Roxanne N.

Del Rosario
Bonerson V. Ganal
Marilou Agustin

2009 Bar Exams

II
Despite lingering questions about his Filipino citizenship and his one-year
residence in the district, Gabriel filed his certificate of candidacy for
congressman before the deadline set by law. His opponent, Vito, hires you as
lawyer to contest Gabriel's candidacy.
a. Before election day, what action or actions will you institute against
Gabriel, and before which court, commission or tribunal will you file
such action/s? Reasons. (2%)
b. If, during the pendency of such action/s but before election day, Gabriel
withdraws his certificate of candidacy, can he be substituted as
candidate? If so, by whom and why? If not, why not? (2%)
c. If the action/s instituted should be dismissed with finality before the
election, and Gabriel assumes office after being proclaimed the winner
in the election, can the issue of his candidacy and/or citizenship and
residence still be questioned? If so, what action or actions may be filed
and where? If not, why not? (2%)

Answer:
a. I will file a petition with the Comelec in division, to cancel the Certificate
of Candidacy within 25 days from the time of filing of the COC on the
ground that the material representation included in the certificate is
false.

Section 6, Article VI of the Constitution provides that no person shall be

a Member of the House of Representatives unless he is a natural-born
citizen of the Philippines and, on the day of the election, is at least
twenty-five years of age, able to read and write, and, except the party-
list representatives, a registered voter in the district in which he shall be
 elected, and a resident thereof for a period of not less than one year
immediately preceding the day of the election.

In this case, Gabriel filed a COC despite questions upon his citizenship
and non-compliance with the qualifications as a candidate. Since there
are lingering questions upon his citizenship, he cannot be considered as
a natural-born citizen of the Philippines yet.

Thus, I will file a petition with the Comelec in division, to cancel the
Certificate of Candidacy within 25 days from the time of filing of the COC
on the ground that the material representation included in the
certificate is false.

b. No. Gabriel cannot be substituted.

Section 77 of Batas Pambansa Blg. 881, candidates in case of death,

disqualification or withdrawal of another, provides that if after the last
day for the filing of certificates of candidacy, an official candidate of a
registered or accredited political party dies, withdraws or is disqualified
for any cause, only a person belonging to, and certified by, the same
political party may file a certificate of candidacy to replace the candidate
who died, withdrew or was disqualified. The substitute candidate
nominated by the political party concerned may file his certificate of
candidacy for the office affected in accordance with the preceding
sections not later than mid-day of the day of the election. If the death,
withdrawal or disqualification should occur between the day before the
election and mid-day of election day, said certificate may be filed with
any board of election inspectors in the political subdivision where he is
a candidate, or, in the case of candidates to be voted for by the entire
electorate of the country, with the Commission.

In this case, there is no demonstration that Gabriel is a member of a

registered political party. Thus, he could not be substituted if he
withdraws.
 Thus, Gabriel cannot be substituted.

c. Yes. A petition for quo warranto may be filed with the House of
Representative Electoral Tribunal.

Section 17 of Article VI of the Constitution provides that the Senate and

the House of Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members.

Moreover, a quo warranto proceeding may be filed questioning the

eligibility of an elective officer with respect to his continued possession
of the qualifications of age, citizenship, and residency, by any citizen of
the Philippine.

If the action prosper and a decision is rendered against Gabriel, he shall

be removed from office leaving the position vacant.

In this case, the HRET shall have jurisdiction over the election contest
since the candidate has been proclaimed, taken his oath and assumed
office.

IX
Warlito, a natural-born Filipino, took up permanent residence in the United
States, and eventually acquired American citizenship. He then married Shirley,
an American, and sired three children. In August 2009, Warlito decided to visit
the Philippines with his wife and children: Johnny, 23 years of age; Warlito, Jr.,
20; and Luisa, 17.
While in the Philippines, a friend informed him that he could reacquire
Philippine citizenship without necessarily losing U.S. nationality. Thus, he took
the oath of allegiance required under R.A. 9225.
a. Having reacquired Philippine citizenship, is Warlito a natural-born or a
naturalized Filipino citizen today? Explain your answer. (3%)
 b. With Warlito having regained Philippine citizenship, will Shirley also
become a Filipino citizen? If so, why? If not, what would be the most
speedy procedure for Shirley to acquire Philippine citizenship? Explain.
(3%)
c. Do the children --- Johnny, Warlito Jr., and Luisa --- become Filipino
citizens with their father's reacquisition of Philippine citizenship?
Explain your answer. (3%)

Answer:

a. Warlito is deemed a natural-born citizen.

Section 3 of RA 9225 provides that natural born citizens of the

Philippines who, after the effectivity of this Act, become citizens of a
foreign country shall retain their Philippine citizenship upon taking the
aforesaid oath.

As stated in the case of Bengzon vs HRET, if he was originally a natural-

born citizen before he lost his Philippine citizenship, he will be restored
to his former status as a natural-born Filipino.

In this case, Warlito reacquired his former citizenship as a natura-born

Filipino after he took the oath of allegiance required under R.A. 9225.
Moreover, since he was a natural-born Filipino before taking up
permanent residence in the US, he will be regarded as a natural-born
Filipino.

Thus, Warlito is deemed a natural-born citizen.

b. No. Shirley will not become a Filipino Citizen.

 Section 4 of RA 9225 provides that the unmarried child, whether
legitimate, illegitimate or adopted, below eighteen (18) years of age, of
those who re-acquire Philippine citizenship upon effectivity of this Act
shall be deemed citizenship of the Philippines.

In this case, the derivative Philippine citizenship shall not apply to

Shirley.

However, Shirley may acquire Philippine citizenship in the most speedy

procedure through Judicial Naturalization under CA no. 473, as
amended.

Thus, Shirley will not become a Filipino Citizen.

c. No. Only Luisa shall acquire Philippine Citizenship.

Section 4 of RA 9225 provides that the unmarried child, whether

legitimate, illegitimate or adopted, below eighteen (18) years of age, of
those who re-acquire Philippine citizenship upon effectivity of this Act
shall be deemed citizenship of the Philippines.

In this case, since Johnny and Warlito,Jr. are already 23 and 20 years old
respectively, the derivative citizenship under RA 9225 is not applicable.
It only applies to Luisa, being 17 years of age.

Thus, only Luisa shall acquire Philippine Citizenship.

 X
Maximino, an employee of the Department of Education, is administratively
charged with dishonesty and gross misconduct. During the formal
investigation of the charges, the Secretary of Education preventively
suspended him for a period of sixty (60) days. On the 60th day of the
preventive suspension, the Secretary rendered a verdict, finding Maximino
guilty, and ordered his immediate dismissal from the service.
Maximino appealed to the Civil Service Commission (CSC), which affirmed the
Secretary's decision. Maximino then elevated the matter to the Court of
Appeals (CA). The CA reversed the CSC decision, exonerating Maximino. The
Secretary of Education then petitions the Supreme Court (SC) for the review of
the CA decision.
a. Is the Secretary of Education a proper party to seek the review of the CA
decision exonerating Maximino? Reasons.   (2%)
b. If the SC affirms the CA decision, is Maximino entitled to recover back
salaries corresponding to the entire period he was out of the service?
Explain your answer.   (3%)

Answer:
a. No, it is not the proper party to seek the review of a CA decision.

It is provided in Section 25 (2) of Administrative Procedure that any

aggrieved or adversely affected by an agency decision may seek
judicial review.

However, in the given case, the Secretary of Education being the

disciplinary authority should not actively participate in prosecuting
Maximino. Instead, he should be impartial. Also, he is not the proper
party to seek review because he is the one who heard the case and
imposed the penalty.
 Hence, the Secretary of Education is not the proper party to seek the
review of CA decision.

b. As a general rule, Maximino is not entitled to recover back salaries

corresponding to the entire period he was out of service.

Under Section 25, Rule 7 on Administrative Cases in Civil Service it is

provided that an employee against whom an administrative
complaint is filed before the CSC may be put on preventive
suspension. Preventive suspension is not a penalty.
Thus, in the given, since it is only a preventive suspension he is not
yet considered as out of service. He is entitled to back wages from
time of his dismissal to reinstatement. Since, he was dismissed
pending appeal, it is considered punitive and and he was exculpated.

XI
TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the
statement is false. Explain your answer in not more than two (2) sentences.
(5%)
a. Aliens are absolutely prohibited from owning private lands in the
Philippines.
b. A de facto public officer is, by right, entitled to receive the salaries and
emoluments attached to the public office he holds.
c. The President exercises the power of control over all executive
departments and agencies, including government-owned or controlled
corporations.
d. Decisions of the Ombudsman imposing penalties in administrative
disciplinary cases are merely recommendatory.
e. Dual citizenship is not the same as dual allegiance.
Answer:

a. False. Aliens may own private lands through succession or as a formal

natural- born citizen, subject to limitations provided by law.

Section 7 of Article XII of the Constitution provides that in cases of

hereditary succession, no private lands shall be transferred or conveyed
except to individuals, corporations, or associations qualified to acquire
or hold lands of the public domain.

Section 8 of Article XII of the Constitution provides that a natural-born

citizen of the Philippines who has lost his Philippine citizenship may be
a transferee of private lands, subject to limitations provided by law.

The limitations for a formal natural- born citizen are 5,000 square
meters for
urban and 3 hectares for rural.

b. True. They are entitled to receive the salaries and emoluments attached
to the public office he holds.

As stated in the case of Civil Liberties Union v. Executive Secretary, it

has been held that "in cases where there is no de jure, officer, a de facto
officer, who, in good faith has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the
salary, fees and other compensations attached to the office.

This doctrine is, undoubtedly, supported on equitable grounds since it

seems unjust that the public should benefit by the services of an officer
de facto and then be freed from all liability to pay any one for such
services. Any per diem, allowances or other emoluments received by
 the respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.

c. True. The President exercises the power of control over the said
agencies.

Section 17 of Article VII of the Constitution provides that the President

shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed.

Thus, all executive departments and agencies, including government-

owned or controlled corporations shall be under the power of control of
the President.

d. True. Decisions of the Ombudsman imposing penalties are merely

recommendatory.

Section 15(3) of the RA 6770 provides that the Office of the Ombudsman
shall have the following powers, functions and duties:
(3) Direct the officer concerned to take appropriate action against a
public officer or employee at fault or who neglect to perform an act or
discharge a duty required by law, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith; or enforce its disciplinary authority as provided
in Section 21 of this Act: Provided, that the refusal by any officer
without just cause to comply with an order of the Ombudsman to
remove, suspend, demote, fine, censure, or prosecute an officer or
employee who is at fault or who neglects to perform an act or discharge
a duty required by law shall be a ground for disciplinary action against
said Officer.

Thus, as expressly stated, said decisions are merely recommendatory.

e. True. Dual citizenship is not the same as dual allegiance.

 As stated in the case of Mercado vs Manzano, dual citizenship arises
when, as a result of the concurrent application of the different laws of
two or more states, a person is simultaneously and involuntarily
considered a national by those states. On the other hand, dual
allegiance refers to the situation in which a person simultaneously owes
by some positive and voluntary act, loyalty to two or more states.

Thus, dual citizenship is not the same as dual allegiance.

2010 Bar Exams

V.
Congresswoman A is a co-owner of an industrial estate in Sta. Rosa, Laguna
which she had declared in her Statement of Assets and Liabilities. A member
of her political party authored a bill which would provide a 5-year
development plan for all industrial estates in the Southern Tagalog Region to
attract investors. The plan included an appropriation of 2 billion pesos for
construction of roads around the estates. When the bill finally became law, a
civil society watchdog questioned the constitutionality of the law as it
obviously benefitted Congresswoman A’s industrial estate. Decide with
reasons.

Answer:
The law is constitutional.
Section 12, Article VI of the 1987 Philippine Constitution provides that: All
Members of the Senate and the House of Representatives shall, upon
assumption of office, make a full disclosure of their financial and business
interests. They shall notify the House concerned of a potential conflict of
interest that may arise from the filing of a proposed legislation of which they
are authors.
In the instant case, Congresswoman A, although a co-owner of an industrial
state that has benefited from the newly enacted law, is not required by the
Constitution to notify the House of the potential conflict of interest because
she is not the author of the bill.
Hence, the law is constitutional.

VI

The “Poverty Alleviation and Assistance Act” was passed to enhance the
capacity of the most marginalized families nationwide. A financial assistance
scheme called “conditional cash transfers” was initially funded 500 million
pesos by Congress. One of the provisions of the law gave the Joint-
Congressional Oversight Committee authority to screen the list of beneficiary
families initially determined by the Secretary of Department of Social Welfare
and Development pursuant to the Department implementing rules. Mang
Pandoy, a resident of Smokey Mountain in Tondo, questioned the authority of
the Committee. Decide with reasons.

Answer:
a. No. Mang Pandoy has no legal standing to question the law.

In Domingo v. Carague, the Supreme Court enunciated that: “He who is

directly affected and whose interest is immediate and substantial has
the standing to sue. Thus, a party must show a personal stake in the
outcome of the case or an injury to himself that can be redressed by a
favorable decision in order to warrant an invocation of the court's
jurisdiction and justify the exercise of judicial power on his behalf.”

In the case at bar, Mang Pandoy, although a resident of Smokey

Mountain in Tondo, has not shown any personal stake in the outcome of
the case or an injury to himself that can be redressed by a favorable
decision in order to warrant an invocation of the court's jurisdiction and
justify the exercise of judicial power on his behalf.

Hence, Mang Pandoy has no legal standing to question the law.

 b. The grant of authority to the Oversight Committee to screen
beneficiaries is unconstitutional.

Answer:

In Abakada Guro Party List v. Purisima, the High Court ruled that, any
post-enactment congressional measures should be limited to: (1)
scrutiny based primarily on Congress’ power of appropriation and the
budget hearings conducted in connection with it, its power to ask heads
of departments to appear before and be heard by either of its Houses on
any matter pertaining to their departments and its power of
confirmation and; (2) investigation and monitoring of the
implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation. Any action or step beyond that will
undermine the separation of powers guaranteed by the Constitution.

In the instant case, the grant of authority to the Oversight Committee to

screen beneficiaries violates the principle of separation of powers
because the Congress involves itself in the implementation of the law.

Hence, The grant of authority to the Oversight Committee to screen

beneficiaries is unconstitutional.

XIII

True or False.

d. The Metropolitan Manila Development Authority is authorized to

confiscate a driver’s license in the enforcement of traffic regulations.
(0.5%)

Answer:
 False. In one of the cases decided by the Supreme Court, it ruled that the
Metropolitan Manila Development Authority is not vested police power
to confiscate a driver’s license in the enforcement of traffic regulations.

XV

True or False.

a. A person who occupies an office that is defectively created is a de facto

officer. (0.5%)

Answer:

False. In Tuanda v. Sandiganbayan, the Court enumerated the conditions

and elements of de facto officership as the following:
1) There must be a de jure office;
2) There must be color of right or general acquiescence by the
public; and
3) There must be actual physical possession of the office in good
faith

The Court held in that case that one can qualify as a de facto officer only
if all the aforestated elements are present. There can be no de
facto officer where there is no de jure office, although there may be a de
facto officer in a de jure office.

Hence, it is false that a person who occupies an office that is defectively

created is a de facto officer.

b. The rule on nepotism does not apply to designations made in favor of a

relative of the authority making a designation. (0.5%)

Answer:
 False. Par. 1, Section 59, Chapter VII, Sub-Title A, Title I of The 1987
Administrative Code of the Philippines provides that: “All appointments
in the national, provincial, city and municipal governments or in any
branch or instrumentality thereof, including government-owned or
controlled corporations, made in favor of a relative of the appointing or
recommending authority, or of the chief of the bureau or office, or of the
persons exercising immediate supervision over him, are hereby
prohibited. As used in this Section, the word "relative" and members of
the family referred to are those related within the third degree either or
consanguinity or of affinity.” Exception to the rule are only those
provided in Par. 2.

Hence, as a general rule, the statement is false when it states that the
rule on nepotism does not apply to designations made in favor of a
relative of the authority making a designation.

c. A discretionary duty of a public officer is never delegable. (0.5%)

Answer:

False. Section 40, Chapter 8, Title III of The 1987 Administrative Code of
the Philippines provides that the Secretary or the head of an agency
shall have authority over and responsibility for its operation. He shall
delegate such authority to the bureau and regional directors as may be
necessary for them to implement plans and programs adequately.
Delegated authority shall be to the extent necessary for economical,
efficient and effective implementation of national and local programs in
accordance with policies and standards developed by each department
or agency with the participation of the regional directors. The
delegation shall be in writing; shall indicate to which officer or class of
officers or employees the delegation is made; and shall vest sufficient
authority to enable the delegate to discharge his assigned responsibility.

The law does not specifically define the duties that can be delegated,
whether it be discretionary or ministerial.

Hence, it is false that a discretionary duty of a public officer is never

delegable.
 d. Acquisition of civil service eligibility during tenure of a temporary
appointee does not automatically translate to a permanent
appointment. (0.5%)

Answer:

True. In Province of Camarines Sur v. The Court of Appeals, the Supreme

Court enunciated that acquiring civil service eligibility later on does not
ipso facto convert temporary appointment into a permanent one. In
citing the case of Torio v. Civil Service Commission, what is required is a
new appointment since a permanent appointment is not a continuation
of the temporary appointment.

XX
e. Principle of holdover (1%)

In Lecaroz v. Sandiganbayan, the High Court enunciated that the concept

of holdover when applied to a public officer, implies that the office has a
fixed term and the incumbent is holding onto the succeeding term.
Absent an express or implied constitutional or statutory provision to
the contrary, an officer is entitled to stay in office until his successor is
appointed or chosen and has qualified.

XXIII

A was a career Ambassador when he accepted an ad interim appointment as

Cabinet Member. The Commission on Appointments bypassed his ad interim
appointment, however, and he was not re-appointed. Can he re-assume his
position as career Ambassador? (5%)

Answer:

No, he cannot re-assume his position as career Ambassador.

In Matibag v. Benipayo, the court said that an ad interim appointment is a

permanent appointment because it takes effect immediately and can no longer
be withdrawn by the President once the appointee has qualified into office.
The fact that it is subject to confirmation by the Commission on Appointments
does not alter its permanent character. The Constitution itself makes an ad
interim appointment permanent in character by making it effective until
disapproved by the Commission on Appointments or until the next
adjournment of Congress, as provided in the second paragraph of Section 16,
Article VII of the Constitution: "The President shall have the power to make
appointments during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until disapproval
by the Commission on Appointments or until the next adjournment of the
Congress."

In the instant case, when A accepted an ad interim appointment as Cabinet

member, he accepted a permanent appointment; he relinquished his position
as a career Ambassador for being prohibited under the 1987 Administrative
Code of the Philippines to hold two different positions in the government.

Therefore, he cannot re-assume his position as career Ambassador.

XXV

a. What is the rotational scheme of appointments in the COMELEC? (2%)

Answer:

Under Article Article IX, Section 1(2) C of the 1987 Constitutuion, The
Chairman and the Commissioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of
seven years without reappointment. Of those first appointed, three
members shall hold office for seven years, two Members for five years
and last Members for three years, without reappointment. Appointment
to any vacancy shall be only for the unexpired the predecessor. In no
case shall any Member be appointed or designated in a temporary or
acting capacity.

Thus, rotational scheme is that the first appointees shall serve 7, 5, and
3 years respectively.
b. What are the two conditions for its workability? (2%)

Answer:

In a case decided by the Supreme Court, it was held that the two
conditions are:
i. The term of the first Commissioner should start on a common date;
and

ii. Any vacancy due to death, resignation or disability before the

expiration of the term should only be filled for the unexpired balance of
the term

c. To what other constitutional offices does the rotational scheme of

appointments apply? (2%)

Answer:
The other offices where the rotational scheme of appointments shall
apply are the Civil Service Commission and Commision on Audit as
provided under Article IX, Section 1 (2) of B, C, and D.