The Sigma Rho Fraternity
Bar Operations 2017
Bar Questions and Answers
Political Law Bar
Questions and
Answers (1996-2016)
Prepared by: Dodot’14, Renz’15, James’15, RM’15, Tristan’15,
Edmer’15, Amil’16, J’16
Encoded by: RM'15, Tristan'15, Nate'15, James'15, Edmer'15,
Renz'15, Bogs'15 Jai'15, Sean'15, Robert'15, TM'15, Lorenzo'15,
Raj'15, Dustine'15, Arthur'15, ‘16s
Table of Contents
CONSTITUTIONAL LAW 1.................................................................. 1
CONSTITUTIONAL LAW 2................................................................ 26
ADMINISTRATIVE LAW .................................................................... 43
LOCAL GOVERNMENT .................................................................... 47
PUBLIC OFFICERS .......................................................................... 52
ELECTION LAW ................................................................................ 59
PUBLIC INTERNATIONAL LAW ....................................................... 64
General Principles ........................................................................ 64
Treaties ........................................................................................ 65
The United Nations and International Court of Justice .................. 68
State Sovereignty ......................................................................... 69
State Recognition ......................................................................... 70
Use of Force and the Right of a State to Self-Defense .................. 70
Nationality, Citizenship and Statelessness .................................... 72
Diplomatic Law and Sovereign Immunity ...................................... 72
International Criminal Law ............................................................ 75
Space Law.................................................................................... 75
United Nations Convention on Law of the Sea (UNCLOS) and
International Maritime Law ............................................................ 75
International Human Rights Law ................................................... 79
Law of War and International Humanitarian Law ........................... 80
Neutrality ...................................................................................... 81
Law of State Responsibility and Treatment of Aliens..................... 81
The Right of Jurisdiction ............................................................... 81
CONSTITUTIONAL LAW 1
Section 8 of P.D. No. 910, entitled “Creating an Energy
Development Board, defining its powers and functions, providing
funds therefor and for other purposes,” provides that: “All fees,
1
revenues and receipts of the Board from any and all sources x x x
shall form part of a Special Fund to be used to finance energy
resource development and exploitation programs and projects of
the government and for such other purposes as may be hereafter
directed by the President.”
The Malampaya NGO contends that the provision constitutes an
undue delegation of legislative power since the phrase “and for
such other purposes as may be hereafter directed by the
President” gives the President unbridled discretion to determine
the purpose for which the funds will be used. On the other hand,
the government urges the application of ejusdem generis.
[a] Explain the “completeness test”' and “sufficient standard
test.” (2.5%)
[b] Does the assailed portion of section 8 of PD 910 hurdle
the two (2) tests? (2.5%) ’16 – Q6
[a] The completeness test means that the law sets forth the policy
to be executed, carried out or implemented by the delegate (Abakada
Guro Party List v. Ermita, 469 SCRA 1 [2005}).
[b] The “sufficient standard test” means the law lays down
adequate guidelines or limitations to map out the boundaries of the
authority of the delegate and prevent the delegate from miming riot. The
standard must specify the limits of the authority of the delegate,
announce the legislative policy and identify the condition under which it
is to be implemented (Abakada Gum Party List v. Ermita, 469 SCRA 1
[2005}).
[c] The assailed portion of Presidential Decree No. 910 does not
satisfy the two tests. The phrase “and for such other purposes as may
be hereafter directed by the President” gives the President unbridled
discretion to determine the purpose for which the funds will be used. An
infrastructure is any basic facility needed by society. The power to
determine what kind of infrastructure to prioritize and fund is a power to
determine the purpose of the appropriation and is an undue delegation
of the power to appropriate (Belgica v. Ochoa, Jr., 710 SCRA 1 [2013]).
The assailed provision does not fall under the principle of ejusdem
generis. First, the phrase “energy resource development and
exploitation programs and projects of the government states a singular
and general class. Second, it exhausts the class it represents (Belgica
v, Ochoa, Jr., 710 SCRA 11 [2013]).
Sec. 11, Art. XII of the Constitution, provides: “No franchise,
certificate or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines
or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by
such citizens x x x.” Does the term “capital” mentioned in the cited
section refer to the total common shares only, or to the total
outstanding capital stock, or to both or “separately to each class
of shares, whether common, preferred non-voting, preferred voting
or any class of shares?” Explain your answer. (5%) ’16 – Q2
The term “capital” mentioned in Section 11, Article XII of the Constitution
refers to the total outstanding capital stock of public utilities. The
requirement that at least sixty percent of the capital must be owned by
Filipino citizens applies separately to each class of shares, whether
common, preferred, non-voting, preferred voting, or any class of shares.
Mere legal title is not enough. Full beneficial ownership of sixty percent
of the outstanding capital stock is required (Gamboa v. Teves, 652
SCRA 690, [2011]).
Several concerned residents of the areas fronting Manila Bay,
among them a group of students who are minors, filed a suit
 The Sigma Rho Fraternity
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against the Metro Manila Development Authority (MMDA), the
Department of Environment and Natural Resources (DENR), the
Department of Health (DOH), the Department of Agriculture (DA),
the Department of Education (DepEd), the Department of Interior
and Local Government (DILG), and a number of other executive
agencies, asking the court to order them to perform their duties
relating to the cleanup, rehabilitation and protection of Manila Bay.
The complaint alleges that the continued neglect by defendants
and their failure to prevent and abate pollution in Manila Bay
constitute a violation of the petitioners’ constitutional right to life,
health and a balanced ecology.
[a] If the defendants asset that the students/petitioners who
are minors do not have locus standi to file the action, is the
assertion correct? Explain your answer. (2.5%)
[b] In its decision which attained finality, the Court ordered
the defendants to clean up, rehabilitate and sanitize Manila Bay
within eighteen (18) months, and to submit to the Court periodic
reports of their accomplishment, so that the Court can monitor and
oversee the activities undertaken by the agencies in compliance
with the Court’s directives. Subsequently, a resolution was issued
extending the time periods within which the agencies should
comply with the directives covered by the final decision. A view
was raised that the Court’s continued intervention after the cases
has been decided violates the doctrine of separation of powers
considering that the government agencies all belong to the
Executive Department and are under the control of the President.
Is this contention correct? Why or why not? (2.5%) ’16 – Q4
[a] The assertion that the students/petitioners who are minors have no
locus standi is erroneous. Pursuant to the obligation of the State under
Section 16s, Article II of the Constitution to protect and advance the right
of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature, minors have standing to sue based on
the concept of intergenerational responsibility (Oposa v. Factor an, 224
SCRA 792 [1993]).
[b] The order of the Supreme Court to the defendants to clean up,
rehabilitate and sanitize Manila Bay is an exercise of judicial power,
because the execution of its decision is an integral part of its adjudicative
function. Since the submission of periodic reports is needed to fully
implement the decision, the Supreme Court can issue a continuing writ
of mandamus to the Metropolitan Manila Development Authority until full
compliance with its order is shown (Metropolitan Manila Development
Authority v. Concerned Residents of Manila Bay, 643 SCRA 90 [2011}).
The Government, through Secretary Toogoody of the Department
of Transportation (DOTr), filed, a complaint for eminent domain to
acquire a 1,000-hectare property in Bulacan, owned by Baldomero.
The court, granted the expropriation, fixed the amount of just
compensation, and installed, the Government in full possession of
the property.
[a] If the Government does not immediately pay the amount fixed
by the court as just compensation, can Baldomero successfully
demand the return of the property to him? Explain your answer.
(2.5%)
[b] Of the Government paid full compensation but after two years
it abandoned its plan to build an airport on the property, can.
Baldomero compel the Government to re-sell the property back to
him? Explain your answer. (2.5%) ’16 – Q9
[a] If the government does not pay Baldomero the just compensation
immediately, he cannot demand the return of the property to him.
Instead, legal interest should be paid from the time of taking of the
2
property until actual payment in full (Republic v. Court of Appeals, 383
SCRA 611 [20021).
[b] With respect to the element of public use, the expropriator should
commit to use the property for the purpose stated in the petition. If not,
it is incumbent upon it to return the property to the owner, if the owner
desires to reacquire it. Otherwise, the judgment of expropriation will lack
the element of public use. The owner will be denied due process and the
judgment will violate his right to justice (Mactan-Cebu Airport Authority
v. Lozada, Sr., 613 SCRA 618 [2010J). If the just compensation was not
paid within 5 years from finality of judgment, the owner is entitled to
recover the property (Republic v. Lim, 462 SCRA 265 [2005]).
BD Telecommunications, Inc. (BDTI), a Filipino-owned corporation,
sold its 1,000 common shares of stock in the Philippine
Telecommunications Company (PTC), a public utility, to Australian
Telecommunications (AT), another stockholder of the PTC which
also owns 1,000 common shares. A Filipino stockholder of PTC
questions the sale on the ground that it will increase the common
shares of AT, a foreign company, to more than 40% of the capital
(stock) of PTC in violation of the 40% limitation of foreign
ownership of a public utility.
Onofre, a natural born Filipino citizen, arrived in the United States
in 1985. In 1990, he married Salvacion, a Mexican, and together they
applied for and obtained American citizenship in 2001. In 2015, the
couple and their children - Alfred, 2! years of age, Robert, 16, and
Marie, 14, who were all bom in the U.S. - returned to the Philippines
on June 1,2015, informed that he could reacquire Philippine
citizenship without losing his American citizenship, Onofre went
home to the Philippines and took the oath of allegiance prescribed
under R.A. No. 9225. On October 28, 2015, he filed a Certificate of
Candidacy to run in the May 9, 2016 elections for the position of
Congressman in his home province of Palawan, running against
re-electionist Congressman Profundo.
[a] Did Onofre’s reacquisition of Philippine citizenship
benefit his wife, Salvacion, and their minor children and confer
upon them Filipino citizenship? Explain your answer. (2.5%)
[b] Before the May 9, 2016 elections, Profundo’s lawyer filed
a Petition to Deny Due Course or to Cancel the Certificate of
Candidacy against Onofre. What grounds can he raise in his
Petition to support it? Explain your answer. (2.5%) ’16 – Q14
[a] The reacquisition of Philippine citizenship by Onofre did not
automatically make his American wife, Salvacion, a Filipino citizen.
Nowhere does Republic Act No. 9228 provide that the foreign wife of a
former Filipino citizen who reacquired his Filipino citizenship will
automatically become a Filipino citizen.[fb] Robert, who is 16 years old,
and Marie, who is 14 years old, also became Filipino citizens. The
unmarried children below eighteen (18) years of age, of those who
reacquire Philippine citizenship are also deemed citizens of the
Philippines (Section 4 of Republic Act No. 9225).
[c] The lawyer of Congressman Profundo can ask for the cancellation of
the certificate of candidacy on the ground that he did not execute an
affidavit renouncing his American citizenship as required by Section 5(2)
of Republic Act No. 9225 and he lacked one-year residence in the
Philippines as required by Section 6, Article VI of the Constitution.
Under Sec. 5, Article VIII of the Constitution, the Supreme Court
shall have the power to “promulgate rules concerning the
protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts x x x.” Section 23 of R.A. No.
9165 or the Comprehensive Dangerous Drugs Act of 2002 provides
 The Sigma Rho Fraternity
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that “any person charged under any provision of this Act
regardless of the imposable penalty shall not be allowed to avail of
the provision on plea-bargaining.” Patricio, a user who was
charged with alleged sale of shabu but who wants to enter a plea
of guilty to a charge of possession, questions the constitutionality
of Sec. 23 on the ground that Congress encroached on the rule-
making power of the Supreme Court under Sec. 5, Article VIII. He
argues that plea-bargaining is procedural in nature and is within
the exclusive constitutional power of the Court. Is Patricio correct?
Explain your answer. (5%) ’16 – Q20
Patricio is not correct. Defining the penalty for a criminal offense involves
the exercise of legislative power (People v. Dacuycuy, 173 SCRA 90
[1989]). When Section 23 of the Comprehensive Dangerous Drugs Act
prohibited plea-bargaining, Congress defined what should be the
penalty for the criminal offense. The power of the Supreme Court to
promulgate rules of procedure is subject to the limitation that it should
not modify substantive rights (Section 5(5), Article VIII of the
Constitution).
AT argues that the sale does not violate the 60-40 ownership
requirement in favor of Filipino citizens described in Section II,
Article XII of the 1987 Constitution because Filipinos still own 70%
of the capital of the PTC. AT points to the fact that it owns only
2,000 common voting shares and 6,000 preferred shares, therefore,
Filipino stockholders still own a majority of the outstanding capital
stock of the corporation, and both classes of shares have a par
value of Php 20.00 per share. Decide (5%) ‘15 - Q5
“The application of the grandfather Rule is justified by the circumstances
of the case to determine the nationality of petitioners… the use of the
Grandfather Rule as a “supplement” to the Control Test is not prescribed
the Constitution…”
“The Grandfather Rule, standing alone, should not be used to determine
the Filipino ownership and control in a corporation, as it could result in
an otherwise foreign corporation rendered qualified to perform
nationalized or partly nationalized activities. Hence, it is only when the
Control Test is first complied with that the Grandfather Rule may be
applied. Put in another manner, if the subject corporation’s Filipino
equity falls below the threshold 60%, the corporation is immediately
considered foreign-owned, in which case, the need to resort to the
Grandfather Rule disappears. On the other hand, a corporation that
complied with the 60-40 Filipino to foreign equity requirement can be
considered a Filipino corporation if there no doubt as to who has the
“beneficial ownership” and “control” of the corporation. In that instance,
there is no need for a dissection or further inquiry on the ownership of
the corporate shareholders in both the investing and investee
corporation or the application of the Grandfather Rule. As a corollary
rule, even if the 60-40 Filipino to foreign equity ratio is apparently met by
the subject or investee corporation, a resort to the Grandfather Rule is
necessary if doubt exists as to the locus of the “beneficial ownership”
and “control.” (Narra Nickel Mining and Development Corporation v.
Redmont Consolidated Mines Corporation, G.R. No. 195580, January
28, 2015).” … the “doubt” that demands the application of the
Grandfather Rule in addition to or in tandem with the Control Test is not
confined to, or more bluntly, does not refer to the fact that the apparent
Filipino ownership of the corporation’s equity falls below the 60%
threshold. Rather, “doubt” refers to various indicia that the “beneficial
ownership” and “control” of the corporation do not in fact reside in
Filipino shareholders but in foreign stakeholders. As provided in DOJ
Opinion No. 165, Series of 1984, which applied the pertinent of the Anti-
3
Dummy Law in relation to the minimum Filipino equity requirement in the
Constitution, “significant indicators of the dummy status” have been
recognized in view of reports “that some Filipino investors or
businessmen are being utilized or [are] allowing themselves to be used
as dummies by foreign investors” specifically in joint ventures for
national resource exploitation. These indicators are:
1. That the foreign investors provide practically all the funds for
the joint investment undertaken by these Filipino
businessmen and their foreign partner;
2. That the foreign investors undertake to provide practically all
the technological support for their joint venture;
3. That the foreign investors, while being minority stockholders,
manage the company and prepare all economic viability
studies.” (Narra Nickel Mining and Development corporation
v. Redmont Consolidated Mines Corporation, G.R. No.
195580, January 27, 2015).
(Note: This question should have been asked in Mercantile Law, I
respectfully ask that answers featuring the foregoing discussion should
be accepted as correct).
(1) Distinguish the President’s authority to declare a state of
rebellion from the authority to proclaim a state of national
emergency. (2%) ‘15 - Q6(1)
The power of the President to declare a state of rebellion is based on
the power of the President as chief executive and commander-in-chief
of the Armed Forces of the Philippines. It is not necessary for the
President to declare a state of rebellion before calling out the Armed
Forces of the Philippines to suppress it. The proclamation only gives
notice to the nation that such a state exists and that the Armed Forces
of the Philippines. It is not necessary for the President to declare a state
of rebellion before calling out the Armed Forces of the Philippines to
suppress it. (Sanlakas v. Executive Secretary, 421 SCRA 656 [2004]).
In a proclamation of a state of national emergency, the President is
already calling out the Armed Forces of the Philippines to suppress not
only rebellion but also lawless violence. (David v. Arroyo, 489 SCRA 162
[2006]).
(2) What are the limitations, if any, to the pardoning power of
the President? (3%)‘15 - Q6(2)
The following are the limitations to the pardoning power of the President:
1. The President cannot pardon impeachment cases.
2. The President may grant pardons only after conviction by final
judgment.
3. Amnesty requires the concurrence of the majority of all the
Members of Congress. (Section 19, Article VII of Constitution)
4. The President cannot grant pardon, amnesty, parole or
suspension of sentence for violation of election laws, rules
and regulations without the favorable recommendation of the
Commission on Elections. (Section 9, Article IX-C of
Constitution.)
5. The President cannot pardon members and employees of the
Judiciary found guilty by the Supreme Court in administrative
cases, because it will encroach upon the exclusive power of
administrative supervision of the Supreme Court over them.
(In re Petition for Judicial Clemency of Manuel V. Romilo, Jr.,
G.R. No. 97091, December 9, 1997).
 The Sigma Rho Fraternity
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ALTERNATIVE ANSWER:
“The 1987 Constitution, specifically Section 19 of Article VII and Section
5 of Article IX-C, provides that the President of the Philippines
possesses the power to grant pardons, along with other acts of
executive clemency, to wit:
“Section 19. Except in cases of impeachment, or as otherwise provided
in this Constitution, the President may grant reprieves, communications,
and pardons, and remit fines and forfeitures after conviction by final
judgment.
“He shall also have the power to grant amnesty with the concurrence of
a majority of all the Members of the Congress.
“Section 5. No pardon, amnesty, parole, or suspension of sentence for
violation of election laws, rules, and regulations shall be granted by the
President without the favorable recommendation of the Commission.
“It is apparent from the foregoing constitutional provisions that the only
instances in which the President may not extend pardon remain to be in:
(1) impeachment cases; (2) cases that have not yet resulted in a final
conviction and (3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation coming
from the COMELEC.”
(Risos-Vidal v. COMELEC, G.R. No. 206666, January 21, 2015).
It may be added that pardons may not be extended to a person
convicted of legislative contempt, as this would violate the doctrine of
separation of powers, or of civil contempt since this would involve the
benefit not of the State itself but of the private litigant whose rights have
been violated by the contemner. Pardon cannot also be extended for
purposes of absolving the pardonee of civil liability, including judicial
costs, since, again, the interest that is remitted does not belong to the
State but to the private litigant. (Cruz and Cruz, Philippine Political Law,
2014 Edition, page 445).
A law provides that the Secretaries of the Departments of Finance
and Trade and Industry, the Governor of the Central Bank, the
Director General of the National Economic Development Authority,
and the Chairperson of the Philippine Overseas Construction
Board shall sit as ex-officio members of the Board of Directors
(BOD) of a government owned and controlled corporation (GOCC).
The other four (4) members shall come from the private sector. The
BOD issues a resolution to implement a new organizational
structure, staffing pattern, a position classification system, and a
new set of qualification standards. After the implementation of the
Resolution, Atty. Dipasupil questioned the legality of the
Resolution alleging that the BOD has no authority to do so. The
BOD claims otherwise arguing that the doctrine of qualified
political agency applies to the case. It contends that since its
agency is attached to the Department of Finance, whose head, the
Secretary of Finance, is an alter ego of the President, the BOD’s
acts were also the acts of the President. Is the invocation of the
doctrine by the BOD proper? Explain. (4%) ‘15 - Q8
The invocation of the qualified political agency doctrine is not correct.
Although some members of the Board of Directors were cabinet
members, they did not become members of the Board of Directors
because of their appointment but because of their designation by the
law. When they implemented a new organizational plan, they were not
acting as alter egos of the President but as members of the Board of
4
Directors pursuant to the law. (Manalang-Demigillo v. Trade and
Investment Development Corporation of the Philippines, 692 SCRA 359
[2012]).
Several senior officers of the Armed Forces of the Philippines
received invitations from the Chairperson of the Senate
Committees on National Defense and Security for them to appear
as resource persons in scheduled public hearings regarding a wide
range of subjects. The invitations state that these public hearings
were triggered by the privilege speeches of the Senators that there
was massive electoral fraud during the last national elections. The
invitees Brigadier General Matapang and Lieutenant Coronel
Makatuwiran, who were among those tasked to maintain peace and
order during the last election, refused to attend because of an
Executive Order banning all public officials enumerated in
paragraph 3 thereof from appearing before either house of
Congress without prior approval of the President to ensure
adherence to the rule of executive privilege. Among those included
in the enumeration are “senior officials of executive departments
who, in the judgment of the department heads, are covered by
executive privilege.” Several individuals and groups challenge the
constitutionality of the subject executive order because it
frustrates the power of the Congress to conduct inquiries in aid of
legislation under Section 21, Article VI of the 1987 Constitution.
Decide the case. (5%) ‘15 - Q9
Under Section 5, Article XVI of the Constitution, the President is
commander-in-chief of the Armed Forces of the Philippines. By virtue of
this power, the President can prevent Brigadier General Matapang and
Lieutenant Colonel Makatuwiran from appearing before the Senate to
testify before a legislative investigation. (Gudani v. Senga, 498 SCRA
671 [2006]).
The provision in the Executive Order which authorized Department
Secretaries to invoke executive privilege in case senior officials in their
departments are asked to appear in a legislative investigation is not
valid. It is upon the President that executive power is vested. Only the
President can make use of Executive Privilege. (Senate v. Ermita, 488
SCRA 1 [2006]).
(1) What is the concept of expanded judicial review under the
1987 Constitution? (3%) ‘15 - Q11(1)
Because of the expanded power of the judicial review of the Supreme
Court, the facial challenge of the constitutionality of laws is no longer
limited to laws which violate freedom of speech but applies to all
violations of fundamental rights under the Bill of Rights. (Imbong v.
Ochoa, Jr., 721 SCRA 140 [2014]).
In addition, the remedies of certiorari and prohibition in the Supreme
Court are broader in scope and may be issued to correct errors of
jurisdiction of judicial, quasi-judicial or ministerial actions and may be
invoked to restrain any act of grave abuse of discretion of any branch of
government, even if it does not exercise judicial, quasi-judicial or
ministerial functions. (Araullo v. Aquino III, 728 SCRA 1 [2014]).
ALTERNATIVE ANSWER:
The concept of “expanded judicial power” is specified in the second
paragraph of Section 1 of Article VIII of the Constitution where it is
provided that judicial power includes the duty “to determine whether or
not there has been a grave abuse of discretion amounting to lack or
 The Sigma Rho Fraternity
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Bar Questions and Answers
excess of jurisdiction on the part of any branch or instrumentality of the
Government.”
(2) Differentiate the rule-making power or the power of the
Supreme Court to promulgate rules under Section 5,
Article VIII of the 1987 Constitution and judicial
legislation. (2%) ‘15 - Q11(2)
Judicial legislation refers to the encroachment by the Judiciary upon the
function of the legislature by making law rather than declaring,
construing or enforcing the law. (Ballentine’s Law Dictionary, 3rd ed., p.
685).
Section 3 (5), Article VIII of Constitution granted the Supreme Court
power to promulgate rules concerning the protection and enforcement
of constitutional rights. In the exercise of this power, the Supreme Court
promulgated the Rule on the Writ of Amparo, the Rule on the Writ of
Habeas Data, and the Rule of Procedure for Environmental Cases.
On August 15, 2015, Congresswoman Dina Tatalo filed and
sponsored House Bill No. 5432, entitled “An Act providing for the
Appointment of the Lone District of the City of Pangarap.” The bill
eventually became a law, R.A. No. 1234. It mandated that the lone
legislative district of the City of Pangarap would now consist of two
(2) districts. For the 2016 elections, the voters of the City of
Pangarap would be classified as belonging to either the first or
second district, depending on their place of residence. The
constituents of each district would elect their own representative
to Congress as well as eight (8) members of the Sangguniang
Panglungsod. R.A. No. 1234 apportioned the City’s barangays. The
COMELEC thereafter promulgated Resolution No. 2170
implementing R.A. No. 1234. Piolo Cruz assails the COMELEC
Resolution as unconstitutional. According to him, R.A. No. 1234
cannot be implemented without conducting a plebiscite because
the appointment under the law falls within the meaning of creation,
division, merger, abolition or substantial alteration of boundaries
of cities under Section 10, Article X of the 1987 Constitution. Is the
claim correct? Explain. (4%) ‘15 - Q13
The claim of Piolo Cruz is not correct. The Constitution does not require
a plebiscite for the creation of a new legislative district by a legislative
reappointment. It is required only for the creation of new local
government units. (Bagabuyo v. Commission on Elections, 573 SCRA
290 [2008]).
Congress enacted R.A. No. 14344 creating the City of Masuwerte
which took effect on September 25, 2014. Section 23 of the law
specifically exempts the City of Masuwerte from the payment of
legal fees in the cases that it would file and /or prosecute in the
courts of law. In two (2) cases that it filed, the City of Masuwerte
was assessed legal fees by the clerk of court pursuant to Rule 141
(Legal Fees) of the Rule of Court. The City of Masuwerte questions
the assessment claiming that it is exempt from paying legal fees
under Section 23 of its charter. Is the claim of exemption tenable?
Explain. (4%) - ’15 Q14
The exemption from payment of legal fees is not valid. The rules
promulgated by the Supreme Court for the payment of legal fees were
in the exercise of its rule-making power cannot be modified by a law
granting an exemption from payment. (In Re Exemption from Payment
of Court and Sheriff’s Fees of Duly Registered Cooperatives, 668 SCRA
1 [2012]).
5
Pursuant to its mandate to manage the orderly sale, disposition
and privatization of the National Power Corporation’s (NPC)
generation assets, real estate and other disposable assets, the
Power Sector Assets and Liabilities Management (PSALM) started
the bidding process for the privatization of Angat Hydro Electric
Power Plant (AHEPP). After evaluation of the bids, K-Pop Energy
Corporation, a South Korean Company, was the highest bidder.
Consequently, a notice of award was issued to K-Pop. The Citizens’
Party questioned the sale arguing that it violates the constitutional
provisions on the appropriation and utilization of a natural
resource which should be limited to Filipino citizens and
corporations which are at least 60% Filipino-owned. The PSALM
countered that only the hydroelectric facility is being sold and not
the Angat Dam; and that the utilization of water by a hydroelectric
power plant does not constitute appropriation of water from its
natural source of water that enters the intake gate of the power
plant which is an artificial structure. Whose claim is correct?
Explain. (4%) ‘15 - Q19
The PSALM is correct. Foreign ownership of a hydroelectric power plant
is not prohibited by the Constitution. The PSALM will retain ownership
of Angat Dam. Angat Dam will trap the natural flow of water from the
river. The water supplied by PSALM will then be used for power
generation. Once the water is removed from its natural source, it ceases
to be part of the natural resources of the Philippines and may be
acquired by foreigners. (Initiatives for Dialogue and Empowerment
through Alternative Legal Services, Inc. v. Power Sector Assets and
Liabilities Management Corporation, 682 SCRA 602 [2012]).
The Partido ng Mapagkakatiwalaang Pilipino (PMP) is a major
political party which has participated in every election since the
enactment of the 1987 Constitution. It has fielded candidates
mostly for legislative district elections. In fact, a number of its
members were elected, and are actually serving, in the House of
Representatives. In the coming 2016 elections, the PMP leadership
intends to join the party-list system. Can PMP join the party-list
system without violating the Constitution? ‘15 - Q21
Yes, the Partido Ng Mga Mapagkakatiwalaang Pilipino can join the
party-list system provided it does not field candidates in the legislative
district elections. (Atong Paglaum, Inc. v. Commission on Elections, 694
SCRA 477 [2013]).
With the passage of time, the members of the House of
Representatives increased with the creation of new legislative
districts and the corresponding adjustments in the number of
party-list representatives. At a time when the House membership
was already 290, a great number of the members decided that it
was time to propose amendments to the Constitution. The
Senators, however, were cool to the idea. But the members of the
House insisted. They accordingly convened Congress into a
constituent assembly in spite of the opposition of the majority of
the members of the Senate. When the votes were counted, 275
members of the House of Representatives approved the proposed
amendments; Only 10 Senators supported such proposals. The
proponents now claim that the proposals were validly made, since
more than the required three-fourths vote of Congress has been
obtained. The 14 Senators who voted against the proposals claim
that the proposals needed not three-fourths vote of the entire
Congress but each house. Since the required number of votes in
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the Senate was not obtained, then there could be no valid
proposals, so argued the Senators.
Were the proposals validly adopted by Congress? (5%) ‘14 - Q1
The proposals were not validly adopted, because the ten (10) Senators
who voted in favor of the proposed amendments constituted less than
three-fourths of all the Members of the Senate. Although Section 1,
Article XVII of the Constitution did not expressly provide that the Senate
and the House of Representatives must vote separately, when the
Legislature consists of two (2) houses, the determination of one house
is to be submitted to the separate determination of the other house
(Miller v. Mardo, G.R. No. L-15138, July 31, 1961, 2 SCRA 898).
Several citizens, unhappy with the proliferation of families
dominating the political landscape, decided to take matters into
their own hands. They proposed, to come up with a people’s
initiative defining political dynasties. They started a signature
campaign for the purpose of coming up with a petition for that
purpose. Some others expressed misgivings about a people’s
initiative for the purpose of proposing amendments to the
Constitution, however. They cited the Court’s decision in
Santiago,v. Commission on Elections (G.R. No. 127325, June 10,
1997, 270 SCRA 106), as authority for their position that there is yet
no enabling law for such purpose. On the other hand, there are also
those who claim that the individual votes of the justices in Lambino
v. Commission on Elections (G.R. No. 174153, October 25, 2006,
505 SCRA 160), mean that Santiago’s pronouncement has
effectively been abandoned.
If you were consulted by those behind the new attempt at a
people’s initiative, how would you advise them? (4%) ‘14 - Q2
I shall advise those starting a people's initiative that initiative to pass a
law defining political dynasties may proceed as their proposal is to enact
a law only and not to amend the Constitution. The decision in Santiago
v. Commission on Elections (G.R. No. 127325, June 10, 1997, 270
SCRA 106), which has not been reversed, upheld the adequacy of the
provisions In Republic Act 6735 on initiative to enact a law.
ALTERNATIVE ANSWER:
I shall advise those starting a people's initiative that the ruling in
Santiago v. Commission on Elections that there is as yet no enabling
law for an Initiative has not been reversed. According to Section 4 (3),
Article VIII of the Constitution, a doctrine of law laid down in a decision
rendered by the Supreme Court en banc may not be reversed except by
it acting en banc. The majority opinion In Lambino v. Commission on
Elections (G.R. No. 174153, October 25, 2006, 505 SCRA 160), refused
to re-examine the ruling in Santiago v. Commission on Elections (G.R.
No. 127325, March 19, 1997, 270 SCRA 106), because it was not
necessary for deciding the case. The Justices who voted to reverse the
ruling constituted the minority.
In Serrano v. Gallant Maritime Services, Inc. (G.R. No. 167614,
March 24, 2009, 582 SCRA 254), the Supreme Court declared as
violative the Equal Protection Clause of the 5th paragraph of Sec.
10 R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act of
1995) for discriminating against illegally dismissed OFWs who still
had more than a year to their contract compared to those who only
had less than a year remaining. The next year, Congress enacted
R.A. No. 10222, an amendment to the Migrant Workers and
6
Overseas Filipinos Act, which practically reinstated the provision
struck down in Serrano.
Seamacho, an overseas seafarer who still had two years remaining
in his contract when he was illegally terminated, and who would
only be entitled to a maximum of six-month’s pay under the
reinstated provision, engages you as his counsel.
How are you to argue that the new law is invalid insofar as it brings
back to the statute books a provision that has already been struck
down by the Court? (5%) ‘14 - Q3
I will argue that since Section 10 of Republic Act No. 8042 has already
been declared unconstitutional by the Supreme Court, its nullity cannot
be cured by reincorporation or re-enactment of the same or a similar law
or provision. Once a law has been declared unconstitutional, it remains
unconstitutional unless circumstances have so changed as to warrant a
reverse conclusion (Sameer Overseas Placement Agency v. Cabiles,
G.R. No. 170139, August 5, 2014).
Greenpeas is an ideology-based political party fighting for
environmental causes. It decided to participate under the party-list
system. When the election results came in, it only obtained 1.99
percent of the votes cast under the party-list system. Bluebean, a
political observer, claimed that Greenpeas is not entitled to any
seat since it failed to obtain at least 2% of the votes. Moreover,
since it does not represent any of the marginalized and
underrepresented sectors of society, Greenpeas is not entitled to
participate under the party-list system.
How valid are the observations of Bluebean? (4%) ‘14 - Q5
The claim of Bluebean that Greenpeas is not entitled to a seat under the
party-list system because it obtained only 1.99 percent of the votes cast
under the party-list system is not correct. Since the provision in Section
5 (2), Article VI of the Constitution that the party-list representatives shall
constitute twenty percent (20%) of the total number of the Members of
the House of Representatives Is mandatory, after the parties receiving
at least two percent (2%) of the total votes case for the party-list system
have been allocated one seat, the remaining seats should be allocated
among the parties by the proportional percentage of the votes received
by each party as against the total party-list votes (Barangay Association
for National Advancement and Transparency v. Commission on
Elections, G.R. No. 179271, April 21, 2009, 586 SCRA 211).
The claim of Bluebean that Greenpeas is not entitled to participate in the
party-list elections because it does not represent any marginalized and
underrepresented sectors of society is not correct. It is enough that its
principal advocacy pertains to the special interests of its sector (Atong
Panglaum, Inc. v. Commission on Elections, G.R. No. 203766, April 2,
2013, 694 SCRA 477).
A few months before the end of the present Congress, Strongwill
was invited by the Senate to shed light in an inquiry relative to the
alleged siphoning and diverting of the pork barrel of members of
Congress to non-existent or fictitious projects. Strongwill has been
identified in the news as the principal actor responsible for the
scandal, the leader of a non-governmental organization which
ostensibly funnelled the funds to certain local government projects
which existed only on paper. At the start of the hearings before the
Senate, Strongwill refused at once to cooperate. The Senate cited
him in contempt and sent him to jail until he would have seen the
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light. The Congress, thereafter, adjourned sine die preparatory to
the assumption to office of the newly-elected members. In the
meantime, Strongwill languished behind bars and the remaining
senators refused to have him released, claiming that the Senate is
a continuing body and, therefore, he can be detained indefinitely.
Are the senators right? (4%) ‘14 - Q6
Yes, the senators are right. The Senate is to be considered as a
continuing body for purposes of its exercise of its power punish for
contempt. Accordingly, the continuing validity of its orders punishing for
contempt should not be affected by its sine die adjournment (Arnault v.
Nazareno, G.R. No. L-3820, July 19, 1950, 87 Phil. 29).
ALTERNATIVE ANSWER:
The Senators are right. While the Senate as an institution is continuing,
in the conduct of its day-to-day business, the Senate of each Congress
acts separately from the Senate of the Congress before it. All pending
matters terminate upon expiration of each Congress (Neri. v. Senate
Committee on Accountability of Public Officers and Investigation, G.R.
No. 180643, September 4, 2008, 564 SCRA 152).
Margie has been in the judiciary for a long time, starting from the
lowest court. Twenty (20) years from her first year in the judiciary,
she was nominated as a Justice in the Court of Appeals. Margie
also happens to be a first- degree cousin of the President. The
Judicial and Bar Council included her in the short-list submitted to
the President whose term of office was about to end —it was a
month before the next presidential elections.
Can the President still make appointments to the judiciary during
the so-called midnight appointment ban period? Assuming that he
can still make appointments, could he appoint Margie, his cousin?
(4%) ‘14 - Q7
The President can make appointments to the Supreme Court two
months before a presidential election until the end of his term but not to
the rest of the Judiciary like the Court of Appeals. Under Section 4 (1),
Article VIII of the Constitution, vacancies in the Supreme Court shall be
filled within ninety (90) day from the occurrence of the vacancy. Under
Section 9, Article VIII of the Constitution, .vacancies in the lower courts
shall be filled within ninety (°0) days from submission of the list of
nominees. These appointments are screened by the Judicial and Bar
Council, and the process necessarily precludes or prevents the
President from making purely political appointments to the courts, which
is what is sought to be prevented by the prohibition (De Castro v. Judicial
and Bar Council, G.R. No. 191002, April 20, 2010, 615 SCRA 666).
The President may also appoint his first cousin, Margie, as Justice of the
Court of Appeals. The prohibition in Section 13, Article VII of the
Constitution against appointment by the President of relatives within the
fourth degree by consanguinity or affinity does not include appointments
to the Judiciary.
ALTERNATIVE ANSWER (FOR FIRST QUESTION):
The President cannot make appointments to the Judiciary during two
months before the presidential election until the end of his term because
of the ban in Section 15, Article VII of the Constitution. Despite the
constitutional mandate to fill vacancies in Judiciary within the prescribed
periods, the prohibitions against the appointments releases the
7
President from the obligation to appoint within them. The delay is
excusable, since it will be impossible to comply with his obligation.
The President, concerned about persistent reports of widespread
irregularities and shenanigans related to the alleged ghost projects
with which the pork barrel funds of members of Congress had been
associated, decided not to release the funds authorized under a
Special Appropriations Act for the construction of a new bridge.
The Chief Executive explained that, to properly conserve and
preserve the limited funds of the government, as well as to avoid
further mistrust by the people, such a project -which he considered
as unnecessary since there was an old bridge near the proposed
bridge which was still functional - should be scrapped.
Does the President have such authority? (4%) ‘14 - Q8
The President has the authority to withhold the release of the funds
under a Special Appropriation Act for a project which he considered
unnecessary. The faithful execution of the laws requires the President
to desist from implementing a law If by doing so will prejudice public
interest. It is folly to require the President to spend the entire amounts
appropriated in the law in such a case (Philippine Constitution
Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA
506).
ALTERNATE ANSWER:
The President does not possess the authority to scrap the Special
Appropriations Act for the construction of the new bridge. His refusal to
spend the funds appropriated for the purpose is unlawful. The President
is expected to faithfully implement the purpose for which Congress
appropriated funds. Generally, he cannot replace legislative discretion
with his own personal judgment as to the wisdom of a law (Araullo v.
Aquino, G.R. No. 209287, July 1, 2014).
Gerrymandering refers to the practice of: (1%) ‘14 - Q9
(A) creating or dividing congressional districts in a manner
intended to favor a particular party or candidate
(B) truancy as applied to Members of Congress
(C) loafing among members of Congress
(D) coming up with guessing game when it comes to
legislation
(E) commandeering large chunks of the budget for favoured
congressional districts
(A) creating or dividing congressional districts in a manner intended to
favor a particular party or candidate
The Court had adopted the practice of announcing its decision in
important, controversial or interesting cases the moment the votes
had been taken among the justices, even as the final printed
decision and separate opinions are not yet available to the public.
In a greatly anticipated decision in a case of wide-ranging
ramifications, the voting was close - 8 for the majority, while 7 were
for the other side. After the Court had thus voted, it issued a press
release announcing the result, with the advice that the printed copy
of the decision, together with the separate opinions, were to be
issued subsequently. The following day, however, one of the
members of the Court died. The Court then announced that it would
deliberate anew on the case since apparently the one who died
belonged to the majority. Citizens for Transparency, a group of
civic-spirited professionals and ordinary citizens dedicated to
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transparency and accountability in the government, questioned the
act of the Court. The petitioners claimed the decision had already
been validly adopted and promulgated. Therefore, it could no
longer be recalled by the Court, At the same time, the group also
asked the Court to disclose to the public the original decision and
the separate opinions of the magistrates, together with what they
had deliberated on just before they came up with the press release
about the 8-7 decision. (6%)
(A) Was the announced 8-7 decision already validly
promulgated and thus not subject to recall? ‘14 - Q12(A)
The decision cannot be deemed to have been promulgated simply
because of the announcement of the voting in a press release, because
the decision has not yet been issued and filed with the Clerk of Court.
Until the decision is filed with the Clerk of Court, the Justices still have
control over the decision and they can still change their votes
(Limkaichong v. Commission on Elections, G.R. Nos. 178831-32, July
30, 2009, 594 SCRA 434).
(B) If the decision was not yet finalized at the time when the
justice died, could it still be promulgated? ‘14 - Q12(B)
The decision can no longer be promulgated if the Justice who belonged
to the majority died, for lack of a majority vote. The vote he cast is no
longer valid, as he was no longer an incumbent member of the Supreme
Court (Lao v. To-Chip, G.R. No. 76597, February 26, 1988, 150 SCRA
243).
ANOTHER ALTERNATIVE ANSWER FOR (B):
(B) The decision can be promulgated even if the Supreme Court en banc
is equally divided, if after the case was again deliberated upon, no
majority decision was reached. If the case is an original action, it should
be dismissed. If it is an appealed case, the decision appealed from
should be affirmed if it is a civil case. If it is a criminal case, the accused
should be acquitted (Section 7, Rule 56 of the Rules of Court; Section
3, Rule 125, Revised Rules on Criminal Procedure).
(C) If the decision was still being finalized, should the Court
release to the public the majority decision and the
separate opinions as originally announced, together with
their deliberations on the issues? ‘14 - Q12(C)
The Supreme Court should not release to the public the majority opinion
and the separate opinions, as well as its deliberations. They are part of
its confidential internal deliberations (Limkaichong v. Commission on
Elections, G.R. Nos. 178831-32, July 30, 2009, 594 SCRA 434).
Towards the end of the year, the Commission on Audit (COA)
sought the remainder of its appropriation from the Department of
Budget and Management (DBM). However, the DBM refused
because the COA had not yet submitted a report on the
expenditures relative to the earlier amount released to it. And,
pursuant to the “no report, no release” policy of the DBM, COA is
not entitled to any further releases in the meantime. COA counters
that such a policy contravenes the guaranty of fiscal autonomy
granted by the Constitution.
Is COA entitled to receive the rest of its appropriations even
without complying with the DBM policy? (4%) ‘14 - Q17
8
The Commission on Audit is entitled to receive the rest of its
appropriations even without complying with the policy of the Department
of Budget and Management. Section 5, Article IX-A of the Constitution
provides that its approved annual appropriations shall be automatically
and regularly released. The Secretary of Budget and Management
cannot make the release of the appropriations subject to the submission
of reports (Civil Service Commission v. Department of Budget and
Management, G.R. No. 158791, July 22, 2005, 464 SCRA 115).
Congress enacted a law exempting certain government institution
providing social services from the payment of court fees. Atty.
Kristopher Timoteo challenged the constitutionality of the said law
on the ground that only the Supreme Court has the power to fix and
exempt said entities from the payment of court fees.
Congress, on the other hand, argues that the law is constitutional
as it has the power to enact said law for it was through legislative
fiat that the Judiciary Development Fund (JDF) and the Special
Allowance for Judges and Justices (SAJJ), the funding of which
are sourced from the fees collected by the courts, were created.
Thus, Congress further argues that if it can enact a law utilizing
court fees to fund the JDF and SAJJ, a fortiori it can enact a law
exempting the payment of court fees.
Discuss the constitutionality of the said law, taking into account
the arguments of both parties? (4%) ‘14 - Q27
The law is unconstitutional. The Constitution has taken away the power
of Congress to repeal, alter, or supplement the Rule of Court. The fiscal
autonomy of the Judiciary guaranteed by Section 3, Article VIII of the
Constitution recognized the authority of the Supreme Court to levy,
assess, and collect fees. Congress cannot amend the rules promulgated
by the Supreme Court for the payment of legal fees by granting
exemptions (in re Petition for Recognition of Exemption of the
Government Service insurance System from payment of Legal Fees,
A.M. No. 08-2-01-0, February 11, 2010, 612 SCRA 193; In re Exemption
of National Power Corporation from Payment of Filing/Docket Fees,
A.M. No. 05-10-20-SC, March 10, 2010, 615 SCRA 1; In re Exemption
from Payment of Court and Sheriff’s Fees of Duly Registered
Cooperatives, A.M. No. 12-2-03-0, March 13, 2012, 668 SCRA 1).
In the last quarter of 2013, about 5000 container vans of imported
goods intended for the Christmas Season was seized by the
agents of the Bureau of Customs. The imported goods were
released only on January 10, 2013. A group of importers got
together and filed an action for damages before the Regional Trial
Court of Manila against the Department of Finance and the
Bureau of Customs.
The Bureau of Customs raised the defense of immunity from suit,
and alternatively, that liability should lie with XYZ Corp. which the
Bureau had contracted for the lease of ten (10) high-powered van
cranes but delivered only five (5) of these cranes, thus causing
the delay in its cargo-handling operations. It appears that the
Bureau, despite demand, did not pay XYZ Corp. the Php1Million
deposit and advance required under their contract.
(A) Will the action by the group of imposters prosper? (5%)
‘13 - Q1a
No, the action of the group of importers will not prosper. The primary
function of the Bureau of Customs is governmental, that of assessing
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and collecting lawful revenues from imported articles and all other tariff
and customs duties, fees, charges, fines and penalties (Mobil
Philippines Exploration, Inc. v. Customs Arrastre Service, G.R. No. L-
23139, December 17, 1966, 18 SCRA 120).
(B) Can XYZ Corp. sue the Bureau of Customs to collect
rentals for the delivered cranes?(5%) ‘13 - Q1b
No, the XYZ Corporation cannot sue the Bureau of Customs to collect
rentals for the delivered cranes. The contract was a necessary incident
to the performance of its governmental function. To properly collect the
revenues and customs duties, the Bureau of Customs must check to
determine if the declaration of the importers tallies with the landed
merchandise. The cranes are needed to haul the landed merchandise
to a suitable place for inspection (Mobil Philippines Exploration, Inc. v.
Customs Arrastre Service, G.R. No. L-23139, December 17, 1966, 18
SCRA 1120).
ALTERNATIVE ANSWER:
No, XYZ Corporation cannot sue the Bureau of Customs, because it
has no juridical personality separate from that of the Republic of the
Philippines (Mobil Philippines Exploration, Inc. v. Customs Arrastre
Service, G.R. No. L-23139, December 17, 1966, 18 SCRA 1120).
ANOTHER ALTERNATIVE ANSWER:
No, the 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 v. Court of Appeals, 256
SCRA 667, May 8 1996). Besides, XYZ Corporation leased its van
cranes, because the Bureau of Customs undertook to pay its rentals.
Justice and equity demand that the Bureau of Customs should not be
allowed to invoke state immunity from suit (Republic v. Unimex-Micro
Electronics GmBH, G.R. No. 166309-10, November 25, 2008, 518
SCRA 19).
While Congress was in session, the President appointed eight
Acting Secretaries. A group of Senators from the minority bloc
questioned the validity of the appointments in a petition before
the Supreme Court on the ground that while Congress is in
session, no appointment requires confirmation by the
Commission on Appointments, can be made without the latter’s
consent, and that an undersecretary should instead be
designated as Acting Secretary.
Should the petition be granted? (5%) ‘13 - Q2
No, the petition should not be granted. The Department Head is an
alter ego of the President and must enjoy his confidence even if the
appointment will be merely temporary. The Senators cannot require
the President to designate an Undersecretary to be the temporary alter
ego of the President (Pimentel, Jr. v. Ermita, G.R. No. 164978,
October 13, 2005, 472 SCRA 587).
Congress enacted a law providing for trial by jury for those
charged with crimes or offenses punishable by reclusion
perpetua or life imprisonment. The law provides for the
qualifications of members of the jury, the guidelines for the bar
and bench for their selection, the manner a trial by jury shall
operate, and the procedures to be followed.
9
Is the law constitutional? (6%) ‘13 - Q4
The law providing for trial by jury is unconstitutional because of the
omission of in Article VIII, Section 5(5) of the 1987 Constitution of the
provisions of Article VIII, Section 13 of the 1935 Constitution and
Article X, Section 5(5) of the 1973 Constitution, which both authorized
the Legislature to repeal, alter or supplement the rules of procedure
promulgated by the Supreme Court. Congress can no longer enact any
law governing rules of procedure for the courts (Echegaray v.
Secretary of Justice, G.R. No. 132601, October 12, 1998, 301 SCRA
96).
ALTERNATIVE ANSWER:
The law is valid, because of the grant of a right to trial by jury involves
a substantive law and is within the competence of Congress (Article
VII, Section 5(5) of the 1987 Constitution).
Bobby, an incoming third-year college student, was denied
admission by his university, a premiere educational institution in
Manila, after he failed three (3) major subjects in his sophomore
year. The denial of admission was based on the university’s
school rules and policies.
Unable to cope up with the depression that his non-admission
triggered, Bobby committed suicide. His family sued the school
for damages, citing the school’s grossly unreasonable rules that
resulted in the denial of admission. They argued that these rules
violated Bobby’s human rights and the priority consideration that
the Constitution gives to the education of the youth.
You are counsel for the University. Explain your arguments in
support of the university’s case. (6%) ‘13 - Q8
I shall argue that under Article XIV, Section 5(2), of the 1987
Constitution enjoys academic freedom. Academic freedom includes its
rights to prescribe academic standards, policies and qualifications for
the admission of a student (University of San Agustin Inc. v. Court of
Appeals, G.R. No. 100588, March 7,1994,230 SCRA 761).
In the May 2013 elections, the Allied Workers’ Group of the
Philippines (AWGP), representing land based workers in the
Philippines and overseas, won in the party-list congressional
elections. Atty. Abling, a labor lawyer, is its nominee.
As part of the party’s advocacy and services, Congressman
Abling engages in labor counseling, particularly for local workers
with claims against their employers and for those who need
representation in collective, bargaining negotiations with
employers. With labor cases arise, AWGP enters its appearance
in representation of the workers and the Congressman makes it a
point to be there to accompany the workers, although a retained
counsel also formally enters his appearance and is invariably
there. Congressman Abling largely takes a passive role in the
proceedings although he occasionally speaks to supplement the
retained counsel’s statements. It is otherwise in CBA negotiations
where he actively participates.
Management lawyers, feeling that a congressman should not
actively participate in cases before labor tribunals and before
employers because of the influence a congressman can wield,
filed a disbarment case against the Congressman before the
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Supreme Court for his violation of the Code of Professional
Responsibility and for breach of trust , in relation particularly with
the prohibitions on legislators under the Constitution.
Is the cited ground for disbarment meritorious? (6%) ‘13 - Q12
Being a congressman, Atty. Abling is disqualified under Article VI,
Section 14, of the 1987 Constitution from personally appearing as
counsel before quasi-judicial and other administrative bodies. His
speaking for workers before administrative bodies handling labor cases
constitutes personal appearance before them (Puyat v. De Guzman,
G.R. No. L-5122, March 25, 1982, 1135 SCRA 33). His involvement in
collective bargaining negotiations also involves the practice of law,
because he is making use of his legal knowledge for the benefit of
others (Cayetano v. Monsod, G.R. No. 100113, September 3, 1991,
201 SCRA 210). The Bureau of Labor Relations is involved in the
collective bargaining negotiations. (Article 250 of the Labor Code).
Atty. Abling should not be disbarred but should merely be suspended
from the practice of law. Suspension is the appropriate penalty for
involvement in the unlawful practice of law (Tapay v. Bancolo, A.C. No.
9604, March 20, 2013, 694 SCRA 1).
ALTERNATIVE ANSWER:
No, Atty. Abling cannot be disbarred. A retained counsel formally
appears for AWGP. His role is largely passive and cannot be
considered as personal appearance. His participation in the collective
bargaining negotiations does not entail personal appearance before an
administrative body (Article VI, Section 13 of the 1987 Constitution).
d) What is judicial power? Explain briefly. (2%). ‘12 - Q4d
Judicial power- Sec. 1 (1) Art. 8 is the authority to settle justifiable
controversies or disputes involving rights that are enforceable and
demandable before the courts of justice or the redress of wrongs for
violation of such rights. (Lopez vs. Roxas, 17 SCRA 7561) It includes
the duty of the courts to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. (Section 1, Article VIII of
Constitution.)
Constitutionality of law filed by a representative which benefitted
her co-party representative’s industrial estate. ’10 – Q5
The law is constitutional.
Sec. 12, Art. 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 benefitted by the
law is the one who will file the bill, he should notify the House concerned
of the potential conflict of interest.
Constitutionality of law which gave the Joint-Congressional
Oversight Committee authority to screen the list of beneficiary
families initially determined by the DSWD in a conditional cash
transfer program of the government. ’10 – Q5
On the assumption that Mang Pandoy is a beneficiary of the
financial legal assistance. He may be prejudiced by the improper
screening of the beneficiary families (Province of Batangas v. Romulo,
492 SCRA 736 [2004]). Besides, since the implementation of the law will
10
require the expenditure of public funds, as a taxpayer Mang Pandoy has
legal standing to question the law (Cruz v. Secretary of Environment and
Natural Resources, 347 SCRA 128 [2000].)
The grant of authority to the Oversight Committee is
unconstitutional. It violates the principle of separation of powers. By
being involved in the implementation of the law, the Oversight
Committee will be exercising executive power (Abakada Guro Party List
v. Purisima, 562 SCRA 251 [2008].)
Proclamation of state of emergency is not sufficient to allow the
President to take over any public utility. ’10 – Q7a
The statement that a proclamation of emergency is sufficient to
allow the President to take over any public utility is false. Since it is an
aspect of emergency powers, in accordance with Section 23(2), Article
VI of the Constitution, there must be a law delegating such power to the
President (David v. Macapagal-Arroyo, 489 SCRA 160 [2006].)
A treaty which provides tax exemption needs no concurrence by a
majority of all the Members of the Congress. ’10 – Q7b
The statement that a treaty which provides tax exemption needs no
concurrence by a majority of all the Members is true. It is only a law, not
a treaty, granting tax exemption which requires the concurrence of a
majority of all the Members of Congress (Section 28(4), Article VI of the
Constitution.) Without respect to its lawful substantive content, a treaty
to be valid, requires concurrence by at least two-thirds of all the
Members of the Senate (Sec. 21, Article VI of the Constitution).
Presidential Communications Privilege and Deliberative Process
Privilege; Distinction. ’10 – Q8
Presidential communications privilege applies to decision-making
of the President. The deliberative process privilege applies to decision-
making of executive officials. Unlike the “deliberative process privilege,”
“the presidential communications privilege applies to documents in their
entirety and covers final and post-decisional matters, as well as pre-
deliberative ones. The deliberative process privilege includes advisory
opinions, recommendation and deliberations comprising part of a
process by which governmental decisions and policies are formulated
(Neri v. Senate Committee on Accountability of Public Officers and
Investigations, 549 SCRA 77 [2008].)
Power of President to prevent entry of aliens. ’10 – Q9
The argument of Central Luzon State University is not valid.
Since an alien has no right to enter the Philippines, preventing Sing
Kui from entering the Philippines is not a violation of his rights (Lee and
Quigley, Consular Law and Practice, 3rd ed., p. 220.) Since the President
has the power of control over foreign relations, he has the power to ban
aliens from entering the Philippines (United States v. Curtiss-Wright
Export Corp., 299 U.S. 304 [1936].)
Defense of Executive Privilege by a Division Chief of the DBM and
Secretary of DBM in refusing to testify in a House inquiry in aid of
legislation; Sanctions. ’10 – Q18
X may be compelled to appear and testify. Only the President or
the Executive Secretary by order of the President can invoke executive
privilege (Senate of the Philippines v. Ermita, 488 SCRA 13 [2006].) He
can be cited for contempt and ordered to be arrested (De le Paz v.
Senate Committee on Foreign Relations, 579 SCRA 521 [2009].)
Likewise, the Secretary of Budget and Management is not shielded
by executive privilege from responding to the inquiries of the House
Committee on Appropriations, because the inquiry is in aid of legislation
and neither the President nor the Executive Secretary by order of the
President can invoke executive privilege (Senate of the Philippines v.
Ermita, 488 SCRA 13 [2006].) For refusing to testify, he may be cited for
contempt and ordered to be arrested (De le Paz v. Senate Committee
on Foreign Relations, 579 SCRA 521 [2009].)
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Doctrine of Operative Facts; definition. ’10 - Q20a
The doctrine of operative facts means that before a law is declared
unconstitutional, its actual existence must be taken into account and
whatever was done while the law was in operation should be recognized
as valid (Rieta v. People, 436 SCRA 273 [2004].)
Doctrine of Necessary Implication; Definition. ’10 – Q20d
The doctrine of necessary implication means that every statute is
understood by implication to contain all such provisions as may be
necessary to effectuate its object and purpose, or to make effective
rights, powers, privileges or jurisdiction which it grants, including all such
collateral and subsidiary consequences as may be fairly and logically
inferred from its terms (Pepsi-Cola Products Philippines, Inc. v.
Secretary of Labor, 312 SCRA 104 [1999].)
Rotational Scheme of Appointments in COMELEC; Other
Constitutional Offices where scheme applicable. ’10 – Q25; ’99 –
Q13
The rotational scheme of appointments in the Commission on
Elections refers to the scheme in which there is a regular recurrence of
a two-year interval between the expiration of terms of the Chairman and
the Commissioners (Gaminde v. Commission on Audit, 347 SCRA 655
[2000].)
The two (2) conditions for the workability of the rotational scheme
of appointments are the following: (1) the terms of the first Chairman and
Commissioners should start on a common date, irrespective of variation
of dates of their appointments and qualifications, and (2) any vacancy
due to the death, resignation or disability before expiration of the term
should be filled only for the unexpired balance of the term (Gaminde v.
Commission on Audit, 347 SCRA 655 [2000].)
The rotational scheme of appointments applies also to the Judicial
and Bar Council, the Civil Service Commission and the Commission on
Audit (Section 9(2), Article VIII, Section 1(2), Article IX-B and Section
1(2), Article IX-D of the Constitution.)
Pocket veto and Item veto; distinction. ’10-Q26
A pocket veto is when the President is considered to have rejected
the bill submitted to him for his approval when Congress adjourns during
the period given to the President to approve or reject the bill.
On the other hand, an item veto, or partial veto, is the power of the
President to nullify or cancel specific provisions of a bill, usually a budget
appropriations bill, without vetoing the entire legislative package.
Congress may adopt a new national anthem, but is shall take effect
only upon ratification by the people in a national referendum.
(Section 2, Article XVI of the Constitution). ’09 – Q1a
A law which makes military service for women voluntary is
unconstitutional. ’09 - Q1c
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.
A law fixing the passing grade in the Bar examinations at 70%, with
no grade lower than 40% in any subject, is unconstitutional. ’09 –
Q1d
Such a law entails amendment of the Rules of Court promulgated
by the Supreme Court. The present Constitution has taken away the
power of Congress to alter the Rules of Court (Echegaray v. Secretary
of Justice, 301 SCRA 96 [1999].) The law will violate the principle of
separation of powers.
11
An educational institution 100% foreign-owned may be validly
established in the Philippines. ’09 – Q1e
An education institution which is 100% foreign-owned may be
established in the Philippines if it established by religious groups and
mission boards (Section 4(2), Article XIV of the Constitution).
Police Power; Constitutionality of Congress enacting a law which
absolutely prohibits all forms of gambling. ’09 – Q5a
The law absolutely prohibiting all forms of gambling is a valid
exercise of police power, because it is an evil that undermines the social,
moral and economic growth of the nation (People v. Punto, 68 Phil. 481
1939].)
Taxation; Constitutionality of law imposing a tax of 30% on all
winnings from gambling. ’09 – Q5b
A tax of 30% on winnings from gambling does not violate due
process as to the reasonableness of the rate of the tax imposed. Taxes
on non-useful enterprise may be increased to restrain the number of
persons who might engage in it (Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila, 20 SCRA 849
[1967].) Taxes may be imposed for the attainment of the objective of
police power (Lutz v. Araneta, 98 Phil. 148 [1955].)
Inquiry in aid of legislation; tenability of argument that since the
subject of the legislation is also the subject of criminal and civil
actions pending in the courts and the prosecutor’s office, thus the
legislative inquiry would pre-empt judicial action. ’09 – Q8a
The argument is not tenable; since this is an essential component
of legislative power, it cannot be made subordinate to criminal and civil
actions. Otherwise, it would be very easy to subvert any investigation in
aid of legislation through the convenient ploy of instituting criminal and
civil actions (Standard Chartered Bank [Philippine Branch] v. Senate
Committee on Banks, Financial Institutions and Currencies, 541 SCRA
456 [2007].)
Refusal to testify at the inquiry on the grounds that it will violate
their right against self-incrimination. ’09 – Q8b
The argument is untenable. Since IUB officials were not being
subjected to a criminal penalty, they cannot invoke their right against
self-incrimination unless a question calling for an incriminating answer
is propounded (Standard Chartered Bank [Philippine Branch] v. Senate
Committee on Banks, Financial Institutions and Currencies, 541 SCRA
456 [2007].)
The Governor of the BSP cannot validly invoke executive privilege
in refusing to attend the legislative inquiry. ’09 – Q8c
The power to invoke executive privilege is limited to the president
(Senate of the Philippines v. Ermita, 488 SCRA 1 [2006].)
A natural-born Filipino who lost his Filipino citizenship and
subsequently reacquired Filipino citizenship through repatriation
is a natural-born citizenship; Effect of his reacquisition as to the
citizenship of his American wife and three children. ’09 – Q9; ’03 –
Q4b; ’02 – Q1
Warlito is a natural-born Filipino citizenship. Repatriation of
Filipinos results in the recovery of the original nationality. Since Warlito
was a natural-born citizen before he lost his Filipino citizenship, he was
restored to his former status as a natural-born Filipino citizen (Bengzon
v. House of Representatives Electoral Tribunal, 357 SCRA 545 [2001];
R.A. No. 2630.)
However, his wife Shirley will not become a Filipino citizen. Under
R.A. No. 9225, Warlito’s reacquisition of Philippine citizenship did not
extend its benefits to Shirley. She should instead file with the Bureau of
Immigration a petition for the cancellation of her alien certificate of
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registration on the ground that in accordance with Section 15 of the
Naturalization Law, because of her marriage to Warlito, she should be
deemed to become a Filipino citizen. She must allege and prove that
she possesses none of the disqualifications to become a naturalized
Filipino citizen (Burca v. Republic, 51 SCRA 248 [1973].)
Under Section 18 of R.A. No. 9225, only the unmarried children
who are below eighteen years of age of those who reacquire Philippine
citizenship shall be deemed Filipino citizens. Thus, only Luisa, who is
seventeen years old, became a Filipino citizen.
Aliens are not absolutely prohibited from owning private lands in
the Philippines. ’09 – Q11a
Under Section 7, Article XII of the Constitution, aliens may acquire
private lands by hereditary succession. Under Section 8, Article XII of
the Constitution, natural-born Filipino citizens who lost their Filipino
citizenship may be transferees of private land,
The president exercises the power of control over all executive
departments and agencies, including government-owned or
controlled corporations. ’09 - Q11c
Under Section 18, Article VII of the Constitution, the President has
control of all executive departments, bureaus and offices. His power of
control extends to agencies with respect to their administrative
functions, even if they are performing quasi-judicial functions (Cruz v.
Secretary of Environment and Natural Resources, 347 SCRA 128
[2000]) and to government-owned or controlled corporations (National
Marketing Corp. v. Arca, 29 SCRA 648 [1969].)
Dual citizenship is not the same as dual allegiance. ’09 – Q11e
Dual citizenship arises when, as a result of the concurrent
application of the different laws of two or more states, a person is
simultaneously considered a national by those states and is involuntary.
Dual allegiance refers to the situation in which a person
simultaneously owes by some positive and voluntary act, loyalty to two
or more states (Mercado v. Manzano, 307 SCRA 630 [1999].)
Defense in an action for expropriation by the Sangguniang
Panglungsod of a commercial lot the purpose of distribution at
cost to qualified city residents. ’09 – Q17a
I will raise the defense that the selection of lot to be expropriated
violates due process, because it is arbitrary. Since it is devoted to
commercial use, the beneficiaries of the expropriation will not settle
there and will instead merely lease out or resell the lot for a profit
(Manotok v. National Housing Authority, 150 SCRA 89 [1987].)
Mere delay in payment of just compensation will not entitle the
owner of the expropriated property to recover the land. ’09 – Q17b
The mere delay in the payment of the just compensation will
not entitle the Filipinas Computer Corporation to recover the property.
Instead, legal interest on the just compensation should be
paid (National Power Corp. v. Henson, 300 SCRA 751 [1998].) However,
if payment was not made within five (5) years from the finality of
judgment in the expropriation case, Filipinas Corporation can recover
the property. To be just, the compensation must be paid within a
reasonable time (Republic v. Lim, 462 SCRA 265 [2005].)
Owner of expropriated property can legally demand to repurchase
the property if the lot was expropriated with the condition that it
can only be used for low-cost housing and such purpose was
abandoned. ’09 – Q17c
If the lot was expropriated with the condition that it can be used
only for low-cost housing, it should be returned to Filipinas Computer
Corporation upon abandonment of the purpose (Heirs of Timoteo
Moreno v. Mactan-Cebu International Airport Authority, 413 SCRA 502
[2003].)
12
Elements of a petition for a people’s initiative to amend the 1987
Constitution. ’09 – Q18
The elements of a valid petition for a people’s initiative are the
following:
1. At least twelve per cent (12% ) of the registered voters, of
which every legislative district must be represented by at least
three per cent (3%) of the registered voters in it, should
directly sign the entire proposal; and
2. The draft of the proposed amendment must be embodied in
the petition (Lambino v. Commission on Elections, 505 SCRA
160 [2006].)
Power of eminent domain of the NHA; propriety of expropriating a
property previously excluded for not posing a blight or health
problem. ’08 - Q4
The power of the National Housing Authority 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 or health
problem lacks public purpose and exceeds the delegated power of NHA.
The power of expropriation cannot be used to benefit private
parties (Pascual v. Secretary, No. L-10495, 29 December 1960.) In this
case, the main beneficiary of would be the private realty company. The
taking of private property and then transferring it to private persons is
not within the power of eminent domain (Heirs of Moreno v. Mactan-
Cebu International Airport Authority, G.R. No. 156273, 9 August 2005.)
Effect of Executive Secretary granting a petition for executive
clemency filed in the OP to a RTC judge who was found by the SC
for serious misconduct and efficiency. ’08 – Q8
The Supreme Court has supervisory jurisdiction over all courts and
personnel thereof (Sec. 5(6), Article VII of the Constitution; Judge
Caoibes v. Ombudsman, G.R. No. 132177, 19 July 2001.) Exercising
clemency over judges disciplined by the Court is a violation of the
separation of powers. Moreover, executive clemency cannot be
delegated.
Propriety of congress enacting a law abolishing a GOCC
notwithstanding that its charter has a proviso saying that Congress
may not abolish the corporation until after the completion of its
purpose. ’08 – Q14
Congress may not pass an irrepealable law prohibiting the abolition
of MWWC, because that would diminish the power of future Congresses.
The right to create government owned corporations includes the right to
abolish them. Under the facts of the case, the repeal of the law which is
unable to serve its purpose, is not unreasonable.
Constitutionality of a law requiring graduates of public science
high schools henceforth to take up agricultural of mining
engineering as their college course as a reaction to the rice
shortage and dearth of mining engineers. ’08 – Q17
The law violates the constitutional provision which states that
“Every citizen has a right to select a profession or course of study,
subject to fair, reasonable and equitable admission and academic
requirements” (Section 5(3), Article XIV of the Constitution; DECS v. San
Diego, G.R. No. 89572, 21 December 1989; Lupangco v. CA, G.R. No.
77372, 29 April 1988.)
For purposes of communication and instruction, the official
languages of the Philippines are Filipino, and until otherwise
provided by law, English. ’07 – Q1a
Section 7, Article XIV of the Constitution provides that: “For
purposes of communication and instruction, the official language of the
Philippines are Filipino, and until otherwise provided by law, English.”
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Filipino is a permanent official language that cannot be otherwise be
changed by law. On the other hand, Congress may change English as
an official language for purposes of communication and instruction.
CHR cannot stop the implementation of an E.O. issued by a city
mayor which prohibits all hospitals operated by the city from
prescribing the use of artificial methods of contraception. ’07 –
Q2c; ’05 – Q4(1)(b)
The Commission on Human Rights cannot order the City Mayor to
stop the implementation of the Executive Order, because it has no power
to issue writs of injunction, The Commission of Human Rights is purely
investigatory body and does not perform adjudicative functions (Export
Processing Zone Authority v. Commission on Human Rights, 208 SCRA
125 [1992].)
A statement which states that “An amendment to the Constitution
shall be valid upon a vote of three-fourths of all Members of the
Congress” is not valid. ’07 – Q6a
First, an amendment proposed by Congress must be approved by
at least three-fourths (3/4) vote of the Senate and of the House of
Representatives voting separately. It is inherent in a bicameral
legislature for the two houses to vote separately (II Record of the
Constitutional Commission 493). Second, the amendment shall be valid
only when ratified by a majority of votes case in a plebiscite (Section 4,
Article XVII of the Constitution.
All public officers and employees shall take an oath or affirmation
to uphold and defend this Constitution (Section 4, Article IX-B of
the Constitution.) ’07 – Q6b
Validity of a Department of Education (DepEd) requirement that any
school applying for a tuition fee increase must offer full tuition
scholarships to students from low-income families as a condition
in granting the increase; What if the DepEd requires a full tuition
scholarship for the highest ranking students in each grade,
determined solely on the bases of academic grades and rank. ’07 -
Q9
The requirement is valid. Under Section 7 of Presidential Decree
No. 451, as a condition to the grant of any increase in tuition, private
schools with a total enrolment of at least 1,000 are required to provide
scholarships to poor but deserving students at the rate of one
scholarship for every 500 students enrolled.
However, if the DepEd requires a full tuition scholarship for the
highest ranking students in each grade, determined solely on the bases
of academic grades and rank, the requirement will be void. Under
Section 7 of Presidential Decree No. 44, the grant of scholarships by
private schools to the students with scholastic distinctions is left to the
discretion of the private schools.
Formula for allocating seats for party-list representatives based on
(1) the twenty-percent allocation; (2) the two percent threshold; and
(3) the three-seat limit; Constitutional and Legal Basis. ’07 – Q10
Answers from UP LAW BOC Political Law Reviewer [2013]:
The combined number of all party-list representatives shall not
exceed 20% of the total membership of the House of Representatives,
including those elected under the party-list.
Only those parties garnering a minimum of 2% of the total votes
cast shall be entitled to one guaranteed seat each. The additional seats
shall be computed in “proportion to their total number of votes.”
Each party, regardless of the number of votes it actually obtained,
is entitled to a maximum of three seats; one qualifying and 2 additional
seats.
In Barangay Association for National Advancement and
Transparency (BANAT) v. Commission on Elections, 592 SCRA 294
[2009], the Supreme Court said that in computing the allocation of the
additional seats, the continued operation of the 2% threshold for the
distribution of the additional seats as found in the second clause of Sec.
13
11(b) of R.A. No. 7941 which provides that “those garnering more than
2% of the votes shall be entitled to additional seats in proportion to their
total number of votes” is unconstitutional. The 2% threshold frustrates
the attainment of the permissive ceiling that 20% of the members of the
House of Representatives shall consist of party-list representatives.
[However, in Atong Paglaum v. COMELEC, G.R. No. 203766,
April 2, 2013, In the Supreme Court abandoned the criteria for
participating in the party-list system laid down in Ang Bagong Bayani v.
COMELEC (ABB) and BANAT v. COMELEC (BANAT) should be applied
by the COMELEC in the May 2013 elections. adopted new parameters
for the upcoming elections; thus, it remanded the case to COMELEC so
the latter can determine the status of the petitioners based on the
following new guidelines:
1. Three different groups may participate in the party-list system:
(1) national parties or organizations, (2) regional parties or
organizations, and (3) sectoral parties or organizations.
2. National parties or organizations and regional parties or
organizations do not need to organize along sectoral lines and
do not need to represent any “marginalized and
underrepresented” sector.
3. Political parties can participate in party-list elections provided
they register under the party-list system and do not field
candidates in legislative district elections. A political party,
whether major or not, that fields candidates in legislative
district elections can participate in party-list elections only
through its sectoral wing that can separately register under
the party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political party
through a coalition.
4. Sectoral parties or organizations may either be “marginalized
and underrepresented” or lacking in “well-defined political
constituencies.” It is enough that their principal advocacy
pertains to the special interest and concerns of their sector.
The sectors that are “marginalized and underrepresented”
include labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, and overseas
workers. The sectors that lack “well-defined political
constituencies” include professionals, the elderly, women,
and the youth.
5. A majority of the members of sectoral parties or organizations
that represent the “marginalized and underrepresented” must
belong to the “marginalized and underrepresented” sector
they represent. Similarly, a majority of the members of
sectoral parties or organizations that lack “well-defined
political constituencies” must belong to the sector they
represent. The nominees of sectoral parties or organizations
that represent the “marginalized and underrepresented,” or
that represent those who lack “well-defined political
constituencies,” either must belong to their respective sectors,
or must have a track record of advocacy for their respective
sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or
organizations.
6. National, regional, and sectoral parties or organizations shall
not be disqualified if some of their nominees are disqualified,
provided that they have at least one nominee who remains
qualified.
According to the Supreme Court, the framers of the Constitution
never intended the party-list system to be reserved for sectoral parties.
The latter were only part of the party-list system not the entirety of it.
There were two more groups composing the system — national and
regional parties. This is evident from the phrasing of Section 5, Article
VI of the Constitution, which states that:
The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts…and those
who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or
organizations. (emphasis supplied)
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National and regional parties are different from sectoral parties
such that the former need not organize along sectoral lines and
represent a particular sector. Hence, it is not necessary for these parties
to be representative of the marginalized and underrepresented. In fact,
Republic Act No. 7941, the enabling law of the party-list elections under
the Constitution, does not require these parties to fall under this criterion.
The Supreme Court emphasized that the phrase ‘marginalized and
underrepresented’ appeared only once in R.A. No. 7941, particularly in
the Declaration of Policy. The section provides:
The State shall promote proportional representation in the
election of representatives to the House of Representatives
through a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, which will
enable Filipino citizens belonging to marginalized and
underrepresented sectors, organizations and parties, and
who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become
members of the House of Representatives. Towards this end,
the State shall develop and guarantee a full, free and open party
system in order to attain the broadest possible representation of
party, sectoral or group interests in the House of
Representatives by enhancing their chances to compete for and
win seats in the legislature, and shall provided the simplest
scheme possible.
The oft-quoted phrase neither appeared in the specific
implementing provisions of R.A. No. 7941 nor did it require sectors,
organizations, or parties to fall under the criterion as well. In this regard,
how then should the broad policy declaration in Section 2 of R.A. No.
7941 be harmonized with its specific implementing provisions, bearing
in mind the applicable provisions of the 1987 Constitution on the matter?
The Supreme Court answered in this wise:
The phrase “marginalized and
underrepresented” should refer only to the sectors in
Section 5 that are, by their nature, economically
“marginalized and underrepresented.” These sectors are:
labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and
other similar sectors. For these sectors, a majority of the
members of the sectoral party must belong to the
“marginalized and underrepresented.” The nominees of the
sectoral party either must belong to the sector, or must
have a track record of advocacy for the sector
represented…
The recognition that national and regional parties, as well as
sectoral parties of professionals, the elderly, women and the
youth, need not be “marginalized and underrepresented” will
allow small ideology-based and cause-oriented parties who lack
“well-defined political constituencies” a chance to win seats in
the House of Representatives. On the other hand, limiting to the
“marginalized and underrepresented” the sectoral parties for
labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and
other sectors that by their nature are economically at the margins
of society, will give the “marginalized and underrepresented” an
opportunity to likewise win seats in the House of
Representatives.
This interpretation will harmonize the 1987 Constitution and R.A.
No. 7941 and will give rise to a multi-party system where those
“marginalized and underrepresented,” both in economic and
ideological status, will have the opportunity to send their own
members to the House of Representatives. This interpretation
will also make the party-list system honest and transparent,
eliminating the need for relatively well-off party-list
representatives to masquerade as “wallowing in poverty,
destitution and infirmity,” even as they attend sessions in
Congress riding in SUVs.
Based on the Court’s ratiocination, only sectoral parties for labor,
peasant, fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, overseas workers, and other sectors that by
their nature are economically at the margins of society must comply with
14
the criterion of representing the marginalized and underrepresented. For
national, regional, and sectoral parties of professionals, the elderly,
women and the youth, it is sufficient that they consist of “citizens who
advocate the same ideology or platform, or the same governance
principles and policies, regardless of their economic status as citizens.”
Consequently, since political parties are essentially national and
regional parties, the Supreme Court categorically stated that they may
participate in the party-list elections. The rules for their participation are
found under guideline number three.]
“Calling-out Power” of the President under Section 18, Article VII
of the Constitution. ’06 – Q1a
The calling-out power of the President refers to the power of the
President to order the armed forces, whenever it becomes necessary,
to suppress lawless violence, invasion or rebellion (David v. Macapagal-
Arroyo, 489 SCRA 160 [2006].)
Constitutionality of Proclamation No. 1017 issued by President
Gloria Macapagal-Arroyo declaring a state of national emergency.
’06 – Q1b
Proclamation No. 1017 is constitutional insofar as it called out the
Armed Forces of the Philippines to prevent or suppress all forms of
lawless violence, and any act of insurrection or rebellion because the
finding of the President that there was a plot to overthrow the
government. It is unconstitutional insofar as it ordered the Armed Forces
of the Philippines to enforce laws even though not related to lawless
violence and all decrees to be issued by the President, and to impose
standards on media or any form of prior restraint on the press, because
the Constitution does not grant these powers to the President. These
powers are reserved to the legislature (David v. Macapagal-Arroyo, 489
SCRA 160 [2006].)
Legality of arrests made by the police for acts of terrorism during
the effectivity of Proclamation No. 1017. - ’06 – Q1c
The arrest of Gener, Lito and Bong for acts of terrorism is illegal,
because Congress has not yet passed a law punishing acts of terrorism
and their warrantless arrests have no basis (David v. Macapagal-Arroyo,
489 SCRA 160 [2006].)
A citizen has standing to question the validity of a Presidential
Proclamation placing the Philippines under Martial Law. ’06 – Q3(1)
Robert has standing to challenge Proclamation No. 1018, because
any citizen may question the sufficiency of its factual basis (Section 18,
Article VII of the Constitution.)
President’s determination of whether an exigency has arisen
requiring the exercise of this power to declare Martial Law is not
conclusive upon the courts. ’06 – Q3(2)
The Supreme Court should reject the contention of the Solicitor
General. Since the exercise of the power to proclaim martial law is
subject to the condition that there is invasion or rebellion and that public
safety requires the proclamation, the Supreme Court may inquire into
the sufficiency of the factual basis of Proclamation No. 1018 (Section
18, Article VII of the Constitution; Lansang v. Garcia, 42 SCRA 448
[1971].)
The Constitution authorizes the Supreme Court to be a trier of facts
in the determination whether the rebellion poses dangers to public
safety. ’06 – Q3(3)
The Supreme Court should reject the argument of the Solicitor
General. Since the Constitution authorized the Supreme Court to review
the sufficiency of the factual basis of Proclamation No. 1018, it allows
the Supreme Court to be a trier of facts in this case (Section 18,
paragraph 3, Article VII of the Constitution.)
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Effect of Congress not revoking the proclamation of Martial Law
after the President reported it to Congress to the citizen suit
brought before the Supreme Court. ’06 – Q3(4)
The inaction of Congress does not affect the suit brought by
Robert. The power of the Supreme Court to review the sufficiency of the
factual basis of Proclamation No. 1017 is over and above the power of
Congress to revoke it (Record of the Constitutional Commission, Vol. II,
pp. 493-494.)
A law fixing the term of local elective officials other than barangay
officials, to 6 years is unconstitutional. ’06 – Q4(3)
A law fixing the terms of local officials, other than barangay officials,
at six (6) years is unconstitutional, because the Constitution fixes the
terms of local offices at three (3) years. The Congress may only
determine the terms of barangay officials (Section 8, Article X of the
Constitution.)
A law changing the design of the Philippine flag is unconstitutional.
’06 – Q4(4)
Since the design of the flag is provided for in Section 1, Article XVI
of the Constitution, it cannot be changed by law and may be changed
only by constitutional amendment.
A law creating a state corporation to exploit, develop, and utilize
compressed national gas may be constitutional. ’06 – Q4(5)
A law creating a State corporation to exploit, develop and utilize
compressed natural gas is constitutional if it is for the common good and
is economically viable. Congress may be law create a government-
owned and controlled corporation in such cases (Section 16, Article XII
of the Constitution.) The State owns all natural resources in the
Philippines and may directly undertake the exploration, development
and utilization of natural resources (Section 2, Article XII of the
Constitution.)
Function of the Senate Electoral Tribunal and House of
Representatives Electoral Tribunal. ’06 – Q5(1)
The function of the Senate Electoral Tribunal and House of
Representatives Electoral Tribunal is to be the sole judge of all contests
relating the election, returns and qualifications of Senators and
Congressmen respectively (Section 17, Article VI of the Constitution.)
Composition of SET and HRET. ’06 – Q5(1)
The Senate Electoral Tribunal and House of Representatives
Electoral Tribunal are composed of nine member, three of whom are
Justices of the Supreme Court designated by the Chief Justice, and the
remaining six members are Senators and Congressmen respectively,
chosen on the basis of proportional representation from the political
parties as well as parties registered under the party-list system
represented in the House of Representatives, in the case of the latter
(Section 17, Article VI of the Constitution.)
Principal identifying features of presidential and parliamentary
forms of government. ’06 – Q6(1)
The principal identifying feature of a presidential form of
government is the principle of separation of powers. Legislative power
is given to the legislature, whose member hold office for a fixed term.
Executive power is given to a separate executive, who holds for a fixed
term. Judicial power is given to an independent judiciary. The President
enjoys a prominent position as chief executive (Bernas, The 1987
Constitution of the Republic of the Philippines: A Commentary, 2003 ed.,
p. 52.)
In a parliamentary form of government, the cabinet, the executive
arm, are simultaneously members of the legislature. The Prime Minister
is the head of the cabinet. The cabinet remains in power only so long as
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it enjoys the support of the legislature. The Prime Minister may be
removed on a vote of “no confidence.” The Prime Minister can dissolve
the legislature and call for new elections. In a parliamentary form of
government, there is fusion of executive and legislative powers (Bernas,
ibid, pp. 52-53.)
Constitutional provisions which institutionalize the principle of
civilian supremacy. ’06 – Q6(2)
The provisions of the Constitution which institutionalize the
principle of civilian supremacy are Section 3, Article II, which makes
civilian authority supreme at all times over the military, and Section 18,
Article VII, which makes the President the commander-in-chief of the
armed forces of the Philippines
Permit to Carry Firearm Outside Residence (PTCFOR) is not a
property right protected by the Constitution. ’06 – Q6(3)
A permit to carry a firearm outside the residence is not a property
right protected by the Constitution. It is merely a statutory privilege. The
Constitution does not contain a provision similar to the Second
Amendment of United States Constitution, which guarantees the right to
bear arms (Chavez v. Romulo, 431 SCRA 534 [2004].)
Offices which the legislature may validly abolish. ’06 – Q7(2)
The legislature cannot abolish the Commission on Appointments,
the Office of Ombudsman, the Judicial and Bar Council and the
Commission on Audit since they are constitutionally-created offices
under the Constitution.
The legislature may abolish the Court of Tax Appeals, because it
was created by R.A. No. 1125, as amended. It is a statutory court. The
authority of the legislature to create the Court of Tax Appeals implies its
authority to abolish it (De La Llana v. Alba, 112 SCRA 294 [1982].)
Whether or not a legitimate daughter of a Chinese father and a
Filipino mother, born in 1945 and elected Philippine citizenship at
age 21, is a natural-born Filipino citizen to be considered as a
candidate for the position of Associate Justice of the Supreme
Court. ’06 – Q8(1)
The contention that Atty. Emily Go is not a natural-born Filipino
citizen is not correct. She was born before January 17, 1973 of a
Chinese father and a Filipino mother. She elected Philippine citizenship
when she reached twenty-years of age. Those who elect Philippine-
citizenship under Section 1(3), Article IV of the Constitution are natural-
born citizens.
Whether or not a person who was born in 1964, a legitimate son of
a Chinese father and a Filipino mother and whose father became a
naturalized Filipino citizen when he was still a minor, and later filed
an affidavit with the Bureau of Immigration electing Philippine
citizenship, a Filipino citizen in a complaint for disbarment. ’06 –
Q8(2)
Atty. William Chua should not be disbarred. In accordance with
Section 15 of the Revised Naturalization Act, he became a naturalized
citizen when his father became a Filipino citizen during his minority.
Hence, there was no need for him to elect Philippine citizenship (Co v.
Electoral Tribunal of the House of Representatives, 199 SCRA 692
[1991].)
Compare and differentiate the processes of Initiative and
Referendum. ’05 – Q1a
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 (Section 3(a), Republic Act No. 6735.)
Referendum is the power of the electorate to approve or reject
legislation through an election called for that purpose (Section 3(c),
Republic Act No. 6735.)
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Bruno’s sentence was conditionally pardoned by the President.
Among the conditions imposed 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 20 counts of estafa. He was then incarcerated to serve
the unexpired 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. ’05 – Q5(1); ’97 – Q16
The petition for habeas corpus should be denied. Conviction of a
crime is not necessary before the President can determine that Bruno
violated the condition of his pardon. By accepting the terms of the
conditional pardon, Bruno agreed that the determination of the President
that he had violated its condition would be conclusive upon him. Thus,
such determination cannot be reviewed by the courts (Torres v.
Gonzales, 152 SCRA 272 [1987].)
Pedro Masipag filed a complaint with the Ombudsman against RTC
Judge Palacpac with violation of Article 204 of the RPC for
knowingly rendering an unjust judgment in a criminal case. 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 said case. The Ombudsman denied the
motion on the ground that no administrative case against Judge
Palacpac relative to the decision in the criminal case was filed and
pending in his office. Is the Ombudsman’s ruling correct? ’05 –
Q5(3)
The ruling of the Ombudsman is not correct. The criminal complaint
against Judge Palacpac for knowingly rendering an unjust decision
arises from his administrative duties. The Ombudsman cannot
investigate the complaint, because it will encroach upon the power of
the Supreme Court of administrative supervision over all courts and their
personnel (Section 6, Article VII of the Constitution; Maceda v. Vasquez,
221 SCRA 464 [1993].)
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 part of any branch or
instrumentality of the government”? ’04 – Q1a; ’98 – Q4(2); ’97 – Q5
The effect of the second paragraph of Section 1, Article VIII of the
1987 Constitution is to limit the 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 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].)
SDO was elected Congressman. Before the end of his first year in
office, he inflicted physical injuries on a colleague, ETI, 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
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should be restored by the Speaker to his position as Congressman.
Is SDO’s petition before the Supreme Court justiciable? ’04 – Q1b
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
another Senator 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 behaviour, because the House of Representatives is the
judge that constitutes disorderly behavior. The assault of a fellow
Senator constitutes disorderly behavior.
TCA, a Filipina medical technologist, left in 1975 to work in ZOZ
State. In 1988, she married ODH, a citizen of ZOZ. Pursuant to
ZOZ’s law, by taking an oath of allegiance, she acquired her
husband’s citizenship. ODH died in 2001. TCA 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? ’04 – Q4a
On the assumption that TCA took an oath of allegiance to ZOZ to
acquire 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.)
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? If so, how? ‘04 – Q4b
There is no third way of proposing revisions to the Constitution;
however, the people through initiative of at least twelve per cent (12%)
of the total number of registered voters, of which every legislative district
must be represented by at least three per cent (3%) 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 Constitution; Lambino vs. Commission on Elections, 505 SCRA
160 [2006].)
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 in to 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 to the sale and
transfer by EAP to ARI of both portions as provided for in the JVA?
’04 – Q8b
ARI cannot acquire a portion of Liberty Islands, although EAP has
titled 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
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because the seabed is inalienable land of the public domain (Section 3,
Article XII of the Constitution; Chavez v. Public Estates Authority, 384
SCRA 152 [2002].)
Section 3, Article II 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? ’03 –
Q1a
Section 3, Article II of the 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 people (Record of the
Constitutional Commission, Vol. V., p. 296; Manalo v. Sistoza, 312
SCRA 239 [1999].)
Miguel Sin was born a year ago to a Chinese father and a Filipino
mother. His parents met in Shanghai where they were lawfully
married just two years ago. Is Miguel Sin a Filipino citizen? ’03 –
Q4a
Miguel Sin is a Filipino citizen because he is a legitimate child of a
Filipino mother. Under Section 4, Article IV of the Constitution, his
mother retained her Filipino citizenship despite her marriage to an alien
husband, and according to Section 1(2), Article IV of the Constitution,
children born of a Filipino mother are Filipino citizens.
The instant case arose from complaints filed by a group of
employees of the Province of Iloilo against Representative Valera,
then Provincial Governor for alleged violation of the Anti-Graft and
Corrupt Practices Act. The Sandiganbayan resolved to suspend
Valera from his position as Member of the House of
Representatives and from any other government position he may
be holding at present or hereafter. He assails the authority of the
Sandiganbayan to decree a ninety-day preventive suspension
against him. He contends that under Section 16(3), Article VI of the
Constitution, he can only 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?
’02 – Q2
The contention of Representative Valera is not correct. As held in
Santiago v. Sandiganbayan, 356 SCRA 636 [2001], the suspension
contemplated in Section 16(3), Article VI of the Constitution is a
punishment that is imposed by the Senate or the House of
Representatives against 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 Corrupt 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.
Suppose there are 202 members in the House of Representatives.
Of this number, 185 belong to the Progressive Political Party (PPP),
while 17 belong to the Citizens Party (CP).
1. How many seats would the PPP be entitled to have in the
Commission on Appointments?
The 185 members of the Progressive Party of the Philippines (PPP)
represent 91.58% of the 202 members of the House of Representatives.
In accordance with Section 18, Article VI of the Constitution, it is entitled
to have ten of the twelve seats in the Commission of Appointments.
Although the 185 members of the PPP represent 91.58% in the
Commission on Appointments, under the ruling in Guingona, Jr. v.
Gonzales, 214 SCRA 789 [1992], a fractional membership cannot be
17
rounded off to full membership because it will result in over-
representation of that political party and under-representation of the
other political parties.
2. 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
CP to have a seat or seat in the Commission on
Appointments? ’02 – Q3
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 members of one political
party and another political party does not authorize a change of
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.
In an election case, the HRET rendered a decision upholding the
protest of protestant A, a member of the Freedom Party, against 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 (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 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? ’02 –
Q4
I agree with the contention of Representative X. As held in Bondoc
v. Pineda, 201 SCRA 792 [19991], the members of the House of
Representatives Tribunal are entitled to security of tenure like members
of the judiciary. Membership may not be terminated except for a just
cause. Disloyalty to a party is not a valid ground for the expulsion of a
member of the House of Representatives Electoral Tribunal. Its
members must discharge their functions with impartiality and
independence from the political party to which they belong.
This is a case questioning the constitutionality and legality of the
permanent appointments issued by a former President to the
respondent senior officers of the Philippine National Police who
were promoted to the ranks of Chief Superintendent and Director
without their appointments submitted to the Commission on
Appointments for confirmation under Section 16, Article VII of the
1987 Constitution and Republic Act 6975 otherwise known as the
Local Government Act of 1990. Impleaded in the case was the
former Secretary of Budget and Management, who approved and
effected the disbursements for the salaries and other emoluments
of subject police officers. ’02 – Q5
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 Section 16, Article VII of the
Constitution. According to Manalo v. Sistoza, 312 SCRA 239 [1999],
Sections 26 and 31 of Republic Act No. 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.
A, a Filipino citizen, and his wife B, a Japanese national, bought a
five-hectare agricultural land from X, a Filipino citizen. The couple
later executed a deed of donation over the same land in favor of
their only child C. A year later, however, C did in a vehicular
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accident without leaving a last will and testament. Now, X brought
suit to recover the land on the ground that B, being an alien, was
not qualified to buy the land when B and A jointly bought the land
from him and that, upon 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? ’02 – Q9
X cannot recover the land whether from C or A and B. Under
Section 1(2), Article IV 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
a 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 Section 7, Section XII of the
Constitution, B can acquire the land by hereditary succession.
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 a 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 of Commerce and eventually engaged in business. In the
May 1989 election, Lacqui Chan ran for and was elected
Representative. His rival candidate filed a quo warranto or
disqualification case against him on the ground that he was not a
Filipino citizen. It was pointed out in particular, that Lacqui Chan
did not elect Philippine citizenship upon reaching the age of 21.
Decide whether or not Mr. Lacqui Chan suffers from a
disqualification or not. ’01 – Q1
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, 1989, 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 Filipino citizen.
The Republic of the Philippines, through the 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. Resolve the motion. ’01 – Q3
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.
Can an alien be a lessee of a private agricultural land? ’01 – Q4a
Yes, an alien can be a lessee of private agricultural land. As stated
in Krivenko v. 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.
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
18
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 then three consecutive terms. “A” answered that he
was not barred from running again for that position because his
service was interrupted by his 60-day suspension which was
voluntary. Can “A” legally continue with his candidacy or is he
already barred? ’01 – Q5
“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.
II, p. 592.) He remained a Member of the House of Representatives even
if he was suspended.
Suppose that the forthcoming General Appropriations Law for Year
2002, in the portion pertaining to the DECS, will contain a provision
to the effect that the ROTC is all colleges and universities is hereby
abolished, and in lieu thereof all male college students shall be
required to plant ten trees for every two years to be designated by
the DENR in coordination with the DepEd and the LGU concerned.
It further provides that same provision shall be incorporated in
future General Appropriations Acts. There is no specific item for
appropriation of funds for the purpose. Comment on the
constitutionality of said provision. ’01 – Q7
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 until it related
specifically to some particular appropriation therein.” The abolition of the
Reserve Officers Training Court involves a policy matter. As held in
Philippine Constitution Association v. Enriquez, 235 SCRA 506 [1994],
this cannot be incorporated in the General Appropriations Act but must
be embodied in a separate law.
The Philippine National Bank was then one of the leading
government-owned and controlled corporations and it was under
the audit jurisdiction of the COA. A few years ago, it was privatized.
What is the effect, if any, of the privatization of PNB on the audit
jurisdiction of the COA? ’01 – Q8
In accordance with the ruling in Philippine Airlines v. 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 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.
Is the Supreme Court a continuing Constitutional Commission? ’00
– Q1a
I do not agree that the Supreme Court is 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.
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.
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What are the constitutional safeguards to maintain judicial
independence? ’00 – Q1b
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 VIII 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;
6. The Supreme Court has administrative supervision over all
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 the Supreme Court 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. 229-231.)
Is cronyism a legal ground for the impeachment of the President?
’00 – Q2
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 includes
unduly favouring a crony to the prejudice of public interest (Record of
the Constitutional Commission, Vol. II, p. 272.)
What are the provisions on the Constitution on women? ’00 – Q9b
The following are the provisions of the Constitution on women:
1) 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 facilities 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.)
Declaring a rebellion, hostile groups have opened and maintained
armed conflicts on the Islands of Sulu and Basilan. To quell this,
can the President place under martial law the islands of Sulu and
Basilan? ’00 – Q17a
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.
19
[In Ampatuan v. Puno, 651 SCRA 228 [2011], the Supreme Court
held that the President did not proclaim a national emergency, only a
state of emergency in the three places mentioned. The calling out power
of the armed forces to prevent or suppress lawless violence is a power
that directly vests in the President. She did not need a congressional
authority to exercise the same. It is clearly to the President that the
Constitution entrusts the determination of the need for calling out the
armed forces to prevent and suppress lawless violence. Unless it is
shown that such determination was attended by grave abuse of
discretion, the court will accord respect to the President’s judgment.]
What are the constitutional safeguards on the exercise of the
President’s power to proclaim martial law? ’00 – Q17b
The following are the constitutional safeguards to the exercise of
the power of the President to proclaim martial law:
1) There must be actual invasion or rebellion;
2) The duration of the proclamation shall not exceed sixty (60)
days;
3) Within forty-eight (48) hours, the President shall report his
action to Congress. If Congress is not in session, it must
convene within forty-eight (48) hours;
4) Congress may by majority vote of all its members voting jointly
revoke the proclamation, and the President cannot set aside
the revocation;
5) By the same vote and in the same manner, upon initiative of
the President, Congress may extend the proclamation if the
invasion or rebellion continues and public safety requires the
extension;
6) The Supreme Court may review the factual sufficiency of the
proclamation, and the Supreme Court must decide the case
within thirty (30) days from the time it was filed;
7) Martial law does not automatically suspend the privilege of the
writ of habeas corpus or the operation of the Constitution. It
does not supplant the functioning of the civil courts and of
Congress. Military courts have no jurisdiction over civilians
where civil courts are able to function (Cruz, Philippine
Political Law, 1995 ed., pp. 213-214.)
Andy Lim, an ethnic Chinese, became a naturalized citizen in 1935.
But later he lost his Philippine citizenship when he became a
citizen of Canada in 1971. He bought, in 1987, a residential lot and
a commercial lot in Binondo. Are there sales valid? ’00 – Q18a
No, the sales are not valid. Under Section 8, Article XII of the
Constitution, only a natural-born citizen of the Philippines who lost his
Philippine citizenship may acquire private land. Since Andy Lim was a
former naturalized Filipino, he is not qualified to acquire private lands.
How can a former natural-born citizen Philippine citizen, who may
have lost their Philippine citizenship by reason of their acquisition
of foreign citizenship of a foreign country, reacquire their
Philippine citizenship? ’00 – Q18b
1. By taking an oath of allegiance under R.A. No. 9225;
2. By naturalization;
3. By repatriation pursuant to R.A. No. 8171; and
4. By direct act of Congress (Section 2, C.A. No. 63.)
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? ’99 – Q1b
Under Section 20, Article VVII 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 provided by law.
What are the limitations/restrictions provided by the Constitution
on the power of Congress to authorize the President to fix tariff
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rates, import and export quotas, tonnage and wharfage dues? ’99
– Q1c
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.
Give the duties of the state mandated by the Constitution regarding
education. ’99 – Q2b
Article XIV of the Constitution imposes the following duties
regarding education upon the State:
1) 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];
2) The State shall establish, maintain and support a complete,
adequate, and integrated system of education relevant to the
needs of the people [Section 2(1)];
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, specially to the
underprivileged [Section 2(3)];
5) The State shall encourage non-formal, formal, and indigenous
learning systems, as well as self-learning, independent and
out-of-school study program particularly those that respond to
community needs [Section 2(4)];
6) The State shall provide adult citizens, the disable, and out-of-
school youth with training in civics, vocational efficiency and
other skills [Section 2(5)];
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
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)].
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? ’99 – Q2c
Under Section 4(2), Article XIV of the Constitution, no group of
aliens shall comprise more than one-third (1/3) 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.
Education institutions may accept donations from foreign students.
No provision in the Constitution or any law prohibits it.
What is the constitutional provision concerning the teaching of
religion in elementary and high schools in the Philippines? ’99 –
Q2d
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 of wards in public elementary and
high schools within the regular class hours by instructors designated or
20
approved by the religious authorities, without additional cost to the
Government.
What are the effects of marriages of: 1) a citizen to an alien; and 2)
an alien to a citizen on their spouses and citizen? ’99 – Q3a
According to Section 4, Article IV of the Constitution, Filipino
citizens who marry aliens retain their citizenship, unless by their act or
omission they are deemed, under the law, to have renounced it.
According to Mo Ya Lim Yao v. Commissioner of Immigration, 41
SCRA 292 [1971], under Section 15 of the Revised Naturalization Law,
a foreign 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 Law,
in such a case, the residence requirement 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.
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 Julio regain his status
as natural-born Filipino citizen? Would your answer be the same
whether he reacquires his Filipino citizenship by repatriation or act
of Congress? ’99 – Q3b
Julio can regain his natural status by repatriating. Since repatriation
involves restoration of a person to citizenship previously lost by
expatriation and Julio was previously a natural born citizen, in case he
repatriates he will be restored to his status as a natural-born citizen.
If he acquired his citizenship by an act of Congress, Julio will not
be a natural born citizen, since he reacquired his citizenship by
legislative naturalization.
Victor Ahmad was born on December 16, 1972 of a Filipino mother
and an alien father. Under the law of his 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? ’99 – Q3c
No, Victor 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 is not qualified to run.
Under Section 2, Article IV of the Constitution, to be deemed a
natural-born citizen, Victor 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.
What are the constitutional limitations on the pardoning power of
the President? ’99 – Q4a
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 Commission on
Elections is required for violation of election laws, rules and
regulations.
Distinguish between pardon and amnesty. ’99 – Q4b
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According to Barrioquinto v. Fernandez, 82 Phil. 642 [1949], the
following are the distinctions between pardon and amnesty:
1. Pardon is a private act and must be pleaded by the person
pardoned; while amnesty is a public act of which courts can
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 this offense, while amnesty looks backward
and the person granted it stands before the law as though he
had committed no offense.
A City Assistant Treasurer was convicted of estafa through
falsification of a public document. While serving sentence, he was
granted pardon by the President.
Assuming the position of Assistant City Treasurer has remained
vacant, would he be entitled to a reinstatement without need of a
new appointment?
If later the same position becomes vacant, could he re-apply and
be re-appointed? ’99 – Q4c
As held in Monsanto v. Factoran, 170 SCRA 190 [1989], 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.
The Assistant City Treasurer can re-apply and be appointed to the
position, since the pardon removed the disqualification to hold public
office.
What do you understand by state immunity? How may the consent
of the state to be sued be given? ’99 – Q6a
State immunity from suit means that the State cannot be sued
without its consent. A corollary principle is that properties used by the
State in the performance of its governmental functions cannot be subject
to judicial execution.
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. No. 327, as amended by P.D.
No. 1445) or impliedly as when the State engages in proprietary
functions (United States v. Ruiz, 136 SCRA 487 [1985]) or when it files
a suit in which case the adverse party may file a counterclaim (Froilan
v. Pan Oriental Shipping Co., 95 Phil. 905 [1954]) or when the doctrine
would in effect be used to perpetuate an injustice (Amigable v. Cuenca,
43 SCRA 360 [1972].)
The employees of the Philippine Tobacco Administration (PTA)
sued to recover overtime pay. In resisting such claim, the PTA
theorized that is it performing governmental functions. Decide and
explain. ’99 – Q6b
As held in Philippine Virginia Tobacco Administration v. Court of
Industrial Relations, 65 SCRA 416 [1975], 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 conditions of those engaged in the tobacco
industry.
Enumerate the cases required by the Constitution to be heard en
banc by the Supreme Court? ’99 – Q11a
21
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 are 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 and Vice-President.
What does it mean when a Supreme Court Justice concurs in a
decision pro hac vice? ’99 – Q11b
When a decision is pro hac vice, it means the ruling will apply to
this particular case only.
What is the composition of the Judicial and Bar Council and the
term of office of its regular members? ’99 – Q11c
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.]
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. ’99 – Q11d
Under Section 3, Article VIII of the Constitution, the fiscal autonomy
of the Judiciary means that that appropriations 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 [1992], 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.
What is meant by National Patrimony? ’99 – Q12
According to Manila Prince Hotel v. Government Service Insurance
System, 267 SCRA 408 [1997], the national patrimony refers not only to
our natural resources but also to our cultural heritage.
What are the grounds for impeachment? ’99 – Q15
Under Section 2, Article XI of the Constitution, the grounds for
impeachment are culpable violations of the Constitution, treason,
bribery, graft and corruption, other high crimes, and betrayal of public
trust.
Culpable violation of the Constitution means intentional violation of
the Constitution and not violations committed in good faith.
Treason and bribery have the same meaning as in the Revised
Penal Code.
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Graft and corruption refers to prohibited acts enumerated in the
Anti-Graft and Corrupt Practices Act.
High crimes refer to offenses that strike at the very life or orderly
working of the government. 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.)
The DND entered into a contract with Raintree Corporation for the
supply of ponchos to the AFP, stipulating that, in the event of
breach, action may be filed in the proper courts in Manla. Suppose
the AFP failed to pay for the delivered ponchos, where must
Raintree file its claim? Why? ’98 – Q1
Raintree Corporation must file its claim with the Commission on
Audit. Under Section 2(1), Article IX-D 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
and therefore relates to a sovereign function.
In United States v. Ruiz, 136 SCRA 487, 492 [1985], 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. State
differently, a State may have 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 v. Purisima, 78 SCRA 470, 474 [1977], 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.”
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 explain briefly your answer, citing pertinent
provisions of the Constitution.
1. The rule prohibiting the appointment of certain
government positions, of the spouse and relatives of the
President within the fourth degree of consanguinity of
affinity;
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
corporations with original charters and their subsidiaries, because the
prohibition applies to both.
2. The rule making it incompatible for members of Congress
to hold offices or employment in the government;
Section 13, Article VI of the Constitution, which prohibits Members
of Congress from holding any other office during their term without
22
forfeiting their seat, does not distinguish between corporations with
original charters and their subsidiaries, because the prohibition applies
to both.
3. The rule prohibiting members of the Constitutional
Commissions, during their tenure, to be financially
interested in any contract with or any franchise or
privilege granted by the government;
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 corporations with original
charters and their subsidiaries, because the prohibition applies to both.
4. The rule providing for post audit by the COA of certain
government agencies.
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 corporations with original charters and
their subsidiaries, because the prohibition applies to both.
5. The rule requiring Congress to provide for the
standardization of compensation of government officials
and employees. ’98 – Q2
Section 5, Article IX-B of the Constitution, which provides for the
standardization of the compensation of government officials and
employees, distinguishes between government corporations and their
subsidiaries, for the provision applies only to government with original
charters.
Whether or not, an individual, corporation or association, who is
qualified to acquire private lands, is also qualified to acquire public
lands in the Philippines. ’98 – Q3(1)
No. Under Section 7, Article XII of the Constitution, a corporation
or association which is sixty percent (60%) owned by Filipino citizens
can acquire private lands, because it can lease public land and can
therefore hold public land. However, it cannot acquire public land. Under
Section, 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 who lost his Philippine citizenship may acquire private land only
and cannot acquire public land.
Whether or not a religious corporation is qualified to 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. ’98 – Q3(2)
No. The mere fact that a corporation is religious does not entitle it
to own public land. As held in Register of Deeds of Rizal v. Ung Sui Si
Temple, 97 Phil. 58 [1955], 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 (60%)
owned by Filipino citizens.
Whether or not a religious corporation can lease private lands in
the Philippines. ’98 – Q3(3)
Yes. Under Section 1 of Presidential Decree No. 471, corporations
and associations owned by aliens are allowed to lease private lands up
to twenty-five (25) years, renewable for another period of twenty-five
(25) years upon agreement of the lessor and the lessee. Hence, even if
the religious corporation is owned by aliens, it can lease private lands.
Whether or not a religious corporation can acquire private lands in
the Philippines provided all its members are citizens of the
Philippines. ’98 – Q3(4)
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No. For a corporation to qualify to acquire private lands in the
Philippines, under Section 7, Article XII 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.
Whether or not a foreign corporation can only lease private lands
in the Philippines. ’98 – Q3(5)
Yes. 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 citizens of corporations or associations
which are at least sixty per cent (60%) owned by Filipino citizens.
Andres Ang was born of a Chinese father and a Filipino mother in
Sorsogon on January 20, 1973. In 1988, his father was naturalized
as a Filipino citizen. On May 11, 1998, Andres was elected as
Representative of the 1st District of Sorsogon. Juan Bonto, who
received the second highest number of votes, filed a petition for
quo warranto against Andres with the HRET. Juan contends that
Andres is not a natural-born citizen of the Philippines and is
therefore disqualified to be a member of the House. Is Andres a
natural-born citizen of the Philippines? ’98 – Q4(1)
Andres Ang should be considered as 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:
(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution.”
The City of Cebu expropriated the property of Carlos for as a
municipal parking lot. The Sangguniang Panlalawigan
appropriated P10 million for this purpose but the RTC fixed for the
compensation for the taking of the land at P15 million.
1. What legal remedy, if any, does Carlos have to recover
the balance of P5 million for the taking of his land? ’98 –
Q6(1)
The remedy of Carlos is to levy on the patrimonial property of the
City of Cebu. In Municipality of Paoay v. 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 solder under an ordinary execution.”
If the City of Cebu does not have patrimonial property, the remedy
of Carlos is to file a petition for mandamus to compel it to appropriate
money to satisfy the judgment. In Municipality of Makati v. Court of
Appeals, 190 SCRA 207, 213 [1990], the Supreme Court held:
“Where a municipality fails 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.”
2. If the City of Cebu has money in bank, can it be
garnished? ’98 – Q6(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 v. Court of
23
Appeals, 190 SCRA 207, 212 [1990], public funds are exempted from
garnishment.
Suppose a Commissioner of the COMELEC is charged before the
Sandiganbayan for allegedly tolerating violation of election laws
against proliferation of prohibited billboards and election
propaganda with the end in view of removing him from office. Will
the action prosper? ’98 – Q9
No, the action will not prosper. Under Section 8, Article XI of the
Constitution, the Commissioners of the Commission on Elections are
removable by impeachment. As held in the case of In re Gonzales, 160
SCRA 771, 774-775, a public officer who is removable by impeachment
cannot be charged before the Sandiganbayan with an offense which
carries with it the penalty of removal from office unless he is first
impeached. Otherwise, he will be removed from office by a method other
than impeachment.
Lim Tong Biao, a Chinese citizen, applied for and was granted
Philippine citizenship by the court. He took his oath of office of the
Philippine in July 1963. In 1975, the Office of the Solicitor General
filed a petition to cancel his citizenship for the reason that in
August 1963, the Court of Tax Appeals found him guilty of tax
evasion fro deliberately understating his income taxes for the years
1959-1961.
1. Could Lim raise the defense of prescription of the action
for cancellation of this Philippine citizenship?
No, Lim Tong Biao cannot raise the defense of prescription. As held
in Republic v. 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 of naturalization is not barred by the lapse
of time.
2. Supposing Lim had availed of the Tax Amnesty of the
government for his tax liabilities, would this constitute a
valid defense to the cancellation of this Filipino
citizenship? ’98 – Q10
The fact the Lim Tong Biao availed of the tax amnesty is not a valid
defense to the cancellation of this Philippine citizenship.
In Republic v. Li Yao, 214 SCRA 748, 754 [1992], 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.”
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 paralyzation of government operations in
the next fiscal year for lack of an appropriation law? ’98 –
Q11a
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 re-enacted and shall remain in force and effect until
the general appropriations bill is passed by the Congress.”
2. Suppose in the same budget, there is a special provision
in the appropriations for the AFP authorizing the Chief of
Staff, AFP, subject to the approval of the Secretary of
National Defense, to use savings in the appropriations
provided therein to cover up whatever losses suffered by
the AFP Retirement and Separation Benefits System
(RSBS) n the last 5 years fur to alleged bad business
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judgment. Would you question the
constitutionality/validity of the special provision? ’98 –
Q11b
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 the
Constitutional Commissions may, by law, authorized to augment
any item in the general appropriations law for their respective
offices from savings in other items of their respective
appropriations.”
In Philippine Constitution Association v. Enriquez, 235 SCRA 506,
544 [1994], the Supreme Court held that a provision in the General
Appropriations Act authorizing the Chief Staff to use savings to augment
the fund 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.”
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? ’97 – Q6
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. v, Board of Liquidators, 180 SCRA 171, in such a case,
the State is merely giving the plaintiff the chance to prove that the State
is liable but the State retains the right to raise all lawful defenses.
During a period of national emergency, Congress may grant
emergency powers to the President. State the conditions under
which such a vesture is allowed. ’97 – Q11
Under Section 23(2), Article VI of the Constitution, Congress may
grant the President emergency powers subject to the following
conditions:
1. There is 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.
Upon complaint of the incumbent President of the Republic, “A”
was charged with libel before the RTC. “A” moved to dismiss the
Information on the ground that the court has 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. ’97 – Q13
The motion should be denied. According to Soliven v. Makasiar,
167 SCRA 393 [1988], 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.
When may the privilege of the writ of habeas corpus be
suspended? If validly declared, what would be the full
consequences of such suspension? ’97 – Q14
24
Under Section 18, Article VII of the Constitution, the privilege of the
writ of habeas corpus may be suspended only when there is an invasion
or rebellion and public safety requires it.
According to Section 18, Article VII of the Constitution, the
suspension of the privilege of the writ of habeas corpus shall apply only
to persons judicially charged with rebellion or offenses inherent in or
directly connected with invasion. Any person arrested or detained
should be judicially charged within three (3) 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.
Governor A was charged administratively with oppression and was
place 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 the executive clemency on the ground
that it could be granted only in criminal, not administrative, cases.
How should the question be resolved? ’97 – Q15
The argument of the Vice Governor should be rejected. As held in
Llamas v. 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
be 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.
A, while an incumbent Governor of his province, was invited by the
Government of Cambodia as its official guest. While there, the
sovereign king awarded Governor A with a decoration of honor and
gifted him with a gold ring of insignificant monetary value, both of
which he accepted. Was Governor A’s acceptance of the
decoration and gift violative of the Constitution? ’97 – Q18
Yes, it violated Section 8, Article IX-B of the Constitution. For his
acceptance of the decoration of honor and the gold ring from the
Government of Cambodia to be valid, Governor A should first obtain the
consent of Congress.
State the various modes, and steps in, revising or amending the
Philippine Constitution. ’97 – Q20
There are three (3) modes of amending the Constitution:
1. Under Section 1, Article XVII of the Constitution, Congress
may by three-fourths (3/4) 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 two-thirds (2/3) vote of all its Members call
a constitutional conventions 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 (12%) of
the total number of registered voters, of which every
legislative district must be represented by at least three per
cent (3%) 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.
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Is 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 need to establish the
same, constitutional? ’96 – Q5(1)
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 in the Philippines, Inc. v.
Secretary of Agrarian Reform, 175 SCRA 343 [1989], it was held that a
law is not an appropriation measure if the appropriation of public funds
is not its principal purpose and the appropriation is only incidental to
some other objective.
Is 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, constitutional? The bill
contains the guidelines to be followed by the commission in the
discharge of its functions. ’96 – Q5(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, is unconstitutional. 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 the treaties.
Can the Judge-Advocate General of the AFP be appointed a
Trustee of the GSIS? ’96 – Q7(1)
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.
Can the President take active part in the legislative process? ’96 –
Q7(3)
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.
Can five members of the Supreme Court declare a municipal
ordinance unconstitutional? ’96 – Q7(4)
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 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 took part in deciding the
case.
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? ’96 – Q8(1)
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
25
unconstitutional. First, it violates Article I, which guarantees the integrity
of the national territory of the Philippines because it divided the
Philippines into three states. Second, it violates Section 1, Article II of
the Constitution, which provides for the establishment of democratic and
republican State 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.
(Please see Province of North Cotabato v. Government of the
Republic of the Philippines Peace Panel of Ancestral Domain, 568
SCRA 402 [2008])
X was born in the US of a Filipino mother and a Mexican father. He
returned to the Philippines when he was 26 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 1995 elections? ’96 – Q8(2)
Whether or not X was qualified to run for membership in the House
of Representatives in the 1995 elections 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 citizen, 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 v. Commission on Elections, 185 SCRA 703 [1990], the mere fact
a person with dual citizenship registered as an alien with the Bureau of
Immigration and Deportation does not necessarily mean that he is
renouncing his Philippine citizenship. Likewise, the mere fact the X used
an American passport did not result in the loss of this Philippine
citizenship. As held in Kawakita v. United States, 343 U.S. 717, since a
person with dual citizenship has the rights of citizenship in both
countries, the use of a passport issued by one country is not inconsistent
with his citizenship in the other country.
X, a clerk of court in the RTC of Manila, was found guilty of being
absent without official leave for 90 days and considered dismissed
from the service by the Supreme Court. He appealed to the Office
of the President for executive clemency. Acting on the appeal, the
Executive Secretary, by order of the President, commuted the
penalty to a suspension of 6 months.
1. Can the Supreme Court review the correctness of the
action of the President in commuting the penalty
imposed on X?
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 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 v. Singson, 180
SCRA 496 [1989], it is within the scope of the judicial power to pass
upon the validity of the actions of the other departments of the
Government.
2. Was the action of the President constitutional? ’96 –
Q10(1)
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 v. De la Peña,
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229 SCRA 766, it was held that no other branch of the Government may
intrude into this exclusive power of the Supreme Court.
CONSTITUTIONAL LAW 2
The contents of the vault of ABC Company consisting of cash and
documents were stolen. Paulyn, the treasurer of ABC, was invited
by the Makati City Police Department to shed light on the amount
of cash stolen and the details of the missing documents. Paulyn
obliged and volunteered the information asked. Later, Paulyn was
charged with qualified theft together with suspects. Paulyn claims
her rights under the Constitution and pertinent laws were blatantly
violated. The police explained that they were just gathering
evidence when Paulyn was invited for a conference and she was
not a suspect at that time. Rule on her defense. (5%) ’16 – Q1
No, the defense of Paulyn is not valid. When she was invited for
questioning by the Makati City Police Department and she volunteered
information, she was not yet a suspect. Her constitutional rights of a
person under investigation for the commission of an offense under
Section 12(1), Article HI of the Constitution begins to operate when the
investigation ceases to be a general inquiry upon an unsolved crime and
begins to be aimed upon a particular suspect who has been taken into
custody and the questions tend to elicit incriminating statements (People
v. Marra, 236 SCRA 565 (1994]),
Pornographic materials in the form of tabloids, magazines and
other printed materials, proliferate and are being sold openly in the
streets of Visaya City. The city Mayor organized a task force which
confiscated these materials. He then ordered that the materials be
burned in public. Dominador, publisher of the magazine,
“Plaything”, filed a suit, raising the following constitutional issues:
(a) the confiscation of the materials constituted an illegal search
and seizure, because the same was done without a valid search
warrant; and (b) the confiscation, as well as the proposed
destruction of the materials, is a denial of the right to disseminate
information, and thus, violates the constitutional right to freedom
of expression. Is either or both contentions proper? Explain your
answer. (5%) ’16 – Q6
The confiscation of the materials constituted an illegal search and
seizure, because it was done without a valid search warrant. It cannot
be justified as a valid warrantless search and seizure, because such
search and seizure must have been an incident of a lawful arrest. There
was no lawful arrest (Pita v. Court of Appeals, 178 SCRA 362 [1989]).
The argument of Dominador that pornographic materials are protected
by the constitutional right to freedom of expression is erroneous.
Obscenity is not protected expression (Fernando v. Court of Appeals,
510 SCRA 351 [2006]). Section 2 of Presidential Decree No. 969
requires the forfeiture and destruction of pornographic materials
(Nograles v. People, 660 SCRA 475 [2011]).
Ernesto, a minor, while driving a motor vehicle, was stopped at a
mobile checkpoint. Noticing that Ernesto is a minor, SPO1 Jojo
asked Ernesto to exhibit his driver’s license but Ernesto failed to
produce it. SPO1 Jojo requested Ernesto to alight from the vehicle
and the latter acceded. Upon observing a bulge in the pants of
Ernesto, the policeman frisked him and found an unlicensed .22-
26
caliber pistol inside Ernesto’s right pocket. Ernesto was arrested,
detained and charged. At the trial, Ernesto, through his lawyer,
argued that, policemen at mobile checkpoints are empowered to
conduct nothing more than a “visual search”. They cannot order
the persons riding the vehicle to alight. They cannot frisk, or
conduct a body search of the driver or the passengers of the
vehicle.
Ernesto’s lawyer thus posited that:
[a] The search conducted in violation of the Constitution and
established jurisprudence was an illegal search; thus, the gun
which was seized in the course of an illegal search is the “fruit of
the poisonous tree” and is inadmissible in evidence. (2.5%)
[b] The arrest made as a consequence of the Invalid search
was likewise illegal, because an unlawful act (the search) cannot
be made the basis of a lawful arrest. (2.5%)
Rule on the correctness of the foregoing arguments, with reasons.
’16 – Q7
The warrantless search of motor vehicles at checkpoints should be
limited to a visual search. Its occupants should not be subjected to a
body search (Aniag, Jr. v. Commission on Elections, 237SCRA 424
[1994]).
The “stop and frisk rule” applies when a police officer observes
suspicious activity or unusual activity which may lead him to believe that
a criminal act may be afoot. The “stop and frisk” is merely a limited
protective search of outer clothing for weapons (Luz v. People, 667
SCRA 421 (2012)).
Since there was no valid warrantless search, the warrantless search was
also illegal. The unlicensed .22 caliber pistol is inadmissible in evidence
(Luz v. People, 667SCRA 421 (2012)).
A law is passed intended to protect women and children from all
forms of violence. When a woman perceives an act to be an act of
violence or a threat of violence against her, she may apply for a
Barangay Protection Order (BPO) to be issued by the Barangay
Chairman, which shall have the force and effect of law. Conrado,
against whom a BPO had been issued on petition of his wife, went
to court to challenge the constitutionality of the law. He raises the
following grounds:
[a] The law violates the equal protection clause, because
while it
extends protection to women who may be victims of violence by
their husbands, it does not extend the same protection to
husbands who may be battered by their wives. (2.5%) .
[b] The grant, of authority to the Barangay Chairman to issue
a Barangay Protection. Order (BPO) constitutes an undue
delegation of judicial power, because obviously, the issuance of
the BPO entails the exercise of judicial power. (2.5%)
Rule on the validity of the grounds raised by Conrado, with
reasons. ’16 – Q8
[a] The law does not violate the equal protection clause. It is
based on substantial distinctions. The unequal power relationship
between
women and men, the greater likelihood for women than men to be
victims of violence, and the widespread gender bias and prejudice
against women all make for real differences (Garcia v. Dr Hon, 699
SCRA 352 [20131).
[b] The grant of authority to the Barangay Chairman to issue a
Barangay Protection Order is a purely executive function pursuant to his
duty to enforce ail laws and ordinances and to maintain public order
(Garcia v. Drilon, 599 SCRA 352 [2013]).
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Paragraphs c, d and f of Section 36 of Republic Act No. 9165
provide:
“Sec. 36. Authorized drug testing, x x x The following shall be
subjected to undergo drug testing: x x x
c. Students of secondary and tertiary schools x x x;
d. Officers and employees of public and private offices x x
x;
f. All persons charged before the prosecutor’s office with a
criminal offense having an imposable imprisonment of not less
than 6 years and 1 day;”
Petitioners contend that the assailed portions of Sec. 36 are
unconstitutional for violating the right to privacy, the right against
unreasonable searches and seizures and the equal protection
clause. Decide if the assailed provisions are 'unconstitutional. (5%)
’16 – Q12
The drug testing of students of secondary and tertiary schools is valid.
Deterring their use of drugs by random drug testing is as important as
enhancing efficient enforcement.
Random drug testing of officers and employees of public and private
offices is justifiable. Their expectation of privacy in office is reduced. The
drug tests and results are kept confidential. Random drug testing is an
effective way of deterring drug use and is reasonable.
Public officials and employees are required by the Constitution to be
accountable at all times to the people and to serve them with utmost
responsibility and efficiency.
The mandatory testing of all persons charged before the prosecutor’s
office of a criminal offense punishable with imprisonment of at least six
years and one day is void. They are not randomly picked and are not
beyond suspicions. They do not consent to the procedure or waive their
right to privacy (Social Justice Society v. Dangerous Drugs Board, 570
SCRA 410 [2008J).
Congress passed a bill appropriating PI 00-billion. Part of the
money is to be used for the purchase of a 200-hectare property in
Antipolo. The rest shall be spent for the development of the area
and the construction of the Universal Temple for all the World’s
Faiths (UTAW-F). When completed, the site will be open, free of
charge, to all religions, beliefs, and faiths, where each devotee or
believer shall be accommodated and treated In a fair and equal
manner, without distinction, favor, or prejudice. There will also be
individual segments or zones in the area which can be used for the
conduct of whatever rituals, services, sacraments, or ceremonials
that may be required by the customs or practices of each particular
religion. The President approved the bill, happy in the thought that
this could start, the healing process of our wounded country and.
encourage people of varied and often conflicting faiths to live
together in harmony and in peace.
If the law is questioned in the ground that it violates Sec. 5, Article
II of the Constitution that “no law shall be made respecting an
establishment of religion or prohibiting the free exercise thereof,”
how will you resolve the challenge? Explain. (5%) ’16 – Q15
The contention must be rejected. The use of the site temple will not be
limited a particular religious sect. It will be made available to all religious
sects. The temporary use of public property for religious purposes
without discrimination does not violate the Constitution (Ignacio v. De la
Cruz, 99 Phil 346 [1956]; People v. Fernandez, 40 O.G. 1089 [1956]).
ALTERNATIVE SUGGESTED ANSWER:
27
The contention is meritorious. The state cannot pass laws which aid one
religion, all religions, or prefer one religion over another (Emerson v.
Board of Education, 330 U.S.A. 1 [1947j).
NOTE: It is recommended that both answers he accepted as correct
and be given full credit.
Jojo filed a criminal complaint against Art for theft of a backpack,
worth P 150.00 with the Office of the City Prosecutory of Manila.
The crime is punishable with arresto mayor to prision correccional
in its minimum period, or not to exceed 4 years and 2 months. The
ease was assigned to Prosecutor Tristan and he applied Sec. 8(a)
of Rule 1 12 which reads: “(a) If' filed with the prosecutor.
If the complaint is filed directly with the prosecutor involving an
offense punishable by imprisonment of less than four (4) years, two
(2) months and one (3) day, the procedure outlined in Sec. 3(a) of
this Rule shall be observed. The Prosecutor shall act on the
complaint within ten (10) days from its filing.”
On the other hand, Sec. 3(a) of Rule 112 provides: “(a) The
complaint shall state the address of the respondent and shall be
accompanied by affidavits of the complainant and his witnesses as
well as other supporting documents to establish probable cause, x
x x”
Since See. 8(a) authorizes the Prosecutor to decide the complaint
on the basis of the affidavits and other supporting documents
submitted, by the complainant, Prosecutor Tristan, did not notify
Art nor require him to submit a counter-affidavit. He proceeded to
file the Information against Art with the Metropolitan Trial Court.
Art vehemently assails Sec. 8(a) of Rule 1 12 as unconstitutional
and violative of due process and his rights as an accused under
the Constitution for he was not informed of the complaint nor was
he given the opportunity to raise his defenses thereto before the
Information was filed. Rule on the constitutionality of Sec, 8(a) of
Rule 1 12. Explain. (5%) ’16 – Q16
The contention of Art is not meritorious. The right to be informed of the
complaint and to be given the opportunity to raise one’s defenses does
not apply to preliminary investigation. Preliminary investigation is merely
procedural. It may be dispensed with without violating the right of the
accused to due process (Bustos v. Lucero, 81 Phil. 640 (1948]}.
Fernando filed an administrative complaint against his co-teacher,
Amelia, claiming that the latter is living with a married man who is
not her husband, Fernando charged Amelia, with committing
“disgraceful and immoral conduct” in violation of the Revised
Administrative Code and, thus, should not be allowed to remain
employed in the government. Amelia, on the other hand, claims
that she and her partner are members of a religious sect that allows
members of the congregation who have been abandoned by their
respective spouses to enter marital relations under a “Declaration
of Pleading Faithfulness.” Having made such Declaration, she
argues that she cannot be charged with committing immoral
conduct for she is entitled to free exercise of religion under the
Constitution.
[a] Is Amelia administratively liable? State your reasons briefly,
(2.5%)
[b] Briefly explain the concept of “benevolent neutrality. (2.5%) ’16
– Q19
[a] Amelia is not administratively liable. There is no compelling
state interest that justifies inhibiting the free exercise of religious beliefs.
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The means used by the government to achieve its legitimate objective
is not the least intrusive means (Estrada v. Escritor, 492 SCRA 1 [2006]).
[b] Benevolent neutrality means that with respect to
governmental actions, accommodation of religion may be permitted to
allow individuals and groups to exercise their religion without hindrance.
What is sought is not a declaration of unconstitutionality of the law but
an exemption from its application (Estrada v. Escritor, 492 SCRA 1
[2006]).
When is a facial challenge to the constitutionality of a law on the
ground of violation of the Bill of Rights traditionally allowed?
Explain your answer. (3%) ‘15 - Q4
“In United States (US) constitutional law, a facial challenge, also known
as a First Amendment Challenge, is one that is launched to assail the
validity of statutes concerning not only protected speech, but also all
other rights in the First Amendment. These include religious freedom,
freedom of the press, and the right of the people to peaceably assemble,
and to petition the Government for a redress of grievances. After all, the
fundamental right to religious freedom, freedom of the press and
peaceful assembly are but component rights of the right to one’s
freedom of expression, as they are modes which one’s thoughts are
externalized.
“In this jurisdiction, the application of doctrines originating from the U.S
has been generally maintained, albeit with some modifications. While
this Court has withheld the application of facial challenges to strictly
penal statutes, it has expanded its scope to cover statutes not only
regulating free speech, but also those involving religious freedom, and
other fundamental rights. The underlying reason for this modification is
simple. For unlike its counterpart in the U.S., this Court, under its
expanded jurisdiction, is mandated by the Fundamental Law not only to
settle actual controversies involving rights which are legally demandable
and enforceable, but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government,” (Imbong v.
Ochoa, 721 SCRA 146 [2014]).
Discuss the evolution of the principle of jus sanguinis as basis of
Filipino citizenship under the 1935, 1973, and 1987 Constitutions.
(3%) ‘15 - Q12
Section 1, Article III of the 1935 Constitution adopted the jus sanguinis
principle as the basis of Filipino citizenship if the father is a Filipino
citizen. However, Subsection 4, Section 1, Article III of the Constitution
provided that if the mother was a Filipino citizen who lost her Philippine
citizenship because of her marriage to a foreign husband, her children
could elect Philippine citizenship upon reaching the age of majority.
Subsection 2, Section 1, Article III of the 1973 Constitution provided that
a child born of a father or a mother who is a citizen of the Philippines is
a Filipino citizen.
Section 2, Article III of the 1973 Constitution provided that a child whose
father or mother is a Filipino citizen is a Filipino citizen. Subsection 3,
Section 1, Article IV of the 1987 Constitution provided that a child born
before January 1, 1973, of Filipino mothers, who elected Philippine
citizenship upon reaching the age of majority under the 1973
Constitution is a natural-born Filipino citizen. (Tecson v. Commission on
Elections, 424 SCRA 277 [2004]).
28
(NOTE: The 1935 and the 1973 Constitutions are not included in the
coverage of the examinations).
The Gay, Bisexual and Transgender Youth Association (GBTY A),
an organization of gay, bisexual, and transgender persons, filed for
accreditation with the COMELEC to join the forthcoming party-list
elections. The COMELEC denied the application for accreditation
on the ground that GBTY A espouses immorality which offends
religious dogmas. GBTY A challenges the denial of its application
based on moral grounds because it violates its right to equal
protection of the law.
(1) What are the three (3) levels of test that are applied in
equal protection cases? Explain. (3%) ‘15 - Q17(1)
The three levels of test applied in equal protection cases are the strict
scrutiny review, the intermediate scrutiny review and rationality review.
If the legislative classification disadvantages a subject class or impinges
upon a fundamental right, the statute must fall unless the government
can show that the classification serves a compelling government
interest.
If the classification, while not facially invidious, gives rise to recurring
constitutional difficulties or disadvantages a quasi-suspect class, it will
be treated under intermediate review. The law must not only further an
important government interest and be related to that interest. The
justification must be genuine and must not depend on broad
generalizations.
If neither the strict nor the intermediate scrutiny is appropriate, the
statute will be tested for mere rationality. The presumption is in favor of
the classification, the reasonableness and fairness of state action and
of legitimate grounds of distinction.
ALTERNATIVE ANSWER:
The three levels of tests that may be applied in equal protection cases
may be classified as follows: the strict scrutiny test, for laws dealing with
freedom of the mind or restricting the political process, the rational basis
standard for the review of economic legislation; and heightened or
intermediate scrutiny for evaluating classifications based on gender and
legitimacy.
(2) Which of the three (3) levels of test should be applied to
the present case? Explain. (3%) ‘15 - Q17(2)
Classification on the basis of sexual orientation is a quasi- subject
classification that prompts intermediate review. Gay and lesbian
persons historically were and continue to be the target of discrimination
due to their sexual orientation. Sexual orientation has no relation to a
person’s ability to contribute to society. The discrimination that
distinguish the gays and lesbians persons are beyond their control. The
group lacks sufficient political strength to bring an end to discrimination
through political means. (Ang Ladlad LGBT Party v. Commission on
Elections. 618 SCRA 32 [2010]).
ALTERNATIVE ANSWER:
It is submitted that the strict scrutiny test should be applied in case
because the challenged classification restricts the political process.
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Around 12:00 midnight, a team of police officers was on routine
patrol in Barangay Makatarungan when it noticed an open delivery
van neatly covered with banana leaves. Believing that the van was
loaded with contraband, the team leader flagged down the vehicle
which was driven by Hades. He inquired from Hades what was
loaded on the van. Hades just gave the police officer a blank stare
and started to perspire profusely. The police officers then told
Hades that they will look inside the vehicle. Hades did not make
any reply. The police officers then lifted the banana leaves and saw
several boxes. They opened the boxes and discovered several
kilos of shabu inside. Hades was charged with illegal possession
of illegal drugs. After due proceedings, he was convicted by the
trial court. On appeal, the Court of Appeals affirmed his conviction.
In his final bid for exoneration, Hades went to the Supreme Court
claiming that his constitutional rights against unreasonable
searches and seizures was violated when the police officers
searched his vehicle without a warrant; that the shabu confiscated
from him is thus inadmissible in evidence; and that there being no
evidence against him, he is entitled to an acquittal.
For its part, the People of the Philippines maintains that the case
of Hades involved a consented warrantless search which is legally
recognized. The People adverts to the fact that Hades did not offer
any protest when the police officers asked him if they could look
inside the vehicle. Thus, any evidence obtained in the course
thereof is admissible in evidence.
Whose claim is correct? Explain. (5%) ‘15 - Q18
The warrantless search was illegal. There was no probable cause to
search the van. The shabu was not immediately apparent. It was
discovered only after they opened the boxes. The mere passive silence
of Hades did not constitute consent to the warrantless search. (Caballes
v. Court of Appeals, 373 SCRA 221 [2005]).
The void-for-vagueness doctrine is a concept which means that:
(1%) ‘14 - Q10
(A) if a law is vague, then it must be void
(B) any law which could not be understood by laymen is a
nullity
(C) if a law is incomprehensible to ordinary people such
that they do not really know what is required or
prohibited, then the law must be struck down
(D) a government regulation that lacks clear standards is
nonsensical and useless as a guide for human conduct
(E) clarity in legal language is a mandate of due process
(C) if a law is incomprehensible to ordinary people such that they do
not really know what is required or prohibited, then the law must be
struck down
In keeping with the modern age of instant and incessant
information and transformation, Congress passed Cybercrime
Prevention Act to regulate access to and use of the amenities of
the cyberspace. While ostensibly the law is intended to protect the
interests of society, some of its provisions were also seen as
impermissibly invading and impairing widely cherished liberties of
the people particularly the freedom of expression. Before the law
could even be implemented; petitions were filed in the Supreme
Court questioning said provisions by people who felt threatened,
for themselves as well as for the benefit of others who may be
29
similarly affected but not minded enough to challenge the law. The
Solicitor General countered that there is no basis for the exercise
of the power of judicial review since there has yet been no violation
of the law, and therefore, there is no actual case or controversy to
speak of, aside from the fact that the petitioners have no locus
standi since they do not claim to be in imminent danger of being
prosecuted under the law. Can the Court proceed to decide the
case even if the law has not yet become effective? (4%) ‘14 - Q11
The Supreme Court can proceed to decide the case even if the law has
not yet become effective. Since the petitions filed sought to nullify the
Cybercrime Prevention Act, because it violated several provisions of the
Bill of Rights, the Supreme Court became duty-bound to settle the
dispute (Tanada v. Angara, G.R. No. 118296, May 2, 1997, 272 SCRA
18). Since it is alleged that the Cybercrime Prevention Act violates
various provisions of the Bill of Rights, including freedom of speech,
freedom of the press, and the right against unreasonable searches and
seizures, the issues raised are of paramount public interest, of
transcendental importance and with far-reaching constitutional
Implications, that justify dispensation with locus standi and exercise of
the power of judicial review by the Supreme Court (Chavez v. Gonzales,
G.R. No. 168338, February 15, 2008, 545 SCRA 441). Jurisprudence
provides that locus standi is not required when the action was filed to
prevent a chilling effect on the exercise of the right to freedom of
expression and overbreadth.
Allmighty Apostles is a relatively new religious group and
movement with fast-growing membership, one time, DeepThroat,
an investigative reporter, made a research and study as to what the
group’s leader, Maskeraid was actually doing. DeepThroat
eventually came up with the conclusion that Maskeraid was a
phony who is just fooling the simple-minded people to part with
their money in exchange for the promise of eternal happiness in
some far-away heaven. This was published in a newspaper which
cause much agitation among the followers of Maskeraid. Some
threatened violence against DeepThroat, while some others
already started destroying properties while hurting those selling
the newspaper. The local authorities, afraid of the public disorder
that such followers might do, decided to ban the distribution of the
newspaper containing the article. DeepThroat went to court
complaining about the prohibition placed on the dissemination of
his article. He claims that the act of the authorities partakes of the
nature of heckler’s veto, thus a violation of the guaranty of press
freedom. On the other hand, the authorities counter that the act
was necessary to protect the public order and the greater interest
of the community. (4%)
If you were the judge, how would you resolve this issue? ‘14 - Q15
If I were the judge, I would rule that the distribution of the newspaper
cannot be banned. Freedom of the news should be allowed although it
induces a condition of unrest and stirs people to anger. Freedom of the
press includes freedom of circulation (Chavez v. Gonzales, G.R. No.
168338, February 15, 2008, 545 SCRA 441). When governmental action
that restricts freedom of the press is based on content, it is given the
strictest scrutiny and the government must show that there is a clear and
present danger of the substantive evil which the government has the
right to prevent. The threats of violence and even the destruction of
properties while hurting those selling the newspaper do not constitute a
clear and present danger as to warrant curtailment of the right of
DeepThroat to distribute the newspaper (Chavez v. Gonzales, G.R. No.
168338, February 15, 2008, 545 SCRA 441).
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ALTERNATIVE ANSWER:
The action of the government is justified.
The fact that some people had already started destroying properties
while hurting those selling the newspaper can be validly considered by
the government as a clear and present danger, which will justify its
banning of the further distribution of the newspaper containing the
article. The test for limitations on freedom of expression continues to be
the clear and present danger rule --- that words are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that the lawmaker
has a right to prevent (Chavez v. Gonzales, G.R. N.o 168338, February
15, 2008, 545 SCRA 441).
The National Building Code and its implementing rules provide,
inter alia, that operators of shopping centers and malls should
provide parking and loading spaces, in accordance with a
prescribed ratio. The Solicitor General, heeding the call of the
public for the provision of free parking spaces in malls, filed a case
to compel said business concerns to discontinue their practice of
collecting parking fees. The malls owners and operators oppose,
saying that this is an invalid taking of their property, thus a
violation of due process. The Solicitor General justifies it, however,
claiming that it is a valid exercise of police power.
Could the mall owners and operators be validly compelled to
provide free parking to their customers? (4%) ‘14 - Q18
No, the mall owners and operators cannot be validly compelled to
provide free parking to their customers, because requiring them to
provide free parking space to their customers is beyond the scope of
police powers. It unreasonably restricts the right to use property for
business purposes and amounts to confiscation of property (Office of
the Solicitor General v. Ayala Land, Inc., G.R. No. 177056, September
18, 2009, 600 SCRA 617).
Surveys Galore is an outfit involved in conducting nationwide
surveys. In one such survey, it asked the people about the degree
of trust and confidence they had in several institutions of the
government. When the results came in, the judiciary was shown to
be less trusted than most of the government offices. The results
were then published by the mass media. Assension, a trial court
judge, felt particularly offended by the news. He then issued a
show-cause order against Surveys Galore directing the survey
entity to explain why it should not be cited in contempt for coming
up with such a survey and publishing the results which were so
unflattering and degrading to the dignity of the judiciary. Surveys
Galore immediately assailed the show-cause order of Judge
Assension, arguing that it is violative of the constitutional guaranty
of freedom of expression.
Is Surveys Galore’s petition meritorious? (4%) ‘14 - Q19
The petition of Surveys Galore is meritorious. Freedom of speech and
freedom of the press may be identified with the liberty to discuss publicly
and truthfully any matter of public interest without censorship and
punishment. There should be no previous restraint on the
communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt
proceedings unless there is a clear and present danger of substantive
30
evil that Congress has a right to prevent (Chavez v. Gonzales, G.R. No.
168338, February 15, 2008, 545 SCRA 441). Freedom of speech
should not be impaired through the exercise of the power to punish for
contempt of court unless the statement in question is a serious and
imminent threat to the administration of justice. Here, the publication of
the results of the survey was not intended to degrade the Judiciary
(Cabansag v. Fernandez, G.R. No. L-8974, October 18, 1957, 102 Phil.
152).
The National Power and Grid Corporation (NPGC), a government
entity involved in power generation distribution, had its
transmission lines traverse some fields belong to Farmerjoe.
NPGC did so without instituting any expropriation proceedings.
Farmerjoe, not knowing any better, did not immediately press his
claim for payment until after ten years later when a son of his took
up Law and told him that he had a right to claim compensation.
That was then the only time that Farmerjoe earnestly demanded
payment. When the NPGC ignored him, he instituted a case for
payment of just compensation. In defense, NPGC pointed out that
the claim had already prescribed since under its Charter it is clearly
provided that “actions for damages must be filed within five years
after the rights of way, transmission lines, substations, plants or
other facilities shall have been established and that after said
period, no suit shall be brought to question the said rights of way,
transmission lines, substations, plants or other facilities.”
If you were the lawyer of Farmerjoe, how would you protect and
vindicate the rights of your client? (4%) ‘14 - Q22
Farmerjoe’s demand for payment is justified and cannot be considered
as prescribed. His demand for payment is an action for the payment of
just compensation and not an action for damages as provided in the
Charter of the National Power and Grid Corporation. It partakes of the
nature of a reverse eminent domain proceeding (or inverse
condemnation proceeding) wherein claims for just compensation for
property taken can be made and pursued (National Power Corporation
v. Vda. De Capin, G.R. No. 175176, October 17, 2008, 569 SCRA 648);
National Power Corporation v. Heirs of Sangkay, G.R. No. 165828,
August 24, 2011, 656 SCRA 60).
ALTERNATIVE ANSWER:
I will claim that since the National Power and Grid Corporation took the
property traversing the fields of Farmerjoe without first acquiring title
through expropriation or negotiated sale, his action to recover just
compensation is imprescriptible (Republic v. Court of Appeals, G.R. No.
147245, March 31, 2005, 454 SCRA 510).
The police got a report about a shooting incident during a town
fiesta. One person was killed. The police immediately went to the
scene and started asking the people about what they witnessed. In
due time, they were pointed to Edward Gunman, a security guard,
as the possible malefactor. Edward was then having refreshment
in one of the eateries when the police approached him. They asked
him if he had a gun to which question he answered yes. Then they
asked if he has seen anybody shot in the vicinity just a few minutes
earlier and this time he said he did not know about it. After a few
more questions, one of the policemen asked Edward if he was the
shooter. He said no, but then the policeman who asked him told
him that several witnesses pointed to him as the shooter.
Whereupon Edward broke down and started explaining that it was
a matter of self-defense. During his trial, the statements he made
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to the police were introduced as evidence against him. He objected
claiming that they were inadmissible since he was given his
Miranda rights. On the other hand, the prosecution countered that
there was no need for such rights to be given since he was not yet
arrested at the time of the questioning.
If you were the judge, how would you rule on the issue? (4%) ‘14 -
Q23
If I were the judge, I would rule that the confession is inadmissible. First,
the rights under investigation in Section 12, Article III of the Constitution
are applicable to any person under investigation began when a
policeman told Edward that several witnesses pointed to him as the
shooter, because it started to focus on him as a suspect (People v.
Bariquit, G.R. No. 122733, October 2, 2000, 341 SCRA 600). Second,
under Section 2 of Republic Act No. 7438, for a confession to be
admissible, it must be in writing (People v. Labtan, G.R. N.o. 127493,
December 8, 1999, 320 SCRA 140).
A robbery with homicide had taken place and Lito, Badong and
Rollie were invited for questioning based on information
furnished by a neighbor that he saw them come out of the
victim’s house and at about the time of the robbery/killing. The
police confronted the three with this and other information they
had gathered, and pointedly accused them of committing the
crime.
Lito initially resisted, but eventually broke down and admitted
participation in the crime. Elated by this break and desirous of a
written confession soonest, the police called City Attorney Juan
Buan to serve as the trio’s counsel and to advise them about their
rights during the investigation.
Badong and Rollie, weakened in spirit by Lito’s early admission,
likewise admitted their participation. The trio thus signed a joint
extrajudicial confession which served as the main evidence
against them at their trial. They were convicted based on their
confession.
Should the judgement of conviction be affirmed or reversed on
appeal? (5%) ‘13 - Q3
The judgement of conviction, should be reversed on appeal. It relied
mainly on the extrajudicial confession of the accused. The lawyer
assisting them must be independent. City Attorney Juan Buan is not
independent. As City Attorney, he provided legal support to the City
Mayor in performing his duties, which include the maintenance of
peace and order (People v. Sunga, G.R. No. 126029, March 27, 2003,
399 SCRA 624).
ALTERNATIVE ANSWER:
The judgement of conviction, should be affirmed if the accused failed
to object when their extrajudicial confession was offered in evidence,
which has rendered it admissible (People v. Samus, G.R. No. 135957-
58, September 17, 2002, 389 SCRA 93).
As he was entering a bar, Arnold - who was holding an unlit
cigarette in his right hand - was handed a matchbox by someone
standing near the doorway. Arnold unthinkingly opened the
matchbox to light his cigarette and as he did so, a sprinkle of
dried leaves fell out, which the guard noticed . The guard
31
immediately frisked Arnold, grabbed the matchbox, and sniffed its
contents. After confirming that the matchbox contained
marijuana, he immediately arrested Arnold and called in the
police.
At the police station, the guard narrated to the police that he
personally caught Arnold in possession of dried marijuana
leaves. Arnold did not contest the guard’s statement; he
steadfastly remained silent and refused to give any written
statement. Later in court, the guard testified and narrated the
statements he gave to the police over Arnold’s counsel’s
objections. While Arnold presented his own witnesses to prove
that his possession and apprehension had been set-up, he
himself did not testify.
The court convicted Arnold, relying largely on 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%) ‘13 - Q7
The court was wrong in relying on the silence of Arnold during the
police investigation and during the trial. Under Article III, Section 12 of
the 1987 Constitution, he had the right to remain silent. His silence
cannot be taken as a tacit admission, otherwise, his right to remain
silent would be considered nugatory. Considering that his right against
self-incrimination protects his right to remain silent, he cannot be
penalized for exercising it (People v. Galvez, G.R. No. 157221, March
30, 2007, 519 SCRA 521).
ALTERNATIVE ANSWER:
The court correctly convicted Arnold. There is no showing that the
evidence for prosecution was insufficient. When Arnold remained
silent, he runs the risk of an inference of guilt from non-production of
evidence on his behalf (People v. Solis, G.R. No. 124127, June 29,
1998, 128 SCRA 217).
Conrad is widely known in the neighborhood as the 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 Head of Security of
Capricorn Land Corporation, the owner and developer of
Sagittarius Estates where a series of robberies has recently taken
place.
On March 1,2013, Conrad informed his mother, Vannie, that
uniformed security guards had invited him to talk in their office
but refused to come. Later that day, however, Conrad appeared to
have relented; he was seen talking to the security office flanked
by two security guards. Nobody saw him leave the office
afterwards.
Conrad did not go home that night and was never seen again. The
following week and after a week-long search, Vannie feared the
worst because of Col. Sangre’s reputation. She thus reported
Conrad’s disappearance to the police. When nothing concrete
resulted from the police investigation, Vannie - at the advice of
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counsel - filed a petition for a writ of amparo to compel Col.
Sangre and the Sagittarius Security Office to produce Conrad and
to hold them liable and responsible for Conrad’s disappearance.
(A) Did Vannie’s counsel give the correct legal advice? (6%)
‘13 - Q9a
The advice of Vannie’s counsel that she file a petition for a writ of
amparo is not correct. In order that a writ of amparo can be availed of
against a private individual for a disappearance of someone, the
involvement of the government is indispensable. There is no showing
of any participation of the government in Conrad’s disappearance
(Navia v. Pardico, G.R. No. 184467, June 19, 2012,673 SCRA 618).
(B) If the petition would prosper, can Col. Sangre be held
liable and/or responsible for Conrad’s disappearance?
(6%) ‘13 - Q9b
No, Col. Sangre cannot be held responsible for the disappearance of
Conrad. Command responsibility has no applicability to an amparo
proceeding (Rubrico v. Macapagal-Arroyo, G.R. No. 183871, February
18,2010, 613 SCRA 312).
ALTERNATIVE ANSWER:
Although the writ of amparo does not pinpoint criminal culpability for a
disappearance, it determines responsibility or at least accountability,
for the purpose of imposing the appropriate remedy. Responsibility
refers to the extent of the actors have been established to have
participated in an enforced disappearance, as a measure of the
remedy, to be crafted, such as the directive to file the appropriate
criminal and civil cases against the responsible parties (Razon Jr. v.
Tagitis, G.R. No. 182498, December 3,2009, 606 SCRA 598).
Mr. Violet was convicted by the RTC of Estafa. On appeal, he filed
with the Court of Appeals a Motion to Fix Bail for Provisional
Liberty Pending Appeal. The Court of Appeals granted the motion
and set a bail amount in the sum of five (5) Million pesos, subject
to the conditions that he secure “a certification/ guaranty from the
Mayor of the place of his residence that he is a resident of the
area and that he will remain to be a residence therein until final
judgement is rendered or in case he transfers residence, it must
be with prior notice the court”. Further, he was ordered to
surrender his passport at the Division, Clerk of Court for
safekeeping until the court orders its return.
a) Mr. Violet challenges the conditions imposed by the
Court of Appeals as violative of his liberty of abode and
right to travel. Decide with reasons (5%) ‘12 - Q1a
The right to change abode and the right to travel are not absolute. The
liberty of changing abode is merely being required to inform the Court
of Appeals if he does. (Yap vs. Court of Appeals, 358 SCRA 564)
b) Are “liberty of abode” and “the right to travel” absolute
rights? Explain. What are the respective exception/s to
each right if any? (5%) ‘12 - Q1b
The liberty of abode and the right to travel are not absolute. The liberty
of abode and of changing it can be imposed within the limits prescribed
by law upon lawful order of the court. The right to travel may be
impaired in the interest of national security, public safety, or public
32
health as may be provided by law. (Section 6, Article III of the
Constitution.)
In addition, the court has the inherent power to restrict the right of an
accused who has pending criminal case to travel abroad to maintain
jurisdiction over him. (Santiago vs. Vasquez 217 SCRA 633.)
Mr. Brown, a cigarette vendor, was invited by P01 White to a
nearby police station. Upon arriving at the police station, Brown
was asked to stand side-by-side with five (5) other cigarette
vendors in a police line-up. P01 White informed them that they
were looking for a certain cigarette vendor who snatched the
purse of a passer-by and the line-up was to allow the victim to
point at the vendor who snatched her purse. No questions were
to be asked from the vendors.
a) Brown, afraid of a “set-up” against him, demanded that
he be allowed to secure his lawyer and for him to be
present during the police line-up. ls Brown entitled to
counsel? Explain (5%); ‘12 - Q3a
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 identified him as the perpetrator? Explain.
(3%); ‘12 - Q3b
Brown would be entitled to the assistance of n lawyer. He was already
considered as a suspect and was therefore entitled to the rights under
custodial investigation» (People vs; Legaspi, 331 SCRA 95.)
c) Briefly enumerate the so-called ‘Miranda rights”. (2%).
‘12 - Q3c
The Miranda warning means that a person in custody who will be
interrogated must be informed of the following:
1. He has the right to remain silent;
2. Anything said can be used as evidence against him;
3. He has the right to have counsel during the investigation;
and,
4. He must be informed that if he is indigent, a lawyer will be
appointed to represent him. (Miranda vs. Arizona, 384 U.S.
436.)
a) What is the doctrine of "overbreadth"? In what context
can "it not be correctly applied? Not correctly applied?’
Explain (5%); ‘12 - Q8a
A statute ls overbroad when a governmental purpose to control or
prevent activities constitutionally subject to state regulations is sought
to be achieved by means which sweep unnecessarily broadly and
invade the area of protected freedom. It applies both to free speech
cases and penal statutes. However, a facial challenge on the ground of
overbreadth can only be made in free speech cases because of its
chilling effect upon protected speech. A facial challenge on the ground
of overbreadth ls not applicable to penal statutes, because in general
they have an in terrorem effect. (Southern Hemisphere Engagement.
Network, Inc. vs. Anti-Terrorism Council, 632 SCRA 146.)
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(NOTE: The word “overbreath" should read “overbreadth”.)
b) What is the doctrine of “void for vagueness”? In what
context can it be correctly applied? Not correctly
applied? Explain (5%). ‘12 - Q8b
A statute is vague when it lacks comprehensible standards that men of
common intelligence that guess at its meaning and differ to its
application. It applies to both free speech cases and penal statutes.
However, a facial challenge on the ground of vagueness can he made
only in free speech cases. It does not apply to penal statutes.
(Southern Hemisphere Engagement Network, Inc. vs. Anti-Terrorism
Council, 632 SCRA 14-6.)
In a protest rally along Padre Faura Street, Manila, Pedrong Pula
took up the stage and began shouting “Kayong mga kurakot
kayo! Magsi-resign na kayo! Kung hindi, manggugulo kami dito!”
(you corrupt officials, you better resign now, or else we will cause
trouble here!”) simultaneously, he brought out a rock the size of
a fist and pretended to hurl it at the flagpole area of a government
building. He did not actually throw the rock.
a) Police officers who were monitoring the situation
immediately approach Pedrong Pula and arrested him.
He was prosecuted for seditious speech and was
convicted. On appeal, Pedrong Pula argued he was
merely exercising his freedom of speech and freedom of
expression guaranteed by the Bill of Rights. Decide with
reasons. (5%); ‘12 - Q9a
Pedrong Pula should be acquitted. His freedom of speech should not
be limited in the absence of a clear and present danger of a
substantive evil that the state had the right to prevent. He pretended to
hurl a rock but did not actually throw it. He did not commit any act of
lawless violence. (David vs. Macapagal-Arroyo, 489 SCRA 160.]
b) What is “commercial speech"? ls it entitled to
constitutional protection? What. must be shown in order
for government to curtail “commercial speech”?
Explain. (3%). ‘12 - Q9b
Commercial speech is communication which involves only the
commercial interests of the speaker and the audience, such as
advertisements. (Black's Law Dictionary, 9th ed., p. 1529.)
Commercial speech is entitled to constitutional protection. (Ayer
Productions Pty. , Ltd. vs. Capulong, 160 SCRA 861.]
Commercial speech may be required to be submitted to a government
agency for review to protect public interests by preventing false or
deceptive claims. [Pharmaceutical and Health Care Association of the
Philippines vs. Duque, 535 SCRA 265.)
c) What are the two (2) basic prohibitions of the freedom of
speech and of the press clause? Explain (2%). ‘12 - Q9c
The two basic prohibitions on freedom of speech and freedom of the
press are prior restraint and subsequent punishment. (Chavez vs.
Gonzales, 545 SCRA 441.)
33
a) What do you understand by the term “hierarchy of civil
liberties”? Explain. (5%); ‘12 - Q10a
The hierarchy of civil liberties means that freedom of expression and
the rights of peaceful assembly are superior to property rights.
(Philippine Blooming Mills Employees Organization vs. Philippine
Blooming Mills Company, Inc.; 51 SCRA 189.)
b) Distinguish fully between the “free exercise of religion
clause” and the “non-establishment of religion clause”.
(3%); ‘12 - Q10b
The freedom of exercise of religion entails the right to believe, which is
absolute, and the right to act on one’s belief which is subject to
regulation. As a rule, the freedom of exercise of religion can be
restricted only if there is a clear and present danger of a substantive
evil which the state has the right to prevent. (Iglesia Ni Cristo vs. Court
of Appeals, 259 SCRA 529.)
The non-establishment clause implements the principle of separation
of church and state.
The state cannot set up a church, pass laws that aid one religion, and
all religions prefer one religion over another, force or influence a
person to go to or remain away from church against his will, or force
him to profess a belief or disbelief in any religion. (Everson vs. Board
of Education, 330 U.S. 1.)
c) When can evidence “in plain view" be seized without
need of a search warrant? Explain. (2%). ‘12 - Q10c
Evidence in plain view can be seized without need of a search warrant
if the following elements are present:
1. There was a prior valid intrusion based on the valid
warrantless arrest in which the police were legally present
pursuant of their duties;
2. The evidence was inadvertently discovered by the police
who had the right to be where they were;
3. The evidence must be immediately apparent; and,
4. Plan view justified seizure of the evidence without further
search. (Del Rosario vs. People, 358 SCRA 37.)
Objection to the production of a photocopy of a master plan of a
military camp on the ground of violation against right to self-
incrimination. ’10 – Q10
The objection of Lt. Valdez is not valid.
The right against self-incrimination refers to testimonial evidence
and does not apply to the production of a photocopy of the master plan
of Camp Aquino, because it is a public record. He cannot object to the
request for him to confirm his custody of the master plan, because he is
the public officer who had custody of it. (Almonte v. Vasquez, 244 SCRA
286 [1995].)
Warrantless search and seizure; Waiver must be given by the
person whose right is violated. ’10 – Q12
The warrantless search and seizure was not valid. It was not made
as an incident to a lawful warrantless arrest (People v. Baula, 344 SCRA
663 [2000].) The caretaker had no authority to waive the right of the
brothers Pilo and Ramon Maradona against unreasonable search and
seizure. The warrantless seizure of ski masks and bats cannot be
justified under the plain view doctrine, because they were seized after
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an invalid intrusion in to the house (People v. Bolasa, 321 SCRA 459
[1999].)
Liability of principal in a case in which the PTA of the school
contributed funds for the construction of a grotto and chapel where
ecumenical religious services and seminars are being held after
school hours. ’10 – Q19
The principal is liable.
Although the grotto and the chapel can be used by different
religious sects without discrimination, the land occupied by the grotto
and the chapel will be permanently devoted to religious use without
being required to pay rent. This violated the prohibition against the
establishment of religion enshrined in a Section 5 of the Bill of Rights
(Opinion No. 12 of the Secretary of Justice dated February 2, 1979.)
Although religion is allowed to be taught in public elementary and high
schools, it should be without additional cost to the government (Section
3(3), Article XIV of the Constitution.)
Overbreadth Doctrine and Void-for-Vagueness Doctrine;
Distinction. ’10 – Q24
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 or protected
freedom, a statute is void for vagueness when it forbids or requires the
doing of an act in terms so vague that men of common intelligence
cannot necessarily guess its meaning and differ as to its application
(Estrada v. Sandiganbayan, 369 SCRA 394 [2001].)
Admissibility of videotape recording of what occurred in a hotel
lobby; Right to Privacy. ’09 – Q6
The objection should be overruled. What the Anti-Wire Tapping law
prohibits is the overhearing, intercepting, and recording of private
communications. Since the exchange of heated words is not private, its
videotape recording is not prohibited (Navarro v. Court of Appeals, 313
SCRA 153 [1999].)
Warrantless arrest of a person walking unsteadily with reddish
eyes in an area where sale and use of prohibited drugs is rampant;
Admissibility in evidence of prohibited drugs seized from him. ’09
– Q7; ’00 – Q14a
The warrantless arrest of the accused was valid. The cemetery was
rumoured to be a place where the sale of drugs was rampant. The eyes
of the accused were reddish and glassy. He was walking unsteadily,
veered away from the policemen upon seeing them, and refused to say
what was in his clenched fist. The policemen had sufficient reason to
stop him and investigate if he was high on drugs. Since the investigation
showed that the accused was in possession of shabu, he could be
arrested without the need for a warrant (Manalili v. Court of Appeals, 280
SCRA 400 [1997].)
Since the search and seizure of the shabu was incidental to a valid
and warrantless arrest, the shabu is admissible in evidence (Manalili v.
Court of Appeals, 280 SCRA 400 [1997].)
Miranda rights not violated if he was not given the lawyer of his
choice from the U.S. and when his rights were informed to him in
halting English and he was already at the police station. ’09 – Q12b
The fact that the police officer gave him the Miranda rights in halting
English does not detract from its validity. Under Section 2(b) of. R.A. No.
7438, it is sufficient that the language known to and understood by him.
William need not be given the Miranda warning before the investigation
started. William was not denied his Miranda rights. It is not practical to
require the police officer to provide a lawyer of his own choice form the
United States (Gamboa v. Cruz, 162 SCRA 642 [1988].)
34
“International Standard of Justice” and that he comes from a state
that has outlawed capital punishment are not valid grounds in
granting bail as a matter of right. ’09 – Q12c
William should not be granted bail as a matter of right. He is subject
to Philippine criminal jurisdiction, therefore, his right to bail must be
determined on the basis of Section 13, Article III of the Constitution.
Constitutionality of MTRCB in suspending the airing of a TV station
on the ground that said station aired a documentary without
obtaining the necessary permit required by P.D. 1986. Under said
law, MTRCB has the power of review over all TV programs, except
“newsreels” and programs “by the Government.” ’09 – Q15a
The contention of KKK-TV is not tenable. The prior restraint is a
valid exercise of police power and does not violate the right of freedom
of expression. Television is a medium which reaches even the eyes and
ears of children (Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529
[1996].)
Exemption from administrative charge on immorality; Cohabiting
with a married man with church sanction evidenced by a document
of “Declaration of Pledging Faithfulness.” ’09 – Q16a
Angelina should be exonerated. First, it has not been shown that
there is compelling state interest which will be undermined by granting
her an exemption. Second, it has not been shown that the least intrusive
means possible was used so that he free exercise of religion is not
infringed any more than necessary (Estrada v. Escritor, 492 SCRA 1
[2006].)
Removal of Grand Elder of a religious sect on the ground of
immorality is not within the ambit of the courts. ’09 – Q16b
The case will not prosper. This involves the performance of the
official functions of religious authorities. Because of the separation of
Church and State, courts must respect the autonomy of the religious
sect in such matters (Taruc v. De la Cruz, 453 SCRA 123 [2005].)
Warrantless search and seizures; Defenses. ’08 – Q5
I will invoke my client’s right against unreasonable search and
seizure (Sec. 2, Article II of the Constitution) which guarantees: (1)
sanctity of the home; (2) inadmissibility of the capsules seized; and (3)
inviolability of the person. A mere tip from a reliable source is not
sufficient to justify a warrantless arrest or search (People v. Nuevas,
G.R. No. 170233, 22 February 2007.)
The court should declare the search and seizure illegal:
1. The entry into the accused’s home was not a permissible
warrantless action because the police had no personal
knowledge that any crime was taking place;
2. Due to the invalid entry, whatever evidence the police had
gathered would be inadmissible; and
3. The arrest of the accused was already invalid and causing him
to vomit while under custody was an unreasonable invasion
of personal privacy (U.S. v. Montoya, 473 U.S. 531 [1985].)
Constitutionality of PNP circular which directed all its members the
style and length of male officers’ hair, sideburns and moustaches,
as well as the size of their waistlines. ’09 – Q6
Although the National Police is civilian in character, it partakes of
some of the characteristics of military life, thus permitting the imposition
of reasonable measures of discipline, uniformity in behaviour and
presentableness. The circular does not go beyond what is reasonable
and therefore passes the test of due process (Gudani v. Senga, G.R.
No. 170165, 15 August 2006.)
In Kelley v. Johnson, 425 U.S. 238 (1976), the U.S. Supreme Court
said that the regulation of policemen could be justified so long as there
was a rational connection between the regulation and the promotional
safety of persons and property. The requisite connection was present
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since the government had a legitimate interest in policemen’s
appearances so that they would: (1) be readily recognizable to the public
and (2) feel a sense of “esprit de corps” that comes from being similar.
Bail, as a matter of right, in a murder case. ’08- Q7a
Bail is a matter of right unless the evidence of guilt is strong
(Section 13, Article III of the Constitution.) Whether or not JC is entitled
to bail will depend on whether the court, after a bail hearing, finds that
the evidence against him is strong. If the evidence is not strong, he is
entitled to bail
Effect of presenting evidence after entering a plea of guilty of the
prosecution’s appeal acquitting the accused. ’08 – Q7b
By presenting evidence of self-defense, JC effectively withdrew his
plea of guilty (People v. Balisacan, G.R. No. L-26376, 31 August 1966.)
In the absence of a valid plea, an essential element for jurisdiction of the
court and first jeopardy was absent. Consequently, the court had no
jurisdiction to acquit JC. Thus, an appeal by the prosecution would not
violate the rule against double jeopardy.
Constitutionality of law establishing the right to trial by jury of an
accused charged with a felony or offense punishable with
reclusion perpetua or life imprisonment. ’08 – Q13
No. Trial by jury is not contemplated or granted under the
Constitution. Jury trial supposes the division of judicial power into fact
finding and legal decision on facts found. The Philippine Constitution
says that judicial power shall be vested in one Supreme Court and such
other courts which may be created by law (Sec. 5(5) of the Constitution.)
In our system, all trials, because they involve the exercise of judicial
power, are by courts and may not involve juries. In Echegaray v.
Secretary of Justice, G.R. No. 132601, 19 January 1999, the Supreme
Court ruled that Congress has no power to repeal, alter or supplement
rules concerning pleading, practice and procedure.
Constitutionality of written offer by the principal of a public high
school to parents and guardians of all the school students
informing them that the school was willing to provide religious
instruction to its Catholic students during class hours provided
they give their consent in writing. ’08 – Q15a
The principal complied with the constitutional command that
religious instruction shall be allowed to students in public schools at the
option of their parents or guardians expressed in writing (Sec. 3(3),
Article XIV of the Constitution.)
The offer does not violate the constitutional prohibition against the
establishment of religion because Sec. 3(3), Article XIV of the
Constitution states the option expressed in writing by the parents or
guardian, religion shall be taught to their children in public elementary
and high schools within regular class hours.
Constitutionality of rejection of the Catholic principal of the
demand of the parents of evangelical Christian students that they
too be entitled to have their children instructed in their own
religious faith during class hours. ’08 – Q15b
Under the equal protection clause, parents and children of
evangelical churches have the same right. Sec. 3(3), Article XIV of the
Constitution states that at the option expressed in writing by the parents
or guardian, religion shall be taught to their children in public and
elementary high school during class hours. Section 13, Article II of the
Constitution provides that the government shall support the natural and
primary right and duty of parents in rearing the youth for the
development of their moral character.
Whether or not student leaders, who encouraged students to wear
black T-shirts as a symbol of their protest both against high prices
and the university ban on demonstrations, be expelled. ’08 – Q16
35
The wearing of black T-shirts is symbolic speech protected by the
Constitution. Absent any disruption of public order, whether in or out of
campus, it is akin to pure speech and cannot be made punishable. The
school regulation violates the rule against subsequent punishment of
acts which present no clear and present danger of public disorder
(Malabanan v. Ramento, G.R. No. L-62270, 21 May 1984.)
The 1987 Constitution has increased the scope of academic
freedom recognized under the previous Constitution. ’07 – Q1b
According to Section 8(2), Article XV of the 1973 Constitution, “[A]ll
institutions of higher learning shall enjoy academic freedom.” On the
other hand, Section 5(2), Article XIV of the 1987 Constitution states that
“[A]cademic freedom shall be enjoyed in all institutions of higher
learning.” The change in text means that academic freedom will not only
be enjoyed by institutions of higher learning, but also by those who make
them such as teachers, students and researchers (Record of the
Constitutional Commission, Vol. IV, p. 439.)
Constitutionality of an E.O. issued by a city mayor which prohibits
all hospitals operated by the city from prescribing the use of
artificial methods of contraception. ’07 – Q2a
The Executive Order is constitutionally infirm. It violates the
guarantees of due process and equal protection. Due process includes
the right to decisional privacy, which refers to the ability to make one’s
own decisions and act on these decisions, free from governmental or
unwanted interference. Forbidding the use of artificial methods of
contraception infringes on the freedom of choice in matters of marriage
and family life (Griswold v. Connecticut, 381 U.S.415 [1965].) Moreover,
the Executive Order violates equal protection as it discriminates against
poor women in the city who cannot afford to pay private clinics.
There is no infringement of constitutional rights when a private
association organized for self-regulation of the advertising
industry ordered the pull-out of the advertisement because it failed
to abide by its ethical guidelines. ’07 – Q5a
Destilleria Felipe Segundo cannot claim that its constitutional rights
were infringed. In this case, a private association formed by advertising
companies for self-regulation was the one who ordered that the
advertisement be pulled out, because Destilleria did not comply with the
association’s ethical guidelines. The guarantee of freedom of speech is
a limitation on state action and on the action of private parties (Lloyd
Corp. v. Tanner, 407 U.S. 551 [1972].) The mass media are private
enterprises, and their refusal to accept any advertisement does not
violate the freedom of speech (Times-Picayune Publishing Co. V. United
States, 345 U.S. 594 [1953]; Columbia Broadcasting System, Inc. v.
Democrat Control Committee, 412 U.S. 94 [1973].)
Government-owned and controlled corporation cannot boycott and
block any advertising funds for any newspaper, radio or TV station
that carried the “kinse anyos” advertisements. ‘07 – Q5b
The government-owned and controlled corporations and the
government nominees in sequestered corporations cannot block any
advertising funds allocated for any newspaper, radio or television station
which carries the advertisement of Destilleria Felipe Segundo. Since
they are government entities and officers, they are bound by the
guarantee of freedom of speech. Freedom of speech extends to
commercial advertisements [Metromedia, Inc. v. San Diego, 453 U.S.
490 [1981].) The mere fact that an advertisement is offensive cannot
justify its suppression (Carey v. Population Services International, 431
U.S. 678 [1977].) The blocking of advertising funds is a threat intended
to prevent the freedom of speech of Destilleria Felipe Segundo through
the fear of consequences. Such a threat qualifies as prior restraint
(Rosden, The Law of Advertising, Vol. I, pp. 5-13.)
Was the action of the Manila police stopping a protest after the
protesters three meter after crossing the boundary between Manila
and QC a valid exercise of police power; Protesters had secured a
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permit from the Mayor of QC but not from the Mayor of Manila. ’07
– Q7a
Since the protesters merely reached three meters beyond the
boundary of Quezon City, the police authorities in Manila should not
have stopped them, as there as was no clear and present danger to
public order. In accordance with the policy of maximum tolerance, the
police authorities should have asked the protesters to disperse and if
they refused, the public assembly may be dispersed peacefully.
May the SLEX security police validly stop a caravan of vehicles and
marchers on the ground that some banners had been blown off by
the wind which caused hazard to other motorists and proceeded to
march after they were stopped by the security police. ’07 – Q7b
In accordance with the policy of maximum tolerance, the security
police should not have stopped the protesters. They should have simply
asked the protesters to take adequate steps to prevent their banners
from being blown off, such as rolling them while they were in the
expressway and required the protesters to board their vehicles and
proceed on their way.
Remedy against denial by City Mayor of its application for a permit
to hold a rally on Mendiola Street. ’06 – Q2(1)
The Samahan ng Mga Mahihirap may contest the denial of its
application for a permit by filing an action in an appropriate court of law
(Section 6(e) of B.P. Blg. 880, The Public Assembly Act of 1985).
Availability of a Freedom Park does not by itself justify the denial
for a permit to hold a rally. ’06 – Q2(2)
The availability of a Freedom Part does not by itself justify the
denial of the application for a permit, because a rally may be held in
another public place, such as, in a campus of a government-owned or
operated educational institution or even in a private property, unless
there is a clear and present danger of a substantive evil which the State
has the right to prevent (Section 4, B.P. Blg 880)
Requirement to apply for a permit to hold a rally is not a prior
restraint on freedom of speech and assembly. ’06 – Q2(3)
The requirement to apply for a permit to hold a rally us not a prior
restraint on freedom of speech and assembly, because the requirement
merely regulates the exercise of the right as to the time, place and matter
of the rally to the extent needed to avoid a clear and present danger of
the substantive evil which the State has the right to prevent. The
requirement is no content-based, since the content of the speech is not
relevant to the regulation (Bayan v. Ermita, 488 SCRA 227 [2006)].)
Legality of warrantless arrests made by the police of SM members
who held the rally despite the denial of SM’s application for a
permit to hold a rally. ’06 – Q2(4)
Only the leader or organizer can be arrested without a warrant
during the rally for holding a rally without a permit, but no person can be
arrested for merely participating in or attending the rally if it was peaceful
(Section 13(a), B.P. Blg. 880.) The rally should be peacefully dispersed
(Section 12, B.P. Blg. 880.)
A law prohibiting Chinese citizens from engaging in retail trade is
unconstitutional. ’06 – Q4(1)
A law prohibiting Chinese citizens from engaging in retail trade is
unconstitutional because it violates the guarantee of equal protection of
the laws found in the Bill of Rights (Section 1, Article III of the
Constitution.) Equal protection applies even to aliens. It singled out
Chinese citizens and did not include other aliens although they are
similarly situated. The prohibition should have applied to all aliens. For
a classification to be valid, it must apply to all those belonging to the
36
same class (Central Bank Employees Association, Inc. v. Bangko
Sentral ng Pilipinas, 446 SCRA 299 [2004].)
A law denying person charged with crimes punishable by reclusion
perpetua or death the right to bail is unconstitutional. ’06 – Q4(2)
A law denying person charged with crimes punishable by reclusion
perpetua or death the right to bail is unconstitutional, because according
to the Constitution, “[A]ll 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” (Section 13, Article III of the
Constitution.)
An accused’s right against self-incrimination is violated 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. ’06 – Q7 (1)
Ordering the accused 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 will violate his right against self-incrimination. Writing is not
a purely mechanical act, because it requires the application of
intelligence and attention. Producing a sample of his handwriting may
identify him as the writer of the letter (Beltran v. Samson, 53 Phil. 570
[1929].)
State whether bail is a matter of right or a matter of discretion in
the following cases:
1. The imposable penalty for the crime charged is reclusion
perpetua and the accused is a minor;
A minor charged with a crime punishable by reclusion perpetua is
entitled to bail as matter of right. Under Article 68 of the Revised Penal
Code, in case of conviction, the penalty would be one degree lower than
reclusion perpetua. This rules out reclusion perpetua (Bravo v. Borja,
134 SCRA 366 [1985].)
2. The imposable penalty for the crime charged is life
imprisonment and the accused is a minor;
Bail is a matter of discretion for a minor charged with an offense
punishable with life imprisonment, because Article 68 of the Revised
Penal Code is inapplicable and he is not entitled to privileged mitigating
circumstance under it (People v. Lagasca, 148 SCRA 264 [1987].)
3. The accused has been convicted of homicide on a charge
of murder and sentenced to suffer an indeterminate
penalty 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. ‘05 – Q7
Bail is a matter of discretion for an accused convicted of homicide
on a charge of murder, because an appeal opens the whole case for
review. There is a possibility that he may be convicted of murder, which
is punishable with reclusion perpetua of death. His conviction shows the
evidence of his guilt is strong (Obosa v. Court of Appeals, 266 SCRA
281 [1997].)
Mariano was arrested by the NBI as a suspect in the shopping mall
bombings. Advised of his rights, Mariano asked for the assistance
of his relative, Atty. Santos. The NBI noticed that Atty. Santos was
inexperienced, incompetent and inattentive. Deeming him unsuited
to protect the rights of Mariano, the NBI dismissed Atty. Santos.
Appointed in his place was Atty. Barroso, a bar topnotcher who
was in the premises visiting a relative, Atty. Barroso ably assisted
Mariano when the latter gave a statement. However, Mariano
assailed the investigation claiming that he was deprived of counsel
of his own choice.
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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? ’05 – Q8(1)
Since Atty. Santos was chosen by Mariano himself, the National
Bureau of Investigation had no authority to dismiss him (People v.
Jimenez, 204 SCRA 719 [1991].) If he was incompetent, the National
Bureau of Investigation should have stopped the investigation.
The statement of Mariano made with the assistance of Atty.
Barroso is not admissible in evidence if the person he visited is
connected with the National Bureau of Investigation. Atty. Barroso is not
of Mariano’s own choice (People v. Sahagun, 274 SCRA 206 [1997].)
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 him vital
trade secrets of Emilio. Enclosed in the letter was a check for
P50,000 drawn against the account of Randy and payable to Alvin.
Emilio then dismissed Alvin from his employment. Alvin filed suit
assailing his dismissal. Emilio’s proof are the said letter and check
which are objected to by Alvin as inadmissible for having been
obtained through an illegal search. Rule on the admissibility of the
letter and the check. ’05 – Q8(2)
The check is admissible in evidence against Alvin, because the
constitutional prohibition against unreasonable search and seizures is a
restraint upon the government and not upon private parties (Waterous
Drug Corp. v. National Labor Relations Commission, 280 SCRA 735
[1997].)
However, the letter is inadmissible as evidence against Alvin,
because the constitutional provision declaring that the privacy of
communications and correspondence is inviolable is applicable to
private parties. The letter was seized without a lawful court order, as
required by Section 3(1), Article III of the Constitution (Zulueta v. Court
of Appeals, 253 SCRA 699 [1996].)
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 STA, 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 P1 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 any “actual malice” in STAR’s reportage? How
is “actual malice” defined? Are the defendants liable for damages?
’04 – Q5a
Since Senator XX is a public person and the questioned imputation
is direct 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 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 damages.
OZ lost five heads 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 heads 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 would prevail? ’04 – Q5b
37
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].)
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 on the main city street, for
being offensive or otherwise a nuisance. AM, whose advertising
agency owns and rents 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 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 not just compensation. Will AM’s suit prosper? ’04 – Q9b
The suit of AM will not prosper. The removal of the billboards is not
an exercise of eminent domain but of police power (Churchill v. Rafferty,
32 Phil. 580 [1915].) 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].)
Is the concept of “people power” recognized by the 1987
Constitution? ’04 – Q1b; ’00 – Q9a
“People power” is recognized in the Constitution.
Section 4, Article III of the 1987 Constitution guarantees the right
of the people to peaceably assemble and petition the government for
redress of grievances.
Section 32, Article VI of the Constitution requires Congress to pass
a law allowing people to directly propose and enact laws through
initiative and to approve or reject any law or part of it passed by
Congress or a local legislative body.
Section 16, Article XIII of the 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.
Section 2, Article XVII of the Constitution provides that subject to
the enactment of an implementing law, the people may directly propose
amendments to the Constitution through initiative.
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 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. ’03 – Q3; ’97 – Q12
The students cannot be expelled from school. As held in Ebralinag
v. 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. Freedom of
religion cannot be impaired except upon the showing of a clear and
present danger of a substantive evil which the State a right to prevent.
The refusal of the students to participate in the flag ceremony does not
pose a clear and present danger.
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Their expulsion also violates the duty of the State under Section 1,
Article XIV of the Constitution to protect and promote the right of all
citizens to quality education and make such education accessible to all.
The municipal council of Guagua, Pampanga passed an ordinance
penalizing any person or entity engaged in the business of selling
tickets or other public exhibitions, games or performance which
would charge children between 7 and 12 years of age the full price
of admission tickets instead of only one-half thereof. Would you
hold the ordinance a valid exercise of legislative power by the
municipality? ’03 – Q12
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 can obtain. There is nothing pernicious in charging
children the same price as adults.
A passenger bus conductor found a man’s handbag left in the bus.
When the conductor opened the bad, he found inside a calling 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 NBI for
laboratory examination and it was determined to be shabu, a
prohibited drug. Dante was subsequently traced and found and
brought to the NBI Officer 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, Dante
was made to sign a receipt of the plastic bag and its shabu
contents. Dante was charged with illegal possession of prohibited
drugs and was convicted. On appeal, he contends that –
(a) The plastic bag and its content are inadmissible in
evidence being the product of an illegal search and
seizure; and
(b) The receipt he signed is also inadmissible as his rights
under custodial investigation were not observed.
Decide the case with reasons. ’02 – Q8
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 possession of the Government
through a search made by a private citizen.
The receipt which Dante 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, Dante should have been assisted by counsel as required by
Section 11, Article III of the Constitution.
A Tamaraw FX driven by Asiong Cascasero, who was drunk,
sideswiped a pedestrian along EDSA in Makati City. The public
prosecutor filed two separate informations against Cascasero, the
first for reckless imprudence resulting in physical injuries under
the RPC, 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 RPC. With
regard to the second case (i.e., violation of the city ordinance),
upon arraignment, he filed a motion to quash the information
invoking his right against double jeopardy. He contends that, under
Section 21, Article III 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 allegedly under the influence of liquor which caused the
accident. Was there double jeopardy? ’02 – Q9
38
Yes, there is double jeopardy. Under the second sentence of
Section 21, Article III of the Constitution, if an act is punished by a law
and an ordinance, conviction of acquittal under either shall constitute a
bar to another prosecution for the same act. 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.
Ten public school teachers of Caloocan City left their classrooms
to join a strike, which lasted for a month, to ask for teachers’
benefits. The DECS 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 the penalty of removal
from office. The decision was affirmed by the DECS Secretary and
the CSC. 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;
(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 (Sec. 9, R.A. No. 4670.)
How should these issues be resolved? ’02 – Q10
According to De la Cruz v. Court of Appeals, 305 SCRA 303 [1999],
the argument of 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 interest of the
service.
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 of 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 constituted as to afford a person charged
administratively a reasonable guarantee of impartiality, if the teacher
who is a member of the committed was not appointed in accordance
with the law, any proceeding before it is tainted with deprivation of
procedural due process.
Is an alien entitled to the right against illegal search and seizures
and against illegal arrests? ’01 – Q4b
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.
Rafael, Carlos and Joseph were accused of murder before the RTC
of Manila. Accused Joseph turned state witness against the other
co-accused, and was accordingly discharged from the information.
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Among the evidence presented by the prosecution was an
extrajudicial confession made by Joseph during the custodial
investigation, implicating that the other co-accused who, together
with him, committed the crime. The extrajudicial confession was
executed without the assistance of counsel. Rule on whether or not
said extrajudicial confession is admissible in evidence or not. ’01 –
Q9
According to People v. 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.
Erning was charged with homicide before the RTC 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 the unavailability of prosecution witnesses
who could not be found or located, the criminal case was pending
trial for seven years. Upon motion of accused Erning who invoked
his right to speedy trial, the trial court dismissed the same.
Eventually, the prosecution witnesses surfaced, and a criminal
case, involving the same incident was filed anew against Erning.
Accused Erning moved for the 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 witness earlier
because the latter went into hiding out of fear. Resolve the motion.
’01 – Q10; ’97 – Q2
The motion should be granted. The dismissal of the first case for
failure of the witness to appear terminated the first jeopardy. As held in
Caes v. 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.
The place to be searched, as described in the warrant, cannot be
amplified or modified by the peace officers’ own personal
knowledge of the premises or the evidence which they adduced in
support of their application for a warrant. ’01 – Q11
The contention of the accused Ernani Pelet is valid. As held in
People v. Court of Appeals, 291 SCRA 400 [1993], if the place searched
is different from that stated in the search warrant, the evidence is
inadmissible. The policeman cannot modify the place to be searched as
set out in the search warrant.
The issue is whether or not an extension telephone is among the
prohibited devices in Section 1 of the R,A, No. 4200, such that its
use to overhear a private conversation would constitute unlawful
interception of communications between the two parties using a
telephone line. ’01 – Q12
The tape-recorded conversation is not admissible in evidence. As
held in Salcedo-Ortañez v. Court of Appeals, 235 SCRA 111 [1994],
Republic Act No. 4200 makes the tape-recording of a telephone
conversation done without the authorization of all the parties to
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.
Validity of administrative order issued by the General Manager of
the PPA to the effect that all existing regular appointments to
harbour pilot positions shall remain valid only up to December 31
of the current year and that henceforth all appointments to harbour
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 the conduct of a rigid evaluation of performance. Was there,
or was there no violation of the harbour pilots’ right to exercise
their profession and their right to due process of law? ’01 – Q13;
’00 – Q3
39
The right of the harbor pilots to due process was violated. As held
in Corona v. 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 every year is unreasonable and violated their right to
substantive due process. The renewal is dependent after the licenses
have been cancelled.
The issuance of the administrative order also violated procedural
due process, since no prior public hearing was conducted. Under
Section 9, Chapter II, Book VII of the Administrative Code of 1987, as
far as practicable, before adopting the proposed rules, an administrative
agency should publish or circulate notices of the proposed rules and
afford interested parties the opportunity to submit their views; and in the
fixing of rates, no rule shall be valid unless the proposed rates shall have
been published in a newspaper of general circulation at least two weeks
before the first hearing on them. As held in Commissioner of Internal
Revenue v. Court of Appeals, 261 SCRA 236 [1996], when a regulation
is issued under the quasi-legislative authority of an administrative
agency, the requirements of notice, hearing and publication must be
observed.
A municipal ordinance is police power measure and prevails over
a restriction contained in the title to the property. ’01 – Q18
If I were the judge, I would dismiss the case. As held in Ortigas and
Company Limited Partnership v. Feati Bank and Trust Company, 94
SCRA 633 [1979], the zoning ordinance is a valid exercise of police
power and prevails over a contractual stipulation restricting the use of
the lot to residential purposes.
Whether or not a DECS order which states that: “A student shall be
allowed only three (3) chances to take the NMAT. After three (3)
successive failures, a student shall not be allowed to take the
NMAT for the fourth time.” is constitutional. ’00 – Q4
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 people.
State the constitutional provisions reflecting the State policy on
transparency in matters of public interest. What is the purpose of
said policy? ’00 – Q5
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 the 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 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:
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(6) Publicize matters covered by its investigations 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 government
power. If access to information of public concern is denied, the postulate
“public office is a public trust” would be mere empty words.
Madlangbayan is the owner of a 500 square-meter lot which the
birthplace of the founder of a religious sect who admittedly played
an important role in Philippine history. 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 benefitted 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. ’00 – Q8
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.
Also, 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 the policy of “all or
none.”
Extra-judicial commission of an accused is not admissible if the
only participation of the counsel assigned to him was his mere
presence and signature on the statement. Even prior to the 1987
Constitution, the Supreme Court had already laid down strict rules
on the waiver of rights during custodial investigation. ’00 – Q11a
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 Constitutions 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].
Evidence of the accused’s apparel, his height and weight, his
photographs, fingerprints comparison, and the results of the
paraffin test, which were taken when he was taken into police
custody after a valid warrantless arrest, is admissible in evidence
and does not violate his right against self-incrimination. ’00 – Q11b
The objection of Borja is not tenable. As held in People v. Paynor,
261 SCRA 615 [1996], the rights guaranteed by Section 12, Article III 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.
40
Are employees in the public sector allowed to form unions? To
strike?
Can the teachers claim that their right to peaceably assemble and
petition for redress of grievances has been curtailed when the
DECS Secretary imposed on them preventive suspension when
they staged mass actions in front of the DECS office? ’00 – Q12
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 are fixed by
law. Employees in the public sector cannot strike to secure concessions
from their employer.
The teachers cannot claim that their right to peaceably assemble
and petition the government for redress of grievances has been
curtailed. As held in Bangalisan v. Court of Appeals, 276 SCRA 619
[1997], they can exercise this right without stoppage of classes.
What are the instances when warrantless searches may be
effected? ’00 – Q14b
A warrantless search may be effected in the following cases:
(1) Search incidental to a lawful arrest;
(2) Searches of prohibited articles in Plain View;
(3) Search of a moving vehicle;
(4) Consented search
(5) Enforcement of customs law;
(6) Stop and frisk;
(7) Exigent and emergency circumstances; and
(8) Visual search at checkpoints.
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 it principal and probably only witness , the private
complainant Francisco, suddenly had to go abroad to fulfil a
professional commitment. The judge instead dismissed the case
for failure to prosecution.
1. Would the grant of the motion for postponement have
violated the accused’s right to speedy trial?
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 the case.
2. Would the reversal of the trial court’s assailed dismissal
of the case place the accused in double jeopardy? ’00 –
Q15
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.
What is Academic Freedom? Discuss the extent of Academic
Freedom enjoyed by institutions of higher learning. ’99 – Q2a
According to Reyes v. Court of Appeals, 194 SCRA 402 [1991],
academic freedom is the freedom of a faculty member to pursue his
studies in his particular specialty and thereafter to make known 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.
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In Garcia v. The Faculty Admission Committee, Loyola School of
Theology, 68 SCRA 277 [1975], it was held that the academic freedom
of an institution 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.
Discuss the right of every accused against double jeopardy. ’99 –
Q7a
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 without his consent,
he cannot again be charged with the same identical offense.
What are the requisites of double jeopardy? ’99 – Q7b
As held in Cuison v. Court of Appeals, 289 SCRA 159 [1998], for a
claim for 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 was without the
express consent of the accused.
May the accused claim a violation against his right against double
jeopardy when he was acquitted of consented abduction and
subsequently a case for qualified seduction was filed against him?
’99 – Q7c
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 after solicitation or
cajolery from the offender, and the taking away of the offender 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 has sexual relations 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 must be expressly given.
Give examples of acts of the state which infringe the due process
clause in its substantive and procedural aspects. ’99 – Q8a
A law violates substantive due process when it is unreasonable or
unduly oppressive. For example, P.D. No. 1717, which cancelled all the
mortgages and liens of a debtor, was considered unconstitutional for
being oppressive. Likewise, as stated in Ermita-Malate Motel and Motel
Operators Association v. City Mayor of Manila, 20 SCRA 849 [1967], a
law which is so vague so that men of common intelligence must guess
its meaning and differ as to its application violates substantive due
process. As held in Tañada v. Tuvera, 146 SCRA 446 [1986], due
process requires that the law be published.
In State Prosecutor v. Muro, 236 SCRA 505 [1994], 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.
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. ’99 – Q8b
41
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.
Likewise, the protestation of lack of due process is not well-grounded,
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.
Given the multiple meetings held among bank officials, the lawyers
and Torre regarding the charges of abusive conduct and
mismanagement against Torre, is it correct for Torre to say that he
was not given an opportunity to be heard? ’99 – Q8c
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 valid substitutes for the proper observance of
notice and hearing.
Suppose Congress passed a law to implement the Constitutional
principle that public office is a public trust, by providing as follows:
“No employee of the Civil Service shall be excused from
attending and testifying or from producing books, records,
correspondence, documents or other evidence in any
administrative investigation concerning the office in which
he is employed on the ground that his testimony of 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 against him in criminal prosecution
based on the transaction, matter or thing concerning which
is compelled, after invoking his privilege against self-
incrimination, to testify or produce evidence. Provided,
however, that such individual so testifying shall not be
exempt from prosecution and punishment for perjury
committed in so testifying nor shall he be exempt from
demotion or removal from office. Any employee who
refuses to testify or produce any documents under this Act
shall be dismissed from the service.”
Suppose further, that Ong, a member of the PRC, is required
to answer questions in an investigation regarding a LEAKAGE in a
medical examination.
1. Can Ong refuse to testify to answer questions on the
ground that he would incriminate himself? ’98 – Q5(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
of evidence produced against him. As stated by the United States
Supreme Court in Brown v. Walker, 161 U.S. 591, 597, what the
constitutional prohibition against self-incrimination seeks to prevent is
the conviction of the witness on the basis of the testimony elicited form
him. The rule is satisfied when he is granted immunity.
2. Suppose he refuses to answer, and for that reason, is
dismissed from the service, can he plausibly argue that
the CSC has inferred his guilt from his refusal to answer
in violation of the Constitution? ’98 – Q5(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 this refusal,
because he was granted immunity.
In Lefkowitz v. Turley, 414 U.S. 70, 84, the United States Supreme
Court said:
“Furthermore, the accommodation between the interest of the
State and the Fifth Amendment requires that the State have
means at its disposal to secure testimony if immunity is supplied
and testimony is still refused. This is recognized by the power of
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courts to compel testimony, after a grant of immunity, by use of
civil contempt and coerced imprisonment (Shilitani v. United
States, 384 U.S. 364 [1966].) Also, given adequate immunity,
the State may plainly insist that employees either answer
questions under oath about the performance of their job of suffer
loss of employment.”
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? ’98 – Q5(3)
Yes. Ong can argue that his dismissal was based on coerced
confession. In Garrity v. 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
the use in subsequent criminal proceedings of statements
obtained under threat of removal from office, and that is extends
to all, whether they are policemen of other members of the body
politic.”
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 in the interest of the national security. Was the order of
the Chief of Police valid? ’98 – Q7
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 communications and correspondence shall be
inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law.”
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 wrote a letter to the City Health
Officer to have her formerly philandering husband confined in
some isolated leprosarium. Juan challenged the constitutionality
of the law as violating his liberty of abode. Will the suit prosper?
’98 – Q8
No, the suit will not prosper.
Section 6, Article III of the Constitution provides:
“The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order
of the court.”
The liberty of abode is subject to the police power of the State.
Requiring the segregation of lepers is a valid exercise of police power.
In Lorenzo v. 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 disease is supported by high scientific authority.”
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
MTRCB found as offensive several episodes of the programs 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
42
action of the MTRCB suppresses freedom of speech and interfered
with its right to free exercise of religion. Decide. ‘98 – Q15; ’12 –
Q10b
The religious organizations cannot invoke freedom of speech and
freedom of religion on the 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
religion 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 v. Court of Appeals, 259 SCRA 529, 544 [1996],
the Supreme Court held:
“We this 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 religious belief. Television is a medium that reaches
even the eyes and ears of children. The Court reiterates the rule
that the exercise of religious freedom can be regulated by the
State when it will bring about the clear and present danger of
some substantive evil which the State is duty bound to prevent,
i.e. serious detriment to the more 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 v. Court of Appeals, 259 SCRA 529, 547
[1996], the Supreme Court held:
“Even a side-glance at Section 3 of P.D. 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 v. Court of
Appeals, 259 SCRA 529, 549 [1996], the Supreme Court held:
“Prior restraint on speech, including 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.”
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 COA refused approval thereof claiming that the
expenditures were in the violation of the Constitution. Was the COA
correct in disallowing the vouchers in questions? ’97 – Q4
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 the priest to minister to the spiritual needs of overseas
contract workers does not fall within the scope of any of the exceptions.
A, while on board a passenger jeepney one night, was held up by a
group of three teenagers who forcibly divested her of her personal
belongings. Afterwards, 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 present 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
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at a police line-up at which they were not assisted by counsel. How
would you resolve the issues raised by C and D? ’97 – Q10
The arguments of both accused are untenable. As held in People
v. Acol, 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 v. Lamsing, 248 SCRA 471, the right to counsel
does not extend to police line-ups, because they are not part of custodial
investigation. However, according to People v. Macan, 238 SCRA 306,
after the start of the custodial investigation, if the accused was not
assisted by counsel, any identification of the accused in a police line-up
is inadmissible.
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? ’96 – Q2(1)
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 distraction of the participants in the
proceedings, and in the last analysis to avoid a miscarriage of justice.
[In Re: Request Radio-TV Coverage of the Trial in the
Sandiganbayan of the Plunder Cases Against the Former President
Joseph E. Estrada, 360 SCRA 24 (2001), the Supreme Court held that
when the constitutional guarantees of the freedom of the press and the
right to public information, on the one hand, and the fundamental rights
of the accused, on the other hand, along with the power of a court to
control its proceedings in ensuring a fair and impartial trial, when these
tights race against one another, jurisprudence tells us that the right of
the accused must be prevail. Due process guarantees the accused a
presumption of innocence until the contrary is proved. A public trial is
not to be equated with a “publicized trial,: one characterized by
pervasive adverse publicity that violates the accused’s constitutional
right to due process. To allow the live television coverage of Mr.
Estrada’s trial in the Sandiganbayan will violate his right to equal
protection of the law, to due process and to a fair and impartial hearing.
In Petition for Radio and Television Coverage of the Multiple
Murder Cases Against Maguindanao Governor Ampatuan, 652 SCRA 1
(2011), the Supreme Court held that the indication of “serious risks”
posed by live media coverage to the accused’s right to due process has
left a blow to the exercise of press freedom and the right to public
information. In this day and age, it is about time to craft a win-win
situation that shall not compromise rights in the criminal administration
of justice, sacrifice press freedom and allied rights, and interfere with the
integrity, dignity and solemnity of judicial proceedings. Technology tends
to provide the only solution to break the inherent limitations of the
courtroom, to satisfy the imperative of a transparent, open and public
trial. Law and technology can work to the advantage and furtherance of
the various rights herein involved, within the contours of defined
guidelines.]
The military commander-in-charge of the operations against rebel
groups directed the inhabitants of the island which would be the
target of attack of 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? ’96 – Q2(2)
No, the military commander cannot compel the residents to transfer
their place 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.
43
Accused must be assisted by counsel during the actual
questioning and the belated assistance of counsel before he
signed the extra-judicial confession does not cure the defect. ’96 –
Q3(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 was no showing that the lawyer who belatedly
conferred with him fully explained to him the nature and circumstances
of his confession. In People v. 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 extra-judicial confession does not cure the defect.
On the 1st day of the trial of a rape-murder 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.
1. Can the trial court order the dispersal of the rallyists
under pain of being punished for contempt, if they fail to
do so?
Yes, the trial court can order the dispersal of the rally under pain of
being cited in contempt. The purpose of the rally is to attempt to
influence the administration of justice. As stated in People v. Flores, 239
SCRA 83, any conduct by any party which tends to directly or indirectly
impeded, obstruct or degrade the administration of justice is subject to
the contempt powers of the court.
2. 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?
’96 – Q3(2)
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 v. Fernandez, 102 Phil. 152
[1957], 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.
ADMINISTRATIVE LAW
While Congress was not in session, the President appointed
Antero as Secretary of the Department of Tourism (DOT), Benito as
Commissioner of the Bureau of Immigration (BI), Clodualdo as
Chairman of the Civil Service Commission (CSC), Dexter as
Chairman of the Commission on Human Rights (CH.R), and
Emmanuel as Philippine Ambassador to Cameroon, The following
day, all the appointees took their oath before the President, and
commenced to perform the functions of their respective offices.
[a] Characterize the appointments, whether permanent or
temporary; and whether regular or interim, with reasons. (2.5%)
[b] A civil society group, the Volunteers Against Misguided
Politics (VAMP), files suit, contesting the legality of the acts of the
appointees and claiming that the appointees should not have
entered into the performance of the functions of their respective
offices, because their appointments had not yet been confirmed by
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the Commission on Appointments. Is this claim of VAMP correct?
Why or why not? (2.5%) ’16 - Q13
[a]
1. The appointment of Antero as Secretary of Tourism is ad
interim, because it is subject to confirmation of the Commission on
Appointments and was made while Congress was not in session. He
can start performing his duties upon his acceptance, because it is
permanent and cannot be withdrawn after its acceptance (Matibag v.
Benipayo, 380 SCRA 49 [20021).
2. The appointment of Benito as Commissioner of the Bureau of
Immigration is regular and permanent. It is not required to be confirmed
by the Commission on Appointments. He can start performing his duties
upon acceptance of the appointment (Section 16, Article VII of the
Constitution).
3. The appointment of Oodualdo as Chairman of the Civil
Service Commission is ad interim, because it is subject to confirmation
by the Commission on Appointments and was made while Congress
was not in session. He can start performing his duties upon his
acceptance of the appointment, because it is permanent and cannot be
withdrawn.
4. The appointment of Dexter as Chairman of the Commission
on Human Rights is regular and permanent upon his acceptance. It is
not required to be confirmed by the Commission on Appointments. He
can start performing his duties upon his acceptance (Bautista v.
Salonga, 172 SCRA 16011989!).
5. The appointment of Emmanuel as Ambassador to Cameroon
is ad interim, because it is subject to confirmation by the Commission on
Appointment (Section 16, Article VII of the Constitution).
(b) The claim of VAMP is not correct. The Commission of Investigation
and the Commission on Human Rights can immediately start performing
their functions upon acceptance since they are not required to be
confirmed. The Secretary of the Department of Tourism and the
Chairman of the Civil Service Commission, can immediately start
performing their duties upon acceptance, since their ad interim
appointment is permanent.
The Secretary of the Department of Environment and Natural
Resources (DENR) issued Memorandum Circular No. 123-15
prescribing the administrative requirements for the conversion of
a timber license agreement (TLA) into an Integrated Forestry
Management Agreement (IFMA). ABC Corporation, a holder of a
TLA which is about to expire, unreasonable and arbitrary and a
patent nullity because it violates the non-impairment clause under
the Bill of Rights of the 1987 Constitution. ABC Corporation goes
to court seeking the nullification of the subject circular. The DENR
moves to dismiss the case on the ground that ABC Corporation
has failed to exhaust administrative remedies which is fatal to its
cause of action. If you were the judge, will you grant the motion?
Explain. (4%) - ‘15 - Q10
The motion to dismiss should be denied. The doctrine of exhaustion of
administrative remedies applies only to judicial review of decisions of
administrative agencies in the exercise of their quasi-judicial power. It
has no application to their exercise of rule-making power. (Holy Spirit
Homeowners Association, Inc. v. Defensor, 497 SCRA 581 [2006]).
Congress passed a law, R.A. No. 15005, creating an Administrative
Board principally tasked with the supervision and regulation of
legal education. The Board was attached to the Department of
Education. It was empowered, among others to prescribe minimum
standards for law admission and minimum qualifications of faculty
44
members, the basic curricula for the course of study aligned to the
requirements for admission to the Bar, law practice and social
consciousness, as well as to establish a law practice internship as
a requirement for taking the Bar which a law student shall undergo
anytime during the law course, and to adopt a system of continuing
legal education. Professor Boombastick, a long-time law
practitioner and lecturer in several prestigious law schools, assails
the constitutionality of the law, arguing that it encroached on the
prerogatives of the Supreme Court to promulgate rules relative to
admission to the practice of law, the Integrated Bar, and legal
assistance to the underprivileged.
If you were Professor Boombastick’s understudy, how may you
help him develop clear, concise and cogent arguments in support
of his position based on the present Constitution and the decisions
of the Supreme Court on judicial independence and fiscal
autonomy? (4%) ‘14 - Q30
The statutory authority granted to the Administrative Board to
promulgate rules and regulations cannot encroach upon the exclusive
authority of the Supreme Court to regulate the admission to the practice
of law (Section 5 (5), Article VIII of the Constitution).
Thus, the Administrative Board cannot prescribe additional standards for
admission to the practice of law, adopt a course of study which is
inconsistent with the requirements of the Supreme Court, and impose
additional requirements to take the bar examinations (Philippine
Lawyer’s Association v. Angara, G.R. No. L-12426, February 16, 1959,
105 Phil. 173). Since Congress has no power to repeal, alter or
supplement the Rules of Court, it cannot delegate such power to the
Administrative Board.
Effect of a Memorandum Circular which was published in a
newspaper of general circulation but a copy thereof was never filed
with the Office of the National Register of the UP Law Center. ’09 –
Q15b
In accordance with Chapter 2, Book VII of the Administrative Code
of 1987, Memorandum Circular No. 98-17 must be filed with the
University of the Philippines Law Center. It cannot be enforced until it
has been filed with the University of the Philippines Law Center (Pilipinas
Shell Petroleum Corp. v. Commissioner of Internal Revenue, 541 SCRA
316 [2007].)
Quasi-judicial or agency; Definition. ’06 – Q5(4)
A quasi-judicial body is an administrative agency which performs
adjudicative functions. Although it is authorized by law to try and decide
cases, it is not bound strictly by the technical rules of evidence and
procedure. However, it must observe the requirements of due process.
A quasi-judicial body has also been defined as an organ of
government other than a court and other than the legislature which
affects the rights of private parties through either adjudication or rule-
making (Presidential Anti-Dollar Salting Task Force v. Court of Appeals,
171 SCRA 348 [1989]; EPZA v. CHR, 208 SCRA 125 [1992]; Cariño v.
CHR, 205 SCRA 483 [1991].)
Concept of Human Rights; Does the demolition and removal of
structures put up by vendors and squatters involve violations of
human rights within the scope of the CHR’s jurisdiction?
Does the CHR have contempt power? ’05 –Q4(1)(a) & Q4(1)(c); ’01 –
Q6; ’97 – Q8
There is no constitutional or statutory definition of human rights.
Human rights are the basic rights which inhere in man by virtue of his
humanity. The demolition of the structures does not involve a violation
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of human rights. The structures were illegally constructed, impeded the
flow of traffic, and pose a danger to life and limb (Simon v. Commission
on Human Rights, 229 SCRA 117 [1994].)
The Commission on Human Rights cannot cite the Mayor for
contempt. The order to resist is void, because no provision in the
Constitution or any law confers on the Commission on Human Rights to
issue temporary restraining orders or writ of preliminary injunction. The
Commission on Human Rights has no judicial power or adjudicative
power. Its powers are merely investigatory (Export Processing Zone
Authority v. Commission on Human Rights, 208 SCRA 125 [1992].)
The Commission on Human Rights has the power to cite a person
in contempt only in violations of its operation guidelines and rules of
procedure essential to carry out its investigatorial powers which it is
constitutionally authorized to adopt (Simon v. Commission on Human
Rights, 229 SCRA 117 [1994].)
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. ’05 – Q6(1)
The Completeness Test means that the law must set forth the
policy to be carried out by the delegate.
The Sufficient Standard Test means that the limits to which the
delegate must conform in the performance of his functions are
determinate or determinable (Rodrigo v. Sandiganbayan, 309 SCRA
661 [1999].)
Is the provision granting the court the authority to impose a penalty
of imprisonment in its discretion under Section 32 of the R.A. No.
4679 (The Magna Carta for Public School Teachers) constitutional?
’05 – Q6(2)
The provision granting the court the authority to impose a penalty
of imprisonment in its discretion is unconstitutional. Neither a minimum
nor a maximum deviation was set by the legislature. The courts are
given wide latitude to fix the term of the imprisonment without any
sufficient standard. This power is essentially legislative (People v.
Dacuycuy, 173 SCRA 90 [1989].)
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 Authority; and
(e) Land Bank of the Philippines. ’05 – Q7(2)
An agency of the government refers to any of the various units of
the government, including department, bureau, office, instrumentality, or
government-owned or controlled corporation, or a local government or a
distinct unit therein (Section 2(4), Introductory Provisions, Administrative
Code of 1987; Mactan Cebu v. Marcos, 261 SCRA 667 [1996].)
An instrumentality of the government refers to any agency of the
national government, not integrated within the department framework,
vested with special functions or jurisdiction by law, endowed with some
if not all corporate powers, administering special funds, and enjoying
operational autonomy, usually a charter. This term includes regulatory
agencies, chartered institutions, and government-owned or controlled
corporation (Section 3(1), Introductory Provisions, Administrative Code
of 1987; Mactan Cebu v. Marcos, 261 SCRA 667 [1996].)
The Department of Public Works and Highways is an agency of the
government, because it is a department.
The Bangko Sentral ng Pilipinas is a government instrumentality,
because it is vested with the special function of being the central
monetary authority, and enjoys operational autonomy through its charter
(Section 1, Republic Act No. 7653.)
45
The Philippine Ports Authority is a government instrumentality,
because it is merely attached to the Department of Transportation, it is
vested with the special function of regulating ports, and it is endowed
with all corporate powers through its charter (Sections 4(a) and 6(a)(2),
Presidential Decree No. 857.)
The Land Transportation Office is an agency of the government,
because it is an office under the Department of Transportation and
Communication (Section 4(a), Republic Act No. 4136.)
The Land Bank of the Philippines is a government instrumentality,
because it is vested with the special function of financing agrarian
reform, it is endowed with all corporate powers, and it enjoys autonomy
through its charter (Section 74, Agrarian Land Reform Code.)
CTD, a Commissioner of the NLRC, sports a No. 10 car plate. A
disgruntled litigant filed a complaint against him for violation of
R.A. No. 3019 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? ’04 – Q2b
The petition 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].)
Director WOW was charged of graft and corrupt practices by the
Ombudsman and, pending the completion of the investigation, he
was suspended from office for six months.
Aggrieved, WOW petitioned the Court of Appeals to annul the
preventive suspension order on the ground that the Ombudsman
could only recommend but not impose the suspension. Moreover,
according to WOW, the suspension was imposed without any
notice or hearing in violation of due process. Is the petitioner’s
contention meritorious?
For his part, the Ombudsman moved to dismiss WOW’s petition.
According to the Ombudsman, the evidence of WOW is strong and
petitioners failed to exhaust administrative remedies. WOW
admitted he filed no motion for reconsideration, but only because
the order suspending him was immediately executor. Should the
motion to dismiss be granted or not? ’04 – Q6
The contention of Director WOW is not meritorious. The
suspension meted out to him is preventive and not punitive. Section 24
of R.A. No. 6770 grants the Ombudsman the power to impose
suspension up to six (6) months. Preventive suspension may be
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].)
The motion to dismiss should be denied. Since the suspension of
Director WOW was immediately executor, 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 [1991].) Besides, the question involved is
purely legal (Azarcon v. Bunagan, 399 SCRA 365 [2003].)
Whether or not the Commission of Audit, in the exercise of its
power to audit, can disallow the payment of back wages of illegally
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dismissed employees by the Provincial Government of Agusan del
Sur which has been decreed pursuant to a final decision of the Civil
Service Commission. ’04 – Q9a
The refusal of the Province of ADS to pay the full backwages of
their former employees who were illegally dismissed by the previous
governor is not justified. 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
employees is not an irregular, unnecessary, excessive, extravagant or
unconscionable expenditure (Uy v. Commission on Audit, 328 SCRA
607 [2000].)
A group of losing litigants in a case decided by the Supreme Court
filed a complaint before the Ombudsman charging the Justices
with knowingly rendering an unjust decision in utter violation of
the penal laws of the land. Can the Ombudsman validly take
cognizance of the case? ’04 – Q2
No, the Ombudsman cannot entertain the complaint. As state 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.
Validity of a law authorizing a Department Secretary to promulgate
rules and regulations, which declares that the 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. ’02 – Q17
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.
What is the effect of the re-election of a local elective official on his
petition before the Supreme Court questioning his removal from
the same elective office during previous term? ’00 – Q6
His election to the same position 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 conduct.
Explain the doctrine of exhaustion of administrative remedies. ’00
– Q13a
The doctrine 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 [1988].)
What are the exceptions to the application of the doctrine of
exhaustion of administrative remedies? ’00 – Q13b
The following are the exceptions to the application of the doctrine
of administrative remedies:
(1) Purely legal questions (Castro v. Secretary [2001]);
46
(2) Steps to be taken are merely matters of form (Pascual v.
Provincial Board [1959]);
(3) Administrative remedy is not exclusive but merely cumulative
or concurrent to a judicial remedy (Pascual v. Provincial Board
[1959]);
(4) Validity and urgency of judicial action or intervention (Paat v.
CA [1997]);
(5) No other plain, speedy, adequate remedy in the ordinary
course of law (Paat v. CA [1997]; Information Technology
Found’n v. COMELEC [2004]);
(6) Resort to exhaustion will only be oppressive and patently
unreasonable (Paat v. CA [1997]; Cipriano v. Marcelino
[1972]);
(7) Where the administrative remedy is only permissive or
voluntary and not a pre-requisite to the institution of judicial
proceedings (Corpuz v. Cuaderno [1962]);
(8) Application of the doctrine will only cause great and
irreparable damage which cannot be prevented except by
taking the appropriate court action (Paat v. CA [1997];
Cipriano v. Marcelino [1972]);
(9) When it involves the rule-making or quasi-legislative functions
of an administrative agency (Smart v. NTC [2003]);
(10) The administrative agency is in estoppels (Republic v.
Sandiganbayan [1996]);
(11) Doctrine of qualified political agency;
(12) Subject of the controversy is private land in land case
proceedings (Paat v. CA [1997]);
(13) Blatant violation of due process (Paat v. CA [1997]; Pagara
v. CA);
(14) When there is unreasonable delay or official inaction
(Republic v. Sandiganbayan [1996]);
(15) Administrative action is patently illegal amounting to lack or
excess of jurisdiction (Paat v. CA [1997]);
(16) Resort to administrative remedy will amount to nullification of
a claim (DAR v. Apex Investment [2003]; Paat v. CA [1997]);
(17) No administrative review provided for by law (Estrada v. CA
[2004]);
(18) Issue of exhaustion of administrative remedies rendered
moot (Estrada v. CA [2004]);
(19) In quo warranto proceedings (Corpuz v. Cuaderno [1962]);
and
(20) Law expressly provides for a different review procedure
(Samahang Magbubukid v. CA [1999]).
Are government-owned or controlled corporations within the
scope and meaning of the “Government of the Philippines”? ’97 –
Q3
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 the 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 corporations are within the scope
and meaning of the Government of the Philippines if they are performing
governmental of political functions.
Distinguish the doctrine of primary jurisdiction from the doctrine
of exhaustion of administrative remedies. ’96 – Q11(1)
The doctrine of primary jurisdiction and the doctrine of exhaustion
of administrative remedies both deal with the proper relationships
between courts and administrative agencies. The doctrine of exhaustion
of administrative remedies applies where a claim is cognizable in the
first instance by an administrative agency alone. Judicial interference is
withheld until the administrative process has been completed.
As stated in Industrial Enterprises, Inc. v. Court of Appeals, 184
SCRA 426 [1990], the doctrine of primary jurisdiction applies where a
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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 agency.
Does the failure to exhaust administrative remedies before filing a
case in court, oust said court of jurisdiction to hear the case? ’96 –
Q11 (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 v. 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 cause of action, because a condition precedent
that must be satisfied before an action can be filed, was not fulfilled.
LOCAL GOVERNMENT
A law converted the component city of Malumanay, Laguna into a
highly urbanized city. The Local Government Code (LGC) provides
that the conversion “shall take effect only after it is approved by
the majority of votes cast in a plebiscite to be held in the political
units directly affected.”
Before the COMELEC, Mayor Xenon of Malumanay City insists that
only the registered voters of the city should vote in the plebiscite
because the city is the only political unit directly affected by the
conversion. Governor Yuri asserts that all the registered voters of
the entire province of Laguna should participate in the plebiscite,
because when the LGC speaks of the “qualified voters therein,” it
means ail the voters of all the political units affected by such
conversion, and that includes all the voters of the entire province.
He argues that the income, population and area of Laguna will
reduce. Who, between Mayor Xenon and Governor Yuri, is correct?
Explain your answer. (5%) ’16 – Q3
Governor Yuri is correct. All the registered voters of the Province of
Laguna should be included in the plebiscite. The conversion of the City
of Malumanay into a highly urbanized city will adversely affect the
Province of Laguna and its residents. The territory of the Province of
Laguna will be reduced. Its share in the internal revenue allotment will
be reduced, because the population and land area are included as basis
for determining its share. Once the City of Malumanay becomes a highly
urbanized city, the Province of Laguna will no longer share in the taxes
collected by the City of Malumanay. The City of Malumanay will be under
the supervision of the President instead of the Province of Laguna.
Decisions of the City of Malumanay in administrative cases involving
barangay officials will no longer be appealable to the Sangguniang
Panlalawigan. The registered voters of the City of Malumanay will no
longer be entitled to vote for provincial officials. To limit the plebiscite to
the voters of the City of Maluraanay would nullify the principle of majority
rule (Untali v. Commission on Elections, 723 SCRA 170 [2014]).
Typhoon Bangis devastated the Province of Sinagtala. Roads and
bridges were destroyed which impeded the entry of vehicles into
the area. This caused food shortage resulting in massive looting of
grocery stores and malls.
There is power outage also in the area. For these reasons, the
governor of the province declares a state of emergency in their
through Proclamation No. 1. He also invoked Section 465 of the
47
Local Government Code of 1991 (R.A. No. 7160) which vests on the
provincial governor the power to carryout emergency measures
during man-made and natural disasters and calamities, and to call
upon the appropriate national law enforcement agencies to
suppress disorder and lawless violence. In the same proclamation,
the governor called upon the members of the Philippine National
Police, with the assistance of the Armed Forces of the Philippines,
to set up checkpoints and chokepoints, conduct general searches
and seizures including arrests, and other actions necessary to
ensure public safety. Was the action of the provincial governor
proper? Explain? (4%) ‘15 - Q20
The action of the Provincial Governor is not valid. It is only the President
who is authorized to exercise emergency powers under Section 23,
Article VI of the Constitution and to call out the Armed Forces of the
Philippines under Section 1, Article VII of the Constitution. Section 465
of the Local Government Code does not sanction his actions. It refers to
calamities and disasters. Looting is not a calamity or disaster. The power
under Article 465 of the Local Government Code to call upon national
law enforcement agencies to suppress lawless violence is not
applicable. The Armed Forces of the Philippines is not a law
enforcement agency. (Kulayan v. Tan, 675 SCRA 482 [2012]).
From an existing province, Wideland, Congress created a new
province, Hundred Isles, consisting of several islands, with an
aggregate area of 500 square kilometres. The law creating Hundred
Isles was duly approved in a plebiscite called for that purpose.
Juan, a taxpayer and a resident of Wideland, assailed the creation
of Hundred Isles claiming that it did not comply with the area
requirement as set out in the Local Government Code, i.e., an area
of at least 2,000 square kilometres. The proponents justified the
creation, however, pointing out that the Rules and Regulations
Implementing the Local Government Code states that “the land
area requirement shall not apply where the proposed province is
composed of one (1) or more islands.” accordingly, since the new
province consists of several islands, the area requirement need not
be satisfied.
How tenable is the position of the proponents? (4%) ‘14 - Q28
The position of the proponents is tenable. The Supreme Court has
clarified that, when a province is not composed of one or more islands,
its creation need not comply with the 2,000 square kilometre contiguous
territory requirement under the provision of the Local Government Code.
Article 9 (2) of the Implementing Rules and Regulations of the Local
Government Code provided the exemption. Sections 442 and 450 of the
Local Government Code exempted municipalities and component cities
from the area requirement if they consist of one or more islands. While
there is no similar provision for provinces, there is no reason why the
exemption should not apply to them. There is a greater likelihood that
an island or group of islands will form part of the area of a province
(Navarro v. Ermita, G.R. No. 180050, April 12, 2011, 648 SCRA 400).
A valid and definite offer to buy a property is a pre-requisite to
expropriation initiated by a local government unit (Sec. 19, LGC).
’10 – Q13a
Re-classification of land by a local government unit is done
through a resolution but through an ordinance. ’10 – Q13b
The statement that a local government unit may reclassify land
through a resolution is false. Under Section 2 of the Local Government
Code, the enactment of an ordinance is required (Department of
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Agrarian Reform v. Polo Coconut Plantation Company, Inc., 564 SCRA
78 [2008].)
Boundary Disputes between and among municipalities in the same
province; Where to file. ’10 – Q13c
The statement that boundary disputes between and among
municipalities in the same province may be filed immediately with the
Regional Trial Court is false. Under Section 118 of the Local
Government Code, they should be referred to the sangguniang
panlalawigan (Municipality of Sta. Fe v. Municipality of Artao, 533 SCRA
586 [2007].)
Metropolitan Manila Development Authority is not authorized to
confiscate a driver’s license in the enforcement of traffic
regulations. ‘10 – Q13d
The statement that the Metropolitan Manila Development Authority
(MMDA) is authorized to confiscate a driver’s license in the enforcement
of traffic regulations is false. Since Republic Act No. 7924 does not grant
the MMDA the authority to enact ordinances, the grant to it by Section
5(f) of R.A. No. 7924 of the power to confiscate drivers’ licenses without
need of any other law is an unauthorized exercise of police power
(Metropolitan Manila Development Authority v. Garin, 456 SCRA 176
[2005].)
Authority of city government to issue a cease and desist order to
stop the operations of an industrial waste processing plant on the
ground that it emits an obnoxious odor. ’10 – Q14
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. v. Frabelle Properties Corp., 506 SCRA 625 [2006].)
De facto municipal corporation; Definition. ’10 – Q20b
A de facto municipal corporation is one so defectively created as
not to be a de jure corporation but is nevertheless the result of a bona
fide attempt to incorporate under existing statutory authority, couple with
the exercise of corporate powers, and recognized by the courts as such
on the grounds of public policy in all proceedings except by a direct
attack by the state questioning its corporate existence (Angeles,
Restatement of the Law on Local Governments, p. 23.)
Municipal corporation by estoppel; Definition. ’10 – Q20c
A municipal corporation by estoppel is a corporation which is
defectively formed as not to be a de facto corporation but is considered
a corporation in relation to someone who dealt with it and acquiesced in
its exercise of its corporate functions or entered into a contract with it
(Martin, Public Corporations, 1985 ed., p. 20.)
Constitutionality of a Sangguniang Panglungsod Ordinance
requiring all disco pub owners to have all their hospitality girls
tested for HIV. ’10 – Q21
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 v. Dangerous Drugs
Board, 570 SCRA 410 [2008].) The ordinance is a valid exercise of
police power, because its purpose is to safeguard public health (Beltran
v. Secretary of Health, 476 SCRA 168 [2005].)
Recall election; Succession; Eligibility of losing candidate to run
for the same office; Propriety of resignation of incumbent official
instead of running in the recall election. ’10 - Q22
48
The candidate who received the highest number of votes will
succeed Governor Diy. (Section 72, Local Government Code.)
Governor Diy can run again as governor. He did not fully serve his
third term, because he lost in the recall election. His third term should
not be included in computing the three-term limit (Lonzanida v.
Commission on Elections, 311 SCRA 602 [1999].)
Governor Diy cannot refuse to run in the recall election. He is
automatically considered as a duly registered candidate. (Sec. 71,
LGC). He is not allowed to resign. (Sec. 73, LGC.)
Expropriation of parcel of land by Sangguniang bayan for a
freedom park notwithstanding an existence of smaller freedom
park in the municipality; When can Sangguniang Panlalawigan
declared invalid an ordinance made by Sangguniang Bayan. ’09 –
Q3; ’05 – Q10(2)(b)
The disapproval of the ordinance is not correct.
Under Section 56(c) of the Local Government Code, the
Sangguniang Bayan of Leyte can declare the ordinance invalid only if it
is beyond the power of the Sangguniang Bayan of Bulalakaw. In the
instant case, the ordinance is well within the power of the Sangguniang
Bayan. The disapproval of the ordinance by the Sangguniang
Panlalawigan of Leyte was outside of its authority having been done on
a matter pertaining to the wisdom of the ordinance which pertains to the
Sangguniang Bayan (Moday v. Court of Appeals, 268 SCRA 586
[1997].)
Liability of municipality arising from injuries sustained by a
pedestrian who was hit by a glass pane that fell from a dilapidated
window frame of the municipal hall. ’09 – Q4
The motion to dismiss should be denied. Under Sec. 24 of the Local
Government Code and Article 2189 of the Civil Code, the municipality of
Pinatukdao is liable for damages arising from injuries to person by
reason of negligence of local government units or local offices of the
defective condition of the municipal hall under their control and
supervision.
Effect of an adverse decision in an election protest which declared
a candidate to have lost in the election during his second term, but
promulgated only after full serving such term, in running for the
same elective position after the expiration of his third term. ’08 –
Q9a
Abdul may no longer run because he has served three full terms.
The decision regarding his second term is of no moment because he
has already fully served the term. Moreover, such decision did not oust
him from his third term. (Ong v. Alegre, G.R. No. 163295, 23 January
2006; Rivera III v. Morales, G.R. No. 167591, 9 May 2007.)
Whether or not the candidate’s political party can validly nominate
his wife as substitute candidate in case the COMELEC disqualifies
him and denies due course to or cancels his certificate of
candidacy in view of a false material representation. ’08 – Q9b
In case the COMELEC disqualifies him, his wife could be
nominated on her own right. She would not be a substitute because
Abdul is not entitled to a substitute as the grounds for substitution is
exclusive – death, withdrawal of disqualification (Ong v. Alegre, G.R. No.
163295, 23 January 2006; Rivera III v. Morales, G.R. No. 167591, 9 May
2007.)
Who succeeds in case the governor dies, vice-governor succeeds
him by operation of law, the highest ranking member of the
Sangguniang Panlalawigan was elevated as Vice-Governor. ’08 –
Q11
In a Sanggunian, the vacancy is fulfilled by appointment by the
President, through the Executive Secretary, of the nominee of the
political party to which the decedent belongs.
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Mayor appointed his wife as City Treasurer among 3 employees
considered for the position. His wife has been an Assistant City
Treasurer for 10 years even before she married the Mayor;
Propriety thereof. ’08 – Q12
Section 48 of the Civil Service Law and Section 79 of the Local
Government Code prohibits appointments of relatives within the fourth
degree of consanguinity or affinity. The Civil Service Commission should
declare Amelia not qualified for the position, even if she is otherwise
qualified (Debulgado v. CSC, G.R. No. 111471, 26 September 1994;
People v. Sandiganbayan, G.R. No. 164185, 23 July 2008.)
Besides this, appointment of a Treasurer is by the Secretary of
Finance (Sec. 470, Local Government Code.)
Constitutionality of a provision in the General Appropriations Act
which provides that the Internal Revenue Allocation be released
only if the province meets certain conditions as determined by an
Oversight Council created by the President; Standing of district
representative in case the provincial governor does not file the
case. ’07 – Q8
The requirement is void. The Constitution provided that the internal
revenue allotment of the local government units must be automatically
released to them (Section 6, Article X of the Constitution.) Hence, the
Province of Bataan cannot be required to perform any act before it can
receive its internal revenue allotment (Province of Batangas v. Romulo,
429 SCRA 736 [2004].)
It is the Governor of the Province of Bataan who should file the
case to compel DBM to release the funds. However, if the Governor
does not file the case because he is a party-mate of the President, the
Representative of Bataan may be allowed to file the case. The issue
involved is of transcendental importance, and the Representative, being
a taxpayer and voter in Bataan, has the requisite standing to institute the
action (Francisco v. House of Representatives, 415 SCRA 44 [2003].)
To give 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. ’05 – Q1b
The proclamation of a state of calamity by the President will have
the following legal effects:
1. The local government units in the Province of Aurora may
enact a supplemental budget for the purchase of supplies and
materials or the payment of services to prevent danger to or
loss of life or property (Section 321, Local Government
Code.);
2. The five (5) per cent of the estimated revenue from regular
sources required to be appropriated in the budgets of local
government units for unforeseen expenditures may be used
in the Province of Aurora (Section 324(d), Local Government
Code.);
3. Science and technological personnel of the government in the
Province of Aurora shall be paid hazard allowance (Section
7(c), Republic Act No. 8439.);
4. Public Health workers in the Province of Aurora shall be paid
hazard allowance (Section 21, Republic Act No. 7305.);
5. The prices of basic necessities in the Province of Aurora shall
automatically be frozen at their prevailing levels or place
under automatic price control (Section 6(1), Republic Act No.
7581 entitled as The Price Act.);
6. A crime committed in the Province of Aurora will be
considered aggravated (Article 14(7), Revised Penal Code.)
(The last two (2) answers to this case are more appropriate for
coverage in other subjects.)
To be qualified for the office to which a local official has been
elected, when at the latest should he be:
(a) A Filipino citizen?
(b) A resident of the locality? ’05 – Q9(1)
49
To be qualified for the office to which a local official has been
elected, it is sufficient that he is a Filipino citizen at the time of his
proclamation and at the start of his term. Philippine citizenship is
required for holding an elective public office to ensure that no person
owing allegiance to another country shall govern our people and a unit
of the Philippine territory. An official begins to discharge his functions
only upon his proclamation and on the day his term of office begins
(Frivaldo v. Commission on Elections, 257 SCRA 727 [1996].)
To be qualified for the office to which a local official has been
elected, he must be a resident of the locality for at least one year
immediately before the election (Section 39(a), Local Government
Code.)
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 of Tuba was converted
into the component City of Tuba. The said charter provided for a
hold-over and so without interregnum, Manuel went 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 (3) consecutive terms as elected
Mayor when Tuba was still a municipality. He also stated in this
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.
1. As lawyer of Manuel, present the possible arguments to
prevent his disqualification and removal.
As lawyer of Manuel, I shall argue that when the municipality was
converted to a city, it became a different juridical personality. Hence,
when he ran for city mayor, he was not running for the same office as
that of municipal mayor.
2. 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?
Manuel is not eligible to run as mayor of the City of Tuba. While it
acquired a new corporate existence separate and distinct from the of the
municipality, this does not mean that for the purpose of applying the
constitutional provision on term limitations, the office of the municipal
mayor should be considered as different from the office of the city mayor.
The framers of the Constitution intended to avoid the evil of a single
person accumulating excessive power over a particular territorial
jurisdiction as a result of a prolonged stay in power. To allow Manuel to
vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor will defeat the intent of the
framers of the Constitution (Latasa v. Commission on Elections, 417
SCRA 601 [2003].)
3. Assuming that Manuel is not eligible candidate, rebut
Reyes’ claim that he should be proclaimed as winner
having received the next highest number of votes. ’05 –
Q9(2)
The fact the Manuel is ineligible does not entitled Reyes, who
garnered the second highest number of votes, to be proclaimed elected.
He was not the choice of the people (Latasa v. Commission on
Elections, 417 SCRA 601 [2003].)
There was a boundary dispute between Dueñas, a municipality, and
Paasi, an independent component city, both of the same province.
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State how the two local government units should settle their
boundary dispute. ’05 – Q10(1)
Since Passi is an independent component city, while Dueñas is a
municipality, the procedure in Section 18 of the Local Government Code
does not apply to them. Since there is no law providing for the jurisdiction
of any court or quasi-judicial agency over the settlement of the boundary
dispute, the Regional Trial Court has jurisdiction to adjudicate it. Under
Section 19(6) of the Judiciary Reorganization Act, the Regional Trial
Court has exclusive original jurisdiction in all cases not within the
exclusive jurisdiction of any court or quasi-judicial agency (Municipality
of Kananga v. Madrona, 402 SCRA 330 [2003].)
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; and (b) the
Municipality of Santa has other and better lots for the purpose.
Resolve the case with reasons. ’05 – Q10(2)
The Municipality of Santa has the power to expropriate. Section 19
of the Local Government Code grants all local government units the
power of eminent domain. However, Section 19 of the Local
Government Code requires an ordinance, not a resolution, for the
exercise of the power of eminent domain (Heirs of Alberto Suguitan v.
City of Mandaluyong, 328 SCRA 137 [2000].)
If there are other lots that are better and more appropriate for the
municipal sports center, the lot owned by Christina should not be
expropriated. Its choice is arbitrary (Municipality of Meycauayan v.
Intermediate Appellate Court, 157 SCRA 640 [1988].)
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 separate town to be called Masigla.
1. 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 or vote
in the plebiscite?
A plebiscite is necessary, because this is required for the creation
of a new municipality (Section 10, Article X of the 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. Commission on
Elections, 142 SCRA 727 [1986].)
2. 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? ’04 – Q7
Although the municipality cannot be created as a de facto
corporation, because there is no valid law under which it was created,
the acts of the municipality and of its officers will not be invalidated,
because the existence of the law creating it is an operative fact before it
was declared unconstitutional. Hence, the previous acts of the
municipality and its officers should be given effect as a matter of fairness
and justice (Municipality of Malabang v. Benito, 27 SCRA 533 [1969].)
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 steers
which they had designated as flea markets. Portions of the said city
50
streets were leased or licensed by the respondent officials to
market stallholders by virtue of a city ordinance. Decide the
dispute. ’03 – Q11; ’97 – Q9
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 portions of the city streets to market
stallholders.
Can a Barangay Assembly exercise any police power? ’03 – Q13a
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.
Can the Liga ng mga Barangay exercise legislative powers? ’03 –
Q13b
The Liga ng Mga Barangay cannot exercise legislative powers. As
state 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 liga in the sanggunian; to ventilate, articulate, and crystallize
issues affecting barangay government administration; and to secure
solutions for them through proper and legal means.
Suppose A, a municipal mayor, went on a sick leave to undergo
medical treatment for a period of four (4) months. During that time:
1. Will B, the Municipal Vice-Mayor, be performing executive
functions? Why?
Since the Municipal Mayor is temporarily incapacitated to perform
his duties, 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.
2. Will B at the same time be also performing legislative
functions as presiding officer of the Sangguniang
Bayan? ’02 – Q14
The Municipal Vice-Mayor cannot continue as presiding officer of
the Sangguniang Bayan while he is acting as Municipal Mayor. In
accordance with Gamboa v. Aguirre, 310 SCRA 867 [1999], under the
Local Government Code, the Municipal Vice-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 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.
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? ’02 – Q15
As held in Fariñas v. Barba, 256 SCRA 396 [1996], neither of the
appointments is valid. Under Section 45 of the Local Government Code,
in case of permanent vacancy in the Sangguniang Bayan created by the
cessation in office of 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.
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Suppose the people of province want to recall the provincial
governor before the end of his three-year term of office.
1. On what grounds can the provincial governor be
recalled?
In accordance with Section 69 of the Local Government Code, the
Governor can be recalled for loss of confidence.
2. How will the recall be initiated?
Under Section 70 of the Local Government Code, the Recall of any
elective provincial, city, municipal or barangay official shall be
commenced by a petition of a registered voter in the local government
unit concerned and supported by the registered voters in the local
government unit concerned during the election in which the local official
sought to be recalled was elected subject to the following percentage
requirements:
1. At least twenty-five percent (25%) in the case of local
government units with a voting population of not more than
twenty thousand (20,000);
2. At least twenty percent (20%) in the case of local government
units with a voting population of at least twenty thousand
(20,000) but not more than seventy-five thousand (75,000):
Provided, That in no case shall the required petitioners be less
than five thousand (5,000);
3. At least fifteen percent (15%) in the case of local government
nits with a voting population of at least seventy-five thousand
(75,000) but not more than three hundred thousand
(300,000): Provided, however, That in no case shall the
required number of petitioners be less than fifteen thousand
(15,000); and
At least ten percent (10%) in the case of local government units
with a voting population of over three hundred thousand (300,000):
Provided, however, That in no case shall the required petitioners be less
than forty-five thousand (45,000).
3. When will the recall of an elective local official be
considered effective? ’02 – Q16
According to Section 72 of the Local Government Code, the recall
of an elective official shall take effect upon the election and proclamation
of the candidate receiving the highest number of votes.
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 Parate
succeeded as mayor and served the remaining portion of the term
of office. Segundo Parate ran in the 1995 and 1998 elections as
mayor and fully served each term. In the May 2001 election,
Segundo Parate filed his certificate of candidacy for the same
position of mayor, but his rival mayoralty candidate sought his
disqualification alleging violation of the three-term limited for local
effective officials provided for in the Constitution and in the Local
Government Code. Decide whether the disqualification case will
prosper or not. ’01 – Q19
The disqualification case should be dismissed. As held in Borja v.
Commission on Elections, 295 SCRA 157 [1996], in computing the
three-term limitation imposed upon elective local officials, only the term
for which he was elected to should be considered. The term which he
served as a result of succession should not be included. It is not enough
that official has served three consecutive terms. He must have been
elected to the same position three consecutive terms.
Define devolution with respect to local government units. Under
the Local Government Code, name the persons who are
disqualified from running from any elective position. ’99 – Q5(a)(1)
Section 17(e) of the Local Government Code defines devolution as
the act by which the National Government confers power and authority
51
upon the various local government units to perform specific functions
and responsibilities.
Under the Local Government Code, name the persons who are
disqualified from running from any elective position. ’99 – Q5(a)(2)
Under Section 40 of the Local Government Code, the following are
disqualified from running for any local elective position:
a) Those sentenced by final judgement 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;
b) Those removed from office as a result of an administrative
case;
c) Those convicted by final judgment for violating the oath of
allegiance to the Republic of the Philippines;
d) Those with dual citizenship;
e) Fugitives from justice in criminal of non-political cases here or
abroad;
f) Permanents residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail the
same right after the effectivity of the Local Government Code;
and
g) The insane or feeble-minded.
Under the Constitution, what are the three main sources of revenue
of local government units? ’99 – Q5b
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 utilization and development of
the national wealth within their areas (Section 7, Article X.)
What body or bodies are vested by law with the authority to settle
disputes involving: 1. Two or more towns within the same
province; and 2. Two or more highly urbanized cities. ’99 – Q5c
Under Section 118(b) of the Local Government Code, boundary
disputes between two or more municipalities within the same province
shall be settled by the Sangguniang Panlalawigan concerned.
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.
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 aforementioned position to the DBM, one
of whom was Marta Mahonhon. A month later, Pedro informed DBM
that Marta had assumed the office of PBO and requested that she
be extended the appropriate appointment. The DBM Secretary
appointed Josefa Kalayon instead. Pedro protested the
appointment of Josefa insisting that it is he who had the right to
choose the PBO by submitting the names of his three nominees
and Josefa was not one of them. The DBM countered that none of
the governor’s nominees have the necessary qualifications for the
position. Specifically, Marta lacked the five-year budgeting
experience. Hence, the DBM was left with no alternative but to
name one who possesses all the requisite qualifications in the
person of Josefa. It cited Section 6 of the DBM Local Budget
Circular No. 31 which states “the DBM reserves the right to fill up
any existing vacancy where none of the nominees of the local chief
executive meet the prescribed requirements.”
Was the DBM’s appointment valid?
What can you say regarding the above-quoted Section 6 of the DBM
Local Budget Circular No. 31? ’99 – Q5d
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Under Section 1 of Executive Order No. 112, the Provincial Budget
Officer must be recommended by the Governor. Since Josefa was not
recommended by the Governor, her appointment is not valid. As held in
San Juan v. Civil Service Commission, 196 SCRA 69 [1991], 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.
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.
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 and controlled
corporation, its properties are exempt from real estate taxes. If you
were the judge, how would you decide the case? ’99 – Q6c
In National Development Company v. Cebu City, 215 SCRA 382
[1992], the Supreme Court held that the National Development
Company was not liable for real estate tax on the property belonging to
the government which it occupies. However, Section 234 of the Local
Government Code subsequently withdrew the exemption from real
property taxes of government-owned or controlled corporations. If I were
the Judge, I would hold the National Development Company liable for
real estate taxes.
The City of Pasig initiated expropriation proceedings of 1-hectare
lot which is part of a 10-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.
1. Can the owner of the property oppose the expropriation
on the ground that only 200 of the more than 10,000
squatter families in Pasig City will benefit from the
expropriation?
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 the expropriation. As held in Philippine Columban
Association v. Panis, 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.
2. Can the DAR require the City of Pasig to first secure
authority from said Department before converting the use
of the land from agricultural to housing? ’96 – Q4(2)
No, the Department of Agrarian Reform cannot require Pasig City
to first secure authority from is before converting the use of the land from
agricultural to residential. According to Province of Camarines Sur v.
Court of Appeals, 222 SCRA 173 [1993], 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 who will determine whether or not the
expropriation is for a public use.
How does the local legislative assembly override the veto by the
local chief executive of an ordinance? ’96 – Q12(1)
Under Sections 54(a) and 55(c) of the Local Government Code, the
local legislative assembly can override the veto of the local chief
executive by two-thirds (2/3) of all its members.
On what grounds can a local chief executive veto an ordinance?
’96 – Q12(2)
52
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.
How can an ordinance vetoed by a local chief executive become a
law without it being overridden by the local legislative assembly?
’96 – Q12(3)
Pursuant to Section 55(a) 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 fifteen (15) days in the case of a province and ten (10) days in
case of a city or 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.
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 election, X got the highest number
of votes among the candidates for the Sangguniang Bayan of the
same town. A died the day before his proclamation.
1. Who should the Board of Canvassers proclaim as elected
mayor, A, B or X?
In accordance with Benito v. Commission on Elections, 235 SCRA
436, it is A who should be proclaimed 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
rules 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 as mayor, because he ran
for the Sangguniang Bayan.
2. Who is entitled to discharge the functions of the office of
the mayor, B or X? ’96 – Q13(1)
Neither B nor X is entitled to discharge the functions of the office of
mayor. B is not entitled to discharge the office of mayor, since he was
defeated in the election. X is not entitled to discharge the office of mayor.
Under Section 44 of the Local Government Code, it is the vice mayor
who should succeed in case of permanent vacancy in the office of the
mayor. It is only when the position of 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.
PUBLIC OFFICERS
Professor Masipag who holds a plantilla or regular item in the
University of the Philippines (UP) is appointed as an Executive
Assistant in the Court of Appeals (CA). The professor is considered
only on leave of absence in UP while he reports for work at the CA
which shall pay him the salary of the Executive Assistant. The
appointment to the CA position was questioned, but Professor
Masipag countered that he will not collect the salary for both
positions; hence, he can not be accused of receiving double
compensation. Is the argument of the professor valid? ‘15 - Q3
Although Professor Masipag is correct in saying that “he can not be
accused of receiving double compensation” as he would not actually be
receiving additional or double compensation, it is submitted that he may
nevertheless not be allowed to accept the position of Executive Assistant
of the Court of Appeals during his incumbency as a regular employee of
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the University of the Philippines, as the former would be an incompatible
office not allowed to be concurrently held by him under the provisions of
Article IX-B, Section 7 of the Constitution, the second paragraph of
which specifies that “unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold any other office
in the Government.”
Senator Fleur De Lis is charged with plunder before the
Sandiganbayan. After finding the existence of probable cause, the
court issues a warrant for the Senator’s arrest. The prosecution
files a motion to suspend the Senator relying on Section 5 of the
Plunder Law. According to the prosecution, the suspension should
last until the termination of the case. Senator Lis vigorously
opposes the motion contending that only the Senate can discipline
its members and that to allow his suspension by the Court would
violate the principle of separation of powers. Is Senator Lis’s
contention tenable? Explain. (4%) ‘15 - Q7
The contention of Senator Fleur de Lis is not tenable. The suspension
contemplated in Subsection 3, Section 16, Article VI of the Constitution
erring member. The suspension imposed under Section 5 of the Plunder
Law is not a penalty but a preventive measure. The doctrine of
separation of powers cannot be deemed to have excluded Members of
Congress from the application of the Plunder Law. The law itself does
not exclude Members of Congress from its coverage. The
Sandiganbayan did not err in issuing the preventive suspension order.
(Santiago v. Sandiganbayan, 756 SCRA 636 [2001]).
The President appointed Dexter I. Ty as Chairperson of the
COMELEC on June 14, 2011 for a term of seven (7) years pursuant
to the 1987 Constitution. His term of office started on June 2, 2011
to end on June 2, 2018. Subsequently, the President appointed Ms.
Marikit as the third member of the COMELEC for a term of seven
(7) years starting June 2, 2014 until June 2, 2021. On June 2, 2015,
Chairperson Ty retired optionally after having served the
government for thirty (30) years. The President then appointed
Commissioner Marikit as COMELEC Chairperson. The Commission
on Appointments confirmed her appointment. The appointment
papers expressly indicate that Marikit will serve as COMELEC
Chairperson “until the expiration of the original term of her office
as COMELEC Commissioner or on June 2, 2021.” Matalino, a tax
payer, files a petition for certiorari before the Supreme Court
asserting that the appointment of Marikit as COMELEC
Chairperson is unconstitutional for the following reasons: (1) The
appointment of Marikit as COMELEC Chairperson constituted a
reappointment which is proscribed by Section 1 (2), Article IX of
the 1987 Constitution; and (2) likewise contravenes the
aforementioned constitutional provision. Will the constitutional
challenge succeed? Explain. (4%) ‘15 - Q15
(1) The argument of Matalino that the appointment of
Commissioner Marikit as Chairman constituted a
reappointment, which is prohibited as Chairman,
Commissioner Marikit had not yet fully served his term. What
the Constitution prohibits was his reappointment as
Commissioner after serving his seven-year term. His
appointment as Chairman was a promotional appointment
and was not covered by the prohibition against
reappointment.
(2) The limitation of the term of Commissioner Marikit as
Chairman until the expiration of the original term of her office
53
as Commissioner on June 2, 2021 is valid until 2018, that is,
the unexpired portion of the last Chairman’s term but invalid if
until 2021 as it exceeds the limitation. It is in accordance with
the principle that the promotional appointment is allowed
provided that the aggregate period of the term of the
appointee will not exceed seven years and that the rotational
scheme of staggering the terms of the commission
membership is maintained. (Funa v. Villar, 670 SCRA 579
[2012]).
The President appoints Emilio Melchor as Chairperson of the Civil
Service Commission. Upon confirmation of Melchor’s
appointment, the President issues an executive order including
him as Ex-Officio member of the Board of Trustees of the
Government Service Insurance System (GSIS), Employees
Compensation Commission (ECC), and the Board of Directors of
the Philippine Health Insurance Corporation (PHILHEALTH).
Allegedly, this is based on the Administrative Code of 1997 (E.O.
No. 292), particularly Section 14, Chapter 3, Title 1-A, Book V. This
provision reads: “The chairman of the CSC shall be a member of
the Board of Directors of other governing bodies of government
entities whose functions affect the career development,
employment, status, rights, privileges, and welfare of government
officials and employees… “A taxpayer questions the designation
of Melchor as ex-officio member of the said corporations before the
Supreme Court based on two (2) grounds, to wit: (1) it violates the
constitutional prohibition on members of the Constitutional
Commissions to hold any other office or employment during his
tenure; and (2) it impairs the independence of the CSC. Will the
petition prosper? Explain. (4%) ‘15 - Q22
The Chairperson Emilio Melchor’s holding ex-officio of the other offices
under the Executive Order mentioned in the problem would constitute a
clear violation of the special prohibition in Section 2 of Article IX-A of the
Constitution, which strictly provides that he shall, during his tenure, not
hold any other office or employment. Said constitutional provision does
not make any distinction among the offices he may not hold, or as to
whether or not the functions attached to said offices would be primarily
related to his duties as Chairperson of the Civil Service Commission and
therefore may be held in an ex-officio capacity.
The GSIS, PHILHEALTH, ECC and HDMF are vested by their
respective charters with various powers and functions to carry out the
purposes for which they were created. While powers and functions
associated with appointments, compensation and benefits affect the
career development, employment status, rights, privileges, and welfare
of government officials and employees, the GSIS, PHILHEALTH, ECC
and HDMF are also tasked to perform other corporate powers and
functions that are not personnel-related. All of these powers and
functions, whether personnel-related or not, are carried out and
exercised by the respective Boards of the GSIS, PHILHEALTH, ECC
and HDMF. Hence, when the CSC Chairman sits as a member of the
governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may
exercise these powers and functions which are not anymore derived
from his position as CSC Chairman, such as imposing interest on unpaid
or unremitted contributions, issuing guidelines for the accreditation of
health care providers, or approving restructuring proposals in the
payment of unpaid loan authorizations.
The CSC Chairman’s designation as member of the governing Boards
of the GSIS, PHILHEALTH, ECC and HDMF entitles him to receive per
diem, a form of additional compensation that is disallowed by the
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concept of an ex officio position by virtue of its clear contravention of the
proscription set by Section 2, Article IX-A of the 1987 Constitution. This
situation goes against the principle behind an ex officio position, and
must, therefore, be held unconstitutional.
Apart from violating the prohibition against holding multiple offices,
Melchor’s designation as member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF impairs the independence of the CSC.
Under Section 17, Article VII of the Constitution, the President exercises
control over all government offices in the Executive Branch. An office
that is legally not under the control of the President is not part of the
Executive Branch. (Funa v. The Chairman, Civil Service Commission,
G.R. No. November 25, 2014 11, 2010, 612 SCRA 308).
The one-year-bar rule in impeachment proceedings is to be
reckoned from the time the (1%)‘14 - Q26
(A) First impeachment complaint is filed
(B) Impeachment complaint is referred to the Committee on
Justice
(C) House of Representatives vote on the impeachment
complaint
(D) House of Representatives endorses the Articles of
Impeachment to the Senate
(B) Impeachment complaint is referred to the Committee on
Justice
As a leading member of the Lapiang Mandirigma, in the House of
Representatives, you were tasked to initiate the moves to
impeach the President because he entered into an executive
agreement with the US Ambassador for the use of the Subic Naval
Base by the US Navy, for free, i.e., without need to pay rent or any
kind of fees as a show of goodwill to the U.S. because of the
continuing harmonious RP-US relations.
Cite at least two (2) grounds for impeachment and explain with
you chose them. (6%) ‘13 - Q5
The President can be impeached culpable violation of the Constitution
and betrayal of public trust. The Supreme Court has already ruled that
the provision in Article XVII, Section 25 of the Constitution requires a
treaty even for the mere temporary presence of foreign troops in the
Philippines (Bayan v. Zamora, G.R. No. 138570. October 10,2000, 342
SCRA 499). The President cannot claim, therefore, that he acted in
good faith. (Report of the Special Committee in the Impeachment of
President Quirino, Congressional Record of the House of
Representatives, Vol. IV, p. 1553). Betrayal of public trust includes
violation of the oath of the Office of the President (Record of the
Constitutional Commission, Vol. II, p. 272). In his oath of office, the
President swore to preserve and defend the Constitution (Article VII,
Section V of the 1987 Constitution).
ALTERNATIVE ANSWER:
The President can be impeached for culpable violation of the
Constitution and graft and corruption (Article XI, Section 2). By entering
into executive agreement, the President violated Section 3(e) of the
Anti-Graft and Corrupt Practices Act because of the undue injury to the
Republic of the Philippines.
54
In her interview before the Judicial and Bar Council (JBC),
Commissioner Annie Amorsolo of the National Labor and
Relations Commission (NLRC) claims that she should be given
credit for judicial service because as NLRC Commissioner, she
has the rank of a Justice of the Court of Appeals; she adjudicates
cases that are applicable to the Court of Appeals; she is assigned
car plate no. 10; and she is, by law, entitled to the rank, benefits
and privileges of a Court of Appeals Justice.
If you were a member of the JBC, would you give credit to this
explanation? (6%) ‘13 - Q11
No, I will not give credence to the explanation of
Commissioner Annie Amorsolo. Her ranking merely means that she
has the same salary and benefits as a Justice of the Court of Appeals.
However, she is not actually a Justice of the Court of Appeals. The
National Labor is not a court. She does not perform judicial functions
(Noblejas v. Teehankee, G.R. No. L-28790, April 29, 1968, 23 SCRA
405.
A verified impeachment complaint was filed by two hundred (200)
Members of the House of Representatives against Madam Chief
Justice Blue. The complaint was immediately transmitted to the
Senate for trial.
a) Madam Chief Justice Blue challenges such immediate
transmittal to the Senate because the verified complaint
was 1) not included in the order of business of the
House, 2) was not referred to the House Committee on
Justice for hearing and consideration for sufficiency in
form and substance, and 3) was not submitted to the
House Plenary for consideration as enumerated in
Paragraph (2); Section 3, Article XI of the 1987
Constitution. Decide with reason. (5%); ‘12 - Q2a
Since the verified complaint was filed by 200 Members of the House of
Representatives and they constituted at least one third of its Members,
it need not undergo the procedure in Paragraph 2, Section 3, Article XI
of the Constitution. The verified complaint constitutes the Articles of
impeachment, and trial by the Senate should proceed forthwith.
(Section 3(4), Article XI of the Constitution.)
b) What is the purpose of Impeachment? Does conviction
prevent further prosecution and punishment? Explain.
(3%); ‘12 - Q2b
The purpose of impeachment is not to punish but only to remove a public
officer to secure the people against gross political misdemeanors.
(Bernas, The 1987 Constitution of the Philippines, A Commentary, 2009
ed., p. 1150.)
Conviction does not prevent further prosecution and punishment. The
person convicted is subject to-prosecution and punishment according
to low. (Section 3(7), Article XI of the Constitution.)
c) Enumerate the grounds for impeachment. Is graft and
corruption a ground for impeachment? (2%) ‘12 - Q2c
The following are the grounds for impeachment:
1. Culpable violation of the Constitution,
2. Treason;
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3. Bribery;
4. Graft and corruption;
5. Other high crimes; and,
6. Betrayal of public trust
Judge Red is the Executive Judge of Green City. Red is known to
have corrupt tendencies and has a reputation widely among
practicing lawyers for accepting bribes. Ombudsman Grey,
wishing to “clean up" the government from errant public officials,
initiated an investigation on the alleged irregularities in the
performance of duties of Judge Red.
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
court official or employee falls under the exclusive
jurisdiction of the Supreme Court. Decide with
reasons.(5%); ‘12 - Q5a
Since the complaint refers to the performance of the duties of Judge
Red, Ombudsman Grey should not act on it and should refer it to the
Supreme Court. His investigation will encroach upon the exclusive
power of administrative supervision of the Supreme Court over all
courts. (Maceda vs. Vasquez, 221 SCRA 464.]
b) Does the Ombudsman have authority to conduct
investigation over crimes or offenses committed by
public officials that are NOT in connection or related at
all to the official’s discharge of his duties and
functions? Explain (3%); ‘12 - Q5b
The Ombudsman can investigate crimes or offenses committed by
public officers which are not connected with the performance of their
duties. Under Section 13(1), Article XI of the Constitution, the
Ombudsman can investigate any act or omission of a public official
which is illegal. (Deloso vs Domingo, 191 SCRA 545.)
c) Who are required by the Constitution to submit a
declaration under oath of his asset, liabilities, and net
worth? (2%). ‘12 - Q5c
All public officers and employees are required to submit a declaration
under oath. of their assets, liabilities and net worth. (Section 17, Article
XI of the Constitution.)
Necessity that for one to be declared a declared a de facto officer,
the office must be validly created. ‘10 – Q15a
The statement that a person who occupies an office that is
defectively created is a de facto officer is FALSE. For him to be a de
facto officer, the office must be validly created (Tuanda v.
Sandiganbayan, 249 SCRA 342 [1995].)
Rule on nepotism applies to designations made in favor of a
relative of the authority making the designation. ’10 – Q15b
The statement that the rule on nepotism does not apply to
designations made in favor of a relative is false. Designation
accomplishes the same purpose as appointment (Laurel v. Civil Service
Commission, 203 SCRA 195 [1991].)
A discretionary duty of a public officer is may be delegated. ’10 –
Q15c
55
The statement that a discretionary duty of a public office can never
be delegated is FALSE. It can be delegated if the delegation is
authorized (Mechem, A Treatise on the Law on Public Offices and
Officers, p. 368.)
Acquisition of Civil Service eligibility during tenure of a temporary
appointee does not automatically translate to a permanent
appointment. ’10 – Q15d
The statement that the acquisition of civil service eligibility does not
automatically translate to a permanent appointment is true. A new
appointment is necessary (Province of Camarines Sur v. Court of
Appeals, 246 SCRA 281 [1995].)
Principle of Holdover. ’10 - Q20e
The principle of holdover means that in the absence of an express
or implied constitutional or statutory provision to the contrary, an officer
is entitled to hold his office until his successor is appointed or chosen
and has been qualified (Topacio Nueno v. Angeles, 76 Phil. 12 [1946].)
Career Ambassador who accepted an ad interim appointment as
Cabinet Member but was not bypassed by COA and was not re-
appointed cannot re-assume his position as career Ambassador.
’10 – Q23
The career Ambassador cannot re-assume his position as career
Ambassador. His ad interim appointment as Cabinet Member was a
permanent appointment (Summers v. Ozaeta, 81 Phil. 754 [1948].) He
abandoned his position as Ambassador when he accepted his
appointment as Cabinet Member because as Cabinet Member, he could
not hold any other office during his tenure (Section 13, Article VII,
Constitution.)
Disciplinary authority a proper party in seeking the review of CA
decision exonerating employee from administrative liability. ’09 –
Q10a
The Secretary of Education is not the proper party to seek a review
of the decision of the Court of Appeals, because he is the one who heard
the case and imposed the penalty. Being the disciplinary authority, the
Secretary of Education should be impartial and should not actively
participate in prosecuting Maximino (National Appellate Board of the
National Police Commission v. Mamauag, 466 SCRA 624 [2005].)
[However, please note that in the case of Civil Service Commission
v. Dacoycoy, 306 SCRA 425 [1999], the Supreme Court said that Civil
Service Commission may appeal the decision of the Court of Appeals
exonerating a public official from charges thereof. The Civil Service
Commission, as an aggrieved party, may appeal the decision of the
Court of Appeals to the Supreme Court. By this ruling, the Supreme
Court expressly abandoned and overruled extant jurisprudence that "the
phrase 'party adversely affected by the decision' refers to the
government employee against whom the administrative case is filed for
the purpose of disciplinary action which may take the form of
suspension, demotion in rank or salary, transfer, removal or dismissal
from office" and not included are "cases where the penalty imposed is
suspension for not more than thirty (30) days or fine in an amount not
exceeding thirty days salary" or "when the respondent is exonerated of
the charges, there is no occasion for appeal."
In Geronga v. Varela, 546 SCRA 429 [2008], the Supreme Court
ruled, citing Dacoycoy, that a judgment of exoneration in an
administrative case is appealable, and that the CSC, as the agency
mandated by the Constitution to preserve and safeguard the integrity of
our civil service system, and/or the appointing authority, such as a
mayor who exercises the power to discipline or remove an erring
employee, qualifies as parties adversely affected by the judgment who
can file an appeal.
The rationale for this is explained in the concurring opinion of
Associate Justice now Chief Justice Reynato S. Puno in Civil Service
Commission v. Dacoycoy: “In truth, the doctrine barring appeal is not
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categorically sanctioned by the Civil Service Law. For what the law
declares as "final" are decisions of heads of agencies involving
suspension for not more than thirty (30) days or fine in an amount not
exceeding thirty (30) days salary . . . . It is thus non sequitur to contend
that since some decisions exonerating public officials from minor
offenses can not be appealed, ergo, even a decision acquitting a
government official from a major offense like nepotism cannot also be
appealed.”
The Court concluded that the exoneration of petitioner under CSC
Resolution No. 990717 may be subject to a motion for reconsideration
by respondent who, as the appointing and disciplining authority, is a real
party in interest. The CSC acted within the rubric of Civil Service
Commission v. Dacoycoy in allowing said motion for reconsideration.]
Recovery of back salaries during time of preventive suspension
and dismissal pending appeal. ’09-Q10b; ’01 – Q15
Maximino cannot recover back salaries during his preventive
suspension. The law does not provide for it. Section 52 of the Civil
Service Law, the provision for payment of salaries during the pendency
of the investigation has been deleted. During the preventive suspension,
he was not yet out of service. The preventive suspension was not a
penalty. It imposition was lawful, since it was authorize by law.
However, he is entitled to back wages from the time of his dismissal
until his reinstatement. The enforcement of dismissal pending appeal
was punitive, and he was exonerated. Otherwise, this would be
tantamount to punishing him after exoneration from the charge which
caused his dismissal (Gloria v. Court of Appeals, 306 SCRA 287 [1999].)
A de facto officer is, by right, entitled to receive salaries and
emoluments attached to the public office he holds. ’09 – Q11b
De facto officers are entitled to emoluments attached to the office
for actual services rendered (Civil Service Liberties Union v. Executive
Secretary, 194 SCRA 317 [1991].)
Decisions of the Ombudsman imposing penalties in administrative
cases are not merely recommendatory. ’09 – Q11d
Under Section 15(3) of the Ombudsman Act, the Ombudsman has
the power to ensure compliance with the imposition of penalty on public
officers if it finds him at fault by virtue of its disciplinary authority (Office
of the Ombudsman v. Madriaga, 503 SCRA 631 [2006].)
In March 2001, while Congress was adjourned, the President
appointed Santos as Chairman of COMELEC. Santos immediately
took his oath and assumed office. While his appointment was
promptly submitted to the Commission on Appointments (COA) 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 against submitted to the COA for
confirmation. Santos took his oath anew and performed the
functions of his office. Reyes, a political rival, questioned the
validity of Santos’ appointment.
1. Does Santos’ assumption of office on the basis of the ad
interim appointment issued by the President amount to a
temporary appointment which is prohibited by Section
1(2), Article IX-C of the Constitution?
The assumption of office by Santos on the basis of the ad interim
appointment issued by the President 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 (Section 16,
second paragraph, Article VII of the Constitution; Matibag v. Benipayo,
380 SCRA 49 [2002].)
2. 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
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office to the same position violations of the prohibition
on reappointment under Section 1(2), Article IX-C of the
Constitution? ’05 – Q4
The second ad interim appointment of Santos does not violate the
prohibition against reappointment under Section 1(2), Article IX-C of the
Constitution. The prohibition does not apply to a by-passed ad interim
appointment, because it has not been finally disapproved by the
Commission on Appointments (Matibag v. Benipayo, 380 SCRA 49
[2002].) The prohibition against reappointment in the Constitution
presupposes the end of the term. After the end of the term, he cannot
be reappointed.
Ricardo was elected Dean of the College of the 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 appointed Santos
as Acting Dean in place of Ricardo.
1. Does the phrase “unless sooner terminated” mean that
the position of Ricardo is terminable at will?
The phrase “unless sooner terminated” does not mean that the
position of Ricardo is terminable at will. His election was for a fixed terms
of five years. The phrase cannot be interpreted to mean that Ricardo
can be dismissed at will, as it would run contrary to his security of tenure.
2. 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? ’05 – Q5(2)
Ricardo was removed as Dean of the College of Education. The
transfer was a removal, because it was done to take him away from his
position as Dean, the position of Assistant to the President was created
for him, and the appointment with the rank of Dean is meaningless,
because he is without a college (Sta. Maria v. Lopez, 31 SCRA 637
[1970].)
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 businesses where he and his wife have
substantial investments, he now contemplates public service but
without losing the flexibility to engage in corporate affairs or
participate in profession activities within ethical bounds. Taking
into account the prohibitions and inhibitions of public office
whether as Senator or Secretary, he turns to you to resolve his
dilemma. What is your advice? ’04 – Q3a
I shall advise JAR to run for Senator. As 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
Constitution.) He can continue practicing law, but he cannot personally
appear as counsel before any court of justice, the Electoral Tribunals, or
quasi-judicial and other administrative bodies (Section 14, Article VI of
the Constitution.)
As member of the Cabinet, JAR cannot directly or indirectly
practice law or participate in any business. He will have to divest himself
of his investment in business (Section 13, Article VII of the 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 417 [19910.)
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 seasonably filed a protest before
the HRET. 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.
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1. Can AVE collect salaries and allowances he had received
as Congressman?
AVE cannot collect salaries and allowances from the government
for the first two years of his term, because in the meanwhile BART
collected the salaries and allowances. BART was a de facto officer while
he was in possession of the office. To allow AVE to collect the salaries
and allowances will result in making the government pay a second time
(Mechem, A Treatise on the Law of Public Offices and Public Officers
[1890], pp. 222-223.)
2. Should BART refund the government for the salaries and
allowances he had received as Congressman?
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].)
3. What will happen to the bills that BART alone authored
and were approved by the House of Representatives
while he was seated as Congressman? ‘04 – Q10b
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 fact officer are valid insofar as
the public is concerned (People v. Garcia, 313 SCRA 270 [1999].)
What is the nature of an “acting appointment” to a government
office? Does such appointment give the appointee the right to
claim that the appointment will, in time, ripen into a permanent
one? ’03 – Q5
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 case, the temporary
appointee holds office until the assumption of office by the permanent
appointee.
The President abolished the Office of the Presidential Spokesman
in Malacañang Palace and a long-standing bureau under the DILG.
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? ’03 – Q5
The contention of the employees is not correct. As held in Buklod
ng Kawaning EIIB 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. Executive
Secretary, 280 SCRA 713 [1997].)
A corporation, a holder of a certificate of registration issued by the
SEC, is owned and controlled by the Republic of the Philippines.
The CSC, in a memorandum-order, directs the corporation to
comply with CSC Rules in the appointment of all of its officers and
employees. The memorandum-order is being assailed by the
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corporation, as well as by its officers and employees, before the
court. How should the case be resolved? ’03 – Q7; ’99 – Q9c
The memorandum-order of the Civil Service Commission should
be declared void. As held in Gamogamo v. PNOC Shipping Transport
Corp., 381 SCRA 742 [2002], under Section 2(1), Article IX-B of the
Constitution, government-owned or controlled corporations 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.
Suppose a public officer has committed a violation of Section 3(b)
and (c) of the Anti-Graft and Corrupt Practices Act (R.A. 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 amassed illegally acquired wealth.
1. Does the criminal offense committed prescribe?
A violation of Section 3(b) and (c) of the Anti-Graft and Corrupt
Practices Act prescribes. As held in Presidential Ad-Hoc Fact-Finding
Committee on Behest Loans v. Desierto, 317 SCRA 272 [1999], Section
15, Article XI of the Constitution does not apply to criminal cases for
violation of the Anti-Graft and Corrupt Practices Act.
2. Does the right of the government to recover the illegally
acquired wealth prescribe? ’02 – Q12
Section 15, Article XI of the Constitution provides that the right of
the State to recover properties unlawfully acquired by public officials or
employees, or from them or from their nominees or transferees, shall not
be barred by prescription.
Alcantara was appointed as member of the Sangguniang Bayan
being the president-elect of the Association of Barangay Councils
(ABC) for the Municipality of San Andres, Catanduanes. While
serving as such, he was designated in a temporary capacity as
member of the Sangguniang Panlalawigan of the Province of
Catanduanes. As a result of which he resigned as member of the
Sangguniang Bayan. His designation as member of the
Sangguniang Panlalawigan was declared void by the Supreme
Court hence, he wrote the Sangguniang Bayan of San Andres
expressing his desire to reassume his position as sectoral
representative therein, but the latter issued a resolution declaring
that he had no legal basis to resume office. Can Alcantara
reassume office as member of the Sangguniang Bayan or has he
lost it because of resignation or abandonment? ’00 – Q7
Alcantara cannot reassume office as member of the Sangguniang
Bayan. As held in Sangguniang Bayan ng San Andres, Catanduanes 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 functions 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.
In the elections of May 1992, Cruz and Santos were candidates for
the office of Municipal Mayor, the term of which was to expire on
June 30, 1995. The Municipal Board of Canvassers proclaimed Cruz
as the duly elected Mayor based on its finding Cruz won by a
margin of 20 votes. Santos filed an election protest before the RTC
which decided that it was Santos who had the plurality of 30 votes
and proclaimed him the winner. On the motion made, the RTC
granted execution pending the appeal of Cruz to the COMELEC and
on this basis, Santos assumed office and served as Municipal
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Mayor. In time, the COMELEC reversed the ruling of the RTC and
instead ruled that Cruz won by a margin of 40 votes and proclaimed
him the duly elected Municipal Mayor.
It is now beyond June 30, 1995. Can Cruz still hold office for the
portion of the term he failed to serve?
Was Santos a usurper and should he pay back that he has received
while holding the office as Municipal Mayor? ’00 – Q16
As held in Malaluan v. Commission on Elections, 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.
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.
What are the six categories of officials who are subject to the
appointing power of the President? Name the category or
categories of officials whose appointments need confirmation by
the Commission on Appointments. ’99 – Q1a
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:
a. Head of executive departments;
b. Ambassadors, other public ministers and consuls;
c. Officers of the armed forces from the rank of colonel or naval
captain;
d. Other officers whose appointments are vested in him by the
Constitution;
e. All other officers whose appointments are not otherwise
provided by law; and
f. Those whom he may be authorized by law to appoint (Cruz,
Philippine Political Law, 1998 ed., pp. 204-205.)
According to Sarmiento v. Mison, 156 SCRA 549 [1987], the only
officers whose officers need confirmation by the Commission on
Appointments are the head of the 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.
What is the meaning and guarantee of security of tenure? ’99 – Q9a
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.
What characterizes the career service and what are included in the
career service? ’99 – Q9b
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;
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(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 labourers, whether skilled, semi-skilled or
unskilled.
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 COA, who was not a lawyer but
a public accountant by profession, ad interim Commissioner to
succeed Commissioners 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 n favor of Commissioner C and designating Justice D
acting Commissioner of the COMELEC? ’97 – Q7
No. The President was wrong in extending an ad interim
appointment in favor of Commissioner C. In Summers v. Ozaeta, 81 Phil.
754 [1948], it was held that an ad interim appointment is a permanent
appointment. Under Section 15, Article VII of the Constitution, within two
(2) months immediately before the next presidential elections and up to
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 Commission on Elections in a
temporary or acting capacity. Section 12, Article VIII of the Constitution
prohibits the designation of any member of the Judiciary to any agency
performing quasi-judicial or administrative functions.
Can the Secretary of Finance be elected Chairman of the Board of
Directors of the San Miguel Corporation? ’96 – Q7(2)
No, the Secretary of Finance cannot be elected Chairman of the
Board of Directors of the San Miguel Corporation. Under Section 13,
Article VII of the Constitution, members of the Cabinet cannot hold any
other office or employment during their tenure unless it is otherwise
provided in the Constitution. They shall not also during said tenure
participate in any business or be financially interested in any contract
with, or in any franchise, or special privilege granted by the Government
or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations and their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their office.
“A”, an associate justice of the Supreme Court reaches the age of
70 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? ’96 – Q9(1)
No, A cannot hold over his position as Associate Justice of the
Supreme Court. Under Section 11, Section VIII of the Constitution,
Members of the Supreme Court hold office until they reach the age of
seventy (70) years of age 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, Treaties on the Law of Public Offices and
Officers, p. 258.)
“A’, an employee of 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
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negligence in the encashment of the falsified treasury warrants?
’96 – Q9(2)
In accordance with Tantuico v. Domingo, 230 SCRA 391 and Cruz
v. Tantuico, 166 SCRA 670, the National Treasurer cannot withhold the
benefits 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.
An administrative complaint for violation of R.A. No. 3019 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 prevent suspend
preventively subordinate employees in this own office. Is X
correct? ’96 – Q10(2)
No, X is not correct. As held in Buenaseda v. Flavier, 226 SCRA 645
[1993], under Section 24 of R.A. No. 6770, the Ombudsman can place
under preventive suspension any officer under his disciplinary authority
pending an investigation. The moment a complaint is filed with the
Ombudsman, the respondent is under his authority. Congress intended
to empower the Ombudsman to suspend all officers, even if they are
employed in other offices in the Government. The words “subordinate”
and his “in his bureau” does not appear in the grant of such power to
the Ombudsman.
ELECTION LAW
Sec. 8, Article X of the 1987 Constitution provides that no elective
official shall serve for more than three (3) consecutive terms. Rule
and explain briefly the reason if the official is prohibited to run for
another term in each of the following situations: (a) if the official is
a Vice-Mayor who assumed the position of Mayor for the unexpired
term under the Local Government Code; (b) if the officials has
served for three consecutive terms and did not seek a 4th term but
who won in a recall election.; (c) if the position of Mayor of a town
is abolished due to conversion of the town to a city; (d) if the official
is preventively suspended during his term but was exonerated; and
(e) if the official proclaimed as winner and assumes office but loses
in an election protest. (5%) ’16 – Q18
a) In computing the three term limit, only the term for which the
local official was elected should be considered. The second sentence of
Section 8, Article X of the Constitution states that the voluntary
renunciation shall not be considered as interruption of the continuity of
the service for the full term for which he was elected (Borja v.
Commission on Elections, 295 SCRA 157 [1998]).
b) A mayor who served three consecutive terms and did not seek
a fourth term but ran and won in the recall election can serve, because
the recall election was not an immediate reelection (Socrates v.
Commission on Elections, 391 SCRA 547 [2002]).
c) If a municipality in which a mayor served for three consecutive
terms was converted to a city, he cannot run as city mayor in the first
election. For purposes of applying the three term limit, the office of the
municipal mayor should not be considered as different from that of the
city mayor (Latasa v. Commission on Election, 417 SCRA 601 [2003]).
d) The temporary inability' of an elective official to exercise his
functions due to preventive suspension is not an interruption of his term,
because it did not involve loss of title to the office (Aldovino, Jr. v.
Commission on Elections, 609 SCRA 234 [2009]).
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e) If a candidate was proclaimed for three consecutive terms but
did not serve it in full because of loss in an election protest he is not
disqualified (Lonzanida v. Commission on Elections, 311 SCRA 602
[1999]).
(1) Gandang Bai filed her certificate of candidacy (COC) for
municipal mayor stating that she is eligible to run for the
said position. Pasyo Maagap, who also filed his COC for
the same position, filed a petition to deny due course or
cancel Bai’s COC under Section 78 of the Omnibus
Election Code for material misrepresentation as before
Bai filed her COC, she had already been convicted of a
crime involving moral turpitude. Hence, she is
disqualified perpetually from holding any public office or
from being elected to any public office. Before the
election, the COMELEC cancelled Bai’s COC but her
motion for reconsideration (MR) remained pending even
after the election. Bai garnered the highest number of
votes followed by Pasyo Maagap, who took his oath as
Acting Mayor. Thereafter, the COMELEC denied Bai’s MR
and declared her disqualified for running for Mayor. P.
Maagap asked the Department of Interior and Local
Government Secretary to be allowed to take his oath as
permanent municipal mayor. This request was opposed
by Vice Mayor Umaasa, invoking the rule on succession
to the permanent vacancy in the Mayor’s office. Who
between Pasyo Maagap and Vice Mayor Umaasa has the
right to occupy the position of Mayor? Explain your
answer. (5%) ‘15 - Q16(1)
Pasyo Maagap would be entitled to occupy the position of Mayor upon
the disqualification of Gandang Bai on the basis of the Petition to deny
due course or cancel her certificate of candidacy under the provisions of
Section 78 of the Omnibus Election Code.
The rule is that “(a)n ineligible candidate who receives the highest
number of votes is a wrongful winner. By express legal mandate, he
could not even have been a candidate in the first place, but by the virtue
of the lack of material time or any other intervening circumstance, his
ineligibility might not have been passed upon prior to election date.
Consequently, he may have had the opportunity to hold himself out the
electorate as a legitimate and duly qualified candidate. However,
notwithstanding the outcome of the elections, his ineligibility as a
candidate remains unchanged. Ineligibility does not only pertain to hold
public office. The number of ballots cast in his favor cannot cure the
defect of failure to qualify with the substantive legal requirements of
eligibility to run for public office.” (Maquiling v. Commission on Elections,
G.R. No. 195649, April 16, 2013).
Accordingly, Gandang Bai “being a non-candidate, the votes cast in his
favor should not have been counted.” This leaves Pasyo Maagap as “the
qualified candidate who obtained the highest number of votes.
Therefore, the rule on succession under the Local Government Code
will not apply.” (Maquiling v. Commission on Elections, G.R. No. 195649,
April 16, 2013).
(2) How do you differentiate the petition filed under Section
68 from the petition filed under Section 78, both of the
Omnibus Election Code? (3%) - ‘15 Q16 (2)
In addition to the rule cited above that a certificate of candidacy which is
denied or cancelled under Section 78 of the Omnibus Election Code
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would make said certificate of candidacy void ab initio (which would
preclude the application of the rules on succession for purposes of
replacing him upon his disqualification because, up to that point of his
disqualification, he shall be considered merely as a de facto officer),
unlike in the case of disqualification under Section 68 of the Omnibus
Election Code, which would give rise to the de jure officership of the
disqualified candidate up to his point of disqualification, the other basic
distinctions between petitions for the disqualification of candidates and
petitions to reject or cancel certificates of candidacy are as follows -
Under Section 68 of the Omnibus Election Code, a candidate may be
disqualified if he commits any of the permanent resident of or an
immigrant to a foreign country. On the other hand, under Section 78 of
the same law, a certificate of candidacy may be denied due course or
cancelled if found to be containing material representations which are
false and deliberately made. These would include misrepresentations as
to age, residence, citizenship or non- possession of natural-born status,
registration as a voter, and eligibility, as when one, although precluded
from running for a fourth term because of the three-term limit rule, claims
to be nonetheless qualified, or when one claims to be eligible despite his
disqualification on the basis of an accessory penalty imposed upon him
in connection with his conviction in a criminal case.
A petition for disqualification under Section 68 may be filed at any time
after the last day for filing of the certificates of candidacy but not later
than the candidate’s proclamation should he win in the elections, while
a petition to deny due course to or cancel a certificate of candidacy
under Section 78 must be filed within five days prior to the last day for
filing of certificates of candidacy, but not later than twenty-five days from
the time of the filing of the certificate of candidacy.
While a person who is disqualified under Section 68 is merely prohibited
to continue as a candidate, the person whose certificate is cancelled or
denied due course under Section 78 is not treated as a candidate at all.
Thus, a candidate disqualified under Section 68 may be validly
substituted but only by an official candidate of his registered or
accredited party.
Beauty was proclaimed as the winning candidate for the position
of Representative in the House of Representatives three (3) days
after the elections in May. She then immediately took her oath of
office. However, there was a pending disqualification case against
her, which case was eventually decided by the COMELEC against
her 10 days after, the election. Since she has already been
proclaimed, she ignored that decision and did not bother appealing
it. The COMELEC then declared in the first week of June that its
decision holding that Beauty was not validly elected had become
final. Beauty then went to the Supreme Court questioning the
jurisdiction of the COMELEC claiming that since she had already
been proclaimed and had taken her oath of office, such election
body had no more right to come up with a decision that the
jurisdiction had already been transferred to the House of
Representatives Electoral Tribunal. How defensible is the
argument of Beauty? (4%) ‘14 - Q4
The House of Representatives Electoral Tribunal has acquired exclusive
jurisdiction over the case of Beauty, since she has already been
proclaimed. The proclamation of the winning candidate is the operative
fact that triggers the exclusive jurisdiction of the House of
Representative Electoral Tribunal over election contests relating to the
election, returns and qualifications of the winning candidate. The
proclamation divests the Commission on Elections of jurisdiction over
the question of disqualifications pending before it at the time of the
60
proclamation. Any case pertaining to questions over the qualifications of
a winning candidate should be raised before the House of
Representative Electoral Tribunal (Limkaichong v. Commission on
Elections, G.R. Nos. 178831-32, July 30, 2009, 883 SCRA 1); Jalosjos,
Jr. v. Commission on Elections, G.R. No. 192474, June 26, 2012, 674
SCRA 530).
ALTERNATIVE ANSWER:
The argument of Beauty is untenable. For the House of Representatives
Electoral Tribunal to acquire jurisdiction over the disqualification case,
she must be a Member of the House of Representatives. Although she
had been proclaimed and had taken her oath of office, she had not yet
assumed office. The term of office of the Members of the House of
Representatives begins at noon of the thirtieth day of June next following
their election (Reyes v. Commission on Elections, G.R. No. 207364,
October 22, 2013, 699 SCRA 822).
Rosebud is a natural-born Filipino woman who got married to
Rockcold, a citizen of State Frozem. By virtue of the laws of Frozen,
any person who marries its citizens would automatically be
deemed its own citizen. After ten years of marriage, Rosebud, who
has split her time between the Philippines and Frozen, decided to
run for Congress. Her opponent sought her disqualification,
however, claiming that she is no longer a natural-born citizen. In
any event, she could not seek elective position since she never
renounced her foreign citizenship pursuant to the Citizenship
Retention and Reacquisition Act (R.A. No. 9225).
Is Rosebud disqualified to run by reason of citizenship? (4%) ‘14 -
Q25
Rosebud remained a natural born Filipino citizen even if under the laws
of the Frozen, she became a citizen of it because of her marriage to
Rockcold. Under Section 4, Article IV of the Constitution, she retained
her Philippine citizenship.
Rosebud cannot seek elective office. Under Section 5(2) of Republic Act
No. 9225, even those who retained their Philippine citizenship by birth
and acquired foreign citizenship by virtue of marriage to a foreign spouse
are required to renounce their foreign citizenship (Sobejana-Condon v.
Commission on Elections, G.R. No. 198742, August 10, 2012, 678
SCRA 267).
ALTERNATIVE ANSWER:
No, Rosebud is not disqualified. She became a dual citizen, not on the
basis of the provisions of Republic Act No. 9225, but by reason of the
automatic operation of the citizenship laws of State Frozen, of which her
husband, Rockcold, was a citizen. The requirement regarding the
renunciation of her foreign citizenship under that law cannot therefore
be made to apply to her.
It does not appear that she ever renounced her natural-born Filipino
citizenship upon her marriage to Rockcold. Accordingly, she cannot be
considered as ever having lost it. She is therefore not disqualified to run
for Congress by reason of citizenship.
Mr. Yellow and Mr. Orange were the leading candidates in the
vice-presidential elections. After the 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
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due consideration of the facts and the issues, the PET ruled that
Orange was the real winner of the elections and ordered his
immediate proclamation.
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%); ‘12 -
Q4a
The Supreme Court has no jurisdiction over the petition. The
Presidential Electoral Tribunal is not simply an agency to which the
Members of the Senate Court were assigned. It is not separate from
the Supreme Court. (Macalintal vs. Presidential Electoral Tribunal, 631
SCRA 239.)
b) Would the answer in (a) be the same if Yellow and
Orange were contending for a senatorial slot and it was
the Senate Electoral Tribunal (SET) who issued the
challenged ruling? (3%); ‘12 - Q4b
The Supreme Court would have jurisdiction if it were the Senate
Electoral Tribunal who issued the challenged ruling. The Supreme
Court can review its decision if it acted with grave abuse of discretion.
(Lerias vs. House of Representatives Electoral Tribunal, 202 SCRA
808.)
c) What is the composition of the PET? (2%); ‘12 - Q4c
The Presidential Electoral Tribunal is composed of the Chief Justice
and the Associate Justices of the Supreme Court sitting en banc.
(Section 4, Article VII of the Constitution.)
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-shirt with “Kay Mayor Pink Ako” printed on them.
a) Mr. Green is the political opponent of Mayor Pink. in
April, noticing that Mayor Pink had gained advantage
over him because of her activities before the campaign
period, he filed a petition to disqualify Mayor Pink for
engaging in an election campaign outside the
designated period:
1) Which is correct body to rule on the matter?
Comelec en banc, or Comelec division?
Answer with reasons. (2%); ‘12 - Q7a1
It is the Commission on Elections en banc which should decide the
petition. Since it involves the exercise of the administrative powers of
the Commission on Elections, Section 3, Article IX-C of the
Constitution is not applicable. (Baytan vs. Commission on Elections,
3.96 SCRA 703.)
2) Rule on the petition. (5%). ‘12 - Q7a2
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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 MIRA 114.)
b) Distinguish briefly between Quo Warranto in elective
office and Quo Warranto in appointive office. (3%). ‘12 -
Q7b
In quo warranto in elective office, the issue is the ineligibility of the
elected candidate. (Section 3(e], Rule 1, Rules of Procedure in
Election Cases.) If he is ineligible, the candidate who got the second
highest number of votes ‘cannot be proclaimed elected. (Sinsuat vs.
Commission on Elections, 492 SCR-A 264.) A voter may file a petition
for quo warranto against and elected candidate. The petition should be
filed within ten days after the proclamation of the elected candidate.
In quo warranto in appointive office, the issue is the legality of the
appointment. The court will decide who between the parties has the
legal title to the office. (Nachura, Outline Reviewer in Political Law, p.
5157.)
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. (Sections 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.)
A political party which is supported by any foreign government
cannot be registered with the Commission on Elections. ’10- Q16
KABAKA and Rudy are not qualified as a party list and as nominee,
respectively, since KABAKA is receiving a subsidy from the Dutch
Foreign Ministry. Under Section 2(5), Article IX-C of the Constitution, a
political party cannot be registered with the Commission on Elections.
Effect of presidential pardon of a violation of a COMELEC gun ban
on eligibility to run for an elective position. ‘10 – Q17
Mayor Galicia can run again for an elective office but not
immediately. Under Section 40 of the Local Government Code, he
cannot run for an elective office within two (2) years after serving of
sentence. Under Section 12 of the Omnibus Election Code, he can run
again for an elective national office after the expiration of five (5) years
from his service of sentence.
However, the pardon granted to him is not valid. The offense
involved a violation of the Omnibus Election Code and the pardon was
granted without the favourable recommendation of the Commission on
Elections (Section 5, Article IX-C of the Constitution.)
Remedies on non-fulfilment of one-year residency and citizenship
requirements for district representatives. ’09 – Q2a
I will file a petition to cancel the certificate of candidacy of Gabriel
in the Commission on Elections because of the false material
representation that his is qualified to run for congressman (Section 78
of the Omnibus Election Code; Fermin v. Commission on Elections, 574
SCRA 787 [2008].) The question of the disqualification of Gabriel cannot
be raised before the House of Representative Electoral Tribunal
because he is not yet a member of the House of Representatives
(Aquino v. Commission on Elections, 248 SCRA 400 [1995].)
During pendency of petition for cancellation of certificate of
candidacy but before election day; Propriety of withdrawal of COC
and substitution; Who can substitute. ’09 – Q2b
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If Gabriel withdraws, he may be substituted by candidate
nominated by his political party. Section 77 of the Omnibus Election
Code states: “If after the last day for the filing of the certificates of
candidacy, an official candidate of a registered or accredited political
party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a
certificate of candidacy to replace the candidate who died, withdrew or
was disqualified.”
Available remedy after dismissal of petition for cancellation for
certificate of candidacy and candidate has been proclaimed. ’09 –
Q2c
The question of citizenship and residence of Gabriel can be
questioned in the House of Representatives Electoral Tribunal by filing
a quo warranto case. Since it is within its jurisdiction to decide the
question of the qualification of Gabriel, the decision of the Commission
on Elections does not constitute res judicata (Jalandoni v. Crespo,
HRET Case No. 01-020, Mar. 6, 2003). Once a candidate for member
of the House of representatives has been proclaimed, the House of
Representatives Electoral Tribunal acquires jurisdiction over election
contests relating to his qualifications (Guerrero v. Commission on
Elections, 336 SCRA 458 [2000].)
Decision of District Board of Canvassers dismissing a case praying
for the exclusion of certificate of canvass in a congressional
election on the ground that it was manufactured cannot be
appealed to the COMELEC. ’08 – Q10
Sec. 15 of R.A. No. 7166 (The Synchronized Election Law of 1991)
states that for purposes of the members of the House of
Representatives, no pre-proclamation cases shall be allowed on matters
relating to the preparation, transmission, receipt, custody and
appreciation of election returns or certificates of canvass. In the instant
case, the claims of MP related to pre-proclamation controversies which
cannot be raised in congressional elections. MP cannot appeal the
rulings.
Difference between an election protest from an action for quo
warranto. ’06 - Q5(3); ’01 – Q17
An election protest is an action filed by a defeated candidate on the
grounds of frauds or irregularities in the casting and counting of ballots
or in the preparation of the returns. It raises the question of who actually
obtained the plurality of votes and is entitled to hold office.
On the other hand, a petition for quo warrranto is a petition filed by
any registered voter in the constituency of the winning candidate to
unseat him on the ground of his disloyalty or ineligibility. It does not result
in installing the petitioner in his place (Dumayas v. Commission on
Elections, 357 SCRA 358 [2001].)
In the municipality mayoralty elections in 1980, the candidate who
obtained the highest number of votes was subsequently declared
to be disqualified as a candidate and so ineligible for the office to
which he was elected. Would this fact entitle the competing
candidate who obtained the second highest number of votes to be
proclaimed the winner of the elective office? ’03 – Q8
According to Trinidad v. Commission on Election, 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.
May the 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? ’03 – Q9
62
According to Adiong v. Commission of Elections, 207 SCRA 712
[1992], the prohibition is unconstitutional. It curtails the freedom of
expression of individuals who wish to express their reference 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.
Pedro Reyes is an incumbent Vice-Mayor of Quezon City. He
intends to run in the regular elections for the position of City Mayor
of Quezon City.
1. Would Pedro Reyes have to give his position as Vice-
Mayor?
An elected official is not deemed to have resigned from his office
upon the filing of his certificate of candidacy for the same or any other
elected office or position. In fine, an elected official may run for another
position without forfeiting his seat (Section 13 of Republic Act No. 9369.)
2. If Pedro Reyes were, instead an incumbent Congressman
of Quezon City, would your answer be the same? ’03 –
Q10; ’02 – Q13b
The answer is the same if Pedro Reyes, because Section 13 of
R.A. No. 9369 covers both elective national and local officials.
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 additional compensation for every
Board meeting attended. N, a taxpayer, filed 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 Section 13, Article VII 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 Section 8, IX-B 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, decide the following:
1. The issue regarding the holding of multiple positions.
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 Section 13, Article VII of the Constitution does not apply to positions
occupied in an ex officio capacity as provided for by law and as required
by the primary functions of their office.
2. The issue on the payment of additional or double
compensation. ’02 – Q6
If I were the judge, I would rule that Secretary M cannot receive any
additional compensation. As state 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.
X was elected provincial governor for a term of three years. He was
subsequently appointed by the President 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? ’02 – Q7
The appointment of X is not valid, because the position of
Presidential Assistant for Political Affairs is a public office. Section 7,
Article IX-B of the Constitution provides that no elective official shall be
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eligible for appointment of 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.
A, a City Legal Officer, filed a certificate of candidacy for the
position of City Mayor in the May 14, 2001 elections. Was A ipso
facto resigned and, if so, effective on what date? ’02 – Q13a
Under Section 13 of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a public appointive office or
position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-owned or -
controlled corporations, shall be considered ipso facto resigned from his
office upon the filing of his certificate of candidacy (Quinto v.
Commission on Elections, 613 SCRA 385 [2010].)
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? ’01 – Q2
The law granting the Commission on Elections jurisdiction over
inclusion and exclusion cases is unconstitutional. Under Section 2(3),
Article IX-C of the Constitution, the Commission on Elections 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.
In an election protest involving the position of Governor of the
Province of Laguna between “A”, the protestee, and “B”, the
protestant, the 1st Division of the COMELEC rendered a decision
upholding B’s protest. Can “A” file a petition for certiorari with the
Supreme Court under Rule 65 of the Rules of Court, from the
decision of the COMELEC 1st Division? ’01 – Q16
“A” cannot file a petition for certiorari with the Supreme Court. As
held in Mastura v. Commission on Elections, 285 SCRA 493 [1998], the
Supreme Court cannot review the decisions and resolutions of the a
Division of the Commission on Elections. “A” should first file a motion for
reconsideration with the Commission on Elections en banc.
Discuss the merits and demerits of the multi-party system. ’99 –
Q14
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 no party will get a majority.
Likewise, the opposition will be weakened if there are several minority
parties.
How are pre-proclamation controversies initiated, heard and
resolved? ’97 – Q17a
Questions affecting the composition or proceedings of the Board of
Canvassers (BOC) may be initiated in the Board of Canvassers (BOC)
or directly with the Commission on Elections (COMELEC). Questions
involving the elections returns and the certificates of canvass shall be
brought in the first instance before the Board of Canvassers (BOC) only
(Section 17, R.A. No. 7166.)
The Board of Canvassers should rule on the objections summarily
(Section 20, R.A. No. 7166.)
Any party adversely affected may appeal to the Commission on
Elections (Section 20, R.A. No. 7166.)
63
The decision of the Commission on Elections 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 Commission
on Elections shall be deemed terminated at the beginning of the term of
the office involved and the rulings of the Board of Canvassers (BOC)
are 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 Commission on Elections or the Supreme
Court determines that the petition appears to be meritorious (Section 16,
R.A. No. 7166.)
How are election protests initiated, heard and resolved? ’97 – Q17b;
’96 – Q14(1)
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 v. Commission on
Elections, 121 SCRA 466.)
The following have jurisdiction over election contests:
1. Barangay officials – Inferior Courts (Metropolitan Trial Court,
Municipal Circuit Trial Court, or Municipal Trial Court)
2. Municipal officials – Regional Trial Courts;
3. Regional, provincial, and city officials – Commission on
Elections [Section 2(2), Article IX-C of the Constitution];
4. Congressman – House of Representatives Electoral Tribunal
5. Senators – Senate Electoral Tribunal (Section 17, Article VI of
the Constitution);
6. President and Vice-President – Supreme Court (Section 4,
Article VII of the Constitution).
The decision of inferior courts in election contests involving
barangay officials and of the Regional Trial Court in election contests
involving municipal officials are appealable to the Commission on
Elections [Section 2(2), Article IX-C of the Constitution]. The decision of
the Commission on Elections may be brought to the Supreme Court on
certiorari on questions of law (Rivera v. Commission on Elections, 199
SCRA 178.)
The decision of the Commission on Elections involving regional,
provincial and city officials may be brought to the Supreme Court on
certiorari [Section 7, Article IX-A and Section 2(2) of the Constitution].
The decisions of the Senate Electoral Tribunal and of the House of
Representatives may be elevated to the Supreme Court on certiorari if
there was grave abuse of discretion (Lazatin v. Commission on
Elections, 168 SCRA 391.)
Give the issues that can be properly raised and brought in a pre-
proclamation contest. ’96 – Q14(2)
According to Section 243 of the Omnibus Election Code, the
following issues can be properly raised:
a) The composition or proceedings of the Board of Canvassers
(BOC) are illegal;
b) The canvassed election returns are incomplete, contain
material defects, appear to be tampered with or falsified, or
contain discrepancies in same returns or in other authentic
copies;
c) The election returns were prepared under duress, threats,
coercion, or intimidation, or they are obviously manufactured
or not authentic;
d) Substitute or fraudulent returns in controverted polling places
were canvassed, the results of which materially affected the
standing of the aggrieved candidate or candidates; and
e) Manifest errors in the Certificate of Canvass or Election
Returns (Sec. 15, R.A. No. 7166; Chavez v. COMELEC)
However, according to Section 15 of the Synchronized Election Law
(R.A. No. 7166), no pre-proclamation cases shall be allowed on
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matters relating to the preparation, transmission, receipt, custody and
appreciation of the election returns or the certificate of canvass with
respect to the positions of President, Vice-President, Senator and
Member of the House of Representatives. No pre-proclamation cases
are allowed in the case of barangay elections.
PUBLIC INTERNATIONAL LAW
General Principles
President Black of the Republic of Pasensya (RP) had a telephone
conversation with President Blue of the People's Republic of
Conquerors (PRC). ln that conversation, both leaders agreed that
they will both pull-out all their vessels, civilian or otherwise, sea
crafts and other ships from the hotly disputed Kalmado Shoal
area within eight (8) days in order to de-escalate the situation.
After eight days, all RP ships and vessels have left the area.
However, several military and civilian ships carrying the PRC flag
remained in the area and began construction of a dock that could
provide fuel and other supplies to vessels passing by.
a) Assuming that President Black and President Blue both
had full capacity to represent their states and negotiate
with each other under their respective systems of
government, and further assuming that both leaders
acknowledge the existence of the conversation, is the
verbal agreement via telephone binding under
international law? Explain (5%); ‘12 - Q6a
The verbal agreement by telephone is binding between the parties on
the basis of customary international law. (In the 1992 dispute between
Denmark and Finland about the construction of a bridge was settled by
a telephone conversation between the Danish and Finnish Prime
Ministers. In return for payment by Denmark, Finland agreed to
discontinue the case it filed. [Aust, Modern Treaty Law and Practice, p.
7].
c) What are the sources of International Law? (2%); ‘12 -
Q6c
The following are the sources of international law:
1. International conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states;
2. International custom, as evidence of a general practice
accepted as law;
3. The general principles of law recognized by civilized nations;
d) What is opinio juris in International Law? (1%). ‘12 - Q6d
To establish customary international law, two elements must concur:
general state practice and opinio juris sire necessitatis. State practice
refers to the continuous repetition of the same or similar kind of acts or
norms by states. Opinio juris requires that the state practice or norm be
carried out in such a way as to be evidence of the belief that it is
obligatory by the existence or rule of law requiring it. (Bayan Muna vs.
Romulo, 641 SCRA 244.)
64
Opinio juris sive necessitates / opinion juris; Definition. ’08 – Q1a
Opinio juris sive necessitates means the common belief among
states and actors that a certain practice is obligatory. This is the
subjective or psychological requirement of customary law that makes
states practice a binding rule of customary international law.
Differences between “hard law” and “soft law” under international
law. ’08 – Q1b
“Soft law” has reference to international agreements not covered
by treaties and therefore not covered by the Vienna Convention. They
are sometimes referred to as “non-treaty agreements” or emerging law.
In addition, “soft law” refers to administrative rules which guide the
practice of states in relation to international organizations
(Pharmaceutical Health Care Association v. Duque, G.R. No. 173034, 9
October 2007.)
Primary Sources and Subsidiary sources of international law. ’03 –
Q15; ’12 – Q6c
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., cabotage, the prohibition against
slavery, and the prohibition against torture.
3. General principles of law recognized by civilized nations, e.g.,
prescription, res judicata, and due process.
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 Oppenheim-Lauterpacht.
What do you understand by the “Doctrine of Incorporation” in
Constitutional Law? ’97 – Q1
The doctrine of incorporation means that the rules of international
law from 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.
Definition of some concepts in international law. ’91 – Q15
(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 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 existed as a state
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
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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 two hundred (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 in 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 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 Canada, under the Treaty of 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 interests of the
nationals of that 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 fort facility outside internal waters, or
proceedings to or from internal waters or call at such roadstead or port
facility. The passage is innocent as long as it is not prejudicial to the
peace, good order or security of the coastal state.
Jus cogens is a peremptory norm of general international law accepted
and recognized by the international community as a whole as a norm
from which no derogation is permitted and which can be modified only
by a subsequent norm of international law having the same character.
An example is the prohibition against the use of force.
Treaties
The Philippines entered into an international agreement with
members of the international community creating the International
Economic Organization (1EO) which will serve as a forum to
address economic issues between States, create standards,
encourage greater volume of trade between its members, and settle
economic disputes. After the Philippine President signed the
agreement, the Philippine Senate demanded that the international
agreement be submitted to it for its ratification. The President
refused, arguing that it is an executive agreement that merely
created an international organization and it dwells mainly on
addressing economic issues among States. is the international
agreement creating the 1EO a treaty or an executive agreement?
Explain. (5%) ’16 – Q10
The agreement creating the International Economic Organization
(IEO) is an executive agreement and not a treaty.
In Section 21, Article VII is the only provision of the Constitution which
defines a “treaty or international agreement” as valid and effective law
by reason of concurrence of the Senate.
However, it is the intendment of the Constitution that such “treaty
or international agreement” does not include executive agreement which
therefore is excluded from the Senate’s authority of concurrence over
treaties.
65
This constitutional intent is expressed in the proceedings of the
Constitutional Commission in its awareness that at the time the power
of the President to conclude executive agreement was clearly
recognized by at least decisions of the Supreme Court establishing the
principle that the President’s power includes conclusion of executive
agreements which are valid without need of Senate concurrence.
Hence, logically the Treaty Clause in Section 21, Article VII is to be
interpreted as excluding executive agreement (Commissioner v. Eastern
Sea Trading, 3 SCRA 351 [1961]; USA FFE Veterans Association v.
Treasurer, 105 Phil. 1030 [1959]).
Moreover, as the Supreme Court has pointed out in Pimentel v.
Office of the Executive Secretary (462 SCRA 622, [2005]) the President
has the sole power to ratify treaties. The Senate may be able to exercise
its authority of concurrence only if the President transmits the instrument
of ratification by which he accepts the terms agreed on by his diplomatic
negotiators of the proposed treaty in question, together with the text of
the proposed treaty, with the request addressed to the Senate President
to ratify such proposed treaty as requested by the President.
It is only on the basis of the authority of the President to ratify treaties
that the Senate may act in concurrence under the Treaty clause of the
Constitution.
The Philippines and the Republic of Kroi Sha established
diplomatic relations and immediately their respective Presidents
signed the following: (1) Executive Agreement allowing the
Republic of Kroi Sha to establish its embassy and consular offices
within Metro Manila; and (2) Executive Agreement allowing the
Republic of Kroi Sha to bring to the Philippines its military
complement, warships, and armaments from time to time for a
period not exceeding one month for the purpose of training
exercises with the Philippine military forces and exempting from
Philippine criminal jurisdiction acts committed in the line of duty
by foreign military personnel, and from paying custom duties on
all the goods brought by said foreign forces into Philippine territory
in connection with the holding of the activities authorized under
the said Executive Agreement.
Senator Maagap questioned the constitutionality of the said
Executive Agreements and demanded that the Executive
Agreements be submitted to the Senate for ratification pursuant to
the Philippine Constitution. Is Senator Maagap Correct? Explain.
(4%) ‘15 - Q1
The Executive Agreement allowing the Republic of Kroi Sha to establish
its embassy and consular offices within Metro Manila is valid without
need of submitting it to the Senate in its ratification. (Commission of
Customs v. Eastern Sea Trading, 35 SCRA 345 [1961]).
The Executive Agreement with the Republic of Kroi Sha allowing it to
bring to the Philippines its military complement, warships and
armaments from time to time for training exercises with the Philippine
military forces must be submitted to the Senate for concurrence in its
ratification. Under Section 25, Article XVIII of the Constitution a treaty
duly concurred in by the Senate is required even for the temporary
presence of foreign troops. (Bayan v. Zamora, 342 SCRA 449 [2000]).
President Black of the Republic of Pasensya (RP) had a telephone
conversation with President Blue of the People's Republic of
Conquerors (PRC). ln that conversation, both leaders agreed that
they will both pull-out all their vessels, civilian or otherwise, sea
crafts and other ships from the hotly disputed Kalmado Shoal
area within eight (8) days in order to de-escalate the situation.
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After eight days, all RP ships and vessels have left the area.
However, several military and civilian ships carrying the PRC flag
remained in the area and began construction of a dock that could
provide fuel and other supplies to vessels passing by.
a) Assuming [that the verbal agreement via telephone is
binding under international law], does that agreement
constitute a Treaty under the 1969 Vienna Convention
on the Law on Treaties? (2%); ‘12 - Q6b
The verbal agreement does not constitute a treaty under the Vienna
Convention on the Law of Treaties. Article 3 requires that for an
international agreement to be a treaty, it must be in written form.
Diplomatic negotiations are privileged communications and
negotiation details cannot be disclosed notwithstanding the
constitutional right of the people to information on matters of
public concern. ’09 – Q14a
The petition of KMM must be denied. Diplomatic negotiations are
privileged in order to encourage a frank exchange of exploratory ideas
between the parties by shielding the negotiations from public view
(Akbayan Citizens Action Party v. Aquino, 558 SCRA 468 [2008].)
The public has access to information pertaining to contract entered
into the Government in its proprietary or commercial capacity. ’09
– Q14b
KMM is entitled to have access to information to government
contracts entered into by the Government in the exercise of its
proprietary of commercial capacity. The right to information under the
Constitution does not exclude contracts of public interest and are not
privileged (Section 7, Article III of the Constitution; Valmonte v.
Belmonte, 170 SCRA 256 [1989].)
Instances wherein a treaty may violate international law. ’08 – Q2
Treaties may contain provisions that depart from general rules of
international law provided that the provisions do not violate jus cogens
norms, which refer to peremptory norms that no nation may ignore them
or attempt to contract out of them through treaties. For example, the
prohibitions on the use of force, genocide and participating in a slave
trade are regarded as jus cogens. When a treaty is in conflict with a jus
cogens rule, the treaty is deemed void. When a treaty is in conflict with
the other rules of international law, the treaty amounts to a waiver of
rights that prevents the parties from raising legal claims against each
other over these rules.
The President alone, without the concurrence of the Senate, cannot
abrogate a treaty. ’08 – Q3
The President should be overruled. She cannot abrogate a treaty
alone even if the other State, a party to a treaty, agrees to the
abrogation. If the legislative branch ratifies a treaty by 2/3 vote pursuant
to Section 21, Article VII of the Constitution, it must also do when the
President abrogates it. She cannot motu propio abrogate the treaty.
However, since there is no firm jurisprudence on this subject, the
view has also been expressed that termination comes under the power
of the President to recognize states, owing to the pre-eminence of the
executive in matters involving foreign relations.
International Court of Justice; Location; Membership. Term of
Office; Incumbent President; Nationality of Incumbent President.
’06 – Q9(1) - 9(5)
The seat of the International Court of Justice is in The Hague,
Netherlands (Articles 23(1) and (2) and 28, ICJ Statute.)
The International Court of Justice has fifteen members (Article 5,
International Court of Justice Statute.)
66
The term of members of the International Court of Justice is nine
years. (Article 13(1), Statute of the International Court of Justice.)
How did the International Court of Justice acquire jurisdiction over
the complaint filed by the United States against Iran alleging that
the latter is detaining American diplomats in violation of
international law. ’06 – Q9(6)
The International Court of Justice acquired jurisdiction over the
United States and Iran by virtue of the compromissory clause in the
Treaty of Amity, Economic Relations and Consular Rights between them
and the Optional Protocols to the Vienna Convention on Diplomatic
Relations and the Vienna Convention on Consular Relations, of which
the United States and Iran are both parties.
Another Suggested Answer:
The ICJ can acquire jurisdiction over parties only with their consent.
In the case of Iran and the United States, that consent may be expressed
in three (3) ways:
(a) Compromise, in which states voluntarily submit to ICJ
jurisdiction in relation to a specific dispute;
(b) Compulsory jurisdiction under the Optional Clause, in which a
State may in advance declare that it will be subject to ICJ
jurisdiction in future disputes subject to reservation; and
(c) Compromissory clauses in multilateral treaties, wherein
States-Parties to a treaty undertake to resolve all disputes
arising under that treaty through the ICJ.
In the U.S. v. Iran dispute (1980), the U.S. invoked, and the ICJ
applied, the compromissory clause under the Convention on the
Protection Diplomatic Personnel.
In case of irreconcilable conflict between a provision of a treaty
and a provision of the Constitution, the provision of the
Constitution should prevail. ’04 – Q10a
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 Constitution authorizes the nullification
of a treaty when it conflicts with the Constitution (Gonzales v.
Hechanova, 9 SCRA 230 [1963].)
A country’s Constitution prevails over international law but
international law prevails over municipal law. ’03 – Q16
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 II of the 1987 Constitution, the generally accepted principles of
international law form part of the law of the land. Since they are merely
have the force of law, if it is Philippine courts that will decide the case,
they will uphold the Constitution. If it is an international tribunal that will
decide the case, it will uphold international 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.
An executive agreement was executed between the Philippines and
a neigboring State. The Senate of the Philippines took it upon itself
to procure a certified 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? ’03 – Q20
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.
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The Executive Agreement is also binding from the standpoint of
international law. As held in Bayan 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.
Constitutionality of the membership of the Philippines in the WTO
on the ground that it will unduly limit, restrict and impair Philippine
sovereignty and also means that Congress could not pass
legislation that will be good for our national interest and general
welfare if such legislation will not conform to the WTO agreements.
’00 – Q10
According to Tañada 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 by 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.
Under the executive agreement entered into between the
Philippines and the other members of the ASEAN, the other
members will send each a battalion-size unit of their respective
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. ’96 – Q4(1)
As a judge, I shall dismiss the case. What Section 25, Article XVIII
of the Constitution prohibits, in the absence of a treaty, is the stationing
of troops in the Philippines. It does not include the temporary presence
in the Philippines of foreign troops for the purpose of the 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 v. Tizon, 57 SCRA 1 [1974], the filing of an action
interfering with the defense of the State amounts to a suit against the
State without its consent.
Can the House of Representatives take active part in the conduct
of foreign relations, particularly in entering into treaties and
international agreements? ’96 – Q7(5)
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 v. Curtiss-Wright
Export Corp., 299 U.S. 304 [1936], 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 along
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.
The President of the Philippines authorized the Secretary of Public
Works and Highways to negotiate a loan agreement with the
German Government for the construction of a dam. The Senate, by
resolution, asked 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.
What is the role of the Senate in the conduct of foreign affairs under
the Constitution? ’94 – Q13(1)
The Senate plays a role in the conduct of foreign affairs, because
of the requirement of Section 21, Article VII of the Constitution that to be
valid and effective, a treaty or international agreement must be
concurred in by at least two-thirds (2/3) of all the Members of the Senate.
67
Is the President bound to submit the agreement to the Senate for
ratification? ’94 – Q13(1)
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.
Section 4, Article XVIII of the Constitution provides: “All existing
treaties of 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.”
An executive agreement is about to be signed with the Japanese
Government with the Philippine Government about former’s offer
of substantial assistance to finance a program that will promote
women’s rights, child welfare, nutrition and family health care. 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.
Is the agreement valid? ’92 – Q14
The agreement is valid. The comfort women and their descendants
cannot assert individual claims against Japan. As stated in Davis &
Moore v. 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.
Whether or not the President may negotiate for a modification or
extension of the military bases agreement regardless of the “no
nukes” provision in the 1987 Constitution. ’88 – Q22
No. The Constitution provides that if foreign military bases, troops
or facilities are to be allowed after the expiration of the 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.” (Section 25, Article XVIII of the Constitution). A mere
agreement, therefore, not a treaty, without the concurrence of the
Senate will not be valid (Section VII, Sec. 21; Section 4, Article XVIII of
the Constitution).
With respect to the provision allowing nuclear weapons within the
bases, the Constitution appears to ban such weapons within 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.” (Section 8, Article II). However, the
deliberations of the Constitutional Commission would seem to indicate
that this provision of the Constitution is “not something absolute nor
100% without exception.” It may therefore be that circumstances may
justify a provision on nuclear weapons.
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 financial assistance.
In return, the President agreed to allow American nuclear vessels
to stay for shot visits at Subic, and in case of military need, to store
weapons at Subic or Clark Field. Under the agreement, a vital
military need comes when the sealanes from the Persian Gulf to
the Pacific are threatened by hostile military forces. How could an
NGO legally prevent the agreement entered into by the President
and the U.S. government from going into effect? ’88 – Q23
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 by Section 21, Article
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VII. It may not, therefore, be opposed in that branch of government. Nor
is judicial review feasible at this stage because there is no justiciable
controversy. While Section 1. Par. 2, Article VIII of the Constitution
states that judicial power includes the duty of the 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 of
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.
The Philippines entered in to a Treaty of Friendship, Comity and
Commerce with Indonesia with the following provisions: (1) the
nationals of each contracting State admitted to the practice of law
in said State, to practice law without taking the bar examinations in
the other contracting State; and (2) the nationals of each
contracting State to engage in retail trade business in the territory
of the other contracting State. Is the treaty valid? ’87 – Q9
Section 14, Article XII of the Constitution provides that the practice
of law in the Philippines shall be limited to Filipino citizens, save in cases
prescribed by law. Here the treaty has the force of law.
Section 10, Article XII of the Constitution 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 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 Section 22, Article XII
which declares acts which circumvent or negate any provisions of Article
XII to be inimical to the national interest and subject offenders to the
criminal and civil sanctions. For then the Retail Trade Nationalization
Law becomes part of Article XII, having been passed pursuant to the
mandate in Section 10.
However, it may also be plausibly argued that a treaty may amend a
prior law and the 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 citizens.
The United Nations and International Court of Justice
Jurisdiction of the International Criminal Court and
International Court of Justice; Distinction. ’10 – Q2
The jurisdiction of the International Court of Justice pertains to
international responsibility in the concept of civil liability, while that of the
International Criminal Court pertains to criminal liability.
While States are the subject of law in international responsibility
under the International Court of Justice, the criminal liability within the
jurisdiction of the International Court of Justice, the criminal liability
within the jurisdiction of the International Criminal Court pertains to
individual persons [Article 34(i) of the Statute of the International Court
of Justice; Articles 25 and 27 of the Statute of the International Criminal
Court].
Validity of the defense that under the 1951 San Francisco Peace
Agreement which stated that all injured states, including the
Philippines, received war reparations and, in return, waived all
claims against Japan arising from the war. ’07 – Q4b
The defense is not valid. Under the preamble of the San Francisco
Treaty, Japan undertook to conform to the protection and observance of
human rights. The San Francisco Treaty must yield to the United Nations
Charter, which provides for respect of human rights. Article 103 of the
United Nations Charter provides that the obligations of the member-
States prevail over any other international agreement. The waiver in
Article 14(a) of the San Francisco Treaty is qualified by Article 14(b),
which stated that Japan had no resources presently sufficient to make
complete reparation for all such damages and sufferings to meet its
other obligations. Thus, the waiver was operative only while Japan had
inadequate resources.
[However in Vinuya v. Executive Secretary, 619 SCRA 533 [2010],
the Supreme Court said that:
The conduct of the foreign relations of our government is
committed by the Constitution to the executive and the legislative – “the
political” – departments of the government, and the propriety of what
may be done in the exercise of political power is not subject to judicial
inquiry or decision.
The question whether the Philippine government should espouse
the claims of its nationals against a foreign government is a foreign
relations matter, the authority for which is demonstrably committed by
our Constitution not to the courts but to the political branches. In this
case, the Executive Departments has already decided that it is to the
best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951.
The U.S. Supreme Court held that “[t]he President is the sole organ
of the nation in its external relations, and its sole representative with
foreign relations. The Executive Department has determined that taking
up petitioners’ cause would be inimical to our country’s foreign policy
interests, and could disrupt our relations with Japan, thereby creating
serious implications for stability in this region.
Not infrequently in affairs between nations, outstanding claims by
nationals of one country against the government are “sources of fiction”
between the two sovereigns. To resolve these difficulties, nations have
often entered into agreements settling the claims of their respective
nationals. As on treatise writer puts it, international agreements settling
claims by nationals of one state against the government of the other “are
established international practice reflecting traditional international
theory.”
In the international sphere, traditionally, the only means available
for individuals to bring a claim within the international legal system has
been when the individual is able to persuade the government to bring a
claim on the individual’s behalf. The State is the sole judge to decide
whether its protection will be granted, to what extent is granted and when
it will cease. Because of states’ reluctance to directly prosecute claims
against another state, recent developments support the modern trend to
empower individuals to directly participate in suits against perpetrators
of international crimes.]
What are the so-called Mandates and Trust Territories? Does the
the
United Nations exercise sovereignty over these territories? If so,
how is this jurisdiction exercised? ’03 – Q17
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 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.)
Limitations (2) on the jurisdiction of the International Court of
Justice under its Statute. ’99 – Q10b
The following are the limitations on the jurisdiction of the
International Court of Justice under its Statute:
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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)
The sovereignty over certain islands is disputed between State A
and State B. These two states agreed to submit their disputes to
the ICJ. 1) Does the ICJ have jurisdiction to take cognizance of the
case; 2) Who shall represent the parties before the Court; 3) What
language shall be used in the pleadings and oral argument; 4) In
case State A, the petitioner, fails to appear at the oral argument,
can State B, the respondent, move the for the dismissal of the
petition. ’94 – Q20
The International Court of Justice has jurisdiction over the case;
because the parties have jointly submitted the case to it and have this
indicated their consent to its jurisdiction.
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 Statute of the
International Court of Justice, no member of the court may appear as
agent in any case.
Under Article 39 of the Statute 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.
Under Article 53 of the Statute 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 if it has
jurisdiction and that the claim is well founded in fact and law.
State X invades and conquers State Y. The UN Security Council
declares the invasion and conquest illegal and orders an
international embargo against State X. Subsequently, the Same UN
body adopts a resolution calling for an enforcement action against
State X under Chapter VII of the UN Charter. State Z, an UN 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 are. (a) Did State Z violate its
obligations under the UN Charter; (b) If so, what sanctions may be
taken against it; (c) If not, why not. ’91 – Q14
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.
No sanctions may be taken against State Z, because it did not
violate its obligations under the United Nations Charter.
Compliance with the resolution calling for the enforcement action
against State X does not necessarily call for the sending of fighting
troops. Under Article 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.
State Sovereignty
Concept of association under international law. ’10 – Q27
An association is formed when two states of unequal power
voluntarily establish durable links. The associate delegates certain
responsibilities to the other, the principal, while maintaining its status as
a state. It is an association between sovereigns. The associated state
69
agreement has usually been used as a transitional device of former
colonies on their way to full independence (Province of North Cotabato
v. Government of the Republic of the Philippines Peace Panel of
Ancestral Domain, 568 SCRA 402 [2008].)
Association, under international law, is a formal agreement
between a non-self-governing territory and an independent State which
internal self-government, but the independent state is responsible for
foreign relations and defense.
For an association to be lawful, it must comply with the general
conditions prescribed in UN General Assembly Resolution 1541(XV) of
14 December 1960: (1) the population must consent to the association;
and (2) the association must promote the development and well-being
of the dependent state (the non-self-governing territory). Association is
subject to UN approval.
State sovereignty as defined in International Law. ’06 – Q10(1)
Sovereignty signifies the right to exercise functions of a State in
regard to a portion of the globe to the exclusion of the any other State.
It is the principle of exclusive competence of a State in regard to its own
territory (The Island of Las Palmas Case, 2 Report of International
Arbitration Awards 839 [1928].)
State sovereignty is not absolute. ’06 – Q10(2)
State sovereignty is not absolute. It is the subject of limitations by
membership in the family of nations and limitations imposed by treaty
stipulations (Tañada v. Angara, 272 SCRA 18 [1997].)
Principle of auto-limitation. ’06 – Q10(3)
The principle of auto-limitation means that a State may by its
express or implied consent submits to a restriction of its sovereign rights.
There may thus be a curtailment of what otherwise is power plenary in
character (Reagan v. Commissioner of Internal Revenue, 30 SCRA 968
[1969]; Tañada v. Angara, 272 SCRA 18 [1997].)
Relationship between reciprocity and principle of auto-limitation.
’06 – Q10(4)
By reciprocity, States grants to one another rights or concessions,
in exchange for identical or comparable duties, thus acquiring a right as
an extension of its sovereignty and at the same accepting an obligation
as a limitation to its sovereign will, hence, a complementation of
reciprocity and auto-limitation.
What is the basis of the Philippines’ claim to a part of the Spratly
Islands? ’00 – Q19a
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 no 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 is sovereign title by the
promulgation of Presidential Decree No. 1596, which the declared the
Kalayaan Island Group part of Philippine territory.
The Republic of China (Taiwan), in its bid to develop a hydrogen
bomb and defend itself against threats of invasion from the
People’s Republic of China, conducted a series of 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 waters within the territorial jurisdiction of the
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Philippines. Can the Philippines complain against the Republic of
China for violation of its sovereignty? ’89 – Q19
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
free movement of its inhabitants.
Since the nuclear tests conducted by the Republic of 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 necessary 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 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.
Distinguish the constitutive theory and the declaratory theory
concerning recognition of states. ’04 – Q2(4)
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
acknowledged of the pre-existing fact that the state being recognized is
an international person (Cruz, International Law, 2003 ed., p. 80.)
State Recognition
Distinguish the Wilson doctrine and the Estrada doctrine regarding
recognition of governments. ’04 – Q2(5)
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.
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., pp. 85-86.)
(In view of recent developments, the Wilson doctrine and the
Estrada doctrine are no longer in the mainstream of public international
law.)
Distinguish between de facto recognition and de jure recognition
of states. ’98 – Q12
The following are the distinctions between de facto recognition and
de jure recognition of a government:
De facto recognition is provisional; de jure recognition is relatively
permanent.
De facto recognition does not vest title in the government to its
properties abroad; de jure recognition does
De facto recognition is limited to certain juridical relations; de jure
recognition brings about full diplomatic relations (Cruz, International
Law, 1996 ed., p. 83.)
70
Use of Force and the Right of a State to Self-Defense
Acts of terrorism of a private group cannot be a justification for an
act of “self-defense” under international law. ’09 – Q13a
The Philippine action cannot be justified as self-defense. Self-
defense is an act of State by reason of an armed attack by another State.
The acts of terrorism in this case were acts of a private group and cannot
be attributed to Asyaland, which does not support the Emerald Brigade.
Article 51 of the Charter of the United Nations has no applicability,
because self-defense in Article 51 contemplates a response to a
legitimate armed attack by a State against another State. The attack by
the Emerald Brigade is an attack by a private group without authority or
as organ of Asyaland.
The fact that the commando team did not take territory nor
interfered in the political process of Asyaland is not an excuse
against the violation of Article 2.4 of the UN Charter which prohibits
“the threat or use of force against the territorial integrity or political
independence of any State.” ’09 – Q13b
The contention of Asyaland is correct. The Philippines violated
Section 2(4) of the Charter of the United Nations, which prohibits States
from the threat or use of force against the territorial integrity of any State.
Acts of terrorism committed against Filipino citizens where their
citizenship was a factor in the commission of the crime although
committed outside the territorial limits of the Philippines; Where to
file. ’09 – Q13c
The terrorist should be tried in the Philippines. Section 58 of R.A.
No. 9372, the Human Security Act provides for its extraterritorial
application to individual persons who, although outside the territorial
limits of the Philippines, commit an act of terrorism directly against
Filipino citizens where their citizenship was a factor in the commission
of the crime.
Not too long ago, “allied forces”, led by American and British
armed forces, invaded Iraq to “liberate the Iraqis and destroy
weapons of mass destruction.” The Security Council of the United
Nations failed to reach a consensus on whether to support the “war
of liberation.” Can the action taken by the allied forces find
justification in International Law? ’03 – Q14
The United States and its allied forces cannot justify the invasion
of Iraq on the basis of self-defense under Article 51 of the UN Charter
as the allied forces did not launch military operations and did not occupy
Iraq on the claim that their actions was in response to an armed attack
by Iraq, and there was no necessity for anticipatory self-defense 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 of 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, or in any
manner inconsistent with the purposes of the United Nations.” This
mandate does not outlaw war; it encompasses all threats of and acts of
force or violence short of war.
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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 (3) 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 measures
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 Security Council. The allied forces did
not launch military operations and did not occupy Iraq on the claim that
their actions 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 of 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.
Based on the facts surrounding the 9/11 bombing. 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 harbouring and giving protection to the terrorist
organization? ’02 – Q19
Country Y may exercise the right of self-defense, as provided under
Article 51 of the UN Charter “until the Security Council has taken
measures 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.
It may also bring the matter to the Security Council which may
authorize sanctions against Country X, including the measure invoking
the use of force. Under Article 42 of the UN Charter, Country Y may use
force against Country X as well as against Ali Baba organization by
authority of the UN Security Council.
At the Nuremberg trial of the Nazi war criminals at the end of 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? ’98
– Q14
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
investigation and adjudication if international law is ever to be
enforced.”
The State of Nova, controlled by an authoritarian government, had
unfriendly relations with its neighboring state, Ameria. Bresia,
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) On what grounds may Nova’s
cause of action against Ameria be based? (2) On what grounds may
Ameria move to dismiss the case with the ICJ? (3) Decide the case.
’94 – Q19
71
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 forces 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 within the territorial water of another as
a violation of Article 2(4) of the United Nations Charter. IF the support
provided by Ameria to the rebels go 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 manner inconsistent with the United Nations Charter.
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 seld-defense, recognized under customary international
law, because Nova is planning to launch an attack against Ameria by
using the arms it bought from Bresia.
If jurisdiction over Ameria is established, the case should be decide
in favor of Nova, because Ameria violated the principle against the use
of force and the principle of non-intervention. The defense of anticipatory
seld-defense cannot be sustained, because there is no showing 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.
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 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. Please
state two occasions when the use of armed forces is allowed by
the U.N. Charter. ’88 – Q19(1)
Under Article 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 operations by air, sea, or
land forces of members of the UN.
Under Article 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.
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Nationality, Citizenship and Statelessness
Who are stateless persons under International Law? What are the
consequences of statelessness? Is a stateless person entirely
without right, protection or recourse under the Law of Nations?
What measures, if any, has International Law taken to prevent
statelessness? ’95 – Q2
Stateless persons are those who are not considered as nationals
by any State under the operation of its laws.
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
citizenship like securing for himself a passport or visa and
personal documents.
No. Under the Convention in Relation to the Status of Stateless
Persons, the Contracting States agree to accord to stateless persons
within their territories treatment at least favourable as that accorded to
their nationals with respect to freedom of religion, access to 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 favourable 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 persons.
In the Convention of the Conflict of Nationality of 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.
Diplomatic Law and Sovereign Immunity
Ambassador Gaylor is State Juvenus’ diplomatic representative to
State hinterlands. During one of his vacations, Ambassador Gaylor
decided to experience for himself the sights and sounds of State
Paradise, a country known for its beauty and other attractions.
While in State Paradise, Ambassador Gaylor was caught in the
company of children under suspicious circumstances. He was
arrested for violation of the strict anti-pedophilia statute of State
Paradise. He claims that he is immune from arrest and
incarceration by virtue of his diplomatic immunity.
Does the claim of Ambassador Gaylor hold water? (4%) ‘14 - Q29
Ambassador Gaylor cannot invoke his diplomatic immunity. In
accordance with Paragraph 1, Article 31 of the Vienna Convention of
Diplomatic Relations, since State Paradise is not his receiving state, he
does not enjoy diplomatic immunity within its territory. Under Paragraph
1, Article 40 of the Vienna Convention of Diplomatic Relations, he cannot
be accorded diplomatic immunity in State Paradise, because he is not
passing through it to take up or return to his post or to return to State
Juvenus.
72
The ambassador of the Republic of Kafiristan referred to you for
handling, the case of the Embassy’s Maintenance Agreement with
CBM, a private domestic company engaged in maintenance work.
The Agreement binds CBM, for a defined fee, to maintain the
Embassy’s elevators, air-conditioning units and electrical
facilities. Section 10 of the Agreement provides that the
Agreement shall be governed by Philippine laws and that any
legal action shall be brought before the proper court of Makati.
Kafiristan terminated the Agreement because CBM allegedly did
not comply with their agree maintenance standards.
CBM contested the termination and filed a complaint against
Kafiristan before the Regional Trial Court of Makati. The
Ambassador wants you to file a motion to dismiss on the ground
of state immunity from suit and oppose the position under
Section 10 of the Agreement, Kafiristan expressly waives its
immunity from suit.
Under these facts, can the Embassy successfully invoke
immunity from suit? (6%) ‘13 - Q10
Yes, the Embassy can invoke immunity from suit. Section 10 of the
Maintenance Agreement is not necessarily a waiver of sovereign
immunity from suit. It was meant to apply in case the Republic of
Kafiristan elects to sue in the local courts or waives its immunity by a
subsequent act. The establishment of a diplomatic mission is a
sovereign function. This encompasses its maintenance and upkeep.
The Maintenance Agreement was in pursuit of a sovereign activity
(Republic of Indonesia v. Vinzon, G.R. No. 154705, June 26, 2003,405
SCRA 126).
Philippine courts have jurisdiction over a crime committed by a
private American citizen inside the U.S. embassy. ’09 – Q12a
William is not correct. The premises occupied by the United States
Embassy do not constitute territory of the United States but of the
Philippines. Crimes committed within them are subject to the territorial
jurisdiction of the Philippines. Since William had no diplomatic immunity,
the Philippines can prosecute him if it acquired jurisdiction over him
(Reagan v. Commissioner of Internal Revenue, 30 SCRA 968 [1969].)
The surviving Filipina “comfort women” cannot sue the Japanese
government for damages before Philippine courts. ’07 – Q4c
The Filipina “comfort women” cannot sue Japan for damages
because a foreign State may not be sued before Philippines as a
consequence of the principles of independence and equality of States
(Republic of Indonesia v. Vinzon, 405 SCRA 126 [2003].)
Italy, through its Ambassador, entered in to a contract with Abad
for the maintenance and repair of specified equipment at its
Embassy and Ambassador’s Residence, such as air conditioning
units, generator sets, electrical facilities, water heaters, and water
motor pumps. It was stipulated that the agreement shall be
effective for a period of four years and automatically renewed
unless cancelled. Further, it provided that any suit arising from the
contract shall be filed with the proper courts in the City of Manila.
Claiming that the Maintenance Contract was unilaterally,
baselessly and arbitrarily terminated, Abad sued the State of Italy
and its Ambassador before a court in the City of Manila. Among the
defenses raised were “sovereign immunity” and “diplomatic
immunity.” (a) As counsel of Abad, refute the defenses of
“sovereign immunity” and “diplomatic immunity” raised by the
State of Italy and its Ambassador. (b) At any rate, what should be
the court’s ruling on the said defenses? ’05 – Q3(1)
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As counsel of Abad, I shall argue that the contract is not a
sovereign function and that the stipulation that any suit arising under the
contract shall be filed in the proper courts of the City of Manila is a waiver
of the sovereign y from suit of Italy. I shall also argue that the
ambassador does not enjoy diplomatic immunity, because the suit
relates to a commercial activity.
The court should reject the defenses. Since the establishment of a
diplomatic mission requires the maintenance and upkeep of the
embassy and the residence of the ambassador, Italy was acting in
pursuit of a sovereign activity when it entered into the contract. The
provision in the contract regarding venue of lawsuits is not necessarily a
waiver of sovereign immunity from suit. It should be interpreted to apply
only where Italy elects to sue in the Philippine courts or waives its
immunity by a subsequent act. The contract does not involve a
commercial activity of the ambassador, because it is connected with his
official functions (Republic of Indonesia v. Vinzon, 405 SCRA 126
(2003).]
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 PNP, armed
with a Search Warrant authorizing the search of Baker’s house and
the premises for dangerous drugs being trafficked to the US. The
search purportedly yielded positive results, and Baker was
charged with Violation of the Dangerous Drugs Act. Adams was the
prosecution’s principal witness. However, for failure to prove his
guilt beyond reasonable doubt, Baker was acquitted.
Baker then sued Adams for damages for filing trumped up charges
against him. Among the defenses raised by Adams is that he has
diplomatic immunity, conformably with the Vienna Convention on
Diplomatic Relations. He presented Diplomatic Notes from the
American Embassy stating that he is an agent of the US Drug
Enforcement Agency tasked with “conducting surveillance
operations” on suspected drug dealers in the Philippines believed
to be the source of prohibited drugs being shipped to the US. It was
also stated that after having ascertained the target, Adams would
then inform the Philippine narcotic agents to make the actual
arrest.
1. As counsel for plaintiff Baker, argue why his complaint
should not be dismissed on the ground of defendant
Adam’s diplomatic immunity from suit.
As counsel for Baker, I shall argue that Baker has no diplomatic
immunity, because he is not performing diplomatic functions.
2. As counsel of defendant Adams, argue for the dismissal
of the complaint. ’05 – Q3(2)
As counsel of Adams, I shall argue that since he was acting within
his assigned functions with the consent of the Philippines, the suit
against him is a suit against the United States and is barred by state
immunity from suit (Minucher v. Court of Appeals, 397 SCRA 244
[2003].)
MBC, an alien businessman filed a suit against policemen and YZ,
an attaché 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 him
money and jewellery, then detained and tortured him in violation of
his civil and human rights as well as causing him, his family and
business serious damages amounting to two million pesos. MBC
added that the trial court acquitted him of the drug charges.
Assailing the court’s jurisdiction, YZ now moves to dismiss the
complaint, on the ground that (1) he is an embassy officer entitled
to diplomatic immunity; and that (2) the suit is really a suit against
his home state without its consent. He presents diplomatic notes
from XX Embassy certifying that he is an accredited embassy
officer recognized by the Philippine government. He performs
73
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? ’04 – Q8a
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 (Republic of Indonesia v. Vinzon, 405 SCRA 126 (2003).]
A group of high-ranking officials and rank-and-file employees
stationed in a foreign embassy in Manila were arrested outside
embassy grounds and detained at Camp Crame on suspicion that
they were actively collaborating with “terrorists” out to overthrow
or destabilize the Philippine Government. The Foreign
Ambassador sought their immediate release, claiming that the
detained embassy officials and employees enjoyed diplomatic
immunity. If invited to express your legal opinion on the matter,
what advice would you give? ’03 – Q18
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 persons 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.
Dr. Velen, an official of the World Health Organization (WHO)
assigned in the Philippines, arrived at the Ninoy Aquino
International Airport with his personal effects contained in twelve
crates as unaccompanied baggage. As such, his personal effects
were allowed free entry from duties and taxes, and were directly
stored at Arshaine Corporation’s warehouse at Makati, pending Dr.
Velen’s relocation to his permanent quarters. At the instance of
police authorities, the 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? ’01 – Q20
The denial of the motion is improper. As held in World Health
Organization v. 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.
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.
1. Can the foreign ambassador invoke his diplomatic
immunity to resist the lessor’s action?
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No, the foreign ambassador cannot invoke his diplomatic immunity
to resist the action, since he is not using the house in Tagaytay for the
purposes of his mission but merely for vacation. Under Article 3(1)(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.
2. The lessor gets hold of evidence that the ambassador is
about to return to him home country. Can the lessor ask
the court to stop the ambassador’s departure from the
Philippines? ’00 – Q20; ’90 – Q5(1) and Q5(3)
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.
3. Can the lessor ask for the attachment of the furniture and
other personal properties of the ambassador after getting
hold of evidence that the ambassador is about to leave
the country? ’90 – Q5(2)
No. E cannot ask for the attachment of the personal properties of
the Ambassador. Articles 30 and 31 of the Vienna Convention on
Diplomatic Relations provide that the papers, correspondence and the
property of diplomatic 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.
What is the doctrine of Sovereign immunity in International Law?
’98 – Q13
By the doctrine of sovereign immunity, s State, its agents and the
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 had 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 non-
governmental, proprietary or commercial acts (acta jure gestiones.) Only
the first category of acts is covered by sovereign immunity.
The Philippines adheres to the restrictive immunity of school of
thought.
An information was filed against X, a Secretary and Consul in the
American Embassy, for a violation of BP 22 in the MTC of Manila.
X filed a motion to dismiss the case against him on the ground that
he is a Secretary and Consul in the American Embassy enjoying
diplomatic immunity from criminal prosecution in the Philippines.
If you were the Judge, how would you resolve the motion to
dismiss? ’97 – Q19
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 v. Moran, 63 Phil. 249, it was
held that a consul is not exempt from criminal prosecution in the country
where he is assigned.
However, as secretary in the American Embassy, X enjoys
diplomatic immunity from criminal prosecution. As secretary, he is a
diplomatic agent. Under Paragraph 1 of Article 31 of the Vienna
74
Convention on Diplomatic Relations, a diplomatic agent enjoys immunity
from the criminal jurisdiction of the receiving State.
The Republic of Balau (formerly Palau Islands) opened and
operated in Manila an office engaged in trading Balau products
with Philippine products. In one transition, the local buyer
complained that the Balau goods delivered to him were
substandard and sued the Republic of Balau, before the RTC of
Pasig, for damages.
1. How can the Republic of Balau invoke its sovereign
immunity?
The Republic of Balau can invoke its sovereign immunity by filing
a motion to dismiss in accordance with Section 1(a) on the ground that
the court has no jurisdiction over its person.
According to Holy See v. Rosario, 238 SCRA 524 (1994), 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 he 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.
2. Will such defense of sovereign immunity prosper? ’96 –
Q6(2)
No, the defense of sovereign immunity will not proper. The sale of
Balau products is a contract involving commercial activity. In United
States v. Ruiz, 136 SCRA 487 (1985) and United States v. Guinto, 182
SCRA 644 (1990), 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.
Discuss the differences, if any, in the privileges or immunities of
diplomatic envoys and consular officers from civil or criminal
jurisdiction of the receiving state. ’95 – Q3(1)
Under Article 31 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 to act 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 the 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 caused
by a vehicle, vessel or aircraft.
A consul of a South American country stationed in Manila was
charged with serious physical injuries.
1. May he claim immunity from jurisdiction of the local
court?
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No, he may not claim immunity from the jurisdiction of the local
court. Under Article 41 of the Vienna Convention of Consular Relations,
consuls do not enjoy immunity from the criminal jurisdiction of the
receiving State. He is not liable to arrest or detention pending trial unless
the offense was committed against his father, mother, child, ascendant,
descendant or spouse. Consuls are not liable to arrest and detention
pending trial except in the case of a grave crime and pursuant to a
decision by the competent judicial authority. The crime of physical
injuries is not a grave crime unless it is committed against any of the
above-mentioned persons (Schneckenburger v. Moran, 63 Phil. 249.)
2. 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? ’95 – Q3(2) and Q3(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.
A contract for the supply of 500,000 pairs of combat boots for the
Indonesian Army was awarded to Marikina Shoe Corp., a Philippine
corporation. Marikina Shoe was able to deliver only 200,000 pairs
but only received payment for 100,000 pairs. The Indonesian
Ministry of the Army promised to pay the other 100,000 pairs
already delivered as soon as the remaining 300,000 pairs of combat
boots are delivered which shall be paid for at the same time.
Marikina shoe failed to deliver any more combat boots. Hence, the
Republic of Indonesia filed an action against Marikina Shoe for
specific performance and damages before the RTC of Pasig. In its
Answer, Marikina Shoe sets up a counterclaim for US$ 3 million
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 PNB and Far East Bank. Indonesia went to the Court
of Appeals for certiorari under Rule 65. How would the Court of
Appeals decide the case? ’91 – Q13
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 v. Pan Oriental Shipping Co., 95 Phil. 905
(1954), 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 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 for the
Indonesian government insofar as it sought to annul the garnishments
of the funds of Indonesia which were deposited in the PNB and Far East
Bank. Consent to 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 v. Carpenter v.
Jarnvagsstyrelsen, 43 F.2d 705, it was held the consent to be sued does
not give consent to the attachment of the property of a sovereign
government.
International Criminal Law
Genocide; propriety of passing an amnesty law to cover those
involved in mass killings of indigenous groups groups. ’10 – Q1
75
The proposed amnesty is contrary to international law. The mass
killings of individual members of indigenous groups constitute genocide
under Article II(a), Convention for the Prevention and Punishment of the
Crime of Genocide. The proposed amnesty law is against international
law because it is incompatible with, or in violation of the international
obligation under Article IV of this Convention that “Persons committing
genocide… shall be punished, whether they are constitutionally
responsible ruler, public officials of private individuals.”
“The Contracting Parties confirm that genocide, whether committed
in time of peace or in time of war, is a crime under international law which
they undertake to prevent and to punish.”
What is “Genocide,” and what is the foremost example thereof in
recent history? ’88 – Q19(2)
According to Article 6 of the ICC Statute and Section 5(a) of R.A.
No. 9851, genocide involves “any of the following acts committed with
intent to destroy in whole or in part, a national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the
group;
(e) Forcibly transferring children of the group to another group.”
The foremost example of genocide is the Holocaust (1933-1945)
where about 6 million Jews (two-thirds of the Jewish population of
Europe before World War II) were exterminated by the Nazis. Along
with the Jews, another 9 to 10 million people (Gypsies and Slavs) were
massacred. Examples in recent history are the genocide committed by
the Serbs against Bosnian Muslims in the Bosnian War and the
massacre of an estimated 500,000 to 800,000 Tutsis by the Hutus in
Rwanda.
Space Law
What is outer-space? Who or which can exercise jurisdiction over
astronauts while in outer space? ’03 – Q19
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 the altitude
approximating aerodynamic lift. Another school of thought proceeds 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 instruments 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.
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.
United Nations Convention on Law of the Sea (UNCLOS) and
International Maritime Law
The USS Liberty, a warship of the United States (U.S.). entered
Philippine archipelagic waters on its way to Australia. Because of
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the negligence of the naval officials on board, the vessel ran
aground off the island of Palawan, damaging coral reefs and other
marine resources in the area. Officials of Palawan filed a suit for
damages against the naval officials for their negligence, and
against the U.S., based on Articles 30 and 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). Article 31 provides
that the Flag State shall bear international responsibility for any
loss or damage to the Coastal State resulting from noncompliance
by a warship with the laws and regulations of the coastal State
concerning passage through the territorial sea. The U.S.
Government raised the defenses that;
[a] The Philippine courts cannot exercise jurisdiction over another
sovereign State, including its warship and naval officials. (2.5%)
[b] The United. States is not a signatory to UNCLOS and thus
cannot be bound by its provisions. (2.5%)
Rule on the validity of the defenses raised by the U.S'., with
reasons.
[a] The Philippine courts cannot exercise jurisdiction over another
sovereign State,, including its warship and naval officials. (2.5%)
[b] The United States is not a signatory to UNCLOS and thus cannot
be bound by its provisions. (2.5%)
Rule on the validity of the defenses raised by the U.S., with
reasons. ’16 – Q11
The defenses raised by the U.S. Government are not valid.
[a] This defense relies on sovereign immunity from suit as advanced by
the U.S. Government. But the suit filed by the Officials of Palawan draws
its strength from Article 30 and 31 of the UN Convention on the Law of
the Sea (UNCLOS).
However, the U.S. defense is defeated by the UNCLOS through the
application of Article 32 which provides:
“With such exceptions as are contained in sub-section A and in Articles
30 and 31. nothing in this Convention affects the immunities of warships
and other government ships operated for non-commercial purposes,
[emphasis added]”
In reality the supreme relevance of Article 32 quoted above is actualized
by quoting an existing U.S. government document sourced from
Dispatch Supplement, Law of the Sea Convention: Letters of Transmittal
and Submittal and Commentary, as follows:
“Article 32 provides, in effect that the only rules in the Convention
derogating from the immunities of warships and government ships
operated for non-government purposes are those found in Articles 17-
26, 30 and 31 (February 1995, Vol. 6, Supplement No. 1 p. 12.).
[b] The U.S. Government turns to the defense that it is not bound by the
UNCLOS for the reason that it is not a State Party or a signatory.
However, to be bound by the principle, it does not have to be a party to
a treaty or convention. If it has the normative status of a customary norm
of international law, it is binding on all states. This appears to be the
holding of the principle of immunity of warship in question, as upheld by
the U.S. Government in the document cited above (Ibid at p. 17) it states
from the UNCLOS, thus:
The Convention protects and strengthens the key principle of sovereign
immunity for warships...Although not a new concept, sovereign immunity
is a principle or of vital importance to the United States. The Convention
provides for a universally recognized formulation of this principle...
Article 32 provides that, with such exceptions as are contained in
subsection A and in Articles 30 and 31... nothing in the Convention
affects the immunities of warships...
76
[a] Define the archipelagic doctrine of national territory, state its
rationale: and explain how it is implemented through the straight
baseline method. (2.5%)
[b] Section 2 of RA 9522 declared the Kalayaan Island Group (KIG)
and Scarborough Shoal as "Regimes of Islands." Professor Agaton
contends that since the law did not enclose said islands, then the
Philippines lost its sovereignty and jurisdiction over them. Is his
contention correct? Explain. (2.5%) ’16 – Q18
[a] By the term “archipelagic doctrine of national territory’1 is
meant that the islands and waters of the Philippine archipelago are
unified in sovereignty, together with “all the territories over which the
Philippines has sovereignty or jurisdiction.”
This archipelagic doctrine, so described under Article I of the
Constitution, draws its rationale from the status of the whole archipelago
in sovereignty by which under Part IV of the UNCLOS the Philippines is
defined as an Archipelagic State in Article 46, thus:
a) “archipelagic state” means a State constituted wholly by one
or more archipelagos and may include other islands;
b) “archipelago” means a group of islands including parts of
islands interconnecting waters and other natural features which
arc so closely interrelated that such islands waters and other
natural features form an intrinsic geographic, economic and
political entity, or which historically have been regarded as such.
As an archipelagic state, the national territory is implemented by drawing
its “straight archipelagic baselines” pursuant to Article 47 of the
UNCLOS which prescribes among its main elements, as follows:
1. By “joining the outermost points of the outermost islands and
drying reefs of the archipelago”, including the main islands and an area
in which the ratio of the area of the water to the land, including atolls, is
between 1 to 1 and 9 to 1.
2. Mainly, the length of such baselines “shall not exceed 100
nautical lines...”
3. “The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipelago.”
[b] The contention Prof. Agaton is not correct at all.
“Regime of islands” is a concept provided in Article 121 of the UNCLOS.
If is a definition of the island as “a naturally formed area of land,
surrounded by water which is above water at high tide.”
On the other hand, this provision, is differentiated from “rocks” which
cannot sustain human habitation of their own.
The importance of the difference between a natural island and rock is
that an island is provided with territorial sea, exclusive economic zone
and continental shelf, whereas rocks have no exclusive economic zone
and continental shelf.
This is the difference by which RA 9522 introduced into the KIG and
separately Panatag or Scarborough Shoal is an island.
“Regime of Islands”, has no relevance to acquisition or loss of
sovereignty. RA 9522 has the effect of possibly dividing the area in
question into island and rocks, apparently to make clear for each the
maritime zones involved in the definition of island or of rocks.
(1) A bill was introduced in the House of Representatives in
order to implement faithfully the provisions of the United
Nations Convention on the Law of the Sea (UNCLOS) to
which the Philippines is a signatory. Congressman Pat
Rio Tek questioned the constitutionality of the bill on the
ground that the provisions of UNCLOS are violative of the
provisions of the Constitution defining the Philippine
internal waters and territorial sea. Do you agree or not
with the said objection? Explain. (3%) ‘15 - Q2(1)
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The vast expanse of internal waters described by the Constitution as
separation the islands of the Philippine Archipelago, without regard to
breadth or dimension is part of state territory and is subject to state
sovereignty. It is not open to international navigation except with the
express consent of the coastal state.
On the other hand, the UNCLOS transforms constitutional internal
waters into archipelagic waters which under Article 52 “ships of all States
enjoy the right of innocent passage,” on the part of archipelagic states
such as the Philippines.
As to territorial sea, the expanse of the Philippine territorial sea extends
by 200 nautical miles up to the International Treaty Limits (ITL)
surrounding the Philippines Archipelago as drawn pursuant to Article III
of the Treaty of Paris of 10 December 1898 and as constitutionalized
under Article I of the 1935 Constitution.
Under the UNCLOS, such expanse of territorial sea collapse and the IRL
as boundaries of the Philippines disappeared and under UNCLOS the
new boundaries are drawn by the outer limit of the baseline. Thus,
sovereignty indicated by the ITL also collapsed.
ALTERNATIVE ANSWER:
The Objection of Congressman Pat Rio Tek is not valid. The UNCLOS
has nothing to do with the acquisition or loss of territory. It is a multilateral
treaty regulating sea use rights and maritime zones, contiguous zones,
exclusive economic zones and continental shelves. Whether referred to
as internal waters or archipelagic waters, the Philippines exercises
sovereignty over the body of water lying landward of the baselines.
(Magallona v. Ermita, 655 SCRA 476 [2011]).
ANOTHER ALTERNATIVE ANSWER:
I do not agree.
“The UNCLOS is a product of international negotiation that seeks to
balance state sovereignty (mare clausum) and the principle of freedom
of the high seas (mare liberum). The freedom to use the world’s marine
waters is one of the oldest customary principles of international law. The
UNCLOS gives to the coastal State sovereign rights in varying degrees
over the different zones of the sea which are: 1) internal waters, 2)
territorial sea, 3) contiguous zone, 4) exclusive economic zone and 5)
the high seas. It also give coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located. Insofar as the
internal waters and territorial sea is concerned, the Coastal State
exercises sovereignty, subject to the UNCLOS and other rules of
international law. Such sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil.” (Arigo v. Swift, G. R. No.
206510, Sept. 16, 2014). UNCLOS III does not define the internal and
territorial waters of states but merely “prescribes the water-land ratio,
length, and contour of baselines of archipelagic States like the
Philippines.”
“UNCLOS III has nothing to do with the acquisition (or loss) of territory.”
It is a multilateral treaty regulating, among others, sea-use rights over
maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zones [24 nautical miles from the baselines],
exclusive economic zones [200 nautical miles from the baselines]), and
continental shelves that UNCLOS III delimits.”
77
“UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of territory.
Under traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulations of
sea-use rights or enacting statutes to comply with the treaty’s terms to
delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules
on general international law.” (Magallona v. Ermita, 655 SCRA 476
[2011]).
(2) Describe the following maritime regimes under UNCLOS
(4%) ‘15 - Q2(2)
(a) Territorial sea
(b) Contiguous zone
(c) Exclusive economic zone
(d) Continental shelf
(a) The territorial sea is 12 nautical miles from the baselines. An
archipelagic state may draw straight archipelagic baselines
joining the outermost islands and drying reefs of the
archipelago, but the drawing of the baselines should not
depart to any appreciable extent from the general
configuration of the archipelago save for 3 percent of the total
number of the baselines. (Magallona vs. Ermita, 655 SCRA
476 [2011]).
(b) The contiguous zone is a zone contiguous to the territorial
sea. The maximum limit is 24 nautical miles from the
baselines of the territorial sea. It confers functional jurisdiction
to prevent infringements of customs, fiscal, immigration and
sanitary regulations. (Crawford, Brownlie’s Principle of Public
International Law, 8th ed., pp. 265-268).
(c) The economic zone extends no farther that 200 nautical miles
from the baselines of the territorial sea. The coastal state has
sovereign rights for the purpose of exploiting, conserving and
managing the natural resources of the waters superajacent to
the sea-bed and its sub-soil, and economic exploitation and
exploration, such as the production of energy. (Crawford,
Brownlie’s Principle of Public International Law, 8th ed., p.
276).
(d) The continental shelf gives the coastal state rights to explore
and exploit the resources of the shelf by operation of law.
(Crawford, Brownlie’s Principle of Public International Law,
8th ed., p. 276).
In a petition filed with the Supreme Court, Anak Ti Ilocos, an
association of Ilocano professionals argued that Republic Act No.
7711 discarded the definition of the Philippine territory under the
Treaty of Paris and in related treaties; excluded the Kalayaan
Islands and the Scarborough Shoals from the Philippine
Archipelagic baselines; and converted internal waters into
archipelagic waters.
Is the petition meritorious? (6%) ‘13 - Q6
No, the petition is not meritorious. The United Nations Convention on
the Law of the Sea has nothing to do with the acquisition or loss of
territory. It merely regulates sea-use rights over maritime zones,
contiguous zones, exclusive economic zones, and continental shelves
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which it delimits. The Kalayaan Islands and the Scarborough Shoals
are located at an appreciable distance from the nearest shoreline of
the Philippine archipelago. A straight baseline loped around them from
the nearest baseline will violate Article 47(3) and Article 47(2) of the
United Nations Convention on the Law of the Sea III. Whether the
bodies of water lying landward of the baselines of the Philippines are
internal waters or archipelagic waters, the Philippines retains
jurisdiction over them (Magallona v. Ermita, G.R. No. 187167, July
16,2011, 655 SCRA 476).
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 water in bays, rivers and lakes.
No right of innocent passage for foreign vessels exist in the case of
internal waters (Harris, Cases and Materials on International Law, 5 th
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.)

Distinguish the contiguous zone and the exclusive economic zone.

Under the archipelago doctrine, the waters around, between, and
’04 – Q2a(2)
connecting the islands of the archipelago form part of the internal
waters of the archipelagic state. ’09 – Q1b
Contiguous zone is a zone contiguous to the territorial sea and
extends up to twelve (12) nautical miles from the territorial sea and over
Under Article I of the Constitution, the water around, between and
which the coastal state may exercise control necessary to prevent
connecting the islands of the Philippines form part of its internal waters.
infringement of its customs, fiscal, immigration or sanitary laws and
Under Article 49(1) of the U.N. Convention on the Law of the Sea
regulations within its territory or territorial sea (Article 33 of the
(UNCLOS), these waters do not form part of the territorial sea but are
Convention on the Law of the Sea.)
described as archipelagic waters.
The exclusive economic zone is a zone extending up to two-
hundred (200) nautical miles from the baselines of a state over which
[However, in Magallona v. Ermita, 655 SCRA 476 [2011] , the Court
the coastal state has sovereign rights for the purpose of exploring and
said that baselines laws such as R.A. No. 9552 are enacted by UNCLOS
exploiting, conserving and managing the natural resources, whether
III States parties to map-out specific basepoints along their costs from
living or non-living, of the waters superjacent to the seabed and of the
which baselines are drawn, either straight or contoured, to serve as
seabed and subsoil, and with regard, to other activities for the economic
geographic starting points to measures to breadth of the maritime zones
exploitation and exploration of the zone. (Articles 56 and 57 of the
and continental shelf. Baselines laws are nothing but statutory
Convention on the Law of the Sea.)
mechanisms for UNCLOS III States parties to delimit with precision the
extent of their maritime zones and continental shelves. The enactment
Distinguish between the flag state and the flag of convenience. ’04
of UNCLOS III compliant baselines law for the Philippine archipelago
– Q2a(3)
and adjacent areas, as embodied in R.A. No. 9552, allows an
internationally-recognized delimitation of the breadth of the Philippines’
Flag state means a ship has the nationality of the flag state it flies,
maritime zones and continental shelf.]
but there must be a genuine link between the state and the ship (Article
91 of the Convention on the Law of the Sea.)
Enumerate the rights of the coastal state in the exclusive economic
Flag of convenience refers to a state with which a vessel is
zone (EEZ). ’05 – Q1c; ’00 – 19b
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
The exclusive economic zone (EEZ) under Convention on the Law
(Harris, Cases and Materials on International Law, 5th ed., p. 425.)
of the Sea is an area beyond and adjacent to the territorial sea, which
shall not extend beyond two-hundred (200) nautical miles from which
En route to the tuna fishing grounds in the Pacific Ocean, a vessel
the territorial sea is measured.
registered in Country TW entered the Balintang Channel north of
Babuyan Island and with special hooks and nets dragged up red
The following are the rights of the coastal state in the exclusive
corals near Batanes. By international convention, certain corals
economic zone:
are protected species. Just before the vessel reached the high
1. Sovereign rights for the purpose of exploring and exploiting,
seas, the Coast Guard patrol intercepted the vessel and seized its
conserving and managing the living and non-living resources
cargo including tuna. The master of the vessel and the owner of the
in the superjacent waters of the sea-bed and the resources of
cargo protested, claiming the rights of transit passage and
the sea-bed and subsoil;
innocent passage, and sought recovery of the cargo and the
2. Sovereign rights with respect to the other activities for the
release of the ship. Is the claim meritorious or not? ’04 – Q2b
economic exploitation and exploration of the zone or EEZ,
such as production of energy from water, currents and winds;
The claim of innocent passage is not meritorious. While the vessel
3. Jurisdictional rights with respect to establishment and use of
has the right of innocent passage, it should not commit a violation of any
artificial islands;
international convention. The vessel did not merely navigate through the
4. Jurisdictional right as to protection and preservation of the
territorial sea; it also dragged red corals in violation of the international
marine environment;
convention which protected red corals. This is prejudicial to the good
5. Jurisdictional right over marine scientific research; and
order of the red Philippines (Article 19(2) of the Convention on the Law
6. Other rights and duties provided for in the Law of the Sea
of the Sea.)
Convention.)
These treaty obligations form part of Philippine Law, the Philippines
State Epsilon, during peace time, has allowed foreign ships
being a signatory to the UNCLOS.
innocent passage through Mantranas Straight, a straight within
Epsilon’s territorial sea which has been been used by foreign ships
Distinguish between territorial sea and the internal waters of the
for international navigation. Such passage enabled the said ships
Philippines. ’04 – Q2a(1)
to traverse the straight between one part of the high seas to
another. On June 7, 1997, a warship of State Beta passed through
Territorial sea is an adjacent belt of sea with a breadth of twelve
the above-named straight. Instead of passing through
(12) nautical miles measured from the baselines of a state and over
continuously and expeditiously, the ship delayed its passage to
which the state has sovereignty (Articles 2 and 3 of the Convention on
render assistance to a ship of State Gamma which was distressed
the Law of the Sea.) Ships of all states enjoy the right of innocent
with no one nearby to assist. When confronted by Epsilon about
passage through the territorial sea (Article 12 of the Convention on the
the delay, Beta explained that the delay was due to force majeure
Law of the Sea.)
in conformity with the provision of Article 18(2) of the 1982
78
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Convention on the Law of the Sea (UNCLOS). Seven months later,
Epsilon suspended the right of innocent 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) is non-suspendable. Epsilon countered
that Mantranas strait is not a necessary route, there being another
suitable alternative route. Resolve the aforementioned
controversy. ’99 – 10c
Assuming that Epsilon and Beta are parties to the UNCLOS, the
controversy may be 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 of required 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.
In the desire to improve the fishing methods of the fishermen, the
Bureau of Fisheries, with the approval of the President entered into
a memorandum of agreement to allow Thai fishermen to fish within
200 miles from the Philippine sea coasts on the condition that
Filipino fishermen be allowed to use Thai fishing equipment and
vessels and to learn modern technology in fishing and canning.
1. Is the agreement valid?
No, 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.
Section 2, Article XIII of the Constitution provides:
“The State shall protect the nation’s marine part in its
archipelagic waters, territorial sea, and exclusive economic
zone, and reserve its use and enjoyment to Filipino citizens.”
Section 7, Article XIII of the Constitution provides:
“The State shall protect the rights of subsistence fishermen,
especially of local communities, to the preferential use of the
communal marine and fishing resources, both inland and
foreshore. It shall provide support to such fishermen through
appropriate technology and research, adequate financial,
production, and marketing assistance, and other services. The
State shall also extend to offshore fishing grounds of
subsistence fishermen against foreign intrusion. Fishworkers
shall receive a just share from their labor in the utilization of
marine and fishing resources.
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? ’94 – Q11
79
The President can enter into a memorandum of agreement with a
Thai oil corporation involving technical and financial assistance for the
exploration and exploitation of minerals, but there should be no joint
venture. Section 2, Article XII of the Constitution authorizes the
President to enter into agreements with foreign-owned corporations
involving technical or financial assistance for the exploration,
development and utilization of minerals. However, the same provision
states the joint venture for the exploration, development and utilization
of natural resource may be undertaken only with Filipino citizens, or
corporations or associations at least sixty percent of whose capital is
owned by a Filipino citizen.
[Note: In La Bugal-B'Laan Tribal Association v. Ramos, G.R. No.
127882, December 1, 2004 (On Reconsideration) and February 1, 2005,
the Court said the State can enter into service contracts with foreign-
owned corporations. However, it is subject to the strict limitations in the
last two paragraphs of Section 2, Article XII of the Constitution. Financial
and technical agreements are a form of a service contract. Such service
contracts may be entered only with respect to minerals, petroleum and
mineral oils. The grant of such service contracts is subject to several
safeguards, among them: (1) that the service contract be crafted in
accordance with a general law setting standard or uniform terms,
conditions and requirements; (2) the President be the signatory for the
government; and (3) the President report the executed agreement to
Congress within thirty (30) days.]
What do you understand by the archipelagic doctrine? Is this
reflected in the 1987 Constitution? ’89 - Q20
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.
International Human Rights Law
Alienmae is a foreign tourist. She was asked certain question in
regard to a complaint that was filed against her by someone who
claimed to have been defrauded by her. Alienmae answered all the
question asked, except in regard to some matters in which she
invoked her right against self-incrimination. When she was
pressed to elucidate, she said that the questions being asked might
tend to elicit incriminating answer insofar as her home state is
concerned.
Could Alienmae invoke the right against self-incrimination if the
fear of incrimination is in regard to her foreign law? (4%) ‘14 - Q24
Alienmae can invoke her right against self-incrimination even if it is in
regard to her foreign law, if her home state is a party to the International
Covenant on Civil and Political Rights. Article 14 (3) (g) of the said
Covenant provides:
In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum
guarantees, in full equality:
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(g) Not to be compelled to testify against himself or to confess
guilt
Freedom from torture is a non-derogable right both during
peacetime and in a situation of armed conflict. ’10 – Q11
Freedom from torture is non-derogable during peacetime and in a
situation of armed conflict. Under Article 4 of the International Covenant
on Civil and Political Rights, the State Parties may take measures in
derogation of their obligations under this Covenant in time of public
emergency. But this derogation clause does not apply to prohibition
against torture, pursuant to Article 4(2) of the Covenant. Hence, no
derogation may be made in regard to torture.
Philippines in breach of international law in a case in which a city
mayor issues an E.O. prohibiting all hospitals operated by the city
from prescribing the use of artificial methods of contraception. ’07
– Q2b
The acts of the City Mayor may be attributed to the Philippines
under the principle of state responsibility. Article 26 of the International
Covenant on Civil and Political Rights requires that Philippine law shall
prohibit any discrimination and shall guaranteed to all persons equal and
effective protection against discrimination on any ground such as social
origin, birth or other status. The Executive Order of the City Mayor
discriminates against poor women.
Multilateral conventions on Human Rights adopted under the direct
auspices of the United Nations. ’99 – Q10a
The following are multilateral conventions on Human Rights
adopted under the direct auspices of the United Nations:
1. International Convention on Civil and Political Rights
(ICCPR);
2. Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW);
3. Convention on the Rights of the Child (CRC);
4. Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT);
5. International Convention on the Elimination of All Forms of
Racial Discrimination (CERD);
6. Convention on the Prevention and Punishment of the Crime
of Genocide; and
7. International Convention on Economic, Social and Cultural
Rights (ICESR).
Distinguish civil rights from political rights and give an example of
each. ’96 – Q1(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 the government (Black, Handbook of
American Constitutional Law, 4th ed., p. 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 v. Burrow, 129 F. 783.)
Civil Rights defines the relations of individuals 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 merely its citizens.
Examples of civil rights are the rights 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 right of suffrage, the right of
assembly, and the right to petition for redress of grievances.
80
What are the relations of civil and political rights to human rights?
’96 – Q1(2)
Human rights are broader in scope than civil and political rights.
They also include social, economic, and cultural rights. Human rights
inhere in persons from the fact of their humanity. Every man possesses
them everywhere at all times simply because he is a human being. On
the other hand, some civil and political rights are not natural rights. They
exist because they are protected by a constitution or granted by law. For
example, the liberty to enter into contracts is not a human right but is a
civil right.
Walang Sugat, a vigilante group composed of private businessmen
and civic leaders previously victimized by the Nationalist Patriotic
Amy (NPA) rebel group, was implicated in the torture and
kidnapping of Dr. Mengele, a known NPA sympathizer.
1. Under public international law, what rules properly
apply? What liabilities, if any arise, thereunder if Walang
Sugat’s involvement is confirmed?
On the assumption that Dr. Mengele is a foreigner, his torture
violates the International Covenant on Civil and Political Rights, to which
the Philippines has acceded. Article 7 of the Covenant on Civil and
Political Rights provides: “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.”
In accordance with Article 2 of the Covenant on Civil and Political
Rights, it is the obligation of the Philippines to ensure that Dr. Mengele
has an effective remedy, that he shall have his right to such a remedy
determined by competent authority, and to ensure the enforcement of
such remedy when granted.
2. Does the Commission on Human Rights have the power
to investigate and adjudicate the matter? ’92 – Q15
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 government with international treaty obligations on
human rights. As held in Cariño v. 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.
Law of War and International Humanitarian Law
Basic principle or norm of international humanitarian law that was
violated by the Japanese military in the treatment of the “comfort
women.” ‘07 – Q4a
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.”
The Japanese military also violated Article II of the Geneva
Convention (IV), which prohibits outrages upon personal dignity, in
particular humiliating and degrading treatment.
Reden, Jolan and Any, 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 Muslim civilian
population spontaneously took up arms to resist the invading
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troops. Not finding time to organize, the Moslems wore armbands
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?
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 a combatant or a
prisoner of war.”
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 essentially by the desire for private gain and in fact was
promised a handsome salary by the Moslems, they were neither
nationals of the 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 conflict, and they were not sent by a state which is not a
party to the conflict on official duty as members of the armed forces.
2. Are the captured civilians likewise prisoners of war? ’93
– Q3
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 and resist the invading forces,
without having 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 in the power of the
enemy.
Neutrality
Switzerland and Australia are outstanding examples of neutralized
states.
1. What are the characteristics of a neutralized state?
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 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 territories of the great
powers (J. SALONGA & P. YAP, PUBLIC INTERNATIONAL LAW 76
[1966].)
2. Is neutrality synonymous with neutralization? If not,
distinguish one from the other. ’88 – Q20
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 by a unilateral declaration by the neutral State, while
neutralization cannot be effected by a unilateral act, but must be
recognized by other States (J. SALONGA & P. YAP, PUBLIC
INTERNATIONAL LAW 76 [1966].)
81
Law of State Responsibility and Treatment of Aliens
State Responsbility; Remedies. ’10 – Q3
There is no state responsibility state responsibility on the part of
Thailand. The wrongful act in question is an act private individuals and
not of an organ of government or a state official. Hence, it is not
attributable to Thailand as its wrongful act for the purpose of state
responsibility.
The appropriate remedy available to the family of A is to seek
diplomatic protection from Great Britain to press a claim for reparation
(Brownlie, Principles of International Law, 7th ed., pp. 460 and 477-478).
However, in order that the claim will be allowable, the family of A must
first exhaust the legal remedies available in Thailand (Brownlie, Principle
of Public International Law, 7th ed., p. 492.)
Retorsion; explained. ’10 – Q4
A state which resorts to retorsion in international law should apply
proportionate response within appreciable limit. Retorsion is merely
retaliation for discourteous, unkind or unfriendly acts by acts of the same
or similar kind (Oppenheim’s International Law, Vol. II, 7th ed., p. 134.)
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 troops 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?
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 the 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. 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. ’95 – Q8
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.
The Right of Jurisdiction
Extradition of a Filipino computer expert based in Manila who
invented a virus which caused damage worldwide including the
United States; Whether or not the Philippines is under obligation
to extradite him in the absence of an anti-hacker law; What if the
extradition request was made after the Philippines adopted anti-
hacker legislation. ’07 – Q3
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If there was no anti-hacker law in the Philippines when the United
States requested the extradition of Lawrence, the Philippines is under
no obligation to extradite him. Under the principle of double criminality,
extradition is available only when the act is an offense in both countries
(Cruz, International Law and World Organizations, 2005 ed., p. 342.)
Double criminality is intended to ensure each state that it can rely on
reciprocal treatment and that no state will use its processes to surrender
a person for conduct which it does not characterize as criminal
(Bassiouni, International Extradition, 4th ed., p. 467.)
If the extradition request was made after the Philippines adopted
anti-hacker legislation, the Philippines will under obligation to extradite
Lawrence. The requirement of double criminality is satisfied even if the
act was not criminal in the requested state at the time of its occurrence
if it was criminal at the time the request was made (Bassiouni,
International Extradition, 4th ed., p. 469.)
A police officer of the WPD applied for a search warrant in the RTC
of Manila for violation of Section 11 of R.A. No. 9165 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 of Manila, its port of destination. The RTC found
probable cause for the issuance of the 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 trial court correct? ‘05 – Q2(1)
The ruling of the court is not correct. The court has jurisdiction over
the offense, although it was committed on board a foreign-registered
vessel found in Philippine waters, because the Philippines is its terminal
destination (United States v. Ah Sing, 36 Phil. 978 [1917].)
(This question is more appropriate in Criminal Law.)
The Philippines and Australia entered into a Treaty of Extradition
concurred in the by the Philippines on September 10, 1990. Both
governments have notified each other that the requirements for the
entry of the Treaty have been complied with. It took effect in 1990.
The Australian government is requesting to extradite its citizen,
Gibson, who was 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. ’05 – Q2b; ’96 – Q6(1)(b)
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? ’02 – Q18
Republic A can refuse to extradite John because his offense is a
political offense. John was plotting to take over the government and the
plan of John to assassinate President of such plan. However, if the
extradition treaty contains an attentat clause, Republic A can extradite
John because under the attentant clause, the taking of the life or attempt
against the life of a head of state or that of the members of family does
not constitute a political offense and is therefore extraditable.
Republic A may or can refuse the request of extradition of William
because he is not in its territory and this 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.
The Extradition Treaty between France and the Philippines is silent
as to its applicability with respect to crimes committed prior to its
effectivity. 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? ’96 – Q6(2)(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 v. Strakosh, 109 F.2d 330, it was held that an extradition
treaty applies to crimes committed before its effectivity unless the
extradition treaty expressly exempts them. As Whiteman points out,
extradition does not define crimes but merely provides a means by which
a State may obtain punishment of persons charged with or convicted of
having committed a crime who fled the jurisdiction of the State whose
law has been violated. It is therefore immaterial whether at the time of
the commission of the crime for which extradition is sought, no treaty
was in existence. If at the time extradition is requested, there is in force
between the requesting and the requested States a treaty covering the
offense which the request is based, the treaty is applicable (Whiteman,
Digest of International Law, Vol. 6, pp. 753-754.)

The contention of Gibson is not tenable. The prohibition in Section

22, Article III of the Constitution refers to ex post facto laws. The
retroactive application of the Treaty of Extradition (between the
Philippines and Australia) did not violate the prohibition against ex post
facto laws, because the Treaty is neither a piece of criminal legislation
for a criminal procedural statute. It merely provided for the extradition of
persons wanted for offenses at the time the treaty was ratified (Wright v.
Court of Appeals, 235 SCRA 341 [1994].)

John is a former President of 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, labourers complaining of low wages, and
students seeking free tuition, William organized groups which held
peaceful rallies in from of the Presidential Palace to express their
grievances. On the eve of the assassination attempt, John’s men
were caught by the 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
82