivileged.
[Section 2(3)]
Which of the above finds support on
1987 Constitution, Cite at least two provisions
to prove your point.
5.
The State shall encourage nonformal, informal and indigenous
learning systems, as well as selflearning, independent and out-ofschool study program particularly
those that respond to community
needs, [Section 2|4|]
6.
The State shall provide adult citizens,
the disabled, and out-of-school youth
with training in civics, vocational
efficiency and other skills. [Section
2(5)]
(a) 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.
7.
The State shall take into account
regional and sectoral needs and
conditions and shall encourage local
planning in the development of
educational policies and programs.
[Section 5(1|]
8.
The State shall enhance the rights of
teachers
to
professional
advancement.
Non-teaching
academic
and
non-academic
personnel shall enjoy the protection of
the State. [Section 5(4)]
9.
The State shall assign the highest
budgetary priority to education and
ensure that teaching will attract and
retain its rightful share of the best
available talents through adequate
remuneration and other means of job
satisfaction and fulfillment. [Section
5(5)]
[Note: The question asks for two
constitutional duties of the state regarding
education.]
SUGGESTED ANSWER:
The view that flag salute may validly be
required finds support in the following
provisions of the 1987 Constitution:
(b) 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."
Education; Right to Choose Profession
(2000)
No IV. 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%)
SUGGESTED ANSWER:
As held in Department of Education,
Culture and Sports v. San Diego,180 SCRA
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155
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.
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.
Education;
Validity
Requirements (1994)
of
Academic
No. 12; 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.
Education; Right to Quality Education (2003)
No III - 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.
SUGGESTED ANSWER:
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.
Education; Teaching of Religion (1999)
No II - D. What is the constitutional provision
concerning the teaching of religion in the
elementary and high schools in the Philippines?
Explain. (2%)
SUGGESTED ANSWER:
D.
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
1) Did the circular deprive her of her
constitutional right to education?
2) Did the circular violate the equal
protection clause of the Constitution?
SUGGESTED ANSWER:
1) 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.
2) No, the circular did not violate the equal
protection clause of the Constitution. ...
ARTICLE XVI General
Provisions
General Provisions; Local Dialect (1987)
No. V: State whether or not the following city
ordinances are valid and give reasons in
support of your answers:
(a) An ordinance prescribing the use of the
local dialect as medium of instruction in the
primary grades.
SUGGESTED ANSWER:
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156
(a) 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 unity more difficult.
AFP; limitation on accepting additional
duties (1996)
No. 7: Can the Judge-Advocate General of the
Armed Forces of the Philippines be appointed a
Trustee of the Government Service Insurance
System? Explain.
SUGGESTED ANSWER:
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.
ARTICLE XVII Amendments or
Revisions
People’s Initiative (2004)
(4-b) 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?
(5%)
SUGGESTED ANSWER:
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.)
No. 20: State the various modes of, and steps
in, revising or amending the Philippine
Constitution.
SUGGESTED ANSWER:
There are three modes of amending the
Constitution.
1. 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.
2.
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.
3. 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.
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.
REFERENDUM vs. INITIATIVE (Q1-2005)
(a)
The present Constitution introduced the
concepts and processes of Initiative and
Referendum. Compare and differentiate one
from the other. (3%)
SUGGESTED ANSWER:
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]).
Amendments and Revisions; Modes (1997)
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157
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
Transitory Provisions;
Bases (1996)
Foreign
Military
No. 4 - 1) 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.
SUGGESTED ANSWER:
1) 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.
Transitory Provisions;
Bases (1988)
Foreign
Military
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?
SUGGESTED ANSWER:
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.
PUBLIC INTERNATIONAL LAW
Basic Principles in Public Int’l Law (1991)
No. 22: The Secretary of Justice had recently
ruled that the President may negotiate for a
Select any five (5) of the following and explain
modification or extension of military bases
each, using examples:
agreement with the United States regardless of
(a) Reprisal
the "no nukes" provisions in the 1987
Constitution.
The
President
forthwith
(b) Retorsion
announced that she finds the same opinion
"acceptable" and will adopt it. The Senators on
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158
(c)
Declaratory Theory of Recognition
Principle
(d)
Recognition of Belligerency
(e)
Continental Shelf
(f)
Exequatur
(g)
Principle of Double Criminality
(h) Protective Personality
(i)
Innocent Passage
(j)
Jus cogens in International Law
SUGGESTED ANSWER:
(a) 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.
(b) 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.
(c) The DECLARATORY THEORY OF
RECOGNITION is a theory according to which
recognition of a 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.
(d) 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,
(e) 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.
(f) 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,
(g) 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.
(h) 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.
(i) 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.
(j) 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.
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Constitutive Theory vs. Declaratory Theory
(2004)
(2-a-4) Distinguish: The constitutive theory
and the declaratory theory concerning
recognition of states.
SUGGESTED ANSWER:
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.)
Contiguous Zone vs. Exclusive Economic
Zone (2004)
II-A. Distinguish briefly but clearly between:
2) The contiguous zone and the exclusive
economic zone.
SUGGESTED ANSWER:
(2) 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.)
Diplomatic Immunity (2000)
No XX - 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.
a)
Can the foreign ambassador invoke his
diplomatic immunity to resist the lessor's
action? (3%)
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?
(2%)
SUGGESTED ANSWER:
a) 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 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) 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.
(per Dondee) The grounds cited by YZ is tenable on
the basis that the precept that a State cannot be
sued in the courts of a foreign state is a longstanding rule of customary international law then
closely identified with the personal immunity of a
foreign sovereign from suit and, with the emergence
of democratic states, made to attach not just to the
person of the head of state, or his representative,
but also distinctly to the state itself in its sovereign
capacity. 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. Suing a representative
of a state is believed to be, in effect, suing the state
itself. (KHOSROW MINUCHER vs. COURT OF
APPEALS, G.R. No. 142396. February 11, 2003)
Diplomatic Immunity (2001)
No XX - 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
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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%)
SUGGESTED ANSWER:
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.
Diplomatic Immunity (2003)
No XVIII - 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?
SUGGESTED ANSWER:
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 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.
Diplomatic Immunity (2004)
(8-a) 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.
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161
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? (5%)
SUGGESTED ANSWER:
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]).
(a)
As counsel of Abad, refute the
defenses of "sovereign immunity"
and "diplomatic immunity" raised by
the State of Italy and its
Ambassador.
SUGGESTED ANSWER:
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.
(b)
At any rate, what should be the
court's ruling on the said defenses?
SUGGESTED ANSWER:
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.
ALTERNATIVE SUGGESTED ANSWER:
Diplomatic Immunity; Ambassador (Q32005)
(1) 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.
On the matter of whether or not the
Ambassador may be sued, Article 31
of the Vienna Convention 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)
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%)
Diplomatic Immunity; Ambassadors (1990)
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162
No. 5: D, the Ambassador of the Kingdom of
Nepal to the Philippines, leased a house in
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?
(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?
(3} Can E ask for the court to stop D's
departure from the Philippines?
SUGGESTED ANSWER:
(1) 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) 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.
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.
SUGGESTED ANSWER:
(3) 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."
Diplomatic Immunity; Coverage (Q3-2005)
(2) 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.
ALTERNATIVE ANSWER;
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
SUGGESTED ANSWER:
the Philippines believed to be the source of
prohibited drugs being shipped to the U.S. It
(2) No, E cannot ask for the attachment of the
was also stated that after having
personal properties of the Ambassador. Arts. 30
ascertained the target, Adams would then
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163
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,
inform the Philippine narcotic agents to
make the actual arrest. (5%)
a) As counsel of plaintiff Baker, argue why
his complaint should not be dismissed
on the ground of defendant Adams'
diplomatic immunity from suit.
SUGGESTED ANSWER.
As counsel for Baker, I would argue that
Adams is not a diplomatic agent
considering that he is 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.
b) As counsel of defendant Adams, argue
for the dismissal of the complaint.
SUGGESTED ANSWER
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)
Diplomatic Immunity; Diplomatic Envoy and
Consular Officers (1995)
No. 3:
1.
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.
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.
SUGGESTED ANSWER:
1. 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.
SUGGESTED ANSWER:
2. No, he may not claim immunity from the
jurisdiction of the local court. Under Article 41 of
the Vienna Convention of Consular Relations,
2.
A consul of a South American country
consuls do not enjoy immunity from the criminal
stationed in Manila was charged with serious
Jurisdiction of the receiving State. He is not
physical injuries. May he claim Immunity from
liable to arrest or detention pending trial unless
jurisdiction of the local court? Explain.
the offense was committed against his father,
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164
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 abovementioned persons. (Schneckenburger v.
Moran 63 Phil. 249).
SUGGESTED ANSWER:
3. 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.
Diplomatic Immunity; Diplomatic Envoy and
Consular Officers (1997)
No 19: 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 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.
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.
Exclusive Economic Zone (2000)
No XIX. b)
What is the concept of the
exclusive economic zone under the UN
Convention on the Law of the Sea? (2%)
SUGGESTED ANSWER:
b) 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:
(a) 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;
(b)
Jurisdiction as provided in the
relevant provisions of the Convention with
regard to:
(i) the establishment and use of
artificial islands, installations and
structures;
(ii) marine scientific research;
and
(iii)
the
protection
and
preservation of the marine environment;
If you were the Judge, how would you resolve
the motion to dismiss?
SUGGESTED ANSWER:
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
(c) Other rights and duties provided
form the Convention.
[Article 56 of the
Convention of the Law of the Sea.)
Executive Agreements; Binding Effect
(2003)
No XX An Executive Agreement was executed
between the Philippines and a neighboring
State. The Senate of the Philippines took it
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165
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
SUGGESTED ANSWER:
(a)
As to Philippine law, the Executive
Agreement is binding....
(b) 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.
Extradition vs. Deportation (1993)
No. 10: 1) What is the difference if any between
extradition and deportation?
SUGGESTED ANSWER:
1) The following are the differences between
extradition and deportation:
a. 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.
No. 10: 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.
SUGGESTED ANSWER:
2) 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.
Extradition; Effectivity of treaty (1996)
No. 6; 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.
b) Can A contest his extradition on
the ground that it violates the ex post facto
provision of the Philippine Constitution?
Explain.
SUGGESTED ANSWER:
1. a) 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
b. EXTRADITION is effected on the
extradition treaty applies to crimes committed
basis of an extradition treaty or upon the
before its effectivity unless the extradition treaty
request of another state, while DEPORTATION
expressly exempts them. As Whiteman points
is the unilateral act of the state expelling an
out, extradition does not define crimes but
alien.
merely provides a means by which a State may
c. In EXTRADITION, the alien will be
obtain the return and punishment of persons
surrendered to the state asking for his
charged with or convicted of having committed
extradition, while in DEPORTATION the
a crime who fled the jurisdiction of the State
undesirable alien may be sent to any state
whose law has been violated. It is therefore
willing to accept him.
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; Doctrine of Specialty (1993)
extradition is requested there is in force
between the requesting and "the requested
States a treaty covering the offense on which
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
166
the request is based, the treaty is applicable.
(Whiteman, Digest of International Law, Vol. 6,
pp. 753-754.)
b) 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.
Extradition; Grounds (2002)
No XVIII. 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%)
the plan of John to assassinate President Harry
was part of such plan. However, if the
extradition treaty contains an attentat clause,
Republic A can extradite John, because under
the attentat 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.
FIRST 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.
SECOND 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.
Extradition; Retroactive Application (Q22005)
(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%)
SUGGESTED ANSWER:
Gibson is incorrect. In Wright v. Court of
Republic A can refuse to extradite John,
Appeals, G.R. No.113213, August 15,1994,
because his offense is a political offense. John
it was held that the retroactive application of
was plotting to take over the government and
the Treaty of Extradition does not violate
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
167
SUGGESTED ANSWER:
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.
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)).
Human Rights (1999)
Flag State vs. Flag of Convenience (2004)
II-A. Distinguish briefly but clearly between:
(3) The flag state and the flag of convenience.
SUGGESTED ANSWER:
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.)
Genocide (1988)
What is "Genocide," and what is the foremost
example thereof in recent history?
1999 No X - A.
Give three multilateral
conventions on Human Rights adopted under
the direct auspices of the United Nations? (2%)
SUGGESTED ANSWER:
A. 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
SUGGESTED ANSWER:
7.
International Convention on Economic,
Social, and Cultural Rights
"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:
Human Rights; Civil and Political Rights
(1992)
(a) Killing members of a group;
(b) Causing bodily or mental harm to its
members;
(c) Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole
or in part;
(d) Imposing measures to prevent births
within the group; and
(e) Forcibly transforming children of the
group to another group. (J. SALONGA
& P. YAP, PUBLIC INTERNATIONAL
LAW 399-400 (1966)).
No. 15: 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.
a)
Under public international law, what rules
properly apply?
What liabilities, if any, arise
thereunder if Walang Sugat's involvement is
confirmed.
b) Does the Commission on Human Rights
have the power to investigate and adjudicate
the matter?
SUGGESTED ANSWER:
a) On the assumption that Dr. Mengele is a
foreigner, his torture violates the International
The foremost example of genocide is the
Covenant on Civil and Political Rights, to which
Holocaust (1933-1945) where about 6 million
the Philippine has acceded. Article 7 of the
Jews (two thirds of the Jewish population of
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
168
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 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.
SUGGESTED ANSWER:
b) Can only
adjudication
investigate,
no
power
of
Human Rights; Civil and Political Rights
(1996)
1996 No. 1: 1)
Distinguish civil rights from
political rights and give an example of each
right.
2) What are the relations of civil and political
rights to human rights? Explain.
SUGGESTED ANSWER:
1) 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) 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
169
constitution or granted by law. For example, the
liberty to enter into contracts is not a human
right but is a civil right.
Int’l Court of Justice; Jurisdiction Over
States
1994 No. 20: The sovereignty over certain
islands is disputed between State A and State
B. These two states agreed to submit their
disputes to the International Court of Justice
[ICJ].
1)
Does the ICJ have jurisdiction to take
cognizance of the case?
2) Who shall represent the parties before the
Court?
SUGGESTED ANSWER:
1)
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.
2) 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.
Int’l Court of Justice; Jurisdiction Over
States (1994)
No. 19; The State of Nova, controlled by an
authoritarian government, had unfriendly
relations with its neighboring state, America.
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
1) 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 requires members to
refrain from the threat or use of force ...
2)
By virtue of the principle of sovereign
immunity, no sovereign state can be made a
party to a proceeding before the International
Court of Justice unless it has given its consent.
If Ameria has not accepted the Jurisdiction of
the International Court of Justice. Ameria can
invoke the defense of lack of jurisdiction. Even
if Ameria has accepted the jurisdiction of the
court but the acceptance is limited and the
limitation applies to the case, it may invoke
such limitation its consent as a bar to the
assumption of jurisdiction.
If jurisdiction has been accepted,
Ameria can invoke the principle of
anticipatory self-defense, recognized under
customary international law, because Nova is
planning to launch an attack against Ameria by
using the arms it bought from Bresia.
3) If jurisdiction over Ameria
established, the case should be decided
favor of Nova, .... if jurisdiction over Ameria
not established, the case should be decided
favor of Ameria because of the principle
sovereign immunity.
Int’l Court of Justice;
Jurisdiction (1999)
Limitations
is
in
is
in
of
On
No X - B.
Under its Statute, give two
limitations on the jurisdiction of the International
Court of Justice? (2%)
SUGGESTED ANSWER:
B.
The following are the limitations on the
jurisdiction of the International Court of Justice
under its Statute:
1. Only states may be parties in cases before
it. (Article 34)
2. The consent of the parties is needed for the
court to acquire jurisdiction over a case.
(Article 36)
1) On what grounds may Nova's causes of
action against Ameria be based?
Int’l Court of Justice; Parties; Pleadings and
Oral Argument (1994)
2)
On what grounds may Ameria move to
dismiss the case with the ICJ?
No. 20: The sovereignty over certain islands is
disputed between State A and State B. These
two states agreed to submit their disputes to the
International Court of Justice [ICJ].
Decide the case.
SUGGESTED ANSWER:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
170
3) What language shall be used in the
pleadings and oral argument?
1.
Where is the seat of the International
Court of Justice? 11%)
The seat of the International Court of
Justice is at the Hague or elsewhere, as it
may decide, except during the judicial
vacations the dates and duration of which
it shall fix (I.C.J. Statute, Art. 22).
2.
How many are its members? (1%)
The Court is composed of fifteen members
who must be of high moral character and
possess the qualifications required in their
respective countries for appointment to the
highest judicial office or are jurisconsults
of recognized competence in international
law (I.C.J. Statute, Art. 2).
3.
What is the term of their office? (1%)
They are elected for a term of nine years,
staggered at three-year intervals by
dividing the judges first elected into three
equal groups and assigning them by
lottery terms of three, six and nine years
respectively. Immediate re-election is
allowed (I.C.J. Statute, Art. 13).
4.
Who is its incumbent president? (1%)
The incumbent President is Rosalyn
Higgins.
5.
What is his/her nationality? (1 %)
She is a national of the United Kingdom or
a British subject.
(NOTE: Since questions IX(4) and IX(5) do
not test the examinees' knowledge of the
law, it is suggested that they be
disregarded)
6.
In 1980, the United States filed with the
International Court of Justice a complaint
against Iran alleging that the latter is
detaining American diplomats in violation
of International Law. Explain how the
International Court of Justice can acquire
jurisdiction
over
these
contending
countries. (5%)
Under Article 36 of the I.C.J. Statutes,
both parties must agree to submit
themselves to the jurisdiction of the
International Court of Justice.
4) In case State A, the petitioner, falls
to appear at the oral argument, can State B, the
respondent, move for the dismissal of the
petition?
SUGGESTED ANSWER:
3)
Under Article 39 of the Statutes of the
International Court of Justice, the official
languages of the court are English and French.
In the absence of an agreement, each party
may use the language it prefers. At the request
of any party, the court may authorize a party to
use a language other than English or French.
4) Under Article 53 of the Statutes of the
International Court of Justice, whenever one of
the parties does not appear before the court or
fails to defend its case, the other party may ask
the court to decide in favor of its claim.
However, the court must, before doing so,
satisfy itself it has Jurisdiction and that the
claim is well founded in fact and law.
International Convention; Law of the Sea
(2004)
(2-b) En route to the tuna fishing grounds in the
Pacific Ocean, a vessel registered in Country
TW entered the Balintang Channel north of
Babuyan Island and with special hooks and
nets dragged up red corals found near Batanes.
By international convention certain corals are
protected species, just before the vessel
reached the high seas, the Coast Guard patrol
intercepted the vessel and seized its cargo
including tuna. The master of the vessel and
the owner of the cargo protested, claiming the
rights of transit passage and innocent passage,
and sought recovery of the cargo and the
release of the ship. Is the claim meritorious or
not? Reason briefly. (5%)
SUGGESTED ANSWER;
The claim of innocent passage is not
meritorious. While the vessel has the right of
innocent passage, it should not commit a
violation of any international convention. The
vessel did not merely navigate through the
territorial sea, it also dragged red corals in
violation of the international convention which
protected the red corals. This is prejudicial to
the good order of the Philippines. (Article 19(2)
of the Convention on the Law of the Sea)
International Court of Justice (Q9-2006)
International Law vs. Municipal Law;
Territorial Principle; International Crimes
(Q2-2005)
(2) Police Officer Henry Magiting of the
Narcotics Section of the Western Police
District applied for a search warrant in the
Regional Trial Court of Manila for violation
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171
of Section 11, Article II (Possession of
Prohibited Drugs) of Republic Act (R.A.)
No. 9165 (Comprehensive Dangerous
Drugs Act of 2002) for the search and
seizure of heroin in the cabin of the Captain
of the MSS Seastar, a foreign-registered
vessel which was moored at the South
Harbor, Manila, its port of destination.
order to establish probable cause, as
required by Sections 3 and 4 of Rule 126.
In any event, there is no showing that the
requisite quantum of probable cause was
established by mere reference to the
affidavits and other documentary evidence
presented.
Mandates and Trust Territories (2003)
Based on the affidavits of the applicant's
witnesses who were crew members of the
vessel, they saw a box containing ten (10)
kilograms of heroin under the bed in the
Captain's cabin. The RTC found probable
cause for the issuance of a search warrant;
nevertheless, it denied the application on
the ground that Philippine courts have no
criminal jurisdiction over violations of R.A.
No. 9165 committed on foreign-registered
vessels found in Philippine waters.
Is the ruling of the court correct? Support
your answer with reasons. (5%)
ALTERNATIVE ANSWER:
The court's ruling is not correct. The
foreign-registered vessel was not in transit.
It was moored in South Harbor, Manila, its
port of destination. Hence, any crime
committed on board said vessel, like
possession of heroin, is triable by our
courts (U.S. v. Ah Sing, G.R. No. 13005,
October 10, 1917), except if the crime
involves the internal management of the
vessel.
ALTERNATIVE ANSWER:
The RTC may assert its jurisdiction over the
case by invoking the territorial principle,
which provides that crimes committed
within a state's territorial boundaries and
persons within that territory, either
permanently or temporarily, are subject to
the application of local law. Jurisdiction may
also be asserted on the basis of the
universality principle, which confers upon all
states the right to exercise jurisdiction over
delicta juris gentium or international crimes,
such as the international traffic narcotics.
The possession of 10 kgs. of heroin
constitutes commercial quantity and
therefore qualifies as trafficking of
narcotics.
Consequently, the denial of the search
warrant should have been anchored on the
failure of the court to conduct personal
examination of the witnesses to the crime in
No XVII - What are the so-called Mandates and
Trust Territories? Does the United Nations
exercise sovereignty over these territories? In
the affirmative, how is this jurisdiction
exercised?
SUGGESTED ANSWER:
The Mandates were the overseas
possessions of the defeated states of Germany
and Turkey which were placed by the League of
Nations
under
the
administration
of
mandatories to promote their development and
ultimate independence. (Harris, Cases and
Materials on International Law, 5th ed., p. 131.)
When the United Nations replaced the League
of Nations, the system of Mandates was
replaced by the System of Trust Territories. The
United Nations exercised residuary sovereignty
over the Trust Territories through the Trustee
Powers, who exercised the powers of
sovereignty subject to supervision by and
accountability
to
the
United
Nations.
(Oppenheim-Lauterpacht, International Law,
Vol. I, 7th ed., pp. 213-214.) (Since there are no
more Trust Territories, this is just a matter of
historical interest.)
ALTERNATIVE ANSWER:
Mandates pertains to the mandate
system established under Article 22 of the
Covenant of the League of Nations for the
tutelage and guardianship of colonies and
territories formerly held by Germany and Turkey
before the First World War, by a victorious
power on behalf of the League of Nations until
they were prepared for independence.
Territories under mandate were not under the
sovereignty of any State; they were
administered by a mandatory power which was
responsible to the League of Nations for the
development and welfare of the disadvantaged
subject peoples towards independence. Thus,
mandated territories were under the jurisdiction
of the mandatory power, subject to the
supervision of the League of Nations.
The general legal framework of the
mandate system passed into the trusteeship
system of the United Nations, together with
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172
mandated territories which did not attain
independence status by the end of the Second
World War. Trust territories and the Trusteeship
Council are created by the UN Charter.
The trusteeship system under Chapters
XII and XIII of the UN Charter is established
under the supervision of the UN Trusteeship
Council under the authority of the General
Assembly for the promotion of political and
socio-economic development of peoples in trust
territories towards independent status. A new
feature of the UN trusteeship system is the
creation of a new category of territories, the
strategic trust territories, which is under the
supervision of the Security Council instead of
the Trusteeship Council.
Under the foregoing conditions, the
United Nations may not be said to exercise
sovereignty over trust territories, the functions
and powers of the Trusteeship Council and the
General
Assembly
being
limited
to
administration and supervision under the
principle of self-determination as set forth in
individual trust agreements concluded in
accordance with the UN Charter. UN
jurisidiction
is
exercised
through
the
Trusteeship Council under the authority of the
General Assembly, except with respect to
strategic areas or territories which are placed
under the jurisdiction of the Security Council.
Municipal Law vs. International Law (2003)
No XVI- An organization of law students
sponsored an inter-school debate among three
teams with the following assignments and
propositions for each team to defend:
it is Philippine courts that will decide the case,
they will uphold the Constitution over
international law. If it is an international tribunal
that will decide the case, it will uphold
international law over municipal law. As held by
the Permanent International Court of Justice in
the case of the Polish Nationals in Danzig, a
State cannot invoke its own Constitution to
evade obligations incumbent upon it under
international law.
ALTERNATIVE ANSWER
I would take the proposition assigned to
Team "C" as being nearer to the legal reality in
the
Philippines,
namely,
"A
country's
Constitution prevails over international law but
international law prevails over municipal
statutes".
This is, however, subject to the place of
international law in the Philippine Constitutional
setting in which treaties or customary norms in
international law stand in parity with statutes
and in case of irreconcilable conflict, this may
be resolved by /ex posteriori derogat lex priori
as the Supreme Court obiter dictum in Abbas v.
COMELEC holds. Hence, a statute enacted
later than the conclusion or effectivity of a treaty
may prevail.
In the Philippine legal system, there are
no norms higher than constitutional norms. The
fact that the Constitution makes generally
accepted principles of international law or
conventional international law as part of
Philippine law does not make them superior to
statutory law, as clarified in Secretary of Justice
v. Lantion and Philip Morris decisions.
Team "A" - International law prevails
over municipal law. Team "B" - Municipal law
prevails over international law. Team "C" - A
country's Constitution prevails over international
law but international law prevails over municipal
statutes.
1.
What are the characteristics of a
neutralized state?
If you were given a chance to choose the
correct proposition, which would you take and
why?
2.
Is neutrality synonymous with
neutralization? If not, distinguish one from the
other.
SUGGESTED ANSWER:
SUGGESTED ANSWER:
I shall take the proposition for Team C.
International Law and municipal law are
supreme in their own respective fields. Neither
has hegemony over the other. (Brownlie,
Principles of Public International Law, 4th ed. p.
157.) Under Article II, Section 2 of the 1987
Constitution, the generally accepted principles
of international law form part of the law of the
land. Since they merely have the force of law, if
1. Whether simple or composite, a State is said
to be neutralized where its independence and
integrity are guaranteed by an international
convention on the condition that such State
obligates itself never to take up arms against
any other State, except for self-defense, or
enter into such international obligations as
would indirectly involve it in war. A State seeks
neutralization where it is weak and does not
Neutrality of States (1988)
No. 20: Switzerland and Australia are
outstanding examples of neutralized states,
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
173
wish to take an active part in international
politics. The power that guarantee its
neutralization may be motivated either by
balance of power considerations or by the
desire to make the weak state a buffer between
the territories of the great powers. (J.
SALONGA
&
P.
YAP,
PUBLIC
INTERNATIONAL LAW 76 (1966)).
2. Firstly, neutrality obtains only during
war, whereas neutralization is a condition that
applies in peace or in war. Secondly,
neutralization is a status created by means of
treaty, whereas neutrality is a status created
under international law, by means of a stand on
the part of a state not to side with any of the
parties at war. Thirdly, neutrality is brought
about by a unilateral declaration by the neutral
State, while neutralization cannot be effected by
unilateral act, but must be recognized by other
States. (Id.)
Outer Space; Jurisdiction (2003)
No XIX - What is outer-space? Who or which
can exercise jurisdiction over astronauts while
in outer space?
ALTERNATIVE ANSWER:
There are several schools of thought regarding
the determination of outer space, such as the
limit of air flight, the height of atmospheric
space, infinity, the lowest altitude of an artificial
satellite, and an altitude approximating
aerodynamic lift. Another school of thought
proceeds by analogy to the law of the sea. It
proposes that a State should exercise full
sovereignty up to the height to which an aircraft
can ascend. Non-militant flight instrumentalities
should be allowed over a second area, a
contiguous zone of 300 miles. Over that should
be outer space. The boundary between
airspace and outer space has not yet been
defined. (Harris, Cases and Materials on
International Law, 5th ed.. pp. 251-253.) Under
Article 8 of the Treaty on the Principles
Governing the Activities of States in the
Exploration and Use of Outer Space, Including
the Moon and Other Celestial Bodies, a State
on whose registry an object launched into outer
space retains jurisdiction over the astronauts
while they are in outer space.
Outer space in this estimate begins from the
lowest altitude an artificial satellite can remain
in orbit. Under the Moon Treaty of 1979 the
moon and the other celestial bodies form part of
outer space.
In outer space, the space satellites or objects
are under the jurisdiction of States of registry
which covers astronauts and cosmonauts. This
matter is covered by the Registration of Objects
in Space Convention of 1974 and the Liability
for Damage Caused by Spaced Objects
Convention of 1972.
Principle of Auto-Limitation (Q10-2006)
1. What is the principle of auto-limitation?
(2.5%)
ALTERNATIVE ANSWER:
Under the principle of auto-limitation, any
state may by its consent, express or
implied, submit to a restriction of its
sovereign rights. There may thus be a
curtailment of what otherwise is a plenary
power (Reagan v. CIR, G.R. L-26379,
December 27, 1969).
Reciprocity v. Principle of Auto-Limitation
(Q10-2006)
2. What is the relationship between
reciprocity and the principle of autolimitation? (2.5%)
ALTERNATIVE ANSWER:
When the Philippines enters into treaties,
necessarily,
these
international
agreements may contain limitations on
Philippine sovereignty. The consideration
in this partial surrender of sovereignty is
the reciprocal commitment of other
contracting states in granting the same
privilege and immunities to the Philippines.
For example, this kind of reciprocity in
relation to the principle of auto-limitation
characterizes the Philippine commitments
under WTO-GATT. This is based on the
constitutional provision that the Philippines
"adopts the generally accepted principles
of international law as part of the law of
the land and adheres to the policy of ...
cooperation and amity with all nations"
(Tanada v. Angara, G.R. No. 118295, May
2, 1997).
ALTERNATIVE ANSWER:
Outer space is the space beyond the airspace
Recognition of States; De Facto vs. De Jure
surrounding the Earth or beyond the national
Recognition (1998)
airspace. In law, the boundary between outer
space
and
airspace
has
remained
No XII. Distinguish between de facto
undetermined. But in theory, this has been
recognition and de jure recognition of states.
estimated to be between 80 to 90 kilometers.
[5%)
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
174
SUGGESTED ANSWER:
The following are the distinctions between de
facto recognition and de Jure recognition of a
government:
1. De facto recognition is provisional, de Jure
recognition is relatively permanent;
2. De facto recognition does not vest title in
the government to its properties abroad; de
Jure recognition does;
3. De facto recognition is limited to certain
juridical relations; de jure recognition brings
about full diplomatic relations. (Cruz.
International Law. 1996 ed.. p. 83.)
ALTERNATIVE ANSWER:
The distinction between de facto
recognition and de jure recognition of a State is
not clear in international law. It is, however,
usually assumed as a point of distinction that
while de facto recognition is provisional and
hence may be withdrawn, de jure recognition is
final and cannot be withdrawn.
Confronted with the emergence of a
new political entity in the international
community, a State may experience some
difficulty in responding to the question whether
the new political order qualifies to be regarded
as a state under international law, in particular
from the viewpoint of its effectiveness and
independence on a permanent basis. The
recognizing State may consider its act in regard
to the new political entity as merely a de facto
recognition, implying that it may withdraw it if in
the end it turns out that the conditions of
statehood are not fulfilled should the new
authority not remain in power.
But even then, a de facto recognition in
this context produces legal effects in the same
way as de jure recognition. Whether recognition
is de facto or de jure, steps may be taken to
withdraw recognition if the conditions of
statehood in international law are not fulfilled.
Thus, from this standpoint, the distinction is not
legally significant.
Note: The question should refer to recognition
of government not recognition of state because
there is no such distinction in recognition of
state.
Reparations Agreement; Validity (1992)
No. 14: The Japanese Government confirmed
that during the Second World War, Filipinas
were among those conscripted as "comfort
women" (or prostitutes) for Japanese troops in
various parts of Asia. The Japanese
Government has accordingly launched a
goodwill campaign and has offered the
Philippine Government substantial assistance
for a program that will promote — through
government
and
non-governmental
organizations — womens' rights, child welfare,
nutrition and family health care.
An executive agreement is about to be
signed for that purpose. The agreement
includes a clause whereby the Philippine
Government acknowledges that any liability to
the "comfort women" or their descendants are
deemed
covered
by
the
reparations
agreements
signed
and
implemented
immediately after the Second World War.
Juliano Iglesias, a descendant of a now
deceased comfort woman, seeks your advice
on the validity of the agreement. Advise him.
SUGGESTED ANSWER:
The agreement is valid. The comfort women
and their descendants cannot assert individual
claims against Japan. As stated in Davis &
Moore vs. Regan, 453 U.S. 654, the sovereign
authority of a State to settle claims of its
nationals against foreign countries has
repeatedly been recognized. This may be made
without the consent of the nationals or even
without consultation with them. Since the
continued amity between a State and other
countries
may
require
a
satisfactory
compromise of mutual claims, the necessary
power to make such compromises has been
recognized. The settlement of such claims may
be made by executive agreement.
Right to Innocent Passage (1999)
No X - C.
State Epsilon, during peace time,
has allowed foreign ships innocent passage
through Mantranas Strait, a strait within
Epsilon's territorial sea which has been used by
foreign ships for international navigation. Such
passage enabled the said ships to traverse the
strait between one part of the high seas to
another. On June 7, 1997, a warship of State
Beta passed through the above-named strait.
Instead of passing through continuously and
expeditiously, the ship delayed its passage to
render assistance to a ship of State Gamma
which was distressed with no one nearby to
assist. When confronted by Epsilon about the
delay, Beta explained that the delay was due to
force majeure in conformity with the provision of
Article 18(2) of the 1982 Convention on the Law
of the Sea (UNCLOS). Seven months later,
Epsilon suspended the right of innocent
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
175
passage of warships through Mantranas Strait
without
giving
any
reason
therefor.
Subsequently, another warship of Beta passed
through the said strait, and was fired upon by
Epsilon's coastal battery. Beta protested the
aforesaid act of Epsilon drawing attention to the
existing customary international law that the
regime of innocent passage (even of transit
passage)
is
non-suspendable.
Epsilon
countered that Mantranas Strait is not a
necessary route, there being another suitable
alternative route. Resolve the above-mentioned
controversy, Explain your answer. (4%)
SUGGESTED ANSWER:
Assuming that Epsilon and Beta are parties to
the UNCLOS, the controversy maybe resolved
as follows:
Under the UNCLOS, warships enjoy a
right of innocent passage. It appearing that the
portion of Epsilon's territorial sea in question is
a strait used for international navigation,
Epsilon has no right under international law to
suspend the right of innocent passage. Article
45(2) of the UNCLOS is clear in providing that
there shall be no suspension of innocent
passage through straits used for international
navigation.
On the assumption that the straits in
question is not used for international navigation,
still the suspension of innocent passage by
Epsilon
cannot
be
effective
because
suspension is required under international law
to be duly published before it can take effect.
There being no publication prior to the
suspension of innocent passage by Beta's
warship, Epsilon's act acquires no validity.
Moreover, Epsilon's suspension of
innocent passage may not be valid for the
reason that there is no showing that it is
essential for the protection of its security. The
actuation of Beta's warship in resorting to
delayed passage is for cause recognized by the
UNCLOS as excusable, i.e., for the purpose of
rendering assistance to persons or ship in
distress, as provided in Article 18(2) of the
UNCLOS. Hence, Beta's warship complied with
the international law norms on right of innocent
passage.
Right to Transit and Innocent Passage
(2004)
II-B.
En route to the tuna fishing grounds in
the Pacific Ocean, a vessel registered in
Country TW entered the Balintang Channel
north of Babuyan Island and with special hooks
and nets dragged up red corals found near
Batanes. By international convention certain
corals are protected species. Just before the
vessel reached the high seas, the Coast Guard
patrol intercepted the vessel and seized its
cargo including tuna. The master of the vessel
and the owner of the cargo protested, claiming
the rights of transit passage and innocent
passage, and sought recovery of the cargo and
the release of the ship. Is the claim meritorious
or not? Reason briefly.
(5%)
SUGGESTED ANSWER;
The claim of innocent passage is not
meritorious. While the vessel has the right of
innocent passage, it should not commit a
violation of any international convention. The
vessel did not merely navigate through the
territorial sea, it also dragged red corals in
violation of the international convention which
protected the red corals. This is prejudicial to
the good order of the Philippines. (Article 19(2)
of the Convention on the Law of the Sea)
Rights and Obligation under UN Charter
(1991)
No. 14: State X invades and conquers State Y.
The United Nations Security Council declares
the invasion and conquest illegal and orders an
international embargo against State X.
Subsequently, the same U.N. body adopts a
resolution calling for an enforcement action
against State X under Chapter VII of the U.N.
Charter. State Z, a U.N. member, religiously
complies with the embargo but refuses to take
part in the enforcement action, sending a
medical mission instead of fighting troops to the
troubled area.
(a) Did State Z violate its obligations under the
U.N. Charter?
(b) If so, what sanctions may be taken against
it?
(c) If not, why not?
ANSWER:
(a) No, State Z did not violate its
obligations under the United Nations Charter. It
complied with the resolution calling for
enforcement action against State X, because it
sent a medical team.
(b) No sanctions may be taken against
State Z. because it did not violate its obligation
under the United Nations Charter.
(c) Compliance with the resolution
calling for enforcement action against Slate X
does not necessarily call for the sending of
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
176
fighting troops. Under Art 43 of the United
Nations Charter, compliance with the call for
enforcement action against State X has to be
made in accordance with a special agreement
with the Security Council and such agreement
shall govern the numbers and types of forces,
their degree of readiness and general locations,
and the nature of the facilities and assistance to
be supplied by members of the United Nations.
Sources of International Law; Primary &
Subsidiary Sources (2003)
No XV - State your general understanding of
the primary sources and subsidiary sources of
international law, giving an illustration of each.
SUGGESTED ANSWER:
Under Article 38 of the Statute of the
International Court of Justice, the PRIMARY
SOURCES of international law are the
following:
1. International conventions, e.g., Vienna
Convention on the Law of Treaties.
2. International customs, e.g., sabotage, the
prohibition against slavery, and the
prohibition against torture.
procedures and a customary norm is the
product of the formation of general practice
accepted as law.
By way of illustrating International Convention
as a source of law, we may refer to the principle
embodied in Article 6 of the Vienna Convention
on the Law of Treaties which reads: "Every
State possesses capacity to conclude treaties".
It tells us what the law is and the process or
method by which it came into being.
International Custom may be concretely
illustrated by pacta sunt servanda, a customary
or general norm which came about through
extensive and consistent practice by a great
number of states recognizing it as obligatory.
The subsidiary means serves as evidence of
law. A decision of the International Court of
Justice, for example, may serve as material
evidence confirming or showing that the
prohibition against the use of force is a
customary norm, as the decision of the Court
has demonstrated in the Nicaragua Case. The
status of a principle as a norm of international
law may find evidence in the works of highly
qualified publicists in international law, such as
McNair, Kelsen or Oppenheim.
3. General principles of law recognized by
civilized nations, e.g., prescription, res
judicata, and due process.
Sovereign Immunity of States; Absolute vs.
Restrictive (1998)
The SUBSIDIARY SOURCES of international
law are judicial decisions, subject to the
provisions of Article 59, e.g., the decision in the
Anglo-Norwegian
Fisheries
Case
and
Nicaragua v. United States, and TEACHINGS
of the most highly qualified publicists of various
nations, e.g., Human Rights in International
Law by Lauterpacht and International Law by
Oppenhe im -Lauterpacht.
SUGGESTED ANSWER:
ALTERNATIVE ANSWER:
Reflecting general international law,
Article
38(1) of the Statute of the International Court of
Justice is understood as providing for
international convention, international custom,
and general principles of law as primary
sources of international law, while indicating
that judicial decisions and teachings of the most
highly qualified publicists as "subsidiary means
for the determination of the rules of law."
No XIII. What is the doctrine of Sovereign
immunity in international Law? [5%]
By the doctrine of sovereign immunity, a
State, its agents and property are immune from
the judicial process of another State, except
with its consent. Thus, immunity may be waived
and a State may permit itself to be sued in the
courts of another State,
Sovereign immunity has developed into
two schools of thought, namely, absolute
immunity and restrictive immunity. By absolute
immunity, all acts of a State are covered or
protected by immunity. On the other hand,
restrictive immunity makes a distinction
between governmental or sovereign acts (acta
jure imperii) and nongovernmental, propriety or
commercial acts (acta jure gestiones). Only the
first category of acts is covered by sovereign
immunity.
The Philippine adheres to
immunity school of thought.
The primary sources may be considered as
formal sources in that they are the methods by
ALTERNATIVE ANSWER;
which norms of international law are created
and recognized. A conventional or treaty norm
comes into being by established treaty-making
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
the
restrictive
177
In United States vs. Ruiz, 136 SCRA 487. 490491. the Supreme Court explained the doctrine
of sovereign immunity in international law;
"The traditional rule of State immunity exempts
a State from being sued in the courts of another
State without its consent or waiver, this rule is a
necessary consequence of the principles of
independence and equality of states. However,
the rules of International Law are not petrified,
they are constantly developing and evolving.
And because the activities of states have
multiplied. It has been necessary to distinguish
them — between sovereign and government
acts [jure imperii] and private, commercial and
proprietary acts (jure gestionis), The result is
that State immunity now extends only to acts
jure imperii."
Sovereignty of
Territory (1989)
States;
Natural
Use
of
No. 19: The Republic of China (Taiwan), in its
bid to develop a hydrogen bomb and defend
itself against threats of invasion coming from
the People's Republic of China, conducted a
series of secret nuclear weapons tests in its
own atmosphere. The tests resulted in
radioactive fallouts which contaminated the
rivers in and around Aparri and other bodies of
water within the territorial jurisdiction of the
Philippines, Can the Philippines complain
against the Republic of China for violation of its
sovereignty?
ANSWER:
In the Trial Smelter Arbitration between
the United States and Canada, the Arbitral
Tribunal held that air pollution from Canada
should be enjoined, because sovereignty
includes the right against any encroachment
which might prejudice the natural use of the
territory and the free movement of its
inhabitants.
Since the nuclear tests conducted by
the Republic China resulted in radioactive
fallouts which contaminated the rivers and other
bodies of water within the Philippines, the
Republic of China violated the sovereignty of
the Philippines.
YES, the Philippines can complain against the
Republic of China for violation of its
sovereignty. Article 194 of the Convention on
the Law of the Sea requires States to take all
measures necessary to ensure that activities
under their jurisdiction or control are so
conducted as not to cause damage by pollution
to other States and their environment. Principle
21 of the United Nations Conference on the
Human Environment imposes upon states the
responsibility to ensure that activities within
their jurisdiction or control do not cause
damage to the environment of other States.
Sovereignty; Definition; Nature (Q10-2006)
3. How is state sovereignty defined in
International Law? (2.5%)
ALTERNATIVE ANSWER:
State sovereignty signifies independence
in regard to a portion of the globe, and the
right to exercise and enforce jurisdiction
therein, to the exclusion of any other state
the functions of the state [See Island of
Las Palmas Case (US v. The Netherlands)
2 R.IAA. 829]. Sovereignty means independence from outside control. The
1933 Montevideo Convention expresses
this in positive terms as including "the
capacity to enter into relations with other
states."
ALTERNATIVE ANSWER:
Under the principle of state sovereignty in
International Law, all states are sovereign
equals and cannot assert jurisdiction over
one another. A contrary disposition would
"unduly vex the peace of nations" (Da
Haber v. Queen of Portugal, 17 Q. B. 171).
4.
Is state sovereignty absolute? (2.5%)
ALTERNATIVE ANSWER:
State sovereignty is not absolute. On the
contrary, the rule says that the state may
not be sued without its consent, which
clearly imports that it may be sued if it
consents. Moreover, certain restrictions
enter into the picture: (1) limitations
imposed by the very nature of membership
in the family of nations; and (2) limitations
imposed by treaty stipulations. The
sovereignty of a state therefore cannot in
fact and in reality be considered absolute
(Tanada v. Angara, G.R. No. 118295, May
2,1997).
ALTERNATIVE ANSWER:
Sovereignty is absolute with respect to
exclusive competence over internal
matters [See Island of Las Palmas Case
(US v. The Netherlands) 2 R.IAA. 829],
subject only to such limitations as may be
imposed or recognized by the state itself
as part of its obligations under
international law. In the international plain,
state sovereignty is realized as the coexistence with other sovereignties under
conditions of independence and equality.
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
178
State Liabilities (1995)
No. 8: In a raid conducted by rebels in a
Cambodian town, an American businessman
who has been a long-time resident of the place
was caught by the rebels and robbed of his
cash and other valuable personal belongings.
Within minutes, two truckloads of government
troops arrived prompting the rebels to withdraw.
Before fleeing they shot the American causing
him physical injuries. Government troopers
immediately launched pursuit operations and
killed several rebels. No cash or other valuable
property taken from the American businessman
was recovered.
In an action for indemnity filed by the US
Government in behalf of the businessman for
injuries and losses in cash and property, the
Cambodian government contended that under
International Law it was not responsible for the
acts of the rebels.
1.
Is the contention of the Cambodian
government correct? Explain.
2. Suppose the rebellion is successful and a
new government gains control of the entire
State, replacing the lawful government that was
toppled, may the new government be held
responsible for the injuries or losses suffered by
the American businessman? Explain.
ANSWER;
1.
Yes, the contention of the Cambodian
Government is correct. Unless it clearly
appears that the government has failed to use
promptly and with appropriate force its
constituted authority it cannot be held
responsible for the acts of rebels, for the rebels
are not its agents and their acts were done
without its volition. In this case, government
troopers immediately pursued the rebels and
killed several of them.
2.
The new government may be held
responsible if it succeeds in overthrowing the
government. Victorious rebel movements are
responsible for the illegal acts of their forces
during the course of the rebellion. The acts of
the rebels are imputable to them when they
assumed as duly constituted authorities of the
state.
State Sovereignty; Effective Occupation;
Terra Nullius (2000)
No XIX - a)
What is the basis of the
Philippines' claim to a part of the Spratly
Islands?
The basis of the Philippine claim is effective
occupation of a territory not subject to the
sovereignty of another state. The Japanese
forces occupied the Spratly Island group during
the Second World War. However, under the
San Francisco Peace Treaty of 1951 Japan
formally renounced all right and claim to the
Spratlys. The San Francisco Treaty or any
other International agreement however, did not
designate any beneficiary state following the
Japanese renunciation of right. Subsequently,
the Spratlys became terra nullius and was
occupied by the Philippines in the title of
sovereignty.
Philippine
sovereignty
was
displayed by open and public occupation of a
number of islands by stationing of military
forces, by organizing a local government unit,
and by awarding petroleum drilling rights,
among other political and administrative acts. In
1978, it confirmed its sovereign title by the
promulgation of Presidential Decree No. 1596,
which declared the Kalayaan Island Group part
of Philippine territory.
Stateless Persons; Effects; Status; Rights
(1995)
1. Who are
stateless
International Law?
2. What
are
the
statelessness?
persons
consequences
under
of
3. Is a stateless person entirely without right,
protection or recourse under the Law of
Nations? Explain.
4. What measures, if any, has International
Law taken to prevent statelessness?
ANSWER:
1. STATELESS PERSONS are those who are
not considered as nationals by any State under
the operation of its laws.
2. The consequences of statelessness are the
following:
(a)
No State can intervene or complain
in behalf of a stateless person for
an
international
delinquency
committed by another State in
inflicting injury upon him.
(b)
He cannot be expelled by the State
if he is lawfully in its territory except
on grounds of national security or
public order.
(c)
He cannot avail himself of the
protection
and
benefits
of
SUGGESTED ANSWER:
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
179
citizenship like securing for himself
a passport or visa and personal
documents.
3.
No. Under the Convention in Relation to
the Status of Stateless Person, the Contracting
States agreed to accord to stateless persons
within their territories treatment at least as
favorable as that accorded to their nationals
with respect to freedom of religion, access to
the courts, rationing of products in short supply,
elementary education, public relief and
assistance, labor legislation and social security.
They also agreed to accord to them treatment
not less favorable than that accorded to aliens
generally in the same circumstances. The
Convention also provides for the issuance of
identity papers and travel documents to
stateless person.
4.
In the Convention on the Conflict of
Nationality Laws of 1930, the Contracting
States agreed to accord nationality to persons
born in their territory who would otherwise be
stateless. The Convention on the Reduction of
Statelessness of 1961 provides that if the law of
the contracting States results in the loss of
nationality as a consequence of marriage or
termination of marriage, such loss must be
conditional upon possession or acquisition of
another nationality.
ALTERNATIVE ANSWER;
Under the Convention on the Reduction of
Stateless-ness of 1961, a contracting state shall
grant its nationality to a person born in its
territory who would otherwise be stateless and
a contracting state may not deprive a person or
a group of persons of their nationality for racial,
ethnic, religious or political grounds.
Territorial Sea vs. Internal Waters (2004)
II-A. Distinguish briefly but clearly between:
(1) The territorial sea and the internal waters of
the Philippines.
SUGGESTED ANSWER:
A. (1) TERRITORIAL SEA is an adjacent belt of
sea with a breadth of twelve 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.)
Use of Force; Exceptions (2003)
No XIV- Not too long ago, "allied forces", led by
American and British armed forces, invaded
Iraq to "liberate the Iraqis and destroy
suspected weapons of mass destruction." The
Security Council of the United Nations failed to
reach a consensus on whether to support or
oppose the "war of liberation".
Can the action taken by the allied forces
find justification in International Law? Explain.
SUGGESTED ANSWER:
The United States and its allied forces
cannot justify their invasion of Iraq on the basis
of self-defense under Article 51 attack by Iraq,
and there was no necessity for anticipatory selfdefense which may be justified under
customary international law. Neither can they
justify their invasion on the ground that Article
42 of the Charter of the United Nations permits
the use force against a State if it is sanctioned
by the Security Council. Resolution 1441, which
gave Iraq a final opportunity to disarm or face
serious consequences, did not authorize the
use of armed force.
ALTERNATIVE ANSWER:
In International Law, the action taken by
the allied forces cannot find justification. It is
covered by the prohibition against the use of
force prescribed by the United Nations Charter
and it does not fall under any of the exceptions
to that prohibition.
The UN Charter in Article 2(4) prohibits
the use of force in the relations of states by
providing that all members of the UN "shall
refrain in their international relations from the
threat or use of force against the territorial
integrity or political independence of any state,
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
180
or in any other manner inconsistent with the
purposes of the United Nations." This mandate
does not only outlaw war; it encompasses all
threats of and acts of force or violence short of
war.
As thus provided, the prohibition is
addressed to all UN members. However, it is
now recognized as a fundamental principle in
customary international law and, as such, is
binding on all members of the international
community.
The action taken by the allied forces
cannot be justified under any of the three
exceptions to the prohibition against the use of
force which the UN Charter allows. These are:
(1) inherent right of individual or
collective self-defense under Article
51;
(2) enforcement measure involving the
use of armed forces by the UN
Security Council under Article 42;
and
(3) enforcement measure by regional
arrangement under Article 53, as
authorized by the UN Security
Council. The allied forces did not
launch military operations and did
not occupy Iraq on the claim that
their action was in response to an
armed attack by Iraq, of which there
was none.
Moreover, the action of the allied forces was
taken in defiance or disregard of the Security
Council Resolution No. 1441 which set up "an
enhanced inspection regime with the aim of
bringing to full and verified completion the
disarmament process", giving Iraq "a final
opportunity to comply with its disarmament
obligations". This resolution was in the process
of implementation; so was Iraq's compliance
with such disarmament obligations.
Use of Force; Principle of Non-Intervention
(1994)
No. 19; 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 Arneria.
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
1) On what grounds may Nova's causes of
action against Ameria be based?
2)
On what grounds may Ameria move to
dismiss the case with the ICJ?
3) Decide the case.
ANSWER:
1) 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 requires members to
refrain from the threat or use of force against
the territorial integrity or political independence
of any state. If either or both Nova or Ameria
are not members of the United Nations, Nova
may premise its cause of action on a violation
of the non-use of force principle in customary
international law which exists parallel to Article
2(4) of the United Nations Charter.
In the Case Concerning Military and
Paramilitary Activities in and Against Nicaragua
(1986 ICJ Rep. 14), the International Court of
Justice considered the planting of mines by one
state within the territorial waters of another as a
violation of Article 2(4) of the United Nations
Charter. If the support provided by Ameria to
the rebels of Nova goes beyond the mere giving
of monetary or psychological support but
consists in the provision of arms and training,
the acts of Ameria can be considered as
indirect aggression amounting to another
violation of Article 2(4).
In addition, even if the provision of
support is not enough to consider the act a
violation of the non-use of force principle, this is
a violation of the principle of non-intervention in
customary International law.
Aggression is the use of armed force by
a state against the sovereignty, territorial
integrity or political independence of another
state or in any other manner inconsistent with
the United Nations Charter.
2)
By virtue of the principle of sovereign
immunity, no sovereign state can be made a
party to a proceeding before the International
Court of Justice unless it has given its consent.
...
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
181
3) If jurisdiction over Ameria is established, the
case should be decided in favor of Nova,
because Ameria violated the principle against
the use of force and the principle of nonIntervention. The defense of anticipatory selfdefense cannot be sustained, because there is
no showing that Nova had mobilized to such an
extent that if Ameria were to wait for Nova to
strike first it would not be able to retaliate.
However, if jurisdiction over Ameria is not
established, the case should be decided in
favor of Ameria because of the principle of
sovereign immunity.
Use of Force; Right of Self-defense (2002)
No XIX. On October 13, 2001, members of Ali
Baba, a political extremist organization based in
and under the protection of Country X and
espousing violence worldwide as a means of
achieving its objectives, planted high-powered
explosives and bombs at the International
Trade Tower (ITT) in Jewel City in Country Y, a
member of the United Nations. As a result of
the bombing and the collapse of the 100-story
twin towers, about 2,000 people, including
women and children, were killed or injured, and
billions of dollars in property were lost.
Immediately after the incident, Ali Baba,
speaking through its leader Bin Derdandat,
admitted and owned responsibility for the
bombing of ITT, saying that it was done to
pressure Country Y to release captured
members of the terrorist group. Ali Baba
threatened to repeat its terrorist acts against
Country Y if the latter and its allies failed to
accede to Ali Baba's demands. In response,
Country Y demanded that Country X surrender
and deliver Bin Derdandat to the government
authorities of Country Y for the purpose of trial
and "in the name of justice." Country X refused
to accede to the demand of Country Y.
What action or actions can Country Y
legally take against Ali Baba and Country X to
stop the terrorist activities of Ali Baba and
dissuade Country X from harboring and giving
protection to the terrorist organization? Support
your answer with reasons. (5%)
FIRST ALTERNATIVE ANSWER:
(1)
Country Y may exercise the right
of self-defense, as provided under Article 51 of
the UN Charter "until the Security Council has
taken measure necessary to maintain
international peace and security". Self-defense
enables Country Y to use force against Country
X as well as against the Ali Baba organization.
(2)
It may bring the matter to the
Security Council which may authorize sanctions
against Country X, including measure invoking
the use of force. Under Article 4 of the UN
Charter, Country Y may use force against
Country X as well as against the Ali Baba
organization by authority of the UN Security
Council.
SECOND ALTERNATIVE ANSWER:
Under the Security Council Resolution No.
1368, the terrorist attack of Ali Baba may be
defined as a threat to peace, as it did in defining
the September 11, 2001 attacks against the
United States. The resolution authorizes military
and other actions to respond to terrorist attacks.
However, the use of military force must be
proportionate and intended for the purpose of
detaining the persons allegedly responsible for
the crimes and to destroy military objectives
used by the terrorists.
The fundamental principles of international
humanitarian law should also be respected.
Country Y cannot be granted sweeping
discretionary powers that include the power to
decide what states are behind the terrorist
organizations. It is for the Security Council to
decide whether force may be used against
specific states and under what conditions the
force may be used.
Use of Force; Self-Defense; Waging War
(1998)
No XIV. At the Nuremberg trial of the Nazi war
criminals at the end of the World War II. the
defense argued on behalf of the German
defendants that although a nation could not
wage aggressive war without transgressing
International law, it could use war as an
Instrument of self-defense, and that the nation
itself must be the sole judge of whether its
actions were in self-defense. How would you
meet the argument if you were a member of the
Tribunal trying the case? [5%]
SUGGESTED ANSWER:
No rule of International law gives a state
resorting to war allegedly in self-defense the
right to determine with a legally conclusive
effect the legality of such action.
The Judgment of the Nuremberg
International Military Tribunal rejected the
defense of the Nazi war criminals:
"But whether action taken under the
claim of self-defense was in fact aggressive or
defensive must ultimately be subject to
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
182
investigation and adjudication if international
law is ever to be enforced."
ALTERNATIVE ANSWER:
International law on self-defense cannot
assume the nature of war. War requires "a
declaration of war giving reasons" under the
Hague Convention II of 1907. Precisely, the
Nazi war criminalwere indicted before the
Nuremberg
Tribunal
for
violating
this
Convention and were found guilty.
Since the Nazi war criminal argued that
war as self-defense is understood by them as
meaning "that the nation itself must be the sole
Judge of whether its action were in selfdefense", it is clear that what they had in mind
in fact is "war as an instrument of national
policy", not self-defense as an objective right
under International law.
Waging was as an instrument of
national law is prohibited by the Pact of Paris of
1928 (Kellog - Braid Part) of which Germany
was already a state party before the Second
World War. Precisely, the German Reich was
indicted before the Nuremberg Tribunal for
violation of the Pact of Paris and the Nazi war
criminals were found guilty of this as a war
crime.
Hence, the argument is itself an admission of
violation of international law.
Use of Force; When allowed (1988)
operations by air, sea, or land forces of
members of the UN.
2. Under art. 51 member states also have the
inherent right of collective self defense if an
armed attack occurs against a member
state, until the Security Council has taken
measures
necessary
to
maintain
international peace and security.
War; Combatants/ Prisoners of War vs.
Mercenaries (1993)
No. 3: Reden, Jolan and Andy. Filipino tourists,
were in Bosnia-Herzegovina when hostilities
erupted between the Serbs and the Moslems.
Penniless and caught in the crossfire, Reden,
Jolan, and Andy, being retired generals, offered
their services to the Moslems for a handsome,
salary, which offer was accepted. When the
Serbian National Guard approached Sarajevo,
the Moslem civilian population spontaneously
took up arms to resist the invading troops. Not
finding time to organize, the Moslems wore
armbands to identify themselves, vowing to
observe the laws and customs of war. The
three Filipinos fought side by side with the
Moslems. The Serbs prevailed resulting in the
capture of Reden, Jolan and Andy, and part of
the civilian fighting force.
1) Are Reden, Jolan and Andy considered
combatants thus entitled to treatment as
prisoners of war?
1. The Charter of the United Nations prohibits
not only recourse to war but also resort to the
use of force or threat. In the ardent desire to
maintain peace, the Charter obliges members
to settle their international disputes by peaceful
means and to refrain in their international
relations from the threat or use of force.
The same Charter,
however, recognizing
perhaps the realities of international relations,
allows the use of force in exceptional
occasions.
2) Are the captured civilians likewise prisoners
of war?
Please state two occasions when the use of
armed forces is allowed by the U.N. Charter.
Pursuant to Article 47 of Protocol I of
the Geneva Conventions of 1949, Reden,
Jolan, and Andy are mercenaries, because they
were recruited to fight in an armed conflict, they
in fact took direct part in the hostilities, they
were motivated to take part in the hostilities
essentially by the desire for private gain and in
fact was promised a handsome salary by the
Moslems, they were neither nationals of a party
to the conflict nor residents of territory
controlled by a party to the conflict, they are not
members of the armed forces of a party to the
SUGGESTED ANSWER:
1. Under art. 42 of the UN Charter, should the
Security Council consider that pacific
methods
of
settling
disputes
are
inadequate, it may take such action by air,
sea, or land forces as may be necessary to
maintain or restore international peace and
security. Such action may include
demonstrations, blockade, and other
ANSWER:
1) Reden, Jolan and Andy are not combatants
and are not entitled to treatment as prisoners of
war, because they are mercenaries. Article 47
of the Protocol I to the Geneva Conventions of
1949 provides:
"A Mercenary shall not have the right to
be combatant or a prisoner of war."
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
183
conflict, and they were not sent by a state which
is not a party to the conflict on official duty as
members of its armed forces.
2) The captured civilians are prisoners of war.
Under Article 4 of the Geneva Convention
relative to the Treatment of Prisoners of War,
inhabitants of a non-occupied territory, who on
the approach of the enemy spontaneously take
up arms to resist the invading forces, without
having had time to form themselves into regular
armed forces, provided they carry arms openly
and respect the laws and customs of war, are
considered prisoners of war if they fall into the
power of the enemy.
B. 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.
Admin Law; Exhaustion of Administrative
Remedies (2000)
No XIII.
Wilson doctrine vs. Estrada doctrine (2004)
(2-a-5) Distinguish: The Wilson doctrine and
the Estrada doctrine regarding recognition of
governments.
a)
Explain the doctrine of exhaustion of
administrative remedies. (2%)
SUGGESTED ANSWER:
Under the WILSON DOCTRINE, recognition
shall not be extended to any government
established by revolution or internal violence
until the freely elected representatives of the
people have
organized
a constitutional
government.
SUGGESTED ANSWER:
Under the ESTRADA DOCTRINE, the Mexican
government declared that it would, as it saw fit,
continue or terminate its diplomatic relations
with any country in which a political upheaval
had taken place and in so doing it would not
pronounce judgment on the right of the foreign
state to accept, maintain or replace its
government. (Cruz, International Law, 2003 ed.)
(In view of recent developments, the Wilson
doctrine and the Estrada doctrine are no longer
in the mainstream of public international law.)
ADMINISTRATIVE LAW
Admin Law; Exhaustion of Administrative
Remedies (1991)
No. 9: B, 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?
SUGGESTED ANSWER;
b)
Give at least three (3) exceptions to its
application. (3%)
A.) 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.) 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 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);
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
184
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]).
{Note: The examinee should be given
full credit if he gives three of the abovementioned exceptions.}
Admin Law; Exhaustion of Administrative
Remedies
vs
Doctrine
of
Primary
Jurisdiction (1996)
No. 11: 1) Distinguish the doctrine of primary
jurisdiction from the doctrine of exhaustion of
administrative remedies.
2)
Does the failure to exhaust
administrative remedies before filing a case in
court oust said court of jurisdiction to hear the
case? Explain.
SUGGESTED ANSWER;
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) 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.
Admin Law; Exhaustion of Administrative
Remedies; Exceptions (1991)
No. 8: 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
1) The doctrine of primary jurisdiction
filed with the Supreme Court a petition for
and the doctrine of exhaustion of administrative
certiorari, prohibition and mandamus to set
remedies both deal with the proper
aside the warrant, enjoin the Collector and his
relationships
between
the
courts
and
agents from further proceeding with the
administrative agencies. The doctrine of
forfeiture hearing and to secure the return of the
exhaustion of administrative remedies applies
confiscated equipment, alleging therein that the
where a claim is cognizable in the first instance
warrant issued is null and void for the reason
by an administrative agency alone. Judicial
that, pursuant to Section 2 of Article III of the
interference is withheld until the administrative
1987 Constitution, only a judge may issue a
process has been completed. As stated in
search warrant. In his comment to the petition,
Industrial Enterprises, Inc. vs. Court of Appeals,
the Collector of Customs, through the Office of
184 SCRA 426. The doctrine of primary
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
185
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.
(a)
Should the petition be granted?
Decide.
(b) If the Court would sustain the
contention of the Collector of Customs on the
matter of exhaustion of administrative
remedies, what is the administrative remedy
available to the corporation?
(c) What are the exceptions to the rule
on exhaustion of administrative remedies?
SUGGESTED ANSWER:
(a) No. No search warrant from court
needed.
(b) 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.
(c) The following are the exceptions to
the doctrine of exhaustion of administrative
remedies:
1.
2.
The case deals with private land;
The question involved is purely
legal;
3.
The case involves a quo warranto
proceeding;
4.
There is denial of due process;
5.
The decision is patently illegal;
6.
The aggrieved party will suffer
irreparable injury;
7.
There is estoppel;
8.
Resort to administrative remedies
would be futile;
9.
The decision is that of a
department head;
10.
The law expressly provides for
immediate judicial review;
11. Public interest is involved;
12. There was unreasonable delay in
the administrative proceedings; and
13. The aggrieved party is poor.
Admin
Law;
Judicial
Administrative Action (2001)
Review
of
No XIV 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%)
SUGGESTED ANSWER:
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)].
Admin
Law;
Judicial
Review
Administrative Decisions (1988)
of
No. 17: 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 arid
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 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
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
186
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?
SUGGESTED ANSWER:
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.
Admin Law; Meaning of “Government of the
Philippines” (1997)
No. 3: Are government-owned or controlled
corporations within the scope and meaning of
the "Government of the Philippines"?
SUGGESTED ANSWER:
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.
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.
SUGGESTED ANSWER:
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]).
Admin Law; Rules and Regulations; Due
Process (2000)
No III. - 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%)
SUGGESTED ANSWER:
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
Admin Law; Power of the President to
rules, an administrative agency should publish
Reorganize Administrative Structure (2003)
or circulate notices of the proposed rules and
afford interested parties the opportunity to
No VI - The President abolished the Office of
submit their views; and in the fixing of rates, no
the Presidential Spokesman in Malacanang
rule shall be valid unless the proposed rates
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
187
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.
Government Agency vs. Government
Instrumentality (Q7-2005)
(3) State with reason(s) which of the following
is a government agency or a government
instrumentality:
a.
Department of Public Works and
Highways;
b.
Bangko Sentral ng Pilipinas;
c.
Philippine Ports Authority;
d.
Land Transportation Office;
e.
Land Bank of the Philippines. (5%)
SUGGESTED ANSWER:
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)
intents and purposes. A distinction,
however, may be made with respect to
those entities possessing a separate
charter created by statute.
a. DPWH is an agency. It does not
possess a separate charter.
b. BSP is an instrumentality because it
was incorporated under the new
Central Bank Law (R.A. No. 7653)
c. 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.
d. LTO is an agency. It is an office of
the DOTC.
e. LBP is an instrumentality having a
charter under a special law and is a
government financial institution
(GFI)
independent
of
any
department of government.
Quasi-Judicial Body or Agency (Q5-2006)
3. What is a quasi-judicial body or agency?
(2.5%)
SUGGESTED ANSWER:
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, quasijudicial agencies are enabled to interpret
and apply implementing rules and
regulations promulgated by them and laws
entrusted to their administration.
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
DISTINCTION
instrumentality
NO
PRACTICAL
between
an
and agency, for all
BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)
188
Political Law Q&As (2007-2013)
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JayArhSals
A Compilation of the
Questions and Suggested Answers
In the
PHILIPPINE BAR EXAMINATIONS 2007-2013
In
POLITICAL LAW
Compiled and Arranged By:
Salise, Hector Christopher “Jay-Arh” Jr. M.
(University of San Jose-Recoletos School of Law)
ANSWERS TO BAR EXAMINATION QUESTIONS by the
UP LAW COMPLEX (2007, 2009, 2010)
&
PHILIPPINE ASSOCIATION OF LAW SCHOOLS (2008)
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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FOREWORD
This work is a compilation of the ANSWERS TO BAR
EXAMINATION QUESTIONS by the UP LAW COMPLEX ,
Philippine Association of Law Schools from 2007-2010 and
local law students and lawyers’ forum sites from 2011-2013
and not an original creation or formulation of the author.
The author was inspired by the work of Silliman University’s
College of Law and its students of producing a very good
material to everyone involved in the legal field particularly the
students and the reviewees for free. Hence, this work is a
freeware.
Everyone is free to distribute and mass produce copies of this
work, however, the author accepts no liability for the content of
this reviewer, or for the consequences of the usage, abuse, or
any actions taken by the user on the basis of the information
given.
The answers (views or opinions) presented in this reviewer are
solely those of the authors in the given references and do not
necessarily represent those of the author of this work.
The Author
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TABLE OF CONTENTS
(Titles are based on Silliman’s Compilation [Arranged by Topic])
ARTICLE I National Territory
Archipelagic Doctrine (2013)………………………………………………………………...................10
Archipelagic Doctrine (2009)……………………………………………………………………………….11
ARTICLE II Declaration of Principles and State Policies
Defense of State (2009)………………………………………………………………...........................11
State Immunity from Suit (2013)……………………………………………………….....................11
State Immunity from Suit (2013)…………………………………………….................................12
State Immunity from Suit (2009)………………………………………………………………………...14
ARTICLE III Bill of Rights
Custodial Investigation; Extrajudicial Confession (2013)…………………………………….…..14
Eminent Domain; Public Purpose (2008)……………………………………………………………....15
Eminent Domain; Socialized Housing (2009)…………………………………………..……………..16
Eminent Domain; Valid and Definite Offer (2010)…………………………………………………..18
Equal Protection; Responsible Parenthood (2007)…………………………………………………..18
Freedom of Religion; Benevolent Neutrality Test (2009)………………………………………….20
Freedom of Speech; Commercial Speech; Prohibitions (2007) …………………..……………..21
Freedom of Speech; Private Parties; Prior Restraint (2007) ………………………………….....22
Freedom of Speech; Symbolic Expression (2008) ………………………………………………......23
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Freedom of the Press; Prior Restraint (2009) …………………………………………………….....24
Hierarchy of Civil Liberties; Freedom of Religion; Search and Seizure (2012) ……..….....25
Liberty of Abode; Right to Travel (2012) ………………………………………………………….......26
Overbreadth Doctrine vs. Void for Vagueness (2012) ……………………………………….….....27
Overbreadth Doctrine vs. Void for Vagueness (2010) …………………………………………......28
Police Power; Abatement of Nuisance (2010) ……………………………………………………......29
Police Power; Prohibition of Gambling (2009) …………………………………………………….....29
Privacy of Communication (2009) ………………………………………………………………….......30
Right to Assembly; Permit (2007) …………………………………………………………………….....31
Right to Information; Matters of Public Concern (2009) …………………………….…….….....32
Rights of the Accused; Right to Bail (2009) ……………………………………………………….....34
Rights of the Accused; Right to Bail; Double Jeopardy (2008) ………………….……….….....35
Rights of the Accused; Right to Counsel (2012) ………………………………………….….….....36
Rights of the Accused; Right to Remain Silent (2013) ………………………………….….….....37
Rights of the Accused; Self-Incrimination (2010) ……………………………………………….....38
Right to Liberty; Presentability of Policemen (2008) …………………………………………......39
Search and Seizure; Warrantless Arrest (2009) …………………………………………………......40
Search and Seizure; Warrantless Arrest (2008) …………………………………………………......40
Search and Seizure; Warrantless Search (2010) ……………………………………………..…......41
ARTICLE IV Citizenship
Dual Citizenship vs. Dual Allegiance (2009) …………………………………………………..….....42
Natural Born (2009) ………………………………………………………………………………..……......42
ARTICLE VI Legislative Department
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Discipline; Members of Congress (2013) ……………………………………………………….………44
Doctrine of Operative Fact (2010) ………………………………………………………………..........45
Doctrine of Necessary Implication; Hold-over (2010) ………………………………………………45
Electoral Tribunal; SET; PET Jurisdiction (2012)………………………………..………………....46
Investigations in Aid of Legislation (2009) ………………………………………………….........…46
Investigations in Aid of Legislation; Executive Privilege (2010) ……………………………….48
Law-Making; Abolish; Destroy (2008) …………………………………………………………………...49
Law-Making; Admission to the Bar (2009) …………………………………………………………….49
Law-Making; Conflict of Interest (2010) ………………………………………………………..........50
Law-Making; Item vs. Pocket Veto (2010) ……………………………………………………………..51
Law-Making; Oversight Committee (2010) …………………………………………………...……….51
Party-list Representative; Formula allocation (2007) ……………………………………..………52
Party-List; Foreign Funding (2010) …………………………………………………………….………..53
ARTICLE VII Executive Department
Appointing Power; Acting Appointments (2013) ………………………………….…………………54
Appointing Power; Ad-Interim Appointments (2010) …………………………………….………..54
Control Power (2009) …………………………………………………………………………………………55
Control Power; Foreign Relations (2010) …………………………………………………….………..55
Declaration; State of National Emergency (2010) ………………………………………………..…56
Enter into Executive Agreement; Treaty Abrogation (2008) …………………………………….56
Enter into Treaty (2010) …………………………………………………………………………………….57
Pardoning Power: Executive Clemency (2008) …………………………………………………….…57
Privilege; Presidential Communications vs. Deliberative Process (2010) ……………………58
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ARTICLE VIII Judicial Department
Judicial Department; Judicial Service (2013) ……………………………………………………..…58
Judicial Department; Writ of Amparo (2013) …………………………………………………………59
Judicial Power; Legal Standing (2010)……………………………………………………………..……61
Judicial Power; Trial by Jury (2013)………….....………………………………………………………61
Judicial Power; Trial by Jury (2008) …………………………………………………….………………62
Presidential Electoral Tribunal; Judicial Power (2012) ……………………………………………63
Supervision; Courts and its Personnel; Ombudsman’s Jurisdiction (2012)…………….……64
ARTICLE IX Constitutional Commissions
Rotational Scheme (2010) ………………………………………………………………………………….64
ARTICLE IX Civil Service Commission
Appointment; Relatives (2008) ……………………………………………………………………………65
Appointment; Relatives (2010) ……………………………………………………………………………66
De Facto Officer (2010) ………………………………………………………………………………………66
De Facto Officer; Salary Entitlement (2009) ………………………………………………………….66
Discretionary Duty of a Public Officer (2010) ………………………………………………………..66
Oath or Affirmation (2007) …………………………………………………………………………………67
Security of Tenure (2010) …………………………………………………………………………………..67
ARTICLE IX COMELEC
Commission En Banc; Jurisdiction (2012) …………………………………………………………….67
Grant of Pardon to Election Offenses (2010) ……………………………………………………….…69
Election Laws
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Election Protest; Substitution; Quo Warranto (2009) ………………………………………………69
Pre-Proclamation Contest (2008) …………………………………………………………………………71
Three Term Limit; Contest; Substitution (2008) …………………………………………….………72
Vacancy: Succession; Recall (2010) ……………………………………………………………………..72
Vacancy: Sangguniang Panlalawigan (2008) ……………………………………………………..……73
ARTICLE X Local Government
Boundary Dispute Resolution; LGU; RTC (2010) ………………………………………………….…74
Confiscation of Driver’s License; MMDA (2010) …………………………………………………..…74
Internal Revenue Allotment Fund (2007) ……………………………………………………………..74
Municipal Corporation; De facto vs. Estoppel (2010) ………………………………………………75
Ordinance Validity; Disapproval (2009) ………………………………………………………………..75
Ordinance Validity; Regulation of Disco Pubs (2010) ………………………………………………76
Reclassification of Land (2010) ……………………………………………………………………………77
ARTICLE XI Accountability of Public Officers
Discipline; Preventive Suspension (2009) ……………………………………………………………..77
Impeachment; Grounds (2013) ……………………………………………………………………………78
Impeachment; Purpose; Grounds (2012) ……………………………………………………………….79
Ombudsman; Power to Impose Penalties (2009) …………………………………………………….80
ARTICLE XII National Economy and Patrimony
Acquisition of Lands (2009) ………………………………………………………………………………..81
ARTICLE XIV Education, Science, and Technology, Arts
Education; Academic Freedom (2013) ………………………………………………………………….81
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
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Education; Academic Freedom (2008) ………………………………………………………………….82
Education; Academic Freedom (2007) ………………………………………………………………….82
Education: Communication and Instruction (2007) ………………………………………………..83
Education; Teaching of Religion (2010) ………………………………………………………………..83
Education; Foreign Ownership (2009) …………………………………………………………………..84
Education: Scholarship Grants (2007) ………………………………………………………………….84
Education; Study of Religion (2008) ………………………………………………………………….…85
ARTICLE XVI General Provisions
National Anthem (2009) ……………………………………………………………………………………..86
ARTICLE XVII Amendments or Revisions
Amendments (2007) ………………………………………………………………………………………….86
Amendments; People’s Initiative (2009) ……………………………………………….………………87
PUBLIC INTERNATIONAL LAW
Basic Principles; Reparation (2007) ………………………………………………………………..……87
Concept of Association (2010) …………………………………………………………………………….89
Extradition: Double Criminality (2007) …………………………………………………………………90
Genocide (2010) ………………………………………………………………………………………………..91
Hard Law vs. Soft Law (2008) ………………………………………………………………………………92
Human Rights; Civil and Political Rights (2007) ………………………………….…………………93
Human Rights; Civil and Political Rights; Freedom from Torture (2010) ……………………94
Int’l Court of Justice vs. Int’l Criminal Court (2010) ………………………………………………95
International Law Violation; Treaty (2008) ……………………………………………………………96
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Opinio Juris (2012) ……………………………………………………………………………………………96
Opinio Juris (2008) ……………………………………………………………………………………………97
Principle of Attribution or Imputation (2010) ……………………………………………………..…97
Principle of Auto-Limitation (2009) ……………………………………………………………………..98
Retorsion (2010) ……………………………………………………………………………………………….99
Use of Force; Self-Defense (2009) ……………………………………………………………………..…99
Verbal Agreement; Source of Int’l Law (2012) ………………………………………………..……101
MULTIPLE CHOICE QUESTIONS
2013 Political Law Exam MCQ (October 6, 2013) ……………………………………………….…103
2012 Political Law Exam MCQ (October 7, 2012) ………………………………………………….112
2011 Political Law Exam MCQ (November 6, 2011) ………………………………………………140
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ARTICLE I National Territory
JayArhSals
United Nations Convention on the Law of
the Sea III. Whether the bodies of water
Archipelagic Doctrine (2013)
lying landward of the baselines of the
Philippines
are
internal
waters
or
No.VI. Congress passed Republic Act No.
archipelagic
7711 to comply with the United Nations
retains jurisdiction over them (Magallona
Convention on the Law of the Sea.
vs. Ermita, 655 SCRA 476).
In a petition filed with the Supreme Court,
ALTERNATIVE ANSWER:
waters,
the
Philippines
Anak Ti Ilocos, an association of Ilocano
professionals, argued that Republic Act No.
No, the petition is not meritorious.
7711discarded
the
UNCLOS has nothing to do with the
Philippine territory under the Treaty of
acquisition (or loss) of territory. It is a
Paris and in related treaties; excluded the
multilateral
Kalayaan Islands and the Scarborough
others, sea-use rights among maritime
Shoals from the Philippine Archipelagic
zones
baselines; and converted internal waters
UNCLOS III delimits.
the
definition
of
and
treaty
regulating,
continental
among
shelves
that
No.
7711
into archipelagic waters.
The
Is the petition meritorious? (6%)
being the vital step in safeguarding the
UNCLOS has nothing to do with the
merely
loss)
regulates
maritime
exclusive
zones,
of
territory.
sea-use
rights
contiguous
economic
zones,
It
over
zones,
and
continental shelves which it delimits.
The
Kalayaan
RA
Philippines’ national interest. Aside from
No, the petition is not meritorious.
(or
finds
constitutional and is consistent with the
SUGGESTED ANSWER:
acquisition
court
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
country’s maritime zones, the law also
allows
an
delimitation
Philippines’
internationally-recognized
of
the
breadth
maritime
of
zones
the
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
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is further stated that the regime of
No.I.c. A law that makes military service for
archipelagic sea lanes passage will not
women merely voluntary is constitutional
affect the status
SUGGESTED ANSWER:
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)
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.
Archipelagic Doctrine (2009)
The
prime
duty
of
the
Government is to serve and protect the
No.I. b. Under the archipelago doctrine, the
people. The Government may call upon
waters around, between, and connecting
the people to defend the State and, in
the islands of the archipelago form part of
the fulfillment thereof, ALL CITIZENS
the territorial sea of the archipelagic state.
may
SUGGESTED ANSWER:
provided by law, to render personal
FALSE.
Under
Constitution,
Article
The
I
the
required,
under
conditions
military or civil service.
around,
What is mandatory is the calling out of
between and connecting the islands of
the people to defend the state. But the
the
citizens including woman may render
archipelago
waters
of
be
form
part
of
the
INTERNAL WATERS. Under Article 49 (1)
personal or military service.
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
State Immunity from Suit (2013)
sea but are described as archipelagic
waters.
No.X. The Ambassador of the Republic of
Kafiristan referred to you for handling, the
case
ARTICLE II Declaration of
Principles and State Policies
Defense of State (2009)
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,
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electrical
Maintenance Agreement was in pursuit
facilities. Section 10 of the Agreement
of a sovereign activity (Republic of the
provides
Indonesia vs. Vinzon, 405 SCRA 126).
that
units
the
and
JayArhSals
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.
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
CBM contested the termiination and filed a
expressly waived its immunity from suit.
complaint against Kafiristan before the
This is supported by the provision on
Regional
The
Section 3, Article XVI of the 1987
Ambassador wants you to file a motion to
Constitution, which says that the State
dismiss on the ground of state immunity
may not be sued without its consent.
from suit and to oppose the position that
Since consent was expressly given from
under
their charter of agreement, the embassy
Trial
Section
Court
10
of
of
Makati.
the
Agreement,
Kafiristan expressly waives its immunity
cannot invoke immunity from suit.
from suit.
Under
these
facts,
can
the
Embassy
successfully invoke immunity from suit?
(6%)
State Immunity from Suit (2013)
No.I. In the last quarter of 2012, about
5,000 container vans of imported goods
intended for the Christmas Season were
SUGGESTED ANSWER:
seized by agents of the Bureau of Customs.
Yes, the Embassy can invoke immunity
The imported goods were released only on
from suit. Section 10 of the Maintenance
January 10,2013. A group of importers got
Agreement is not necessarily a waiver of
together and filed an action for damages
sovereign immunity from suit. It was
before the Regional Trial Court of Manila
meant to apply in case the Republic of
against the Department of Finance and the
Kafiristan elects to sue in the local
Bureau of Customs.
courts or waives its immunity by a
subsequent act. The establishment of a
diplomatic
mission
function.
This
maintenance
and
is
a
sovereign
encompasses
upkeep.
its
The
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
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lease of ten (10) high powered van cranes
Moreover, the Bureau of Customs is a
but delivered only five (5) of these cranes,
part of the Department of Finance, with
thus causing the delay in its cargo-handling
no personality of its own apart from that
operations. It appears that the Bureau,
of the national government. Its primary
despite demand, did not pay XYZ Corp. the
function
Php 1.0 Million deposit and advance rental
assessing and collecting lawful revenues
required under their contract.
from imported articles and all other
is
governmental,
that
of
tariff and customs duties, fees, charges,
(A) Will the action by the group of importers
fines, and penalties (Sec. 602, RA 1937).
prosper? (5%)
This clearly explains the reason why the
Department
SUGGESTED ANSWER:
of
Finance
also
enjoys
immunity from suit.
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
(B) Can XYZ Corp. sue the Bureau of
Customs to collect rentals for the delivered
cranes? (5'%)
SUGGESTED ANSWER:
other tariff and customs duties, fees,
charges,
fines
and
penalties
(Mobil
No, XYZ corporation cannot sue the
Philippines Exploration, Inc. vs. Customs
Bureau of Customs to collect rentals for
Arrastre Service, 18 SCRA 120).
the delivered cranes. The contract was a
necessary incident to the performance of
ALTERNATIVE ANSWER:
its governmental function. To properly
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
namely
the
performs
power
power
of
of
governmental
sovereignty,
taxation;
it
functions
(Farolan v. Court of Tax Appeals, 217
collect the revenues and customs duties,
the Bureau of Customs must check to
determine
if
the
importers
tallies
declaration
with
the
of
the
landed
merchandise. The cranes are needed to
haul
the
suitable
landed
place
for
merchandise
inspection
to
a
(Mobil
Philippines Exploration, Inc. vs. Customs
Arrastre Service, 18 SCRA 120).
ALTERNATIVE ANSWER:
SCRA 298).
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No, XYZ corporation cannot sue the
sustained by a pedestrian who was hit by a
Bureau of Customs because it has no
glass pane that fell from a dilapidated
personality separate from that of the
window frame of the municipal hall. The
Republic
(Mobil
municipality files a motion to dismiss the
Philippines Exploration, Inc. vs. Customs
complaint, invoking state immunity from
Arrastre Service, 18 SCRA 120).
suit. Resolve the motion with reasons. (3%).
ALTERNATIVE ANSWER:
SUGGESTED ANSWER:
of
the
Philippines
No. Even in the exercise of proprietary
functions
incidental
governmental
to
its
primarily
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).
State immunity as
prosper
because
defense will not
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
ALTERNATIVE ANSWER:
other public works under their control or
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
supervision (art. 2189).
In
the
building
present
is
case,
under
the
their
municipal
control
and
supervision, thus, no immunity from
suit.
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).
ARTICLE III Bill of Rights
Custodial Investigation; Extrajudicial
Confession (2013)
No.III. A robbery with homicide had taken
State Immunity from Suit (2009)
No. IV. The Municipality of Pinatukdao is
sued for damages arising from injuries
place and Lito, Badong and Rollie were
invited
for
questioning
based
on
the
information furnished by a neighbor that he
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saw them come out of the victim's house at
which include the maintenance of peace
about the time of the robbery/killing. The
and order (People vs. Sunga, 399 SCRA
police confronted the three with this and
624).
other information they had gathered, and
pointedly accused them of committing the
crime.
ALTERNATIVE ANSWER:
The judgment of conviction should be
Lito initially resisted, but eventually broke
reversed. The police officers committed
down and admitted his participation in the
an offense by confronting the three
crime. Elated by this break and desirous of
accused. This is a violation to Section
securing a written confession soonest, the
12, Article III of the 1987 Constitution,
police called City Attorney Juan Buan to
which states that any person under
serve as the trio's counsel and to advise
investigation for the commission of an
them
offense
about
their
rights
during
the
shall
have
the
right
to
be
informed of his right to remain silent
investigation.
and
to
have
a
competent
and
Badong and Rollie, weakened in spirit by
independent counsel preferably of his
Lito's early admission, likewise admitted
own choice. If the person cannot afford
their participation. The trio thus signed a
the services of counsel, he must be
joint extra-judicial confession which served
provided with one. These rights cannot
as the main evidence against them at their
be waived except in writing and in the
trial. They were convicted based on their
presence of counsel.
confession.
ALTERNATIVE ANSWER:
Should the judgment of conviction be
The Judgment of conviction should be
affirmed or reversed on appeal? (5%)
affirmed if the accused failed to object
SUGGESTED ANSWER:
when their extrajudicial confession was
offered in evidence, which was rendered
The judgment of conviction should be
it admissible (People vs. Samus, 389
reversed on appeal. It relied mainly on
SCRA 93).
the
extrajudicial
confession
of
the
accused. The lawyer assisting them must
be
independent.
Buan
is
not
City
Attorney
independent.
As
Juan
City
Attorney, he provided legal support to
the City Mayor in performing his duties,
Eminent Domain; Public Purpose (2008)
No. IV. Congress passed a law authorizing
the National Housing Authority (NHA) to
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expropriate or acquire private property for
vs. Secretary, G.R. No. L-10405, Dec. 29,
the redevelopment of slum areas, as well as
1960.) In this case, the main beneficiary
to lease or resell the property to private
would be the private realty company.
developers to carry out the redevelopment
The taking of private property and then
plan.
NHA
transferring it to private persons under
acquired all properties within a targeted
the guise of public use is not within the
badly blighted area in San Nicolas, Manila
power
except
Moreno vs. Mactan Airport, G.R. No.
Pursuant
a
to
the
law,
well-maintained
the
drug
and
convenience store that poses no blight or
health
problem
itself.
Thereafter,
of
eminent
domain
(Heirs
of
156273, August 9, 2005).
NHA
initiated expropriation proceedings against
the store owner who protested that his
Eminent
property could not be taken because it is
(2009)
Domain;
Socialized
Housing
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
No.XVII. 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
decide the case? (6%).
population, the Sangguniang Panglungsod
SUGGESTED ANSWER:
authorized the City Mayor to negotiate for
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 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.
(a) If FCC hires you as lawyer, what defense
or defenses would you set up in order to
resist the expropriation of the property?
The power of expropriation cannot be
Explain.
used to benefit private parties (Pascual
SUGGESTED ANSWER:
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The following are the defenses that I will
The mode of expropriation is subject to
set up:
2 conditions:
a. No prior valid and definite offer
was made
a. It shall be resorted to only
when
b. The expropriation is for socialized
housing therefore it must comply
with the order of preference of
the
other
acquisition
modes
have
of
been
exhausted; and
b. Parcels
owned
by
small
the land to be acquired and the
property owners are exempt
mode of acquisition. Under the
from such acquisition. Small
law regarding expropriation for
property owners are owners of
socialized housing, private lands
residential lands with an area
is
not more than 300 sq.m. in
the
last
in
line
and
the
expropriation proceeding is last
highly urbanized
resorted to if all other modes of
not more than 800 sq.m. in
acquisition
other urban areas; and they do
has
already
been
exhausted.
cities
and
not own residential property
other than the same.
Order of expropriation for socialized
(b) If the court grants the City’s prayer for
housing:
expropriation, but the City delays payment
1. Government lands
of the amount determined by the court as
2. Alienable lands of the public
just compensation, can FCC recover the
domain
property from pasig city?
3. Unregistered, abandoned or idle
lands
4. Lands within the declared areas
for priority development, zonal
improvement
slum
program
improvement
sites,
and
resettlement sites which have
not yet been acquired
5. BLISS sites which have not yet
been acquired
6. Privately owned lands
SUGGESTED ANSWER:
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
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possession of their property (Republic
expropriation
vs. Lim, 462 SCRA 265 [2005]).
government unit.
(c) Suppose the expropriation succeeds, but
SUGGESTED ANSWER:
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?
TRUE.
initiated
Under
the
by
Local
a
local
Government
Code, there must be a prior valid and
definite
offer
before
expropriation
proceeding can be initiated (Section 19,
Local Government Code).
SUGGESTED ANSWER:
It depends.
to
The property owner’s right
repurchase
the
property
depends
Equal
Protection;
Responsible
Parenthood (2007)
upon the character of the title acquired
by the expropriator, ie., 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 reacquire the property (Heirs of Timoteo
Moreno vs. Mactan-Cebu International
Airport Authority, 413 SCRA 502 [2003]).
No.II. The City Mayor issues an Executive
Order declaring
responsible
that
the
parenthood
city
promotes
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
But if there is no such condition the
planning
owner cannot repurchase because the
however,
judgment
planning counsel and devices to paying
in
the
expropriation
case
grants title to the lot in fee simple to the
programs.
continue
Private
to
clinics,
render
family
clients.
REPUBLIC.
(a)
Is
the Executive
Order in
any
way
constitutionally infirm? Explain.
Eminent Domain; Valid and Definite
Offer (2010)
No. XIII. a. A valid and definite offer to buy
a
property
is
a
pre-requisite
to
SUGGESTED ANSWER:
The Executive Order is constitutionally
infirm. Under the 1987 Constitution, the
State shall defend the right of spouses to
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establish a family in accordance with
means
their
the
processes. Moreover, since the national
demands of responsible parenthood. (Art.
government has not outlawed the use of
XV, Sec. 3[1]). By upholding natural
artificial methods of contraception, then
family planning and prohibiting city
it would be against national policies. In
hospitals
addition,
religious
convictions
from
and
prescribing
artificial
to
JayArhSals
control
the
their
Mayor
reproductive
cannot
issue
Order without
an
methods of contraception, the Mayor is
such Executive
imposing his religious beliefs on spouses
underlying ordinance. (Moday v, Court of
who
city
Appeals, G.R. No. 107916, February 20,
hospitals. This clearly violates the above
1997) Besides, the action of the Mayor
section of the Constitution.
may be in violation of a person’s right to
rely
on
the
services
of
privacy.
Moreover, the 1987 Constitution states
ALTERNATIVE ANSWER:
that no person shall be denied the equal
The executive order is constitutionally
protection of the laws. (Art. III, Sec.
infirm. It violates Section 3(1), Article
1). The Constitution also provides that
XV of the 1987 Constitution, which
the state shall promote a just
and
recognizes the right of the spouses to
dynamic social order that will ensure the
found a family in accordance with the
prosperity
demands
and
independence
of
the
of
responsible
parenthood
nation and free the people from poverty
which includes the artificial method.
through
ALTERNATIVE ANSWER:
policies
that
provide
adequate social services, promote full
The Executive order is constitutionally
employment,
infirm. When Section 12, Article II of the
a
rising
standard
of
living and an improved quality of life for
1987
all. (Art. II, Section 9). The loss of access
State shall equally protect the life of the
of poor city women to family planning
mother and the life of the unborn from
programs is discriminatory and creates
conception, it is prohibiting abortion
suspect
only
classification.
It
also
goes
Constitution provides
and
not
the
use
of
against the demands of social justice as
contraceptives
(Record
enshrined in the immediately preceding
Constitutional
Commission,
provision.
Pp.683, 711 and 760).
that the
artificial
of
Vol.
the
IV.
ALTERNATIVE ANSWER:
The Executive Order is constitutionally
(c) May the Commission on Human Rights
infirm. It constitutes an invalid exercise
order the Mayor to stop the implementation
of police power and violates substantive
of the Executive Order? Explain.
due process by depriving people of the
SUGGESTED ANSWER:
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No, the power of the Commission on
judge
Human Rights (CHR) is limited to fact-
Angelina? Reasons. (3%)
finding investigations. Thus, it cannot
issue an “order to desist” against the
this
case,
will
you
exonerate
SUGGESTED ANSWER:
mayor, inasmuch as the order prescinds
Yes. (Estrada vs Escritor, August, 4,
from an adjudicatory power that CHR
2003 and June 22, 2006) – Right to
does not possess. (Simon v. Commission
freedom
on Human Rights, G.R. No. 100150,
Benevolent neutrality recognizes that
January 5, 1994; Cariño v. Commission
government
on
goals and interests, but at the same
Human
Rights,
G.R.
No.
96681,
December 2, 1991.)
of
religion
must
must
pursue
prevail.
its
secular
time, strive to uphold religious liberty to
the
greatest
extent
possible
within
flexible constitutional limits.
Freedom
of
Religion;
Benevolent
Neutrality Test (2009)
Although the morality contemplated by
laws is secular, benevolent neutrality
No. XVI. (a) Angelina, a married woman, is
could
a division chief in the Department of
morality based on religion, provided it
Science and Technology. She had been
does
living
interest.
with
husband,
a
for
married
the
man,
last
not
15
her
allow
not
for
accommodation
offend
compelling
of
state
years.
Administratively charged with immorality
Benevolent neutrality approach requires
and conduct prejudicial to the best interest
that
to the service, she admits her live-in
determination and not dismiss the claim
arrangement,
outright.
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
the
court
make
an
individual
(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
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their
religion,
but
also
hectorchristopher@yahoo.com
violated
the
exercising
JayArhSals
his
freedom
of
speech
and
constitutional policy upholding the sanctity
freedom of expression guaranteed by the
of marriage and the solidarity of the family.
Bill of Rights. Decide with reasons. (5%)
Will Jenny’s case prosper? Explain you
SUGGESTED ANSWER:
answer.
SUGGESTED ANSWER:
The
case
will
not
Pedrong Pula should be acquitted. His
prosper.
The
freedom of speech should not be limited
expulsion/excommunication of members
in the absence of a clear and present
of a religious institution/organization is
danger of a substantive evil that the
a matter best left to the discretion of the
state had
officials, and the laws and canons, of
pretended to hurl a rock but did not
said institution/organization. (Taruc v.
actually throw it. He did not commit any
Bishop dela Cruz, et al. Mar. 10, 2005).
act
of
the right to prevent. He
lawless
violence.
(David
vs.
Macapagal-Arroyo, 489 SCRA 160).
Freedom of Speech; Commercial Speech;
Prohibitions (2007)
(b) What is "commercial speech"? Is it
entitled to constitutional protection? What
must be shown in order for government to
No.IX. In a protest rally' along Padre Faura
curtail "commercial speech"? Explain. (3%)
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
SUGGESTED ANSWER:
Commercial speech is communication
which
involves
commercial
such as advertisements. (Black’s Law
dictionary, 9th ed., p.1529.)
Commercial
throw the rock.
constitutional
situation immediately approached Pedrong
the
interest of the speaker and the audience,
government building. He did not actually
(a) Police officers who were monitoring the
only
speech
is
entitled
protection.
to
(Ayer
Productions Pty. Ltd. vs. Capulong, 160
SCRA 861.)
Pula and arrested him. He was prosecuted
Commercial speech may be required to
for seditious speech and was convicted. On
be submitted to a government agency for
appeal, Pedrong Pula argued he was merely
review to protect public interests by
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preventing false or deceptive claims.
campaign. Can Destilleria Felipe Segundo
(Pharmaceutical
claim that its constitutional rights are thus
and
Health
Care
Association of the Philippines vs. Duque,
infringed?
535 SCRA 265.)
SUGGESTED ANSWER:
Destilleria Felipe Segundo cannot claim
(c) What are the two (2) basic prohibitions
that
of the freedom of speech and of the press
infringed.
clause? Explain. (2%)
association
In
this
rights
case,
formed
a
by
were
private
advertising
one who ordered that the advertisement
The two basic prohibitions on freedom of
speech and freedom of the press are
restraint
constitutional
companies for self regulation was the
SUGGESTED ANSWER:
prior
its
and
subsequent
punishment (Chavez vs. Gonzales, 545
SCRA 441.)
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
Freedom of Speech; Private Parties; Prior
Restraint (2007)
enterprises, and their refusal to accept
any
advertisement
freedom
of
does
speech
not
violate
(Times-Picayune
The Destilleria Felipe Segundo is famous for
Publishing Company vs. United States,
its 15-year old rum, which it has produced
345
and marketed successfully for the past 70
Broadcasting System, Inc. vs. Democrat
years. Its latest commercial advertisement
Control Committee, 412 U.S. 94 [1973])
uses the line: "Nakatikim ka na ba ng kinse
ALTERNATIVE ANSWER:
anyos?"
No, Destillera Felipe Segundo may not
Very
soon,
activist
groups
U.S.
its
[1953];
Columbia
promoting women's and children's rights
claim
were up in arms against the advertisement.
particularly freedom of expression, have
been
that
594
infringed.
constitutional
The
rights,
constitutional
the
guarantee of freedom of speech is a
Philippines have formed an association, the
guarantee only against abridgment by
Philippine Advertising Council, and have
the government and does not apply to
agreed to abide by all the ethical guidelines
private parties. (People v. Marti, G.R. No.
and decisions by the Council. In response
81561, January 18, 1991). Moreover,
to the protests, the Council orders the pull-
Destilleria freely joined the Philippine
out
Advertising Council and
(a)
All
of
advertising
the
"kinse
companies
anyos"
in
advertising
is
therefore
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bound by the ethical guidelines and
the guarantee of freedom of speech.
decisions of that council.
Freedom
ALTERNATIVE ANSWER:
commercial establishments (Metromedia,
No. Constitutional rights can be validly
Inc. vs. San Diego, 453 U.S. 490 [1981]).
restricted
morals.
The mere fact that an advertisement is
Moreover, what is being exercised is
offensive cannot justify its suppression
commercial expression which does not
(Carey
enjoy the same extent of freedom as
International, 431 U.S. 678 [1977]). The
political
(Central
blocking of advertising funds is a threat
Hudson Gas & Electric v. PSC, 447 U.S.
intended to prevent the exercise of
557 [1980]). The order for the withdrawal
freedom of speech of Destilleria Felipe
comes not from the State but from a
Segundo
private group of advertisers which is not
consequences. Sucha threat qualifies as
within the coverage of the Bill of Rights.
prior restraint (Rosden, The Law
to
or
promote
artistic
good
speech.
of
speech
vs.
extends
Population
through
to
Services
the
fear
of
of
Advertising, Vol. I, pp.5-13).
(b) One of the militant groups, the Amazing
ALTERNATIVE ANSWER:
Amazonas, call on all government-owned
They may comply with such call as these
and
to
entities may institute certain measures
boycott any newspaper, radio or TV station
to promote a socially desirable end,
that
namely,
controlled corporations
carries
the
(GOCC)
"kinse
anyos"
the
prevention
exploitation
nominees in sequestered corporations to
especially those who are not yet of age.
block any advertising funds allocated for
ALTERNATIVE ANSWER:
any such newspaper, radio or TV station.
The
Can
corporations may not be compelled to
GOCCs
and
sequestered
GOCCs
abuse
of
the
advertisements. They call on all government
the
and
of
and
women,
sequestered
corporations validly comply?
boycott or block advertising funds for
SUGGESTED ANSWER:
media
The government owned and controlled
advertisements. These companies may
corporations
have existing contracts with the media
and
the
government
companies
carrying
companies
cannot
compliance may result in breach that
any
advertising
funds
allocated for any newspaper, radio or
television
station
advertisements
of
which
carries
Destilleria
and
said
nominees in sequestered corporations
block
concerned
the
non-
will open them to possible suits.
the
Felipe
Segundo. Since they are government
entities and officers, they are bound by
Freedom of Speech; Symbolic Expression
(2008)
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No.XVI. Nationwide protests have erupted
and freedom from subsequent liability.
over rising gas prices, including disruptive
There
demonstrations
whether
in
many
universities,
are
three
or
tests
not
to
there
determine
was
valid
throughout the country. The Metro Manila
government interference: (1) dangerous
State
university,
tendency rule; (2) balancing of interest
circular
test; and (3) clear and present danger
prohibiting public mass demonstrations
test. In the Philippine jurisdiction, we
and rallies within the campus. Offended by
adhere to the clear and present danger
the circular, militant students spread word
test (ABS-CBN Broadcasting Corp. vs.
that on the following Friday, all students
Comelec, G.R. No. 133486, Jan. 28,
were to wear black T-shirts as a symbol of
2000). This test simply means that there
their protest both against high gas prices
is
and the university ban on demonstrations.
substantive evil which the State has the
The effort was only moderately successful,
right to prevent.
University,
adopted
a
a
public
university-wide
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.
clear
and
present
danger
of
a
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
The student leaders approached you for
authorities were trying to suppress did
legal advice. They contended that they
not
should not be expelled since they did not
prohibition
violate the circular, their protest action
violates freedom from prior restraint
being neither a demonstration nor a rally
while the threat of expulsion by the
since all they did was wear black T-shirts.
school authorities violates freedom from
What would you advise the students? (6%)
subsequent liability.
even
occur.
imposed
Therefore,
by
the
the
circular
SUGGESTED ANSWER:
The wearing of black shirts is an exercise
Freedom of the Press; Prior Restraint
of
(2009)
freedom
necessarily
of
expression
freedom
of
and
not
assembly.
Regardless of the distinction, in both
cases,
the
Constitutional
guaranty
includes freedom from prior restraint
No.XV. The KKK Television Network (KKKTV) aired the documentary, "Case Law: How
the
Supreme
Court
Decides,"
without
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obtaining the necessary permit required by
prior restraint has against it a heavy
P.D. 1986. Consequently, the Movie and
presumption against its validity. Prior
Television Review and Classification Board
restraint
(MTRCB) suspended the airing of KKK-TV
freedom
programs. MTRCB declared that under P.D.
showing that the airing of the programs
1986, it has the power of prior review over
would constitute a clear and present
all television programs, except "newsreels"
danger
and programs "by the Government", and
States, 403 U.S. 713 [1971]).
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.
of
(New
an
abridgment
expression.
York
There
Times
vs.
of
is
the
no
United
(b) 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%)
KKK-TV filed a certiorari petition in court,
raising the following issues:
(a) The act of MTRCB constitutes "prior
restraint" and violates the constitutionally
guaranteed freedom of expression; (3%)
SUGGESTED ANSWER:
The
is
contention
of
SUGGESTED ANSWER:
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
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.
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]).
Court of Appeals, 259 SCRA 529 [1996]).
ALTERNATIVE ANSWER:
Hierarchy of Civil Liberties; Freedom of
The memo circular is unconstitutional.
Religion; Search and Seizure (2012)
The act of the Movie and Television
No.X. (a).What do you understand by the
Review
term "hierarchy of civil liberties"? Explain.
and
Classification
Board
Constitutes prior restraint and violates
(5%)
freedom of expression. Any system of
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SUGGESTED ANSWER:
religion.
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(Everson
vs.
Board
of
Education, 330 U.S. 1.)
The hierarchy of civil liberties means
that freedom of expression and the
(c) When can evidence "in plain view" be
rights of peaceful assembly are superior
seized without need of a search warrant?
to property rights. (Philippine Blooming
Explain. (2%)
Mills
Employees
Philippine
Organization
Blooming
Mills
vs.
Company,
Inc., 51 SCRA 189.)
SUGGESTED ANSWER:
Evidence in plain view can be seized
(b) Distinguish fully between the "free
without need of search warrant if the
exercise of religion clause" and the "non-
following elements are present:
establishment of religion clause". (3%)
(1) There was a prior valid intrusion
based on the valid warrantless arrest in
SUGGESTED ANSWER:
which the police were legally present
The
freedom
of
exercise of
religion
pursuant of their duties;
entails the right to believe, which is
absolute, and the right to act on one’s
(2)
belief, which is subject to regulation. As
discovered by the police who had the
a rule, the freedom of exercise of religion
right to be where they were;
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
The
evidence
was
inadvertently
(3) The evidence must be immediately
apparent; and
(4) Plain view justified seizure of the
evidence without further search. (Del
non-establishment
clause
Rosario vs. People, 358 SCRA 372.)
implements the principle of separation
of church and state. The state cannot set
up a church, pass laws that aid one
Liberty of Abode; Right to Travel (2012)
religion, and all religions, prefer one
religion over another, force or influence
No. I. Mr. Violet was convicted by the RTC
a person to go to or remain away from
of Estafa. On appeal, he filed with the Court
church against his will, or force him to
of
profess
Provisional Liberty Pending Appeal. The
a belief
or disbelief
in
any
Appeals
a Motion
to
Fix
Bail
for
Court of Appeals granted the motion and
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set a bail amount in the sum of Five (5)
JayArhSals
SUGGESTED ANSWER
Million Pesos, subject to the conditions that
he secure "a certification/guaranty from the
The liberty of abode and the right to
Mayor of the place of his residence that he
travel are not absolute. The liberty of
is a resident of the area and that he will
abode and changing it can be imposed
remain to be a resident therein until final
within the limits prescribed by law upon
judgment
he
lawful order of the court. The right to
transfers residence, it must be with prior
travel may be unpaired in the interest of
notice to the court". Further, he was
national security, public safety, or public
ordered to surrender his passport to the
health
Division Clerk of Court for safekeeping until
(Section
the court orders its return.
Constitution.) in addition, the court has
is
rendered
or
in
case
as may be provided
6,
Article
III
by law.
of
the
the inherent power to restrict the right
(a) Mr. Violet challenges the conditions
of an accused who has pending criminal
imposed
case to travel abroad to maintain its
by
the
Court of Appeals
as
violative of his liberty of abode and right to
jurisdiction
over
him.
travel. Decide with reasons. (5%)
Vasquez, 217 SCRA 633.)
(Santiago
vs.
SUGGESTED ANSWER
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
Overbreadth
Doctrine
vs.
Void
for
Vagueness (2012)
No. VIII. (a) What is the doctrine
of
"overbreath"? In what context can it be
correctly applied? Not correctly applied?
Explain (5%)
SUGGESTED ANSWER:
from changing its abode. He is merely
being required to inform the Court of
A
statute
is
Appeals if he does. (Yap vs. Court of
governmental
Appeals, 358 SCRA 564.)
prevent
overbroad
purpose
activities
to
when
a
control
or
constitutionally
subject to state regulations is sought to
(b) Are "liberty of abode" and "the right to
be achieved
travel" absolute rights? Explain. What are
unnecessarily broadly and invade the
the respective exception/s to each right if
area of protected freedom. It applies
by means which
sweep
any? (5%)
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JayArhSals
both to free speech cases and penal
Overbreadth
statutes. However, a facial challenge on
Vagueness (2010)
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
No.
XXIV.
“Overbreadth”
Doctrine
vs.
Compare
doctrine
Void
for
and
contrast
from
void-for
vagueness doctrine.
SUGGESTED ANSWER:
statutes, because in general they have
an
in
terrorem
effect.
(Southern
Hemisphere Engagement Network, Inc.
vs. Anti-Terrorism Council, 632 SCRA
146.)
(NOTE:
should
read
The
word
“overbreath”
“overbreadth”
because
breath has no limit especially if it is bad
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
breath.)
terms so vague that men of common
(b) What is the doctrine of "void for
intelligence cannot necessarily guess at
vagueness"? In what context can it be
its
correctly applied? Not correctly applied?
application. (Estrada vs. Sandiganbayan,
Explain (5%)
369 vs. SCRA 394 [2001]).
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.
and
differ
as
to
its
ALTERNATIVE ANSWER:
SUGGESTED ANSWER
A
meaning
However,
a
facial
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.
challenge on the ground of vagueness
Overbreadth
can be made only in free speech cases. It
governmental
purpose
may
does
achieved
means
which
sweeps
and
thereby
not
(Southern
apply
to
penal
Hemisphere
statutes.
Engagement
Network, Inc. vs. Anti-Terrorism Council,
632 SCRA 146.)
by
unnecessarily
doctrine
broadly
decrees
that
not
be
invade the area of protected freedoms.
“Void
for vagueness
doctrine"
which
holds that "a law is facially invalid if
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men
must
of
common
intelligence
necessarily guess at its meaning and
differ as to its application, violates the
first essential of due process of law.
JayArhSals
Properties Corporation, 506 SCRA 625
[2006]).
ALTERNATIVE ANSWER:
Petition will not prosper. The obnoxious
odor emitted from the processing plant
Police Power; Abatement of Nuisance
is a nuisance per se which can be
(2010)
summarily
No. XIV. 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
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.
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
Police Power; Prohibition of Gambling
(2009)
To
address
the
pervasive
problem
of
government thereupon issued a cease and
gambling,
desist order to stop the operations of plant,
following options: (1) prohibit all forms of
prompting
for
gambling;
(2)
allow
gambling
only
on
injunction before the RTC, arguing that the
Sundays;
(3)
allow
gambling
only
in
city government did not have any power to
government-owned casinos; and (4) remove
abate the alleged nuisance. Decide with
all prohibition against gambling but impose
reasons.(3%)
a tax equivalent to 30% on all winnings.
SUGGESTED ANSWER:
(a) If Congress chooses the first option and
ABC
to
file
a
petition
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
Congress
is
considering
the
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%)
SUGGESTED ANSWER:
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Yes. although the Congress has the
A tax of 30% on winnings from gambling
plenary power to enact law and interfere
does not violate due process as to the
with the personal liberty and property in
reasonableness of the rate of the tax
order to promote the general welfare, the
imposed.
exercise of police power is subject to 2
enterprises may be increased to restrain
test: 1. Lawful subject – refers to the
the
interest of the General Public requiring
otherwise engage in it (Ermita-Malate
the interference of the State and 2.
Hotel and Motel Operatos Association,
Lawful means – refers to the reasonable
Inc. vs. City Mayor of Manila, 20 SCRA
means
the
849 [1967]). Taxes may be imposed for
accomplishment of its objective and not
the attainment of the objective of police
duly oppressive upon individuals.
power (Lutz vs. Araneta, 98 Phil. 148
employed
necessary
for
number
Taxes
of
on
non-useful
persons
who
might
[1955]).
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
Privacy of Communication (2009)
No.VI. In criminal prosecution for murder,
the prosecution presented, as witness, an
(2) Salus populi est suprema lex – the
employee of the Manila Hotel who produced
welfare of the people is the highest law
in court a videotape recording showing the
heated exchange between the accused and
(b) If Congress chooses the last option and
the victim that took place at the lobby of
passes the corresponding law imposing a
the hotel barely 30 minutes before the
30% tax on all winnings and prizes won
killing.
from gambling, would the law comply with
admission of the videotape recording on the
the
the
ground that it was taken without his
exercise of the power of taxation? Explain
knowledge or consent, in violation of his
you answer (2%)
right to privacy and the Anti-Wire Tapping
SUGGESTED ANSWER:
law. Resolve the objection with reasons.
constitutional
limitations
on
NO. Because the lawful means is not
reasonably
necessary
for
the
The
accused
objects
to
the
(3%).
SUGGESTED ANSWER:
accomplishment of its objective. It adds
more burden upon individuals.
The objection should be overruled. What
the law prohibits is the overhearing,
ALTERNATIVE ANSWER:
intercepting, and recording of private
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communication. Since the exchange of
Yes, the authorities are given the power
heated
its
to stop marchers who do not possess a
videotape recording is not prohibited
permit. However, mere exercise of the
(Navarro vs. Court of Appeals, 313 SCRA
right
153 [1999]).
considered as a danger to public safety.
words
was
not
private,
to
peaceably
assemble
is
not
They could have been asked to disperse
ALTERNATIVE ANSWER:
peacefully, but it should not altogether
The heated conversation at the lobby of
be characterized as posing a danger to
the hotel is not privilege and is not
public safety. (Bayan v. Ermita, G.R. No.
protected under the right to privacy and
169848, April 25, 2006; David v. Arroyo,
anti-wire
G.R. No. 171390, May 3, 2006).
tapping
law.
Heated
conversation is not privilege because it
ALTERNATIVE ANSWER:
was uttered in a public place and it has
Since the protesters merely reached
to be revealed in open court to help in
three meters beyond the boundary of
the prosecution of the case.
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
Right to Assembly; Permit (2007)
policy of maximum tolerance, the police
No.VII. Batas Pambansa 880, the Public
authorities
Assembly
the
protesters
the
refused, the public assembly may be
conduct
Law
of
all
of
1985,
protest
regulates
rallies
in
Philippines.
should
to
have
disperse
asked
and
if
the
they
dispersed peacefully.
ALTERNATIVE ANSWER:
(a) Salakay, Bayan! held a protest rally and
No, this is not a valid exercise of police
planned to march from Quezon City to
power. Police power has been defined as
Luneta in Manila. They received a permit
the power of promoting public welfare by
from the Mayor of Quezon City, but not
restraining and regulating the use of
from the Mayor of Manila. They were able to
liberty and property. (City of Manila v.
march in Quezon City and up to the
Laguio, G.R. No. 118127, April 12, 2005).
boundary separating it from the City of
It is principally the Legislature that
Manila. Three meters after crossing the
exercises
boundary, the Manila Police stopped them
delegated
for posing a danger to public safety. Was
administrative
this a valid exercise of police power?
government units exercise the power
SUGGESTED ANSWER:
under the general welfare clause. In this
the power but it may be
to
the
President
agencies.
and
Local
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case, if Salakay applied for a permit from
vehicles so as not to inconvenience
the city government, the application
other uses of the Expressway.
must be approved or denied within two
ALTERNATIVE ANSWER:
(2) working days from the date it was
Yes. While the protesters possess the
filed, failing which, the permit shall be
right to freely express themselves, their
deemed granted. (Section 16, B.P. Blg.
actuations may pose a safety risk to
880). Even without a permit, the law
other motorists and therefore be the
does not provide for outright stopping of
subject of regulation. The security police
the march if the demonstrators, for
may undertake measures to prevent any
example,
hazard
were
marching
peacefully
without impeding traffic.
to
other
motorists
but
not
altogether prevent the exercise of the
right. So, to that extent, while the
(b) The security police of the Southern
protesters maybe asked to remove the
Luzon Expressway spotted a caravan of 20
banners which pose hazard to other
vehicles, with paper banners taped on their
motorists and prevent them from using
sides and protesting graft and corruption in
the expressway as a venue for their
government.
march,
They
were
driving
at
50
the
security
force
may
not
kilometers per hour in a 40-90 kilometers
prevent them from proceeding to where
per hour zone. Some banners had been
they might want to go.
blown off by the wind, and posed a hazard
ALTERNATIVE ANSWER:
to other motorists. They were stopped by
In
the security police. The protesters then
maximum tolerance, the security policy
proceeded to march instead, sandwiched
should not have stopped the protesters.
between the caravan vehicles. They were
They should have simply asked the
also stopped by the security force. May the
protesters to take adequate steps to
security police validly stop the vehicles and
prevent their banners from being blown
the marchers?
off, such as rolling them up while they
SUGGESTED ANSWER:
were in the expressway and required the
Yes, the security police may stop the
protesters to board their vehicles and
vehicles and the marchers but only to
proceed on their way.
advise
the
leaders
to
secure
accordance
with
the
policy
of
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
Right to Information; Matters of Public
Concern (2009)
No. XIV. The Philippine Government is
negotiating a new security treaty with the
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Page 32 of 168
Political Law Q&As (2007-2013)
United
States
which
hectorchristopher@yahoo.com
could
JayArhSals
involve
public scrutiny. The interest protected
engagement in joint military operations of
being the national security and integrity
the two countries’ armed forces. A loose
of the State on how can it be trusted in
organization of Filipinos, the Kabataan at
terms of diplomatic secrets.
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
(b) 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? (3%)
SUGGESTED ANSWER:
disclosure of the offers and counter-offers
KKM
between the parties could jeopardize on-
information pertaining to government
going negotiations with another country.
contracts
KMM filed suit to compel disclosure of the
Government
negotiation details, and be granted access
proprietary commercial capacity. The
to the records of the meetings, invoking the
right
constitutional
Constitution does not exclude contracts
right
of
the
people
to
information on matters of public concern.
is
to have access
entered
in
to
the
into
by
the
exercise
information
to
of
under
its
the
of public interest and are not privileged
(Section
(a) Decide with reasons. (3%)
entitled
7,
Article
III
of
the
Constitution; Valmonte vs. Belmonte,
SUGGESTED ANSWER:
170 SCRA 256 [1989]).
The petition of KMM must be denied.
Diplomatic negotiations are privileged in
ALTERNATIVE ANSWER:
order to encourage a frank exchange of
If what is sought is the final contract
exploratory ideas between the parties by
itself then the information must be open
shielding the negotiations from public
to the public for transparency and for
view (Akbayan Citizens Action Party vs.
awareness and information. But if what
Aquino, 558 SCRA 468 [2008]).
were sought were the negotiations or
communications in arriving at the final
ALTENATIVE ANSWER:
contract,
the
information
sought
The information sought to be disclose by
remains privileged. An interest need to
the parties is a diplomatic negotiation
be protected.
between
States
and
is
considered
privileged. it cannot be subjected to
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Rights of the Accused; Right to Bail
William was not denied with his Miranda
(2009)
rights. True that he has the right to
No.XII. 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
counsel preferably of his choice. But if
he
cannot
afford
the
services
of
a
counsel, he should be provided with one.
Moreover,
the
argument with a private Filipino citizen.
available
only
Then, in front of many shocked witnesses,
investigation that is, from the moment
he killed the person he was arguing with.
the investigating officer begins to ask
The police came, and brought him to the
questions for the purpose of eliciting
nearest police station. Upon reaching the
admissions,
station, the police investigator, in halting
information from the accused. therefore,
English, informed William of his Miranda
it is proper that he was only informed of
rights, and assigned him an independent
his right at the police station.
local counsel. William refused the services
of the lawyer, and insisted that he be
Miranda
rights
during
are
custodial
confessions
or
any
ALTENATIVE ANSWER:
assisted by a Filipino lawyer currently
The fact that the police officer gave him
based in the US. The request was denied,
the Miranda warning in halting English
and the counsel assigned by the police
does not detract from its validity. Under
stayed for the duration of the investigation.
Section 2(b) of Republic Act No. 7438, it
is sufficient that the language used was
William protested his arrest.
known
to
and
understood
by
him.
(b) He also claimed that his Miranda Rights
William need not be given the Miranda
were violated because he was not given the
warning before the investigation started.
lawyer
an
William was not denied his Miranda
American, he should have been informed of
rights. It is not practical to require the
his rights in proper English; and that he
police officer to provide a lawyer of his
should have been informed of his rights as
own
soon as he was taken into custody, not
(Gamboa
when he was already at the police station.
[1998]).
of
his
choice;
that
being
Was William denied his Miranda rights?
Why or why not?
SUGGESTED ANSWER:
choice
vs.
from
the
Cruz,
United
162
States
SCAR
642,
(c) 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
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outlawed
capital
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punishment,
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should
William be granted bail as a matter of right?
In the present case, JC is charged with
Reasons.
murder which has a penalty of reclusion
SUGGESTED ANSWER:
perpetua, hence he cannot be allowed
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.
bail. However, should the evidence of
guilt be found weak after hearing, the
court may in its discretion, fix bail for
temporary liberty.
(b) 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 stabled the deceased in selfdefense because the latter was strangling
him and that he voluntarily surrendered to
the authorities. Subsequently, the trial
court rendered a decision acquittal violate
JC’s right against double jeopardy? Why or
Rights of the Accused; Right to Bail;
Double Jeopardy (2008)
No. VII. 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.
why not? (3%)
SUGGESTED ANSWER:
By presenting evidence of self-defense,
JC effectively withdrew his plea of guilty
(Peo vs. Balisacan, G.R. No. L-26376,
Aug. 31, 1966). In the absence of a valid
plea,
an
jurisdiction
essential
of
the
element
Court
and
for
first
(a) Is JC entitled to bail? Why or why not?
jeopardy was absent. Consequently, the
(3%)
court had no jurisdiction to acquit JC.
SUGGESTED ANSWER:
Thus, an appeal by the prosecution
would not violate the rule against second
As a general rule, bail is not a matter of
jeopardy.
right when the offense charged carries
ALTERNATIVE ANSWER:
with an imposable penalty of reclusion
perpetua or higher.
Double jeopardy sets in when the first
jeopardy has attached. There is already
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first jeopardy when the accused has
questions were to be asked from the
validly
vendors.
entered
appropriate
his
court
plea
having
before
the
jurisdiction
over the subject matter and his person
(a) Brown, afraid of a "set up" against him,
and that he has been convicted or
demanded that he be allowed to secure his
acquitted or that the case against him
lawyer and for him to be present during the
has been terminated without his express
police line-up. Is Brown entitled to counsel?
consent.
Explain (5%)
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.
SUGGESTED ANSWER
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.)
(b) Would the answer in (a.) be the same if
Brown was specifically invited by White
because
an
eyewitness
to
the
crime
Therefore, his acquittal shall bar any
identified him as the perpetrator? Explain.
similar indictment that may be filed
(3%)
against him because of double jeopardy.
SUGGESTED ANSWER
Rights of the Accused; Right to Counsel
Brown
would
(2012)
assistance of a lawyer. He was already
considered
as
be
a
entitled
suspect
to
and
the
was
No. III. Mr. Brown, a cigarette vendor, was
therefore entitled to the rights under
invited by PO1 White to a nearby police
custodial
station. Upon arriving at the police station,
Legaspi, 331 SCRA 95.)
investigation.
(People
vs.
Brown was asked to stand side-by-side with
five (5) other cigarette vendors in a police
(c) Briefly enumerate the so-called "Miranda
line-up. PO1 White informed them that they
Rights". (2%)
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
SUGGESTED ANSWER
The
Miranda warning
person
in
custody
means
who
that
will
a
be
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interrogated must be informed of the
Arnold
did
not
contest
the
guard's
following:
statement; he steadfastly remained silent
and refused to give any written statement.
(a) He has the right to remain silent;
(b)
Anything
said
can
be
used
Later in court, the guard testified and
as
evidenced against him;
narrated the statements he gave the police
over Arnold's counsel's objections. While
Arnold presented his own witnesses to
(c) He has the right to have counsel
during the investigation; and
(d) He must be informed that if he is
indigent, a lawyer will be appointed to
represent him. (Miranda vs. Arizona, 384
U.S. 436.)
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%)
Rights of the Accused; Right to Remain
Silent (2013)
SUGGESTED ANSWER:
The court was wrong in relying on the
No.VII. As he was entering a bar, Arnold -
silence
who was holding an unlit cigarette in his
investigation and during the trial. Under
right hand -was handed a match box by
Article III, Section 12 of the 1987
someone standing near the doorway. Arnold
Constitution, he had the right to remain
unthinkingly opened the matchbox to light
silent. His silence cannot be taken as a
his cigarette and as he did so, a sprinkle of
tacit admission, otherwise, his right to
dried leaves fell out, which the guard
remain
noticed. The guard immediately frisked
nugatory.
Arnold, grabbed the matchbox, and sniffed
against self-incrimination protects his
its contents. After confirming that the
right to remain silent, he cannot be
matchbox
penalized for exercising it (People vs.
contained
marijuana,
he
immediately arrested Arnold and called in
the police.
of
Arnold
silent
during
would
Considering
the
be
that
police
rendered
his
right
Galvez, 519 SCRA 521).
ALTERNATIVE ANSWER:
At the police station, the guard narrated to
No, the court has erred in its ruling of
the police that he personally caught Arnold
convicting Arnold relying solely on his
in possession of dried marijuana leaves.
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admission of the charge by silence at the
allegedly seen being held for three days and
police investigation and during trial.
tortured before he finally disappeared. The
CHR lawyers requested one Lt. Valdez for a
The duty of the lawyer includes ensuring
photocopy of the master plan of Camp
that
custodial
Aquino and to confirm in writing that he
investigation is aware that the right of
had custody of the master plan. Lt. Valdez
an accused to remain silent may be
objected on the ground that it may violate
invoked at any time (People v. Sayaboc,
his right against self-incrimination. Decide
G.R. No. 147201, January 15, 2004).
with reasons. (4%).
ALTERNATIVE ANSWER:
SUGGESTED ANSWER:
The court correctly convicted Arnold.
The objection of Lt. Valdez is not valid.
There is no showing that the evidence
The
for the prosecution was
refers to testimonial evidence and does
the
suspect
under
insufficient.
right
apply
against
to
the
self-incrimination
When Arnold remained silent, he run the
not
production
of
a
risk of an inference of guilt from non-
photocopy of the master plan of Camp
production of evidence in his behalf
Aquino, because it is a public record. He
(People vs. Solis, 128 SCRA 217).
cannot object to the request for him to
confirm his custody of the master plan,
because he is the public officer who had
Rights
of
the
Accused;
Self-
custody of it. (Almonte vs. Vasquez, 244
Incrimination (2010)
SCRA 286 [1995]).
No. X. A, the wife of an alleged victim of
ALTERNATIVE ANSWER:
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
The objection is without merit. Right
against self-incrimination is not violated
because
the
testimonial
right
is
simply against
compulsion.
prohibition
also
compulsion
for
extends
the
But
the
to
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.
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Pursuant to the production order issued
policemen could be justified so long as
by the court, there can be compulsion
there was a rational connection between
for the production of documents sought
the
in the order.
safety of persons and property. The
regulation
and
the
promotional
requisite connection was present since
the government had a legitimate interest
Right
to
Liberty;
Presentability
of
in policemen’s appearances so that they
would: (1) be readily recognizable to the
Policemen (2008)
public and (2) feel a sense of “esprit de
No. VI. The Philippine National Police (PNP)
corps” that comes from being similar.
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. 6%
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
within
the
scope
and
purview of the law
3. Promulgated in accordance with
the prescribed procedure
in character, it partakes of some of the
military
the
concurrence of the following:
2. Issued
Although the National Police is civilian
of
requiring
1. Made pursuant of law
SUGGESTED ANSWER:
characteristics
delegation
life,
thus
4. it must be reasonable
permitting the imposition of reasonable
It is the policy of the state to secure
measures for discipline, uniformity in
peace
behavior
The
Therefore, it is reasonable to require
circular does not go beyond what is
them to be physically fit in order to
reasonable and therefore passes the test
secure
of due process (Gudani vs. Senga, G.R.
community.
No. 170165, Aug. 15, 2006).
confidence of the public that they are
and
presentableness.
and
order
peace
through
and
This
is
order
to
the
in
boost
PNP.
the
the
not lazy and they are doing their job
In Kelly vs. Johnson, 425 US 238 (1976),
with dedication.
the US Supreme Court said that the
regulations of personal appearance of
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Search and Seizure; Warrantless Arrest
(2009)
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ALTERNATIVE ANSWER:
The warrantless arrest of the accused
No. VII. Crack agents of the Manila Police
was void. There was no overt act or
Anti-Narcotics unit were on surveillance of
suspicious
a cemetery where the sale and use of
indicate
prohibited
crime. The search preceded his arrest
drugs
were
rumored
to
be
rampant. The team saw a man with reddish
(People
and glassy eyes walking unsteadily towards
[2003]).
them, but he immediately veered away
upon seeing the
approached
policemen. The
the
man,
team
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
circumstances
that
vs.
he
was
Tudtud,
that
would
committing
412
SCRA
a
142
(b) Objected to the admission in evidence of
the prohibited drug, claiming that it was
obtained in an illegal search and seizure.
(2%)
SUGGESTED ANSWER:
with crystalline substance. The team then
The objection should be denied. The
took the man into custody and submitted
evidence
the contents of the sachet to forensic
search and seizure was made incidental
examination. The Crystalline substance in
to a lawful warrantless arrest (Manalili
the sachet turned out to be shabu. The
vs. Court of Appeals, 280 SCRA 400
man was accordingly charged in court.
[1997]).
is
admissible
because
the
During the trial, the accused: (Decide with
reasons)
Search and Seizure; Warrantless Arrest
(a)
Challenged the validity of his arrest;
(2008)
(2%)
No. V. Having received tips the accused was
SUGGESTED ANSWER:
selling narcotics, two police officers forced
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]).
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
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officer pounced on the accused, took him to
action because the police had no
a hospital where at their direction, a doctor
personal knowledge that any crime
forced an emetic solution though a tube
was taking place.
into the accused’s stomach against his will.
2. Due to the invalid entry whatever
This process induced vomiting. In the
evidence the police gathered would
vomited matter were found two capsules
be inadmissible.
which proved to contain heroin. In the
3. The arrest of the accused was
criminal case, the chief evidence against the
already invalid and causing him to
accused was the two capsules.
vomit while under custody was an
(a) As counsel for the
unreasonable invasion of personal
accused, what
privacy (U.S. vs. Montoya, 473 US
constitutional rights will you invoke in his
531 [1985])
defense? (4%)
SUGGESTED ANSWER:
As counsel for the accused I would
invoke the constitutional right to be
Search and Seizure; Warrantless Search
(2010)
secured against unreasonable searches
No. XII. A witnessed two hooded men with
and seizures (Art. III, Sec. 2 of the
baseball bats enter the house of their next
Constitution)
(1)
door neighbor B. after a few seconds, he
sanctity of the home, (2) inadmissibility
heard B shouting, “Huwag Pilo babayaran
of
and
kita agad.” Then A saw the two hooded men
inviolability of the person. A mere tip
hitting B until the latter fell lifeless. The
from a reliable source is not sufficient to
assailants
justify warrantless arrest or search (Peo
motorcycle with a fireball sticker on it
vs.
toward the direction of an exclusive village
the
which
capsules
Nuevas,
G.R.
guarantees:
seized,
No.
(3)
170233
Feb.
22,2007).
escaped
using
a
yellow
nearby. A reported the incident to PO1
Nuval. The following day, PO1 Nuval saw
(b) How should the court decide the case?
the motorcycle parked in the garage of a
(3%)
house
SUGGESTED ANSWER:
exclusive village. He inquired with the
The court should declare the search and
seizure illegal:
1. The entry into the accused’s home
was not a permissible warrantless
at
Sta.
Ines
Street
inside
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
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and 2 bats beside the motorcycle. Was the
No.XI.e. Dual citizenship is not the same as
search valid? What about the seizure?
dual allegiance
Decide with reasons. (4%)
SUGGESTED ANSWER:
SUGGESTED ANSWER:
TRUE. An individual may have 2 or more
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
citizenship but owe allegiance to one
State. Taking for example RA no. 9225
providing for retention of Philippine
citizenship among natural born Filipino
citizens.
right of the brothers Pilo and Ramon
Dual citizenship arises when, as a result
Maradona to waive their right against
of the concurrent application of the
unreasonable search and seizure. (People
different laws of two or more states, a
vs. Damaso, 212 SCRA 547 [1992].) the
person is simultaneously considered a
warrantless seizure of the ski masks and
national
bats cannot be justified under the plain
involuntary.
view doctrine, because they were seized
after invalid intrusion in to the house.
(People
vs.
Bolasa,
321
SCRA
459
[1999]).
by
those
states
and
is
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.
ALTERNATIVE ANSWER:
Manzano, 307 SCRA 630 [1999]).
No. the search and the seizure are
invalid because there was no search
warrant and it cannot be said to be a
Natural Born (2009)
search incidental to a lawful arrest. It is
No.IX. Warlito, a natural-born Filipino, took
the right of all individual to be secured
up permanent residence in the United
against
States, and eventually acquired American
unreasonable
searches
seizure by the government.
and
citizenship. He then married shirley, an
American, and sired three children. In
August 2009, Warlito decided to visit the
ARTICLE IV Citizenship
Philippines with his wife and children:
Johnny, 23 years of age; Warlito Jr., 20;
Dual Citizenship vs. Dual Allegiance
and Luisa 17.
(2009)
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While in the Philippines, a friend informed
Naturalization
him that he could reacquire Philippine
Marriage
citizenship without necessarily losing US
deemed
nationality. Thus, he took the oath of
Citizen. She must allege and prove that
allegiance required under RA no. 9225.
she
(a) Having reacquired Philippine citizenship,
is Warlito a natural born or naturalized
Filipino Citizen today? Explain your answer
(3%).
Law,
to
because
Warlito,
to
have
she
should
become
possesses
of
a
none
her
be
Filipino
of
the
disqualifications to become a naturalized
Filipino citizen (Burca vs. Republic, 51
SCRA 248 [1973]).
ALTERNATIVE ANSWER:
SUGGESTED ANSWER:
NATURAL
BORN.
NO. Shirly will not become a Filipino
of
Citizen because only Warlito’s unmarried
no.
children whether legitimate, illegitimate
9225 will restore him back of his former
or adopted, below 18 years of age shall
status as a natural-born citizen (Bengzon
be
vs. House of Representatives Electoral
citizenship.
Philippine
Reacquisition
Citizenship
under
RA
Tribunal, 357 SCRA 545 [2001]; R.A.
2630).
entitled
Shirly
to
may
citizenship
in
derivative
Philippine
acquire
Philippine
the
most
(b) With Warlito having regained Philippine
procedure
Citizenship,
NATURALIZATION under CA no. 473, as
will
shirly
also
become
a
Filipino Citizen? If so, why? If not, what
would be the most speedy procedure for
shirly to acquire Philippine citizenship?
Explain.
citizen,
Warlito’s
will
not
because
become
a
under
RA
of
Filipino
9225,
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
on
accordance
with
the
amended.
(c) Do the Children - - - Johnny, Warlito Jr.
and Luisa - - - become Filipino citizens with
citizenship? Explain your answer. (3%)
reacquisition
registration
JUDICIAL
their father’s reacquisition of Philippine
SUGGESTED ANSWER:
Shirley
through
speedy
ground
Section
15
that
of
in
the
SUGGESTED ANSWER:
Only
LUISA
shall
acquire
Philippine
Citizenship upon the reacquisition of her
father’s Filipino citizenship under RA
no.
9225.
whether
The
unmarried
legitimate,
children,
illegitimate
or
adopted, below 18 years of age shall be
entitled
to
derivative
Philippine
citizenship.
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in cases before labor tribunals and before
employers
ARTICLE VI Legislative
because
of
the
influence
a
congressman can wield, filed a disbarment
Department
case against the Congressman before the
Supreme Court for his violation of the Code
Discipline; Members of Congress (2013)
of
Professional
Responsibility
and
for
breach of trust, in relation particularly with
No. XII. In the May 2013 elections, the
the prohibitions on legislators under the
Allied Workers' Group of the Philippines
Constitution.
(AWGP), representing land-based and seabased workers
overseas,
in
won
the
in
Philippines
the
and
party
list
Is
the
cited
ground
for
disbarment
meritorious? (6%)
congressional elections. Atty. Abling, a
SUGGESTED ANSWER:
labor lawyer, is its nominee.
and
Being a congressman, Atty. Abling is
services, Congressman Abling engages in
disqualified under Article VI, Section 14
labor
of the 1987 Constitution from personally
As
part
of
the
counseling,
party's
advocacy
particularly
for
local
workers with claims against their employers
appearing
and for those who need representation in
judicial and other administrative bodies
collective
handling
bargaining
negotiations
with
as
counsel
labor
before
cases
quasi-
constitutes
employers. When labor cases arise, AWGP
personal appearance before them (Puyat
enters its appearance in representation of
vs. De Guzman, 135 SCRA 33). His
the workers and the Congressman makes it
involvement
a point to be there to accompany the
negotiations also involves practice of
workers, although a retained counsel also
law, because he is making use of his
formally enters his appearance and is
knowledge for the benefit of others
invariably
(Cayetano vs. Monsod, 201 SCRA 210).
largely
there.
takes
a
Congressman
passive
proceedings
although
speaks
supplement
to
he
role
Abling
in
the
occasionally
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
The
Bureau
involved
in
in
collective
of
Labor
bargaining
Relations
collective
is
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
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the unlawful practice of law (Tapay vs.
The
general
rule
is
that
an
Bancolo, 694 SCAR 1).
unconstitutional law is void. It produces
no rights, imposes no duties and affords
ALTERNATIVE ANSWER:
No,
Congressman
Abling
no protection. However, the doctrine of
cannot
be
disbarred. A retained counsel formally
appears for AWGP. His role is largely
operative fact is an exception to the
general rule and it only applies as a
matter of equity and fair play.
passive and cannot be considered as
Under the doctrine of operative fact, the
personal appearance. His participation in
unconstitutional
the collective bargaining negotiations
unconstitutional, but the effects of the
does
unconstitutional law, prior to its judicial
not
entail
personal
appearance
of
law
nullity,
remains
before an administrative body (Article VI,
declaration
may
be
left
Section 13 of the 1987 Constitution).
undisturbed as a matter of equity and
fair play.
ALTERNATIVE ANSWER:
It can never be invoked to validate as
No, the ground for disbarment is not
constitutional an unconstitutional act.
meritorious. The Supreme Court said
that the determination of the acts which
constitute disorderly behavior is within
Doctrine of Necessary Implication; Hold-
the discretionary authority of the House
over (2010)
concerned, and the Court will not review
such determination, the same being a
No.XX. Define/Explain
political question (Osmeña v. Pendatun,
(d) Doctrine of necessary implication
109 Phil 863).
SUGGESTED ANSWER:
DOCTRINE
OF
Doctrine of Operative Fact (2010)
IMPLICATION
No. XX. Define/Explain
provides
(a) Doctrine of operative facts
SUGGESTED ANSWER:
DOCTRINE OF OPERATIVE FACTS –
that
NECESSARY
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
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subsidiary consequences as may be fairly
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SUGGESTED ANSWER
and logically inferred from its terms. Ex
necessitate legis. (Pepsi-Cola Products
The Supreme Court has no jurisdiction
Philippines, Inc. v. Secretary of Labor,
over
312 SCRA 104, 117 [1999]).
Electoral
the
petition.
Tribunal
The
is
Presidential
not
simply
an
agency to which the Members of the
(e) Principle of holdover
Senate Court were assigned. It is not
SUGGESTED ANSWER:
separate
from
(Macalintal
PRINCIPLE OF HOLDOVER
vs.
the
Supreme
Presidential
Court.
Electoral
Tribunal, 631 SCRA 239.)
provides that an incumbent officer or
and
(b) Would the answer in (a.) be the same if
functions
Yellow and Orange were contending for a
beyond his tenure or term until his
senatorial slot and it was the Senate
successor has been elected and qualified.
Electoral Tribunal (SET) who issued the
official
continue
may
remain
performing
in
his
office
challenged ruling? (3%)
Electoral Tribunal; SET; PET
Jurisdiction (2012)
No. IV. 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
SUGGESTED ANSWER
The
Supreme
jurisdiction
Electoral
if
Court
would
it
were
Tribunal
who
the
have
Senate
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.)
and the issues, the PET ruled that Orange
was the real winner of the elections and
ordered his immediate proclamation.
Investigations in Aid of Legislation
(2009)
(a) 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. (3%)
No. VIII. 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,
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and
the
House
unanimously
hectorchristopher@yahoo.com
of
Representatives
approved,
a
resolution
JayArhSals
provided that there is an explicit subject
and
nature
of
the
inquiry.
Since
directing the House Committee on Good
legislative inquiry is an essential part of
Government (HCGG) to conduct an inquiry
legislative power, it cannot be made
on the matter, in aid of legislation, in order
subordinate to criminal and civil actions.
to prevent the recurrence of any similar
Otherwise, it would be very easy to
fraudulent activity.
subvert
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
Congressman
appeared,
Nonoy
to
move
prompting
for
the
issuance of the appropriate subpoena ad
testificandum to compel the attendance of
the invited resource persons.
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
The IUB officials filed suit to prohibit HCGG
continue with the legislative inquiry
from proceeding with the inquiry and to
because it was not in aid of legislation
quash the subpoena, raising the following
but in aid of prosecution. It holds that
arguments:
there will be a violation of separation of
(a)
The
subject
of
the
legislative
investigation is also the subject of the
powers and the possibility of conflicting
judgment.
criminal and civil actions pending before
The Subjudice rule restricts comments
the courts and the prosecutor’s office; thus,
and disclosures pertaining to judicial
the
proceedings to avoid prejudicing the
legislative
inquiry
would
preempt
judicial action;
issue,
SUGGESTED ANSWER:
obstructing
The argument is untenable, the mere
influencing
the
the
court,
or
administrations
of
justice.
filing of a criminal or an administrative
(b) Compelling the IUB officials, who are
complaint before the court of quasi-
also respondents in the criminal and civil
judicial body should not automatically
cases in court, to testify at the inquiry
bar the conduct of legislative inquiry
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would
violate
their
hectorchristopher@yahoo.com
constitutional
right
against self-incrimination. (3%)
Are
the
foregoing
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Investigations in Aid of Legislation;
Executive Privilege (2010)
arguments
tenable?
Decide with reasons.
No.
XVIII.
The
House
Committee
on
Appropriations conducted an inquiry in aid
of legislation into alleged irregular and
SUGGESTED ANSWER:
anomalous
disbursements
of
the
Congress can compel them to appear.
Countrywide Development Fund (CDF) and
Persons under legislative investigation
Congressional Initiative Allocation (CIA) as
are not being indicted as accused in a
exposed by X, a division chief of the
criminal
Department of Budget and Management
proceeding
summoned
as
but
resource
are
merely
persons,
or
(DBM).
Implicated
in
the
questionable
witnesses, in a legislative inquiry. Hence
disbursements are high officials of the
they cannot on the ground of their right
Palace. The house committee summoned X
against
altogether
and the DBM Secretary to appear and
decline appearing before the Congress,
testify. X refused to appear, while the
although they may invoke the privilege
Secretary appeared but refused to testify
when
invoking executive privilege.
self-incrimination,
a
question
incriminating
(Standard
answer
Chartered
calling
is
Bank
for
an
propounded
[Philippine
Branch] vs, Senate Committee on banks,
Financial Institutions and Currencies,
541 SCRA 456 [2007]).
(c) May the Governor of the BSP validly
invoke executive privilege and thus, refuse
to attend the legislative inquiry? Why or
why not?
the
Governor
testify? If yes, what sanction may be
imposed on him?
SUGGESTED ANSWER:
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
SUGGESTED ANSWER:
No.
(a) May X be compelled to appear and
prosecution
cannot
invoke
or
persecution.
The
attendance of the resource person is
executive privilege. Only the President
mandatory
as a general rule can invoke executive
through compulsory processes. Only the
privilege (Senate of the Philippines vs.
President or the Executive Secretary by
Ermita, 488 SCRA 1 [2006]).
order
of
and
the
can
be
President
compelled
can
invoke
executive privilege (Senate of Philippines
vs. Ermita, 488 SCRA 13 [2006]).
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He may be cited for contempt if he fails
the memorial site. The charter set the
to attend.
corporate life of MWMC at 50 years with a
(b) Is the Budget Secretary shielded by
executive privilege from responding to the
inquiries of the House Committee? Explain
proviso that Congress may not abolish
MWMC until after the completion of the
memorial.
Briefly. If the answer is no, is there any
Forty-five (45) years later, the memorial was
sanction that may be imposed on him?
only 1/3 complete, and the memorial site
SUGGESTED ANSWER:
itself had long been overrun by squatters.
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,
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%).
438 SCRA 1 [2006]).
SUGGESTED ANSWER:
Citation for contempt can be imposed.
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
Law-Making; Abolish; Destroy (2008)
purpose could no longer be attained by
No.XIV. 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
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.
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,
Law-Making; Admission to the Bar (2009)
No.I.d. A law fixing the passing grade in the
Bar examinations at 70%, with no grade
and set aside a parcel of land in Malate for
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Page 49 of 168
Political Law Q&As (2007-2013)
lower
than
40%
hectorchristopher@yahoo.com
in
any
subject
is
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industrial estates in the southern Tagalog
constitutional.
Region
SUGGESTED ANSWER:
included an appropriation of 2 billion pesos
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.
retains
construction
investors.
of
roads
The
around
plan
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%)
SUGGESTED ANSWER:
The law is a valid exercise of police
power
although
benefited
plant
TRUE. Deliberations in ConCon reveal
Congress
attract
a
it
may
indirectly
Congresswoman
but
the
purpose of the law to provide a 5-year
ALTERNATIVE ANSWER:
that
for
to
the
power
to
amend or alter the rules because the
for
all
industrial
estates
is
reasonable thus, it conform to the twin
requisite of lawful subject and lawful
means for a valid exercise police power.
power to promulgate rules is essentially
However, the congresswoman could be
legislative even though the power has
sanctioned
been deleted in the 1987 Constitution. If
Representative for failure to notify the
the law, however, is retroactive, it is
House of a potential conflict of interest
unconstitutional
in the filing of the proposed legislation
because
it
is
prejudicial.
by
the
House
of
of which they author.
ALTERNATIVE ANSWER:
Law-Making; Conflict of Interest (2010)
No. V. 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
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
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JayArhSals
the one who will file the bill, he should
nationwide. A financial assistance scheme
notify
called “conditional cash transfers” was
the
House
concerned
of
the
potential conflict of interest.
initially
funded
500
million
pesos
by
Congress. One of the provisions of the law
gave
Law-Making; Item vs. Pocket Veto (2010)
the
joint-congressional
oversight
committee authority to screen the list of
beneficiary families initially determined by
No. XXVI. Distinguish between pocket veto
and item veto
the Secretary of Department of Social
Welfare and Development pursuant to the
Department
SUGGESTED ANSWER:
implementing
rules.
Mang
Pandoy, a resident of Smokey Mountain in
An item veto refers to the veto made by
Tondo, questioned the authority of the
the president but not the entire bill is
Committee.
vetoed
but
only
a
specific
items.
Generally item veto is not allowed but
(b)
the constitution permits item veto on
Oversight Committee to screen beneficiaries
revenue, tariff, and appropriation bill.
constitutional? Decide with Reasons.
And although it is not a appropriation,
Is the grant of authority to the
SUGGESTED ANSWER:
tariff or revenue bill an item veto is still
allowed for inappropriate provision in
The grant of authority to the oversight
the bill.
Committee to screen beneficiaries is
unconstitutional.
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 inacted within 30
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]).
days from receipt thereof.
ALTERNATIVE ANSWER:
NO. True that the Oversight power of
Law-Making;
Oversight
Committee
(2010)
congress is to scrutinize, investigate,
and supervise that the laws that it
and
enacted is fully implemented. But to
Assistance Act was passed to enhance the
secure authority to screen beneficiaries
capacity of the most marginalized families
is
No.VI.
The
Poverty
Alleviation
an
unfair
interference
with
the
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personal
liberty
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or
property
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of
of the total valid votes cast for the party-list
individual. It is more of an intrusion
system are "qualified" to have a seat in the
than an overseeing.
House of Representatives;
SUGGESTED ANSWER:
R.A. No. 7941. This is to ensure that the
Party-list
Representative;
Formula
party-list
organizations
at
least
represents a significant portion of those
allocation (2007)
voting for the party-list system – that
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.
number
congressmen
shall
of
not
all
party-Iist
exceed
twenty
percent of the total membership of the
House of Representatives, including those
elected under the party list;
5(2),
least
constituency
have
which
a
substantial
must,
at
the
minimum, not be less than two percent
(2%) of the total number of those casting
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
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
(c) The three-seat limit - each qualified
SUGGESTED ANSWER:
SUGGESTED ANSWER:
Section
at
their votes for party-list organizations.
(a) The twenty percent allocation - the
combined
they
to promote the
election of party-list representatives in
order to enable Filipinos belonging to
the marginalized and underrepresented
sectors to contribute legislation that
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.
would benefit them.
(d) The first-party rule - additional seats
(b) The two percent threshold - only those
parties garnering a minimum of two percent
which a qualified party is entitled to shall
be determined in relation to the total
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number of votes garnered by the party with
KABAKA. Rudy seeks to register KABAKA
the highest number of votes.
as a party-list with himself as a nominee of
SUGGESTED ANSWER:
the coalition. Will KABAKA and Rudy be
R.A. No. 7941. The party-list system is
qualified as a party-list and a nominee,
predicated,
respectively? Decide with reasons.
among
others,
on
proportional representation. Thus, there
is need to reflect the same in relation to
SUGGESTED ANSWER:
the total number of votes obtained.
NO,
Accordingly, the first party must not be
qualified
placed on the same footing as the others
because KABAKA is a partner of Dutch
who
Foreign
obtained
less
votes.
The
votes
Kabaka
and
as
Rudy
party-list
Ministry
a
will
not
and
be
nominee
foreign
based
obtained by first placer would be the
organization.
reckoning point for the computation of
receiving support from Dutch Ministry.
additional seats or members for the
It
remaining organizations who got at least
registered as a party-list. (Section2(5),
two percent (2%) of the votes cast for
Article IX-C of the Constitution).
the
party-list
system.
is
KABAKA
therefore
is
indirectly
disqualified
to
be
(Veterans
Federation Party v. COMELEC, G.R. No.
Under the law, the following are grounds
for disqualification for registration in the
136781, October 6, 2000).
party-list system:
Party-List; Foreign Funding (2010)
1. It
is
a
religious
denomination,
sect
or
organization
or
No. XVI. Rudy Domingo, 38 years old,
association organized for religious
natural-born Filipino and a resident of the
purposes;
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
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
livelihood projects and trainings on good
foreign
governance. The Dutch Foundation for
political
Global Initiatives, a private organization
organization, whether directly or
registered in the Netherlands, receives a
through any of its officers or
huge subsidy from the Dutch Foreign
members or indirectly through
Ministry,
which,
in
turn
is
government,
party,
foreign
foundation,
allocated
worldwide to the Foundation’s partners like
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third parties for partisan election
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Should the petition be granted? (5%)
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
It fails to participate in the last two (2)
preceding elections or fails to obtain at
least 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.”
SUGGESTED ANSWER:
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
Mison,
159
(Sarmiento
SCRA
549).
III
Since
v.
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
ARTICLE VII Executive
confirmation
Department
by
the
Commission
on
Appointments.
Appointing Power; Acting Appointments
(2013)
Appointing Power; Ad-Interim
No.II. While Congress was in session, the
President
appointed
eight
Appointments (2010)
acting
No. XXIII. A was a career Ambassador when
Secretaries. A group of Senators from the
he accepted an ad interim appointment as
minority bloc questioned the validity of the
Cabinet
appointments in
Appointments bypassed his
a petition
before
the
Member.
The
Commission
on
ad interim
Supreme Court on the ground that while
appointment, however, and he was not re-
Congress is in session, no appointment that
appointed. Can he re-assume his position
requires confirmation by the Commission
as career ambassador?
on Appointments, can be made without the
latter's consent, and that an undersecretary
should instead be designated as Acting
Secretary.
SUGGESTED ANSWER:
The
career
assume
his
Ambassador
cannot
position
as
re-
career
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Ambassador. His ad interim appointment
and agencies, including government-owned
as Cabinet Member was a permanent
or controlled corporations
appointment (Summers vs. Ozaeta, 81
SUGGESTED ANSWER:
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).
an
interim
appointment
appointment
made
by
the
is
an
President
appointment
and
Appointment
by
the
or
Commission
until
the
on
next
adjournment of congress.
appointee was not re-appointed he can
longer
including
government-
owned or controlled corporations with or
without
original
charters.
But
the
President does not have the power of
re-assume
SCRA 128 [2000]; National Marketing
Corporation
vs. Arca, 29 SCRA 648
[1969]).
Control Power; Foreign Relations (2010)
No. IX.The
League of Filipino Political
Scientist (LFPS) organized an international
If the appointment is bypassed and the
no
agencies,
shall
continue to hold such permanency until
disapproved
and
Environment and Natural Resources, 347
during the recess of Congress and it is a
permanent
of control over all executive departments
control over LGUs (Cruz vs. Secretary of
ALTERNATIVE ANSWER:
NO.
TRUE. The president exercises the power
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.
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
Control Power (2009)
immigration authorities to prevent the entry
of Prof. Kui into Philippine territory. The
No.XI.c. The President exercises the power
chancellor
of control over all executive departments
instruction
of
CLSU
violates
argued
the
that
the
Constitution.
Decide with reasons. (4%)
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SUGGESTED ANSWER:
The
argument
of
the
JayArhSals
President to take over any public utility
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, 3 rd
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]).
is
false.
Since
is
an
aspect
of
emergency powers, in accordance with
Section
23(2),
Constitution,
Article
there
VI
must
of
be
a
the
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
ALTERNATIVE ANSWER:
it
before
the
President
can
exercise them.
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
Enter into Executive Agreement; Treaty
Abrogation (2008)
poses
No. III. The President alone without the
imminent threat or danger to national
concurrence of the Senate abrogated a
security.
treaty. Assume that the other country-party
to the treaty is agreeable to the abrogation
provided it complies with the Philippine
Declaration;
State
of
National
Emergency (2010)
of the treaty of the treaty abrogation is
No. VII.a. A proclamation of a State of
emergency
is
sufficient
Constitution. If a case involving the validity
to
allow
the
brought to the Supreme Court, how should
it be resolved? (6%).
President to take over any public utility.
SUGGESTED ANSWER:
SUGGESTED ANSWER:
The President should be overruled. She
The statement that a proclamation of
emergency is sufficient to allow the
cannot abrogate a treaty alone even if
the other State, party to a treaty, agrees
to
the
abrogation. If
the
legislative
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JayArhSals
branch ratifies a treaty by 2/3 vote
concurrence of a majority of all the
pursuant to Art. VII, Sec. 21, it must
Members of Congress. (Section 28(4),
also do so when the President abrogates
Article VI of the Constitution.) Without
it. She cannot motu propio abrogate the
respect to its lawful substantive content,
treaty.
a treaty, to be valid and effective,
requires concurrence by at least two-
ALTERNATIVE ANSWER:
thirds of all the Members of the Senate.
The Supreme Court should sustain the
validity of the abrogation of the treaty.
There
is
no
constitutional
provision
(Sec. 21, Art. VII of the Constitution).
ALTERNATIVE ANSWER:
governing the termination of a treaty.
FALSE.
Granting
tax
exemptions
What the constitution provides is only
requires concurrence by a majority of all
the concurrence of the Senate in order
the Members of the Congress.
that a treaty be valid and binding and
under
recent
jurisprudence,
the
ratification of the treaty is left to the
Pardoning Power: Executive Clemency
sound discretion of the President.
(2008)
Therefore,
the
President
as
the
No. VIII. ST, a Regional Trial Court judge
representative of the State in treaty
who falsified his Certificate of Service, was
negotiation can abrogate a treaty by
found liable by the Supreme Court for
himself.
serious misconduct and inefficiency, and
meted the penalty of suspension from office
for 6 months. Subsequently, ST filed a
Enter into Treaty (2010)
No.VII.b.
A
treaty
petition for executive clemency with the
which
provides
tax
exemption needs no concurrence by a
majority of all the Members of the Congress
SUGGESTED ANSWER:
The
statement
provides
tax
that
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? (6%)
a
treaty
exemption
which
needs
no
SUGGESTED ANSWER:
concurrence by a majority of all the
No. the grant of executive clemency is
Members of Congress is true. It is only a
invalid because it violates the separation
law,
tax
of powers. The Supreme Court has the
the
power of administrative supervision over
not
exemption
a
treaty,
which
granting
requires
a
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JayArhSals
all courts and its personnel and with this
reflect presidential decision-making and
power the Supreme Court can discipline
deliberations
erring Judges.
believes should remain confidential. It
The grant of an executive clemency has
the
effect
of
removing
the
penalty
imposed by the competent authority.
The Supreme Court has the authority to
applies
to
and
that the President
decision-making
of
the
President. It is based on separation of
powers. It is always subject to a greater
scrutiny.
discipline judges of lower court. In so
Deliberative Process Privilege: includes
doing, the constitution guaranteed its
advisory opinions, recommendations and
independence from the other political
deliberations
bodies. If the executive department were
process
to grant executive clemency, it would be
decisions and policies are formulated.
an encroachment of a prerogative thus
Based
violation of the separation of powers.
applies to decision-making of executive
comprising
by
on
officials
which
common
and
not
part
of
a
governmental
law
privileged
subject
to
it
greater
scrutiny.
Privilege; Presidential Communications
vs. Deliberative Process (2010)
No.
VIII.
Distinguish
“presidential
communication privilege” from “deliberative
ARTICLE VIII Judicial
Department
process privilege.”
Judicial Department; Judicial Service
SUGGESTED ANSWER:
(2013)
Jurisprudence laid down 2 kinds of
executive
privilege
which
presidential
communication
are
privilege
and deliberative process privilege (Neri
vs. Senate Committee on Accountability
of Public Officers and Investigations, 549
SCRA 77 [2008]).
Presidential
pertains
documents
or
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
the
other
of the
Court
of Appeals; she
Privilege:
adjudicates cases that are appealable to the
communications,
Court of Appeals; she is assigned car plate
Communication
to
No.XI. In her interview before the Judicial
materials
that
No. 10; and she is, by law, entitled to the
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rank, benefits and privileges of a Court of
under the principle of inclusion unios
Appeals Justice.
exclusion est alterius, due credits will
not be granted.
If you are a member of the JBC, would you
give credit to this explanation? (6%)
SUGGESTED ANSWER:
Judicial Department; Writ of Amparo
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, Otherwise Known as the 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,
No. IX. Conrad is widely known in the
neighbourhood 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.
and
On March l, 2013, Conrad informed his
Presiding
mother, Vannie, that uniformed security
Justice and Associate Justices of the
guards had invited him for a talk in their
Court of Appeals, respectively. The law is
office but he refused to come. Later that
clear,
the
day, however, Conrad appeared to have
equivalence of a commissioner’s rank,
relented; he was seen walking into the
salary,
and
security office flanked by two security
Presiding
guards. Nobody saw him leave the office
benefits
as,
that
benefits
retirement
(2013)
those
it
of
only
allowances,
to
that
the
allowed
retirement
of
the
Justices’ and Associate Justices’. The
law,
however,
did
not
mention
afterwards.
the
credits for judicial service, therefore,
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JayArhSals
Conrad did not go home that night and was
by an unlawful act or omission of a
never seen again. The following week and
public official or employee, or of a
after a week-long search, Vannie feared the
private individual or entity. The writ
worst because of Col. Sangre's reputation.
covers extralegal killings and enforced
She thus reported Conrad's disappearance
disappearances or threats thereof.
to
the
resulted
police.
from
When
the
nothing
police
concrete
investigation,
Since
there
has
been
an
enforced
Vannie – at the advice of counsel - f1led a
disappearance on the part of Conrad, the
petition for a writ of amparo to compel Col.
writ is applicable.
Sangre and the Sagittarius Security Office
to produce Conrad and to hold them liable
(B) If the petition would prosper, can Col.
and
Sangre be held liable and/or responsible for
responsible
for
Conrad's
disappearance.
Conrad's disappearance? (6%)
(A) Did Vannie's counsel give the correct
SUGGESTED ANSWER:
legal advice? (6%)
SUGGESTED ANSWER:
No,
Colonel
responsible
Sangre
for
cannot
be
held
the disappearance
of
Conrad. Command responsibility has no
The advice of Vannie’s counsel that
applicability to an amparo proceeding
she’ll file a petition for a writ of amparo
(Rubrico
is not correct. In order that a writ of
SCRA 233). It may be established merely
amparo can be availed of against a
to
private individual for the disappearance
appropriate
of someone, the involvement of the
responsible parties (Balao vs. Macapagal-
government is indispensable. There is no
Arroyo, 662 SCRA 312).
vs.
enable
Macapagal-Arroyo,
the
court
remedies
to
613
craft
against
the
the
showing of any participation of the
government in Conrad’s disappearance
(Navia vs. Pardico, 673 SCRA 618).
ALTERNATIVE ANSWER:
ALTERNATIVE ANSWER:
Although
writ
of
pinpoint
criminal
disappearance,
amparo
does
culpability
it
for
not
a
determines
Yes, Vannie’s counsel gave the correct
responsibility, or at least accountability,
legal advice. The Writ of Amparo is a
for
remedy available to any person whose
appropriate
right to life, liberty, or security has been
refers to the extent the actors have been
violated or is threatened with violation
established to have participated in an
the
purpose
of
remedy.
imposing
the
Responsibility
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enforced disappearance, as a measure of
(a) Does Mang Pandoy have legal standing
the remedy, to be crafted, such as the
to question the law?
directive to file the appropriate criminal
SUGGESTED ANSWER:
and civil cases against the responsible
parties (Razon, Jr. Vs. Tagitis, 606 SCRA
598).
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
ALTERNATIVE ANSWER:
by
the
improper
screening
the
(Province
of
Yes. Colonel Sangre, together with the
beneficiary
Sagittarius Security Office should be
Batangas vs. Romulo, 492 SCRA 736
held fully accountable for the enforced
[2004]).
disappearance
of
implementation of the law will require
strong evidences supporting the claim of
the expenditure of public funds, as a tax
the Writ of Amparo as shown in the case.
payer Mang Pandoy has legal standing to
of
Conrad
because
families.
of
Besides,
since
the
question the law. (Cruz vs. Secretary of
Environment and Natural Resources, 347
SCRA 128).
Judicial Power; Legal Standing (2010)
No.VI.
The
Poverty
Alleviation
and
ALTERNATIVE ANSWER:
Assistance Act was passed to enhance the
Yes. Mang Pandoy has legal standing to
capacity of the most marginalized families
question the law as a taxpayer and a
nationwide. A financial assistance scheme
citizen. As a taxpayer he has to show
called “conditional cash transfers” was
that there will be an illegal disbursement
initially
of public funds. As a citizen he must
funded
500
million
pesos
by
Congress. One of the provisions of the law
show
gave
transcendental importance.
the
joint-congressional
oversight
that
the
issue
involved
is of
committee authority to screen the list of
beneficiary families initially determined by
the Secretary of Department of Social
Judicial Power; Trial by Jury (2013)
Welfare and Development pursuant to the
Department
MangPandoy,
Mountain
rules.
No.IV. Congress enacted a law providing for
smokey
trial by jury for those charged with crimes
implementing
in
a
resident
Tondo,
of
questioned
authority of the Committee.
the
or
offenses
punishable
by
reclusion
perpetua or life imprisonment. The law
provides for the qualifications of members
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of the jury, the guidelines for the bar and
(Paragraph 2, Section 1, Article VIII,
bench for their selection, the manner a trial
1987 Constitution).
by jury shall operate, and the procedures to
be followed.
Trial by Jury shall have the power to
adjudge which claims are true and which
Is the law constitutional? (6%)
are not. Composed of 12 jurors and two
alternate jurors, the Trial Jury shall be
SUGGESTED ANSWER:
kept in secret places until the usually-
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
supplement
the
promulgated
by
repeal,
rules
the
alter
of
or
procedure
Supreme
Court.
Congress can no longer enact any law
governing rules of procedure of the
courts
(Echegaray
vs.
Secretary
of
Justice, 301 SCRA 96).
one-week trial ends in case the accuseds
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:
ALTERNATIVE ANSWER:
The law is valid, because the grant of a
No, it will be unconstitutional because it
right
will be contrary to the judicial power
substantive
which includes the duty of the courts of
competence of Congress (Article VIII,
justice to settle actual controversies
Section 5(5) of the 1987 Constitution).
which
are
legally
demandable
to
trial
law
by
and
jury
involves
is
within
a
the
and
enforceable, and to determine whether
or not there has been a grave abuse of
Judicial Power; Trial by Jury (2008)
discretion amounting to lack or excess
jurisdiction on the part of any branch or
No.XIII. Congress enacted law establishing
instrumentality
the right to trial by jury of an accused
of
the
Government
charged with a felony or offense punishable
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with
reclusion
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perpetua
or
JayArhSals
life
(PET). After due consideration of the facts
imprisonment. The law provides for the
and the issues, the PET ruled that Orange
qualifications of prospective jury members,
was the real winner of the elections and
the guidelines to be observed by the Judge
ordered his immediate proclamation.
and the lawyers in jury selection including
the grounds for challenging the selection of
(c) What is the composition of the PET?
jury members, and the methodology for jury
(2%)
deliberations. Is the law constitutional?
Explain fully. (7%)
SUGGESTED ANSWER
The Presidential Electoral Tribunal is
SUGGESTED ANSWER:
composed of the Chief Justice and the
The law is unconstitutional because the
Associate Justices of the Supreme Court
power to promulgate rules concerning
Sitting en banc. (Section 4, Article VII of
the
the Constitution.)
protection
and
enforcement
of
constitutional rights, pleading, practice,
and procedure in all courts is vested
(d) What is judicial power? Explain Briefly.
only in the Supreme Court.
(2%)
Congress
cannot
encroach
to
the
SUGGESTED ANSWER
prerogatives of the Judiciary particularly
those
expressly
Constitution.
The
given
by
interference
the
of
Judicial Power – Sec.1(1) Art. 8 is the
authority
to
settle
justiciable
Congress of such power would be struck
controversies
or
down because it violates the separation
rights
are
of powers.
demandable before the courts of justice
that
disputes
involving
enforceable
and
or the redress of wrongs for violation of
such rights. (Lopez vs. Roxas, 17 SCRA
Presidential Electoral Tribunal; Judicial
756.) it includes the duty of the courts
Power (2012)
to settle actual controversies involving
rights which are legally demandable and
No. IV. Mr. Yellow and Mr. Orange were the
enforceable, and to determine whether
leading candidates in the vice-presidential
or not there has a grave abuse of
elections. After elections, Yellow emerged as
discretion amounting to lack or excess
the winner by a slim margin of 100,000
of jurisdiction on the part of any branch
votes. Undaunted, Orange filed a protest
or instrumentality of the government.
with the Presidential Electoral Tribunal
(Section 1, Article VIII of Constitution.)
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(b) Does the Ombudsman have authority to
Supervision; Courts and its Personnel;
Ombudsman’s Jurisdiction (2012)
Green City. Red is known to have corrupt
tendencies and has a reputation widely
among
accepting
practicing
bribes.
lawyers
over
crimes
or
offenses committed by public officials that
for
the official’s discharge of his duties and
functions? Explain. (3%)
SUGGESTED ANSWER
Grey,
The Ombudsman can investigate crimes
wishing to "clean up" the government from
or offenses committed by public officers
errant
which
public
Ombudsman
investigation
are NOT in connection or related at all to
No. V. Judge Red is the Executive Judge of
known
conduct
officials,
initiated
an
are
investigation on the alleged irregularities in
performance
the performance of duties of Judge Red.
Section
(a) 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
not
of
13(1),
Constitution,
connected
their
Article
the
with
duties.
XI
the
Under
of
the
Ombudsman
can
investigate any act or omission of a
public official which is illegal. (Deloso vs.
Domingo, 191 SCRA 545.)
court official or employee falls under the
(c) Who are required by the Constitution to
exclusive jurisdiction of the Supreme Court.
submit a declaration under oath of his
Decide with reasons. (5%)
assets, liabilities, and net worth? (2%)
SUGGESTED ANSWER
SUGGESTED ANSWER
Since
the
All public officers and employees are
performance of the duties of Judge Red,
required to submit a declaration under
Ombudsman Grey should not act on it
oath of their assets, liabilities and net
and should refer it to the Supreme
worth. (Section 17, Article XI of the
Court. His investigation will encroach
Constitution.)
upon
the
complaint
the
administrative
refers
exclusive
supervision
to
power
of
of
the
Supreme Court over all courts. (Maceda
vs. Vasquez, 221 SCRA 464.)
ARTICLE IX Constitutional
Commissions
Rotational Scheme (2010)
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No. XXV.
(a) What is the rational scheme of
ARTICLE IX Civil Service
appointments in the COMELEC?
Commission
SUGGESTED ANSWER:
Appointment; Relatives (2008)
The rational scheme of appointments in
the COMELEC refers to the appointment
No.XII..
of
The
Mayor
City
as
City
its
appointed
but
by
Treasurer from among three (3) employees
intervals of every after 2 years upon
of the city considered for the said position.
expiration of their term of office.
Prior to said promotion, Amelia had been
Commissioner
members
not
and
5
simultaneously
wife,
Jose
of
the
his
of San
Amelia,
an Assistant City Treasurer for ten (10)
(b) What are the two conditions for its
years, that is, even before she married the
workability?
City
SUGGESTED ANSWER:
Commission
The two conditions for its workability
are:
(a)
Mayor.
Should
approve
the
Civil
the
Service
promotional
appointment of Amelia? Why or why not?
SUGGESTED ANSWER:
The
first
Commissioners
Chairman
should
start
and
on
a
common date and
(b) Any vacancy before the expiration of
the term should be filled only for the
unexpired balance of the term
The Civil Service Commission should
disapproved
appointment
the
if
at
promotional
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
(c) To what other constitutional offices does
relatives by consanguinity or affinity
the rational scheme of appointments apply?
within the third degree of the appointing
SUGGESTED ANSWER:
authority in public office. This is to
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).
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
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thereafter
married
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each
other,
the
The
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statement
that
a
person
who
promotional appointment should remain
occupies in office that is defectively
as valid appointment.
created is a de facto officer is TRUE. The
person appointed or elected pursuant to
an unconstitutional law is a de facto
officer, before the law is declared to be
Appointment; Relatives (2010)
such. (State vs. Caroll, 38 Conn.[1871]).
No.XV.b. The rule on nepotism does not
apply to designations made in favor of a
relative
of
the
authority
making
a
designation
(2009)
SUGGESTED ANSWER:
FALSE. The Rule on Nepotism extends to
designation,
and
De Facto Officer; Salary Entitlement
promotional
appointment in favor of a relative(Laurel
vs. Civil Service Commission, 203 SCRA
195 [1991]).
No.XI.b. A de facto public officer is, by
right, entitled to receive the salaries and
emoluments attached to the public office he
holds
SUGGESTED ANSWER:
TRUE.
A
de
facto
public
officer
discharges his public duties under a
color of title to the office, therefore, by
De Facto Officer (2010)
right entitled to salary (Civil Liberties vs.
No. XV.a. A person who occupies an office
Executive Secretary, 194 SCRA 317).
that is defectively created is a de facto
officer.
Discretionary Duty of a Public Officer
SUGGESTED ANSWER:
(2010)
FALSE. A de facto officer occupies a
valid existing office however under a
No.XV.c. A discretionary duty of a public
color of title of the office. For him to be
officer is never delegable
a de facto officer, the office must be
SUGGESTED ANSWER:
validly
created.
(Tuanda
vs.
Sandiganbayan, 249 SCRA 342 [1995]).
ALTERNATIVE ANSWER:
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
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Treatise on the Law on Public Offices
and Officers, p.368).
Security of Tenure (2010)
No.XV.d.
ALTERNATIVE ANSWER:
JayArhSals
Acquisition
of
civil
service
eligibility during tenure of a temporary
TRUE. Discretionary duty of a public
officer cannot be delegated.
appointee does not automatically translate
to a permanent appointment.
SUGGESTED ANSWER:
TRUE. There is a need for another
appointment for permanency (Province
Oath or Affirmation (2007)
of Camarines Sur vs. Court of Appeals,
No. VI. b. All public officers and employees
246 SCRA 281 [1995]).
shall take an oath to uphold and defend the
Constitution.
SUGGESTED ANSWER:
The statement is true. This is expressly
ARTICLE IX COMELEC
provided for in Section 4, Article IX-B of
the 1987 Constitution.
Commission En Banc; Jurisdiction
ALTERNATIVE ANSWER:
(2012)
The statement is true as under Section
40 of the Administrative Code of 1987
(Executive Order No. 292), it is provided
that “all public officers and employees of
the
government,
including
every
member of the armed forces shall, before
entering upon discharge of his duties,
take an oath or affirmation to uphold
and defend the Constitution.
ALTERNATIVE ANSWER:
The statement is false. The Constitution
states: “All public officers and employees
shall take an oathe or affirmation to
uphold and defend this Constitution”
(1987 Constitution, Art. IX-B, sec.4).
No. VII. 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.
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(a) Mr. Green is the political opponent of
(b)
Mayor Pink. In April, noticing that Mayor
Warranto
Pink
Warranto in appointive office. (3%)
had
because
gained
of
her
advantage
activities
over
him
before
the
campaign period, he filed a petition to
disqualify Mayor Pink for engaging in an
election campaign outside the designated
period.
Distinguish
in
briefly
elective
between
office
and
Quo
Quo
SUGGESTED ANSWER:
In quo warranto in elective office, the
issue is the ineligibility of the elected
candidate. (Section 3(e), Rule 1, Rules of
a.1. Which is the correct body to rule on the
Procedure in Election Cases.) If he is
matter? Comelec en banc, or Comelec
ineligible, the candidate who got the
division? Answer with reasons. (2%)
second highest number of votes cannot
be
SUGGESTED ANSWER:
proclaimed
elected.
(Sinsuat
vs.
Commission on Elections, 492 SCRA
264.) A voter may file a petition for quo
It is the Commission on elections en
warranto against an elected candidate.
banc which should decide the petition.
The petition should be filed within ten
Since it involves the exercise of the
days
administrative
elected candidate.
powers
of
the
after
the
proclamation
of
the
Commission on Elections, Section 3,
Article IX-C of the Constitution is not
In quo warranto in appointive office, the
applicable. (Baytan vs. Commission on
issue is the legality of the appointment.
Elections, 396 SCRA 703.)
The court will decide who
between
the parties has the legal title to the
a.2. Rule on the petition. (5%)
office. (Nachura, Outline Reviewer in
Political Law, p.567.)
SUGGESTED ANSWER:
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.)
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.)
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No. Galicia is not eligible to run for an
elective position because the executive
Grant of Pardon to Election Offenses
clemency is
(2010)
because
not valid and
it
was
effective
granted
with
No. XVII. During his campaign sortie in
constitutional
Barangay Salamanca, Mayor Galicia was
Constitution requires recommendation
arrested at a PNP checkpoint for carrying
from the COMELEC before the President
high-powered firearms in his car. He was
may
charged and convicted for violation of the
offenses violating election laws.
grant
infirmity.
executive
The
clemency
for
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. (5%)
Election Laws
Election
Protest;
Substitution;
Quo
Warranto (2009)
No. II. Despite lingering questions about his
SUGGESTED ANSWER:
Filipino
citizenship
and
his
one-year
Mayor Galicia can run again for an
residence in the district, Gabriel filed his
elective
certificate of candidacy for congressman
Under
office
Section
but
not
40
immediately.
of
the
Local
before
the
deadline
set
by
law.
His
Government Code, he cannot run for an
opponent, Vito, hires you as lawyer to
elective office within two (2) years after
contest Gabriel’s candidacy.
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
(a) 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%).
SUGGESTED ANSWER:
and the pardon was granted without the
File
favorable
the
petition to deny due course or to cancel
Commission on Elections. (Section 5,
Certificate of Candidacy within 25 days
Article IX-C of the Constitution).
from the time of filing of the COC on the
recommendation
ALTERNATIVE ANSWER:
of
with
ground
of
COMELEC
material
in
division,
a
representation
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contained in the certificate is false; or
certified by, the same political party
file a petition with the COMELEC in
may file a certificate of candidacy to
division to cancel the COC because he is
replace
a nuisance candidate. There must be a
withdrew or was disqualified not later
showing that:
than mid-day of the day of the election
a. The COC was filed to put the
the
candidate
who
dies,
(sec.76, OEC).
election process in a mockery
Since there is no showing in the present
or disrepute
case that Gabriel is a member of a
b. Cause confusion among voters
by
similarity
of
names
of
registered candidates
c. By
other
or
acts which demonstrate that a
has no bona fide
intention to run for the office
for which his certificate of
candidacy has been filed, and
thus
prevent
a
could he be substituted if he withdraws
his COC.
circumstances
candidate
registered political party, in no moment
faithful
determination of the true will
of the electorate.
(b) If, during the pendency of such action/s
(c) 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
citizenship
of
his
and
candidacy
residence
and/or
still
be
questioned? If so, what action or actions
may be filed and where? If not, why not?
(2%)
SUGGESTED ANSWER:
but before election day, Gabriel withdraws
Yes, a petition for quo warranto may be
his certificate of candidacy, can he be
filed with the House of Representative
substituted as candidate? If so, by whom
Electoral
and why? If not, why or why not?
eligibility
SUGGESTED ANSWER:
elective position.
No. when the candidate who withdraws is
A quo warranto proceeding may be filed
an independent candidate, he cannot be
by
substituted. Under the law, if after the
questioning the eligibility of an elective
last day for the filing of certificates of
officer with respect to his continued
candidacy, an official candidate of a
possession of the qualifications of age,
registered or accredited political party
citizenship, and residency, as the case
dies, withdraws or is disqualified for any
may be. Should the action prosper and a
any
Tribunal
to
questioning
continue
citizen
of
to hold
the
his
such
Philippine
cause, only a person belonging to, and
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decision be rendered against the elective
District Board of Canvassers denied both
official, the latter shall be removed from
objections
office leaving the position vacant.
certificate of canvass. May MP appeal the
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.
and
ruled
to
include
the
rulings to the COMELEC? Explain. (6%)
SUGGESTED ANSWER:
NO. COMELEC’s Jurisdiction over preproclamation
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,
Pre-Proclamation Contest (2008)
V-President, Senator and Member of the
No.X. The 1st Legislative District of South
Cotabato is composed of General Santos
and
three
Polomolok.
municipalities
During
the
including
canvassing
proceedings before the District Board of
Canvassers in connection with the 2007
congressional
elections,
candidate
MP
objected to the certificate of canvass for
Polomolok on the ground that it was
obviously
manufactured,
submitting
evidence
the
of
affidavit
as
House
of
Representatives,
no
pre-
proclamation cases shall be allowed on
matters
relating
transmission,
to
the
receipt,
preparation,
custody
and
appreciation of the election returns or
the certificates of canvass, as the case
may be.
ALTERNATIVE ANSWER:
(sec. 20, RA 7166)
mayoralty
Yes. a party adversely affected by the
candidate of Polomolok. The Certificate of
ruling of the board shall immediately
canvass for General Santos was likewise
inform the board if he intends to appeal
objected to by MP on the basis of the
said ruling to the COMELEC. The party
confirmed report of the local NAMFREL that
adversely affected by the ruling may file
10 elections
from non-existent
a verified notice of appeal with the board
precincts were included in the certificate.
within a non-extendible period of 5 days.
returns
MP moved that the certificate of canvass for
General Santos be corrected to exclude the
results from the non-existent precincts. The
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Three Term Limit; Contest; Substitution
consecutiveness of his term of office.
(2008)
(Ong v. Alegre, Jan. 23, 2006).
No.IX. Abdul ran and won in the May 2001,
2004, and 2007 elections for Vice-Governor
of Tawi-Tawi. After being proclaimed ViceGovernor
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 ViceGovernor
though
the
decision
was
promulgated only in 2007, when Abdul had
fully served his 2004-2007 term and was in
(b) 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%)
SUGGESTED ANSWER:
fact already on his 2007-2010 term as Vice-
I will advise him that his wife can be a
Governor.
substitute if his wife is a member of the
(a) Abdul now consults you if he can still
run for Vice-Governor of Tawi-Tawi in the
forthcoming May 2010 election on the
premise that he could not be considered as
having served as Vice-Governor from 20042007 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
political party and is certified by such
political party that she is going to
substitute abdul as candidate for ViceGovernor 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.
decided with finality that had lost in the
May 2004 elections. What will be your
Vacancy: Succession; Recall (2010)
advice? (3%).
No. XXII. Governor Diy was serving his
SUGGESTED ANSWER:
third term when he lost his governorship in
Will advice Abdul that he can no longer
a recall election.
run for Vice-Governor in the forthcoming
(a) Who shall succeed Governor Diy in his
May 2010 election because there is no
office as Governor?
interruption of service of his 2004-2007
SUGGESTED ANSWER:
term. He is considered to have already
served and thereof it is counted in the
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The candidate who received the highest
number
of
votes
in
the
recall
will
succeed Governor Diy (Section 72 of the
Vacancy:
Local Government Code).
(2008)
(b) Can Governor Diy run again as governor
in the next election?
Yes,
because
recall
Panlalawigan
No XI. On august 8, 2008, the Governor of
Bohol
died
succeeded
SUGGESTED ANSWER:
Sangguniang
and
him
Vice-Governor
by
operation
Cesar
of
law.
Accordingly, Benito, the highest ranking
election
is
an
member of the Sangguniang Panlalawigan
interruption of the consecutiveness of
was elevated to
the term of office it cannot be counted.
Governor. By the elevation of Benito to the
A recall election is a mid-way election
Office of Vice-Governor, a vacancy in the
and the term is not completed when one
Sangguniang Panlalawigan was created.
is conducted. The third term of Governor
How should the vacancy be filled?
Diy should not be included in computing
the the=ree-term limit. (Lonzanida vs.
Commission on Elections, 311 SCRA 602
[1999]).
recall election and instead resign from his
position as governor?
position of Vice-
SUGGESTED ANSWER:
(sec. 44-46, RA 7160)
The
(c) Can Governor Diy refuse to run in the
the
vacancy
shall
be
filled
in
the
following manner:
1. If
Benito
is
affiliated
with
a
political party, the vacancy in the
SUGGESTED ANSWER:
Sangguiniang Panlalawigan shall
Governor Diy cannot refuse to run in the
be filled by a nomination and
recall
certificate of membership of the
election.
considered
candidate.
He
as
a
is
automatically
duly
(Section
71,
registered
Local
Government Code).
ALTERNATIVE ANSWER:
appointee
from
official
the
of
the
political
highest
party.
(must be filled with someone who
belongs to the political party to
maintain the party representation
YES, Governor Diy is not compelled to
as willed by the people in the
run in a recall election. Recall election is
election).
called because the electorate has lost
confidence to the elective official. He
may instead resign from his position.
2. If Benito is not affiliated with a
political party, the vacancy shall
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be
filled
by
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the
PRESIDENT
through the executive secretary.
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without the need of any other law is an
authorized exercise
ALTERNATIVE ANSWER:
TRUE.
The
confiscation
of
driver’s
ARTICLE X Local
license by MMDA is part of its executive
Government
function to enforce the law.
Boundary Dispute Resolution; LGU; RTC
(2010)
Internal Revenue Allotment Fund (2007)
No.XIII.c. Boundary disputes between and
among municipalities in the same province
may be filed immediate with the RTC
No. VIII. The Provincial Governor of
Bataan requested the Department of
Budget and Management (DBM)
SUGGESTED ANSWER:
to
release its Internal Revenue Allocation
FALSE. Should be referred for settlement
(IRA) of P100 million for the current
to the SANGGUNIANG PANLALAWIGAN
budget year.
concerned (see. Sec. 118, RA No.7160;
Municipality of Sta. Fe vs. Municipality
of Artao, 533 SCRA 586 [2007]).
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
Confiscation of Driver’s License; MMDA
(2010)
President.
(a) Is this requirement valid?
No.XIII.d. The MMDA is authorized to
confiscate
a
driver’s
license
in
the
SUGGESTED ANSWER:
enforcement of traffic regulations.(0.5%)
No, this requirement is not valid. Under
SUGGESTED ANSWER:
the 1987 Constitution, it is provided
that “local government units shall have
False. Since Republic Act No. 7924 does
not
grant
the
Development
Metropolitan
Authority
to
manila
enact
ordinances, the grant to it by Section
5(f) of Republic Act No. 7924 of the
power
to
confiscate
driver’s
license
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
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of local fiscal autonomy is the automatic
(b) De facto municipal corporation
release of the shares of LGUs in the
SUGGESTED ANSWER:
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.”
DE FACTO MUNICIPAL CORPORATION –
De facto municipal corporation is a
public corporation that exists although
it has not complied with the statutory
requirements like:
a. Authorization by a valid law
b. A colorable and bona fide attempt to
organize under a valid law
(b) The Provincial Governor is a party-mate
of
the
President.
May
the
Bataan
c. An assumption of powers conferred
under the law
Representative instead file a petition to
It primarily attends to the needs of the
compel the DBM to release the funds?
general welfare.
SUGGESTED ANSWER:
Yes. A congressman from a particular
LGU
may
validly
have
standing
to
(c) Municipal corporation by estoppels
SUGGESTED ANSWER:
demand that IRA for his province be
MUNICIPAL
released
the
ESTOPPELS- A municipal corporation by
Constitution and the Local Government
estoppels is a corporation which is so
Code.
his
defectively formed as not to be a de
province, he has a responsibility towards
facto corporation but is considered a
his constituencies who can expect no
corporation in relation to someone who
less than faithful compliance with the
dealt with it and acquiesced in its
Constitution.
exercise of its corporate functions or
in
As
presented
a
accordance
with
representative
Moreover,
could
be
of
the
issue
characterized
as
involving transcendental importance to
CORPORATION
BY
entered into a contract with it. (Martin,
Public Corporations, 1985 ed.,p.20)
the people and the local government
units which had been guaranteed greater
local autonomy.
Ordinance Validity; Disapproval (2009)
No. III. The Municipality of Bulalakaw,
Municipal
Corporation;
De
facto
vs.
Leyte,
passed
ordinance
no.
1234,
Estoppel (2010)
authorizing the expropriation of two parcels
No.XX Define/Explain
of land situated in the poblacion as the site
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of a freedom park, and appropriating the
Ordinance Validity; Regulation of Disco
funds needed therefor. Upon review, the
Pubs (2010)
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%).
No. XXI 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 hosptitality
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?
SUGGESTED ANSWER:
Explain.
The Local Government Unit can exercise
SUGGESTED ANSWER:
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 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
The power of eminent domain is granted
power,
to the Municipality and it is within their
safeguard
competence to determine the necessity
Secretary of Health, 476 SCRA 168
to expropriate private property for public
[2005]).
purpose.
This
determination
is
not
within the review powers of the SP.
Therefore,
the
disapproval
ordinance is incorrect.
of
the
because
public
its
purpose
health.
is
to
(Beltran
vs.
ALTERNATIVE ANSWER:
Jurisprudence
dictates
that
an
ordinance to be a valid exercise of police
power it:
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
Page 76 of 168
Political Law Q&As (2007-2013)
1. Must
not
hectorchristopher@yahoo.com
contravene
the
constitution;
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2, Local Government Code; Department
of Agrarian Reform vs. Polo Coconut
2. Must not be unfair nor oppressive;
Plantation Company, Inc., 564 SCRA
3. Must be reasonable;
78[2008]).
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
general
the
interest
public
of
requires
the
ARTICLE XI Accountability
of Public Officers
Discipline; Preventive Suspension (2009)
the
Maximo, an employee of the Department of
interference and that the means
education, is administratively charged with
employed is reasonably necessary
dishonesty and gross misconduct. During
for the accomplishment of its
the formal investigation of the charges, the
purpose
Secretary
of
Education
preventively
Under the present case, the objective of
suspended him for a period of 60 days. On
the ordinance is to secure the health and
the 60th day of the preventive suspension,
safety
the Secretary rendered a verdict, finding
of
its
populace.
AIDS
is
an
incurable disease that is very harmful to
Maximino
the
immediate dismissal from the service.
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.
guilty,
and
ordered
his
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.
Reclassification of Land (2010)
No.XIII.b. Re-classification of land by a local
government unit may be done through a
resolution.
SUGGESTED ANSWER:
FALSE. Re-classification of land must be
The secretary of education then petitions
the Supreme Court for the review of the CA
decision.
(a) Is the Secretary of Education a proper
party to seek the review of the CA decision
exonerating Maximino? Reasons (2%)
SUGGESTED ANSWER:
done through an ORDINANCE ( Section
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The Secretary of Education is not the
preventive suspension, he was not yet
proper party to seek review of the
out of service. However, he is entitled to
decision of the Court of Appeals, because
back
he is the one who heard the case and
dismissal until his reinstatement. The
imposed
enforcement of the dismissal pending
the
penalty.
Being
the
wages
from
exonerated (Gloria vs. Court of Appeals,
should
not
actively
prosecuting
and
participate
Maximino
in
he
his
Education
impartial
and
of
appeal
be
punitive,
time
disciplinary authority, the Secretary of
should
was
the
was
306 SCRA 287 [1999]).
(National
Appellate Board of the National Police
Commission vs. Mamauag, 446 SCRA
Impeachment; Grounds (2013)
624 [2005]).
(b) 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.
(3%)
No.V. As a leading member of the Lapiang
Mandirigma
the
House
of
Representatives, you were tasked by the
party to initiate the moves to impeach the
President
executive
SUGGESTED ANSWER:
in
because
he
agreement
entered into
an
with
US
the
Ambassador for the use of the former Subic
As a general rule, Maximo is not entitled
Naval Base by the US Navy, for free, i.e.,
to recover back salaries corresponding to
without need to pay rent nor any kind of
the entire period he was out of the
fees as a show of goodwill to the U.S.
service because of the NO WORK NO PAY
because of the continuing harmonious RP-
RULE. But if it is found that he is
US relations.
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:
Cite
at
least
two
(2)
grounds
for
impeachment and explain why you chose
them. (6%)
SUGGESTED ANSWER:
The President can be impeached for
Maximo cannot recover back salaries
culpable violation of the Constitution
during his preventive suspension. The
and
law does not provide for it. Preventive
Supreme Court has already ruled that
suspension is not a penalty. During the
the provision in Article XVIII, Section 25
betrayal
of
public
trust.
The
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
Page 78 of 168
Political Law Q&As (2007-2013)
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of the Constitution requires a treaty
Act), that one corrupt practice of a
even for the mere temporary presence of
public
foreign troops in the Philippines (Bayan
approving
vs.
The
permit, privilege or benefit in favor of
President cannot claim, therefore, that
any person not qualified for or not
he acted in good faith. (Report of the
legally entitled to such license, permit,
Special Committee in the Impeachment
privilege or advantage, or of a mere
of
Congressional
representative or dummy of one who is
Record of the House of Representatives,
not so qualified or entitled. Since the
Vol. IV, p. 1553). Betrayal of public trust
President
includes violation of the oath of the
privilege to use the former Subic Naval
office of the President (Record of the
Base for free without need to pay rent
Constitutional
nor any kind of fees.
Zamora,
342
President
p.272).
In
SCRA
Quirino,
499).
Commission,
his
oath
of
Vol.
office,
II,
officer
or
gave
includes
granting
the
knowingly
any
U.S.
license,
Navy
the
the
President swore to preserve and defend
(2)
Culpable
Violation
of
the
the Constitution (Article VII, Section 5
Constitution. The president knowingly
of the 1987 Constitution).
violated the provision stated in Section
11, Article XII of the Constitution which
ALTERNATIVE ANSWER:
provides that no franchise, certificate, or
The President can be impeached for
culpable violation of the Constitution
and graft and corruption (Article XI,
Section2). By entering into the executive
agreement,
Section
the
3(d)
of
President
the
violated
Anti-Graft
and
Corrupt Practices Act because of the
injury to the Republic of the Philippines.
ALTERNATIVE ANSWER:
The
two
grounds
for
any other form of authorization for the
operation of a public utility shall be
granted
except
Philippines
or
to
citizens
of
to
corporations
the
or
associations organized under the laws of
the Philippines at least sixty per centum
of whose capital is
owned
citizens,
such
nor
shall
by such
franchise,
certificate, or authorization be exclusive
in character or for a longer period than
impeachment
50 years.
suitable to the case of the president are:
Impeachment; Purpose; Grounds (2012)
(1) Graft and Corruption. It is stated
under Section 3(j) of Republic Act No.
No. II.A verified impeachment complaint
3019 (Anti-Graft and Corrupt Practices
was filed by two hundred (200) Members of
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Page 79 of 168
Political Law Q&As (2007-2013)
the
House
of
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Representatives
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against
The purpose of impeachment is not to
Madam Chief Justice Blue. The complaint
punish but only to remove a public
was immediately transmitted to the Senate
officer to secure the people against gross
for trial.
political
misdemeanors.
(Bernas,
The
1987 Constitution of the Philippines, A
(a) Madam Chief Justice Blue challenges
Commentary,
such immediate transmittal to the Senate
Conviction
because
not
prosecution and punishment. The person
included in the order of business of the
convicted is subject to prosecution and
House, 2) was not referred to the House
punishment according to law. (Section
Committee on Justice for hearing and
3(7), Article XI of the Constitution.)
the
verified
complaint
1)
2009
does
ed.,
not
p.
1150.)
prevent further
consideration for sufficiency in form and
substance, and 3) was not submitted to the
(c)
House
impeachment. Is graft and corruption a
Plenary
for
consideration
as
enumerated in Paragraph (2), Section 3,
Enumerate
the
grounds
for
ground for impeachment? (2%)
Article XI of the 1987 Constitution. Decide
with reasons. (5%)
SUGGESTED ANSWER
SUGGESTED ANSWER
The
following
are
the
grounds
for
impeachment:
Since he verified complaint was filed by
200
Members
of
the
House
of
1) Culpable
violation
least one third of its Members, it need
2) Treason;
not undergo the procedure in Paragraph
3) Bribery;
2,
4) Graft and Corruption;
3,
Article
XI
of
the
complaint
5) Other high crimes; and
constitutes the Articles of Impeachment,
6) Betrayal of public trust
Constitution.
The
verified
the
Constitution;
Representatives and they constituted at
Section
of
and trial by the Senate should proceed
forthwith (Section 3(4), Article XI of the
Constitution).
(b) What is the purpose of Impeachment?
Ombudsman; Power to Impose Penalties
(2009)
Does conviction prevent further prosecution
No.XI.d.
and punishment? Explain. (3%)
imposing
Decisions
disciplinary
SUGGESTED ANSWER
of
penalties
cases
the
in
Ombudsman
administrative
are
merely
recommendatory.
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Page 80 of 168
Political Law Q&As (2007-2013)
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SUGGESTED ANSWER:
FALSE.
Under
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Education; Academic Freedom (2013)
the
No.VIII. Bobby, an incoming third year
Ombudsman Act, the Ombudsman has
college student, was denied admission by
the power to ensure compliance with the
his
imposition of penalty on public officers
institution in Manila, after he failed in three
it
its
(3) major subjects in his sophomore year.
the
The denial of admission was based on the
finds
at
disciplinary
Section
fault
by
authority
15(3)
of
virtue
(Office
of
of
Ombudsman vs. Madriaga, 503 SCRA 631
university,
a
premiere
educational
university's rules and admission policies.
[2006]).
Unable to cope with the depression that his
non-admission triggered, Bobby committed
suicide. His family sued the school for
ARTICLE XII National
damages,
Economy and Patrimony
citing
the
school's
grossly
unreasonable rules that resulted in the
denial of admission. They argued that these
Acquisition of Lands (2009)
rules violated Bobby's human rights and
No.XI. a. Aliens are absolutely prohibited
the
from
Constitution gives to the education of the
owning
private
lands
in
the
priority
consideration
that
the
youth.
Philippines.
SUGGESTED ANSWER:
You are counsel for the university. Explain
FALSE. Aliens can acquire private lands
your
in the Philippines through hereditary
university's case. (6%)
succession
(intestate
succession
arguments
in
support
of
the
only
[Sec. 7, Art. XII]) and former natural-born
SUGGESTED ANSWER:
citizens can also be a transferee but with
for
I shall argue that under Article XIV,
urban and 3 hectares for rural (Sec.8 Art.
Section 5(2) of the 1987 Constitution,
XII).
the
limitations. 5,000
square
meters
educational
institution
enjoys
academic freedom. Academic freedom
includes its rights to prescribe academic
ARTICLE XIV Education,
standards, policies and qualification for
the admission of a student (University of
Science, and Technology,
San Agustin, Inc. vs. Court of Appeals,
Arts
230 SCRA 761).
“Never Let The Odds Keep You From Pursuing What You Know In Your Heart You Were Meant To Do.”-Leroy Satchel Paige
Page 81 of 168
Political Law Q&As (2007-2013)
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ALTERNATIVE ANSWER:
The Constitution provides that every
The claim of Bobby’s family is not
meritorious. It is provided under Section
5(2),
Article
Constitution
XIV
that
JayArhSals
of
the
Academic
1987
Freedom
citizen
has
the
right
to
select
a
profession or a course of study, subject
to
a
fair,
reasonable
and
equitable
admission and academic requirements.
shall be enjoyed in all institutions of
Although
higher learning. Colleges, publicly- or
profession
can
privately-owned, if they offer collegiate
limitation
should
courses, enjoy academic freedom.
unreasonable and unfair so as to restrict
From the standpoint of the educational
the freedom of choice. It is not for the
institution,
the
State to decide what a student would
freedom to determine “who may teach;
take up in college. But if it were for
what may be taught, how it shall be
national security in order to defend the
taught; and who may be admitted to
State then a compulsory rendition of
study”
military service may be made through a
the
(Sweezy
university
v.
State
has
of
New
Hampshire, 354 U.S. 234).
dearth
of
mining
be
to
choose
regulated,
not
be
a
the
oppressive,
Education; Academic Freedom (2007)
No.XVII. As a reaction to the rice shortage
the
freedom
law.
Education; Academic Freedom (2008)
and
the
engineers.
Congress passed a law requiring graduates
of public science high schools henceforth to
No.I
(b)
The
1987
Constitution
has
increased the scope of academic freedom
recognized under the previous Constitution.
SUGGESTED ANSWER:
take up agriculture or mining engineering
The
as their college course. Several students
Constitution
protested, invoking their freedom to choose
freedom
their profession. Is the law constitutional?
institutions of higher learning. This is
law
is
is
true.
provides
shall
be
The
that
1987
academic
enjoyed
in
all
more expansive in scope than the 1973
SUGGESTED ANSWER:
The
statement
Constitution which
unconstitutional
because
institutions
of
stated
higher
that:
learning
All
shall
creating occupation against the will of
enjoy academic freedom. While the 1973
the student in making a living is a form
Charter suggests that academic freedom
of
was institutional in the sense that it
involuntary
servitude,
constitutionally encourage.
not
belonged
to
the
colleges
and
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universities, the present Charter gives
official languages of the Philippines are
the guaranty to all other components of
Filipino and, until otherwise provided by
the institution, including faculty and
law, English.” Thus, while Filipino will
possibly students.
always be an official language, Congress
may, by law, remove English as the other
ALTERNATIVE ANSWER:
The statement is false. The scope of
academic freedom remains the same.
Article
XIV,
Section
Constitution provides
freedom
shall
5
(2)
that
be
of the
academic
enjoyed
in
all
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:
institutions of higher learning. As held
The statement is true. To be more
in U.P. Board of Regents v. Court of
precise, however, what is only to remain
Appeals, G.R. No. 134629, August 31,
as official until otherwise provided by
1999, “This (provision) is nothing new.
law is English. Filipino will always be an
The
official language under the Charter.
1935
and
Constitution likewise
the 1973
provided
for
academic freedom or, more precisely, for
the
institutional
autonomy
of
Education; Teaching of Religion (2010)
universities and institutions of higher
No. XIX. To instill religious awareness in
learning.”
the Students of Dona Trinidad High School,
a public school in Bulacan, the ParentTeacher’s
Education:
Communication
and
Instruction (2007)
Association
of
the
school
contributed funds for the construction of a
grotto and a chapel where ecumenical
religious services and seminars are being
No.I. (a) For purposes of communication
held after school hours. The use of the
and instruction, the official languages of
school grounds for these purposes was
the Philippines are English and Filipino,
questioned by a parent who does not belong
until otherwise
to any religious group. As his complaint
SUGGESTED ANSWER:
was not addressed by the school officials,
The statement is false. Article XIV,
Section 7
provides
of the 1987
that
communication
for
and
Constitution
“purposes
of
instruction,
the
he filed an administrative complaint against
the principal before the DECS. Is the
principle liable?
SUGGESTED ANSWER:
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The principal is liable. Although the
However,
grotto and the chapel can be used by
educational
different
established here in the Philippines for
religious
sects
without
discrimination, the land occupied by the
grotto
and
the
chapel
will
100%
foreign
institution
owned
may
be
religious groups and mission boards.
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
Education: Scholarship Grants (2007)
the
government. (Section 3(3), Article XIV of
the Constitution).
No. IX. 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 scholarships to a total of 21
students next year. At a cost of P50,000 per
Education; Foreign Ownership (2009)
student, the school will lose a total of P1.05
million for next year.
No.I.d. An educational institution 100%
a. Is this DepEd requirement valid?
foreign-owned may be validly established in
SUGGESTED ANSWER:
the Philippines.
The requirement is valid. Under Section
SUGGESTED ANSWER:
7 of Presidential Decree No. 451, as a
TRUE. If it is established by religious
groups and mission boards. (Sec.4(2),
Art. XIV).
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
As a general rule, educational institution
deserving students at the rate of one
must be owned exclusively to citizens of
scholarship
the Philippines or qualified corporation
enrolled.
at least 60% of the capital of which is
owned by Filipino citizen.
for
every
500
students
ALTERNATIVE ANSWER:
No.
It
constitutes
deprivation
of
property without due process of law. The
law is confiscatory as it unduly shifts the
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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).
JayArhSals
Education; Study of Religion (2008)
No.XV. 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
b. 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?
Catholic
students
through
a
during
Catholic
class
priest.
hours,
However,
students who wished to avail of such
religious instruction needed to secure the
consent of their parents and guardians in
writing.
SUGGESTED ANSWER:
No, would still constitute a deprivation
(a) Does the offer violate the constitutional
of property without due process of law.
prohibition against the establishment of
(Balacuit v. CFI, G.R. no. 38429, June
religion?
30, 1988).
SUGGESTED ANSWER:
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
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).
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.
(b) 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
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principal, a devout Catholic, rejected the
TRUE. Under the constitution, Congress
request. As counsel for the parents of the
may, by law, adopt a NEW NAME FOR
evangelical students how would you argue
THE COUNTRY, A NATIONAL ANTHEM,
in support of their position? (3%)
OR A NATIONAL SEALS, which shall all
SUGGESTED ANSWER:
be truly reflective and symbolic of the
The rejection made by the principal is in
violation equal protection of the laws.
The option given by the constitution to
teach
religion
without
in
public
distinction
to
schools
what
is
religion
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).
should only be taught. It does not
discriminate
neither
should
the
principal.
For
classification
to
be
valid
the
following requisite must be present:
a. Classification
is
based
on
must
be
germane
to
the
apply
equally
to
limited
shall be valid upon a vote of three-fourths
all
members of the same class
d. Not
Amendments (2007)
of all the Members of the Congress.
purpose of the law
c. Must
or Revisions
No. VI.a. An amendment to the Constitution
substantial distinction
b. It
ARTICLE XVII Amendments
to
existing
conditions
SUGGESTED ANSWER:
The
statement
is
false.
First,
an
amendment proposed by Congress must
be approved by at least three-fourths
ARTICLE XVI General
Provisions
(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
National Anthem (2009)
No.I. a. A law making “Bayan Ko” the new
national anthem of the Philippines, in lieu
of Lupang Hinirang is constitutional.
SUGGESTED ANSWER:
vote
separately
Constitutional
(II
Record
Commission
of
the
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).
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PUBLIC INTERNATIONAL
Amendments; People’s Initiative (2009)
No.XVIII. What are the essential elements of
a valid petition for a people’s initiative to
LAW
Basic Principles; Reparation (2007)
No. IV. In 1993, historians confirmed that
amend the 1987 constitutions?
during World War II, "comfort women" were
forced into serving the Japanese military.
SUGGESTED ANSWER:
These women were either abducted or lured
The
essential
elements
of
a
valid
petition for a people’s initiative are:
waitresses, and eventually forced against
1. The people must author and sign
the entire proposal; no agent or
representative can sign in their
their will to have sex with Japanese soldiers
on a daily basis during the course of the
war,
and
beatings
behalf;
2. The proposal must be embodied in
number
often
and
suffered
venereal
from
diseases.
severe
The
Japanese government contends that the
"comfort stations" were run as "onsite
the petition; and
3. The
by false promises of jobs as cooks or
of
people
who
petitioned must be at least 12%
of the total number registered
voter, of which every legislative
military brothels" (or prostitution houses)
by private operators, and not by the
Japanese
military.
There
were
many
Filipina "comfort women."
district must be represented by at
least 3% of the registered voter
norm of international humanitarian law
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
a. Name at least one basic principle or
than
90
days
after
the
certification by the Commission
on Election of the sufficiency of
the petition.
that was violated by the Japanese military
in the treatment of the "comfort women."
SUGGESTED ANSWER::
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 honour, in particular against
rape, enforced prostitution, or any form
of indecent assault.”
ALTERNATIVE ANSWER:
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The treatment of “comfort women” by
SUGGESTED ANSWER:
the Japanese military violated Article III
The defense is not valid. Under the
of the Geneva Convention (IV) which
preamble of San Francisco Treaty, Japan
prohibits outrages upon personal dignity
Undertook to conform to the protection
in particular humiliation and degrading
and observance of human rights. The
treatment.
San Francisco Treaty must yield to the
ALTERNATIVE ANSWER:
United Nations Charter which provides
The principle of military necessity was
for respect of human rights. Article 103
violated. It prohibits the use of any
of the United Nations Charter provides
measure that is not absolutely necessary
that the obligation of the member-States
for the purposes of the war. Military
prevail
necessity
several
agreement. The waiver in Article 14(a) of
constraints: An attack or action must be
the San Francisco Treaty is qualified by
intended to help in the military defeat of
Article 14(b), which stated that Japan
the enemy, it must be an attack on a
had no resources presently sufficient to
military objective and the harm caused
make complete reparation for all such
to civilians or civilian property must be
damages and sufferings and meet its
proportional
other obligations. Thus the waiver was
relation
is
to
governed
and
the
not
by
excessive
concrete
and
in
direct
over
operative
any
only
other
while
international
Japan
had
military advantage anticipated. Having
inadequate resources.
to force women of the enemy state to
ALTERNATIVE ANSWER:
serve the sexual needs of the soldiers is
No, that is not a valid defense. Even if it
not absolutely necessary for the conduct
could be argued that the Philippines, by
of the war.
signing said Peace Agreement had the
right as a state to bring further claims, it
b. The surviving Filipina "comfort women"
had no authority to waive the individual
demand that the Japanese government
right to reparations vested directly in its
apologize and pay them compensation.
nationals who were victims of sexual
However, under the 1951 San Francisco
slavery. The Philippines can only validly
Peace Agreement -the legal instrument that
waive its right to recovery of reparations
ended the state of war between Japan and
for injuries to the state. Moreover, there
the Allied Forces -all the injured states,
is no defense for the violation of jus
including the
cogens norms.
Philippines, received war
reparations and, in return, waived all
ALTERNATIVE ANSWER:
claims against Japan arising from the war.
No. The claim is being made by the
Is that a valid defense?
individuals, not by the State and it is
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recognized that individuals may also be
sovereign can ask his own government
subjects of international law apart from
to espouse his cause through diplomatic
the state. Further, the San Francisco
channels. The “comfort women” can
Peace
be
request
the
Philippine
interposed as a valid defense as this
through
the
Department
could
Affairs, to espouse its claims against the
Agreement
not
have
could
been
not
contemplated
of
Foreign
therein. The use of “comfort women”
Japanese
was
that
Rosario, G.R. No. 101949, December 1,
Agreement. Moreover, Article 17 (3) of
1994). The sovereign authority of a State
the
that
to settle the claims of its national
“prohibitive laws concerning persons,
against foreign countries has repeatedly
their acts or property, and those which
been recognized. This may be made
have for their object public order, policy
without the consent of the nationals or
and good customs, shall not be rendered
even without consultation without them.
ineffective
(Dames and Moore v. Regan, 433 U.S.
only
New
confirmed
Civil
by
long
Code
laws
after
provides
or
judgments
government.
government,
(Holy
See
v.
promulgated, or by determinations or
654,
[1981])
conventions agreed upon in a foreign
ALTERNATIVE ANSWER:
country.
No. since the Philippines is a signatory
to that Agreement,
courts
may not
c. The surviving Filipina "comfort women"
entertain a suit since that has been
sue the Japanese government for damages
waived by the State. Moreover, it can be
before Philippine courts. Will that case
argued that there was no state action
prosper?
since the prostitution houses were being
SUGGESTED ANSWER:
run by private operators, without the
The Filipina “comfort women” cannot
control or supervision of the Japanese
sue Japan for damages, because a foreign
government.
State may not be sued before Philippine
States v. Wilhelm List, Nuremberg Case
courts as a consequence of the principles
No. 7, 1949)
(Southeast
Case,
United
of independence and equality of States
(Republic of Indonesia vs. Vinzon, 405
SCRA
126
[2003]).
Concept of Association (2010)
ALTERNATIVE ANSWER:
No.
The case will not prosper in view of the
association under international law?
XXVII
What
is
the
concept
of
doctrine of sovereign immunity from
suit.
However,
aggrieved
by
a
the
person
acts
of
who
a
feels
foreign
Under international law, an association
is formed when two states of unequal
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power voluntarily establish durable links.
counter to the national sovereignty and
In
territorial
the basic model, one state, the
associate,
delegates
responsibilities
principal,
to
certain
the
while
other,
the
maintaining
its
integrity
of
the
Republic.
(Province of North Cotabato v. GRP
Peace Panel on Ancestral Domain, G.R.
No. 183591, Oct. 14, 2008)
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-selfgoverning
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.
Extradition: Double Criminality (2007)
No. III. 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 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
For an association to be lawful, it must
that in July 2005, the Philippines adopted
comply
conditions
its own anti-hacker law, to strengthen
prescribed in the UN General Assembly
existing sanctions already provided against
Resolution 1541 (XV) of 14 December
damage to property. The United States has
160: (1) the population must consent to
requested the Philippines to extradite him
the association; and (2) the association
to US courts under the RP-US Extradition
must promote the development and well-
Treaty.
with
the
general
being of the dependent state (the nonself-governing
territory).
Association
subject to UN approval.
extradite Lawrence? State the applicable
In deciding the constitutionality of the
Memorandum
of
Agreement
on
the
Ancestral Domain (MOA-AD) Aspect of
the
GRP-MILF
Tripoli
a. Is the Philippines under an obligation to
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
rule
and
its
rationale.
SUGGESTED ANSWER:
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
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time of the commission of the crime in
The Philippines is under no obligation to
May 2005. The rational for the principle
extradite Lawrence. The rule is that the
of dual criminality rests “in part on the
crime
basic principle of reciprocity” and “in
countries at the time of the commission
part of the maxim nulla poena sine lege.”
of the offense. Since there was yet no
(LA
in
such crime in the Philippines at the time
Manchester
when the acts complained of were done,
Shearer,
1971
International
Extradition
Law,
must
be
punishable
in
both
University Press, Manchester, p. 137.)
in so far as the Philippines is concerned,
ALTERNATIVE ANSWER:
Lawrence did not commit any crime;
Even if there was no anti-hacker law in
hence, an extradition of Lawrence is
the Philippines when the United States
tantamount
requested the extradition of Lawrence, if
application of the Philippine anti-hacker
the act is similar to malicious mischief
law, prohibited by section 22, Article III
under Article 327 of the Revised Penal
of the 1987 Constitution.
to
an
ex
post
facto
Code, The Philippines will be under the
obligation to extradite Lawrence (Coquia
and
Defensor,
International
law
and
World Organizations, 4th ed. P.342).
Genocide (2010)
No. I. The dictatorial regime of the President
A of the Republic of Gordon was toppled by
b. Assume that the extradition request was
a combined force led by Gen. Abe, former
made after the Philippines adopted its anti-