Message from Atty. David J. V.

Yap:

In answering questions, remember the three points – Responsiveness, Substance (Logical) and
Presentation (margins, paragraphing, grammar, handwriting and neatness)

Do not answer to impress the examiner of your knowledge. Your objective in answering is to
convince the examiner that you deserve to be a lawyer.

Remember, do not over answer. That will be fatal.

Try to recall that during your CoLaw days, you would prepare for the Final Exams only for a
day. Now, you prepared for a particular bar subject for, at least, a month. So you are well
prepared. Enter the gates of UST as if you are just taking a Final Exam.

So, good luck.

To all those who were my former students, remember how I encouraged you to study law. To
those who were not my students, consider yourself lucky because I was never absent in my
classes.

You have my blessings and prayers.

When you become a lawyer, I will call you Companera or Companero. But you still address me
as Sir.

DVYap

The following are a few questions to give you a last minute illustration of how to answer using
Responsiveness, Substance and Presentation.

I.

P ran for President and lost. P received the second highest number of votes to A. P filed an
election protest against A before the Presidential Electoral Tribunal.

During the pendency of the election protest, P died. His widow, S, filed a motion to substitute or
intervene for P.

May a widow substitute or intervene for the P?

Suggested Answer:

NO. S cannot substitute nor intervene for P .

Upon the death of P, his election protest is considered terminated.

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 A public office is personal to the public officer and not a property transmissible to the
heirs upon death.

Under the rules of the Presidential Electoral Tribunal, only the registered candidate for
President or for Vice-President of the Philippines who received the second or third highest
number of votes may contest the election of the President or the Vice-President, as the case may
be.

II.

L intending to run for Mayor in the Municipality of Gan, filed her Certificate of Candidacy on
May 8, 2015, the last day for filing for the May 8, 2016 elections.

At that time, L was a resident of Ultima Sur in the same province.

At that time too, L purchased a lot in Gan where she intended to construct a house.

Did L comply with the one-residency rule to be eligible to run for Mayor of Gan by the purchase
of a lot?

Suggested Answer:

No, L did not comply with the one-year residency rule.

To be an actual and physical resident of a locality, one must have a dwelling place where
one resides no matter how modest and regardless of ownership.

The mere purchase of a parcel of land does not make it one’s residence. The fact that the
residential structure where petitioner intends to reside was still under construction on the lot she
purchased means that L has not yet established actual and physical residence in the barangay.

III.

Given the same facts in II, what is the effect of the Certificate of Candidacy filed by L if it was
later discovered that she declared falsely that she complied with the one-year residency
requirement.

Suggested Answer:

The Certificate of Candidacy (CoC) of L should be cancelled by the Comelec.

To declare that one complied with the one-year residency requirement in the CoC when
in truth L was not is tantamount to a false material misrepresentation. This justifies the
cancellation of L’s CoC.

IV.

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Given the same facts in III, what is the effect of the cancellation of the CoC of L by the
Comelec based on an eligibility that existed at the time of its filing?

Suggested Answer:

The cancellation of the CoC based on an eligibility that existed at the time of its filing
means that L was never a valid candidate from the very beginning.

Thus, even if the cancellation of the CoC by the Comelec happened after L was
proclaimed Mayor, the effect would retroact at the time of filing.

Cancellation would mean no CoC was filed. L was not a candidate for Mayor.

V.

Given the same facts in Nos. II, III and IV, and that after her proclamation L entered into office
as Mayor of Gan. When Gan’s CoC was thereafter cancelled, what was the status of L before the
cancellation and her subsequent ouster as Mayor under the Law on Public Officers?

Suggested Answer:

L was a de facto officer.

A de facto officer is one who has the reputation of being the officer he assumes to be but
yet is not a good officer in the point of law. He is a mere usurper or intruder.

The requisites of a de facto officer was complied in this instance.

First, the office of Mayor was an office de jure;

Second, the inhabitants of Gan accepted L as Mayor and there was a color of right;

And, third, L had actual physical possession of the office of Mayor in good faith.

VI.

Given the same facts in No. V, and L was ousted as Mayor of Gan. Would the candidate who
garnered the second highest number of votes for Mayor in the elections be proclaimed Mayor?

Suggested Answer:

No. The ouster of a de facto officer cannot create a permanent vacancy as

contemplated in the Local Government Code.

There is no vacancy to speak of as the de jure officer, the rightful winner in the
elections, has the legal right to assume the position of Mayor vacated by L.

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 VII.

Given the same facts in the preceding numbers relating to L, , why is it that the candidate who
garnered the second highest number of votes to that of L cannot succeed as Mayor?

Suggested Answer:

L was never a first placer in the elections. All the votes of L are stray votes since the CoC
was void ab initio.

Jurisprudence dictates that a a CoC is cancelled one day or more after the elections, all
votes for such disqualified candidate are stray votes.

The ouster of a de facto officer cannot create a permanent vacancy.

VIII.

The Presidential Electoral Tribunal (PET) is composed of all justices of the Supreme Court. Atty.
Q, filed a petition praying for the abolition of the PET since it has the same composition as that
of the Supreme Court.

Do you agree with the contention of Atty. Q or not?

Suggested Answer:

No. I do not agree with the contention of Atty. Q.

The PET like the Senate Electoral Tribunal and the House of Representatives Electoral
Tribunal are Constitutional bodies. The fact that the composition of the Supreme Court and the
PET is the same is not an argument for the latter’s abolition.

A decided case ruled that the Supreme Court has original jurisdiction to decide
presidential and vice-presidential election protests while concurrently acting as an independent
Electoral Tribunal.

IX.

Section 64 of the Revised Charter of Manila, Republic Act No. 409, which took effect on June
18, 1949, fixed the annual realty tax at one and one-half percent. On the other hand, Section 4 of
the Special Education Fund Law, Republic Act No. 5447, which took effect on January 1, 1969,
imposed “an annual additional tax of one per centum on the assessed value of real property in
addition to the real property tax regularly levied thereon under existing laws” but “the total real
property tax shall not exceed a maximum of three per centrum. That maximum limit gave the
municipal board of Manila the Idea of fixing the realty tax at three percent. [B]y means of
Ordinance No. 7125, approved by the city mayor on December 26, 1971 and effective beginning
the third quarter of 1972, the board imposed an additional one-half percent realty tax.

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Esso Philippines, Inc. paid under protest and later filed a complaint in the Court of First Instance
of Manila for the recovery of it. It contended that the additional one-half percent tax is void
because it is not authorized by the city charter nor by any law (Civil Case No. 88827). After
hearing, the trial court declared the tax ordinance void and ordered the city treasurer of Manila to
refund to Esso the said tax. The City of Manila and its treasurer appealed under Republic Act
No. 5440 (which superseded Rule 42 of the Rules of Court) with the ruling of Judge Gomez
brought about the jurisdiction to the Supreme Court.

Whether or not the additional one-half percent realty tax is legal and valid.

Suggested Answer:

YES. By the doctrine of necessary implication.

The doctrine of necessary implications means that “that which is plainly implied in the
language of a statute is as much a part of it as that which is expressed”.

The obvious implication is that an additional one-half percent tax could be imposed by
municipal corporations. Inferentially, that law (the ordinance) fixed at two percent the realty tax
that would accrue to a city or municipality. Section 4 of the Special Education Fund Law, as
confirmed by the Real Property Tax Code (later), in prescribing a total realty tax of three percent
impliedly authorized the augmentation by one-half percent of the pre-existing one and one- half
percent realty tax.

X.

What are the rules in statutory construction in nterpreting the Constitution.

Answer:

Verba legis dicates that wherever possible, the words used in the Constitution must be given their
ordinary meaning except where technical terms are employed, in which case the significance
thus attached to them prevails.

Legis Et Anima mandates that a doubtful provision must be examined in light of the history of
the times, and the condition and circumstances surrounding the framing of the Constitution or
intent of the framers.

Ut magis valeat quam pereat—the Constitution is to be interpreted as a whole. No one provision

of the Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so interpreted
as to effectuate the great purposes of the instrument.

XI.

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What is the Operative Fact doctrine.

Suggested Answer:

The operative fact doctrine states that actions previous to the declaration of
unconstitutionality are legally recognized. They are not nullified. This is in the interest of equity
and fair play.

This is because the existence of a law or executive act prior to its invalidation is an
operative fact and may have consequences which cannot always be ignored. The past cannot
always be erased by a new judicial declaration.

The operative fact doctrine is an exception to the rule that an unconstitutional act is not a
law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is
inoperative as if it has not been passed at all.

N.B. The operative fact doctrine also applies to executive acts subsequently declared as invalid.

XII.

Can a person file a case in court praying that the court exercise its power of judicial review to
declare as unconstitutional a proposed bill pending in the Senate?

Suggested Answer:

No.

One of the requirements for a court to exercise its power of judicial review is the
existence of an actual controversy.

This means that there must be “an existing case or controversy that is appropriate or ripe
for determination, not conjectural or anticipatory, lest the decision of the court would amount to
an advisory opinion.”

A proposed bill does not present an actual justiciable controversy. The filing of bills is
within the legislative power of Congress and is not subject to judicial restraint.

The judiciary cannot speculate on the constitutionality or unconstitutionality of a bill that

Congress may or may not pass. This will violate the separation of powers principle.

XIII.

Can a penal law be invalidated on-its-face?

Suggested Answer:

No. A penal law cannot be invalidated on-its-face.

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 A facial invalidation is an examination of the entire law, pinpointing its flaws and
defects, not only on the basis of its actual operation to the parties, but also on the assumption or
prediction that its very existence may cause others not before the court to refrain from
constitutionally protected speech or activities.

This violates the requirement of an actual case and controversy.

N.B.

Facial challenges to a law are usually argued on the grounds of void-for-vagueness or

overbreadth.

A penal law can only be challenged on the basis of “as-applied,” which considers only extant
facts affecting real litigants.

The two kinds of facial challenges are on-its-face and as-applied.

XIV.

X was recommended by the House of Representatives Committee on Justice to be impeached.

X is an impeachable officer.

The lawyers of X suggested that that go to the Supreme Court questioning the sufficiency of
substance of the impeachment complaints.

Would the Supreme Court take cognizance of X action?

Suggested Answer :

No.

This would violate the separation of powers.

The Court cannot review the sufficiency of the substance of the impeachment complaints.
The sufficiency of the substance will delve into the merits of the impeachment complaints over
which the Court has no jurisdiction.

The Court can only rule on whether there is a gross violation of the Constitution in filing
the impeachment complaint, in particular, whether the complaint was filed in violation of the
one-year ban.

Another Suggested Answer:

The Court cannot review the decision of the Committee on Justice to impeach.

The Court cannot look into the narration of facts constitutive of the offenses vis-à-vis her
submissions disclaiming the allegations in the complaints. This would “require the Court to make

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a determination of what constitutes an impeachable offense. Such a determination is a purely
political question which the Constitution has left to the sound discretion of the legislature.

Impeachment is a political process. Thus, the decision to impeach lies exclusively on

Congress.

The determination of what constitutes an impeachable offense is a political question.

XV.

The President, as Commander-in-Chief of the Armed Forces, has full discretion to call out the
armed forces to prevent or suppress lawless violence, or rebellion.

What are the checks and balances provisions, if any, on the above power of the President?

Suggested Answer :

Congress may revoke the proclamation of martial law or suspension of the privilege of
the writ of habeas corpus.

The Court may review the sufficiency of the factual basis thereof.

XVI.

Who is a foundling? Is a founding a natural born citizen?

Suggested Answer :

A foundling is an infant or a small child abandoned by their parents and eventually reared
and cared for by another.

Yes. A founding is considered a natural born citizen.

Recent jurisprudence has declared that foundlings are a class in themselves as natural-
born citizens.

Also, the Philippines should defer to the generally accepted principles of international
law where foundlings are presumed to be born of nationals of the country in which the foundling
is found.

Thus, the presumption of natural-born citizenship of foundlings stems from the

presumption that their parents are nationals of the Philippines.

`XVII.

What is the effect if one renounced his foreign citizenship and later on, use a foreign passport.

Suggested Answer :

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 The use of foreign passport after renouncing one’s foreign citizenship is a positive and
voluntary act of representation as to one’s nationality and citizenship.

It does not divest Filipino citizenship regained by repatriation but it recants the Oath of
Renunciation required to qualify one to run for an elective position.

XVIII.

What are the incidental powers of Congress in relation to the power to conduct investigations in
aid of legislation?

Suggested Answer :

Congress in the exercise of the power to conduct investigations in aid of legislation has :

(a) The power to compel the attendance of witnesses

and
(b) The power to cite for contempt

In the power to compel the attendance of witnesses, Congress can issue the compulsive
processes of subpoena ad testificandum and subpoena duces tecum.

The exercise by the legislature of the contempt power is a matter of selfpreservation as

that branch of the government vested with the legislative power.

XIX

What is the jurisdiction of the House of Representatives Electoral Tribunal (HRET) and the
Senate Electoral Tribunal (SET)?

The HRET acts as the sole judge of all contests relating to the election, returns, and
qualifications of the members of the House. To be considered a Member of the House of
Representatives, the following must concur: (1) a valid proclamation, (2) a proper oath, and (3)
assumption of office.

The SET acts as the sole judge of all contests relating to the election, returns, and qualifications
of the members of the Senate. To be considered a Member of the Senate, the following must
concur: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office.

XX.

What is the precautionary principle?

Suggested Answer:

The precautionary principle is generally applied in environmental cases.

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 It is contained in the Rio Declaration particularly the Rules of Procedure for
Environmental Cases.

When there is lack of full scientific certainty in establishing a causal link between human
activity and environmental effect, the precautionary principle is applied by the courts.

N.B. In applying the precautionary principle, the following factors, among others, may be
considered : (1) threats to human life or deah; (2) inequity to present or future generations; or (3)
prejudice to the environment without legal consideration of the environmental rights of those
affected.

o---oOo---o

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