174619184 suggested political answers

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SUGGESTED ANSWERS

TO BAR EXAMINATIONIN

POLITICAL LAW

ARRANGED BY TOPIC

(1987 – 2006)

Edited and Arranged by:

Atty. Janette Laggui-Icao and

Atty. Alex Andrew P. Icao(Silliman University College of

Law)July 26, 2005

Updated by:

Romualdo L. Señeris II, LLB. April 19, 2007

From the ANSWERS TO BAR EXAMINATION QUESTIONSin

POLITICAL LAW by theUP LAW COMPLEX and

PHILIPPINE ASSOCIATION OF LAW SCHOOLS



F O R W A R D

This work is not intended for sale or commerce. This work is freeware. It may be

freely copied and distributed. It is primarily intended for all those who desire to have a

deeper understanding of the issues touched by the Philippine Bar Examinations and its

trend. It is specially intended for law students from the provinces who, very often, are

recipients of deliberately distorted notes from other unscrupulous law schools and

students. Share to others this work and you will be richly rewarded by God in heaven.

It is also very good karma.

We would like to seek the indulgence of the reader for some Bar Questions which are

improperly classified under a topic and for some topics which are improperly or

ignorantly phrased, for the authors are just Bar Reviewees who have prepared this work

while reviewing for the Bar Exams under time constraints and within their limited

knowledge of the law. We would like to seek the reader’s indulgence for a lot o

typographical errors in this work.

The Authors



TABLE OF CONTENTS

1987 CONSTITUTION OF THE PHILIPPINES ................................................................... 14

Phil Con 87; New Features (1991)..................................................................................... 14 PhilCon 87; People Power (1987)..................................................................................... 14 Phil Con87; People Power (2000)..................................................................................... 15 Phil Con 87;

People Power (2003)..................................................................................... 15 Nature of the

Constitution: Constitutional Supremacy (2004)....................................... 15

GovernmentPresidential Form vs. Parliamentary Form (Q6-2006)............................. 15 ARTICLE I

National Territory........................................................................................... 16 ArchipelagicDoctrine (1989)............................................................................................... 16 Contiguous Zone

vs. Exclusive Economic Zone (2004)................................................. 16 Exclusive EconomicZone; Rights of the Coastal State (1994)..................................... 16 Exclusive Economic Zone;

Rights of the Coastal State (Q1-2005) .............................. 17 Flag State vs. Flag ofConvenience (2004) ...................................................................... 17 Territory & Government(1996)........................................................................................... 17 Territorial Sea vs. InternalWaters (2004)......................................................................... 17 ARTICLE II Declaration of

Principles and State Policies.......................................... 18 Armed Forces; Servant of the

People (2003)................................................................... 18

Doctrine of Incorporation;Constitutional Law (1997)...................................................... 18 Doctrine of Incorporation; PactaSunt Servanda (2000)................................................. 18 Freedom from Nuclear Weapons;

Foreign Military Bases (1988)................................. 18 Philippine Flag(Q4-2006).................................................................................................... 19 Principle of Civilian

Supremacy (Q6-2006)....................................................................... 19 State Immunity from Suit(1991)......................................................................................... 19 State Immunity from Suit(1996)......................................................................................... 20 State Immunity from Suit(1989)........................................................................................ 20 State Immunity from Suit(1994)......................................................................................... 21 State Immunity from Suit(1992)......................................................................................... 21 State Immunity from Suit

(1999)......................................................................................... 22

State Immunity from Suit(1999)......................................................................................... 22 State Immunity from Suit(1987)......................................................................................... 22 State Immunity vs. Waiver of

Immunity (1997) ................................................................ 22 State Immunity from Suit(1993)......................................................................................... 23 State Principles & Policies

(1994)...................................................................................... 23 Transparency; Matters of PublicInterest (1989).............................................................. 24 Transparency; Matters of Public

Interest (2000).............................................................. 25 ARTICLE III Bill of Rights

................................................................................................... 25 Bill of Attainder(1987).......................................................................................................... 25 Bill of Attainder

(1990).......................................................................................................... 26 Custodial

Investigation; Extrajudicial Confession (2001)............................................... 26

CustodialInvestigation; Extrajudicial Confession; Police Line-Up (1994) ................... 26 CustodialInvestigation; Police Line-Up (1997)................................................................ 27 CustodialInvestigation; Right to Counsel (1988) ............................................................ 27 CustodialInvestigation; Right to Counsel (1993) ............................................................ 27 CustodialInvestigation; Right to Counsel (2000) ............................................................ 28 CustodialInvestigation; Right to Counsel; Receipt of Property Seized (2002) ........... 28 CustodialInvestigation; Rights (1990)............................................................................... 29 CustodialInvestigation; Rights (1993)............................................................................... 29 Custodial

Investigation; Rights (1996)............................................................................... 30



Double Jeopardy (1988) ...................................................................................................... 30

Double Jeopardy (1993) ...................................................................................................... 31

Double Jeopardy (1997) ...................................................................................................... 31

Double Jeopardy (1999) ...................................................................................................... 32

Double Jeopardy (1999) ...................................................................................................... 32

Double Jeopardy (2000) ...................................................................................................... 32

Double Jeopardy (2001) ...................................................................................................... 32

Double Jeopardy (2002) ...................................................................................................... 33

Double Jeopardy; Requisites (1999) ................................................................................. 33

Due Process; Absence of Denial (1999)........................................................................... 33

Due Process; Deportation (1994)....................................................................................... 34

Due Process; Forfeiture Proceedings (1993)................................................................... 35

Due Process; Media Coverage during Hearing (1996)................................................... 35

Due Process; Meeting vs. Hearing (1999)........................................................................ 35

Due Process; Notice by Publication (1988)...................................................................... 35

Due Process; Permit to Carry Firearm Outside Residence (Q6-2006) ........................ 36

Due Process; PPA-Pilots (2001) ........................................................................................ 36

Due Process; Procedural vs. Substantive (1999)............................................................ 37

Due Process; Provisional Order (1991) ............................................................................ 37

Due Process; Public School Teachers (2002) ................................................................. 37

Due Process; Radio Station (1987) ................................................................................... 38

Due Process; Represented by a Non-Lawyer (1988) ..................................................... 38

Due Process; Substantive (2003) ...................................................................................... 38

Due Process; Suspension of Driver's License (1992)..................................................... 38

Due Process; Urgent Public Need (1987)......................................................................... 39

Eminent Domain; Garnishment (1994).............................................................................. 39

Eminent Domain; Garnishment (1998).............................................................................. 40

Eminent Domain; immunity from suit (2001) .................................................................... 40

Eminent Domain; Indirect Public Benefit (1990).............................................................. 40

Eminent Domain; Just Compensation (1988) .................................................................. 40



Eminent Domain; Legal Interest (1993) ............................................................................ 41

Eminent Domain; Non-observance of the policy of "all or none" (2000)...................... 42

Eminent Domain; Power to Exercise (2005) .................................................................... 42

Eminent Domain; Public Use (1987).................................................................................. 42

Eminent Domain; Socialized Housing (1996)................................................................... 43

Eminent Domain; Writ of Possession (1993).................................................................... 43

Equal Protection; Alien Employment (1989)..................................................................... 44

Equal Protection; Invidious Discrimination (1987)........................................................... 44

Equal Protection; Invidious Discrimination (1987)........................................................... 45

Equal Protection; Police Power (2000).............................................................................. 45

Equal Protection; Right to Education (1994) .................................................................... 45

Equal Protection; Subsidiary Imprisonment (1989)......................................................... 45

Freedom of Expression; Censorship (2003)..................................................................... 46

Freedom of Expression; Prior Restraint (1988) ............................................................... 46

Freedom of Religion; Convicted Prisoners (1989) .......................................................... 46

Freedom of Religion; Flag Salute (1997).......................................................................... 47

Freedom of Religion; Flag Salute (2003).......................................................................... 48

Freedom of Religion; Non-Establishment Clause (1988)............................................... 48


BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006)




Freedom of Speech; Ban on Tobacco AD (1992) ........................................................... 49

Freedom of the Press; Actual Malice (2004).................................................................... 50

Freedom of the Press; Wartime Censorship (1987)........................................................ 50

Impairment Clause; Basic Human Rights (1992) ............................................................ 51

Involuntary Servitude (1993)............................................................................................... 51

Liberty of Abode; Limitations (1998).................................................................................. 51

Liberty of Abode; Temporary (1996).................................................................................. 52

Non-Imprisonment for Non-Payment of Debt (1993) ...................................................... 52

Police Power; Abatement of Nuisance (2004) ................................................................. 52

Police Power; Ban on Tobacco AD (1992) ....................................................................... 52

Police Power; Zoning Ordinance vs. Non-Impairment of Contracts (1989) ................ 53

Police Power; Zoning Ordinance vs. Non-Impairment of Contracts (2001) ................ 53

Privacy of Communication (2001)...................................................................................... 53

Privacy of Correspondence (1998) .................................................................................... 54

Privacy of Correspondence; Jail (1989)............................................................................ 54

Right to Assembly; Permit Application; Freedom Parks (Q2-2006).............................. 54

Right to Assembly; Permit Requirements (1992) ........................................................... 55

Right to Assembly; Public Teachers (2000) ..................................................................... 55

Right to Assembly; Public Teachers (2002) ..................................................................... 56

Right to Travel; Order of Arrest (1991) .............................................................................. 56

Rights of the Accused; Counsel of his Choice (Q8-2005).............................................. 56

Rights of the Accused; Presumption of Innocence vs. Presumption of Theft (2004) 57

Rights of the Accused; Right to Bail (1993)...................................................................... 57

Rights of the Accused; Right to Bail; Capital Offense (Q4-2006) ................................. 58

Rights of the Accused; Right to Bail; Deportation Case (1989) .................................... 58

Rights of the Accused; Right to Bail; Matter of Right or a Matter of Discretion (Q7-2005)....................................................................................................................................... 58

Rights of the Accused; Right to Speedy Trial (2000)...................................................... 59

Rights of the Accused; Self-Incrimination (1988) ............................................................ 59




Rights of the Accused; Self-Incrimination (Q7-2006)...................................................... 61

Searches and Seizure; Private Individuals (Q8-2005)................................................... 61

Searches and Seizures; Aliens (2001).............................................................................. 61

Searches and Seizures; Breathalyzer Test (1992).......................................................... 62

Searches and Seizures; Immediate Control (1987) ........................................................ 62

Searches and Seizures; Incidental to Valid Search (1990) ........................................... 62

Searches and Seizures; Place of Search (2001)............................................................. 63

Searches and Seizures; search made by a private citizen (1993) ................................ 63

Searches and Seizures; search made by a private citizen (2002) ................................ 64

Searches and Seizures; Valid Warrantless Search (2000)............................................ 64

Searches and Seizures; Visual Search (1992) ................................................................ 65

Searches and Seizures; Waiver of Consent (1989)........................................................ 65

Searches and Seizures; Warrantless Arrests (1993)...................................................... 66

Searches and Seizures; Warrants of Arrest (1991) ........................................................ 66

ARTICLE IV Citizenship ..................................................................................................... 66

Action for Cancellation; Prescription & Effect of Death (1994)...................................... 66

Citizenship; Elected Official (1993).................................................................................... 67 Dual Allegiance vs. Dual Citizenship (1987) .................................................................... 67




Dual Allegiance vs. Dual Citizenship (1988) .................................................................... 68

Dual Citizenship (1994)........................................................................................................ 68

Effect of Marriage; Filipino (1989)..................................................................................... 69

Effect of Oath of Allegiance (2004).................................................................................... 69

Effect of Repatriation (1999) ............................................................................................... 70



Effects of Marriages (1999)................................................................................................. 70

Effects of Philippine Bill of 1902 (2001) ............................................................................ 71

Elected Official (1992).......................................................................................................... 71

Electing Philippine Citizenship (Q8-2006) ........................................................................ 71

Electing Philippine Citizenship; When Proper (Q8-2006)............................................... 72

Natural Born Filipino (1989) ................................................................................................ 72

Natural Born Filipino (1998) ................................................................................................ 72

Natural-Born Filipino(1993) ................................................................................................. 73

Naturalization; Cancellation of Citizenship (1998)........................................................... 73

Residency Requirements; Elective Official (Q9-2005).................................................... 73

Status; Illegitimate Child (1990).......................................................................................... 74

Status; Illegitimate Child; Dual Citizenship (1996) .......................................................... 74

Status; Legitimate Child (2003) .......................................................................................... 74

Ways of Reacquiring Citizenship (2000)........................................................................... 75

ARTICLE VI Legislative Department .............................................................................. 75

Appropriation of Public Funds (1988)................................................................................ 75

Appropriation of Public Funds; Debt Servicing (1992).................................................... 75

Appropriation of Public Funds; Public Purposes (1988)................................................. 75

Commission on Appointments (2002) ............................................................................... 76

Delegation of Powers (2002) .............................................................................................. 76

Delegation of Powers; (Q6-2005)....................................................................................... 76

Delegation of Powers; Completeness Test; Sufficient Standard Test (Q6-2005) ...... 77

Discipline; Modes of Removal (1993)............................................................................... 77

Discipline; Suspension of a Member of the Congress (2002) ....................................... 77Elected Official; De Facto Officer (2004) .......................................................................... 78

Electoral Tribunal; HRET Members’ Right & Responsibilities (2002) .......................... 78

Electoral Tribunal; Senate; Jurisdiction (1990) ................................................................ 79

Foreign Affairs; Role of House of Rep (1996).................................................................. 79

Foreign Affairs; Role of Senate (1994).............................................................................. 79

Investigations in Aid of Legislation (1992) ........................................................................ 79 LawMaking; Process & Publication (1993)...................................................................... 80

Law-Making; Appropriation Bill (1996) .............................................................................. 80

Law-Making; Appropriation Law; Automatic Renewal & Power of Augmentation(1998)...................................................................................................................................... 80

Law-Making; Appropriation Law; Rider Provision (2001) ............................................... 81Law-Making; Foreign Affairs; Treaties (1996).................................................................. 81

Law-Making; Overriding the Presidential Veto (1991) .................................................... 81

Law-Making; Passage of a Law (1988)............................................................................. 82

Legislative Power; Pres. Aquino’s Time (1990) ............................................................... 82

Legislative Powers (1989) ................................................................................................... 82

Loans Extended to Members of Congress (1991)........................................................... 82

Multi-Party System (1999)................................................................................................... 83

Non-Legislative Powers (1988) .......................................................................................... 83

Non-Legislative Powers; Emergency Powers; Requisites (1997)................................. 83




Prohibitions and Inhibitions of Public Office (2004)......................................................... 83

Qualifications; Congressmen (1988) ................................................................................. 84

Qualifications; Congressmen; (1993) ................................................................................ 84

Qualifications; Congressmen; (1999) ................................................................................ 85

Separation of Powers (1988) .............................................................................................. 85

Separation of Powers (2003) .............................................................................................. 85

Three-Term Limit: Congressmen (1996)........................................................................... 86

Three-Term Limit; Congressmen (2001)........................................................................... 86

ARTICLE VII Executive Department ................................................................................ 86

Appointing Power; Acting vs. Permanent Appointment (2003) ..................................... 86

Appointing Power; ad interim appointments (1991) ........................................................ 86

Appointing Power; Ad Interim Appointments (1994) ....................................................... 87

Appointing Power; Appointments Requiring Confirmation; RA 6975-Unconstitutional(2002)...................................................................................................................................... 87

Appointing Power; Categories of Officials (1999)............................................................ 88

Appointing Power; Kinds of Appointments (1994)........................................................... 88

Appointing Power; Limitations on Presidential Appointments (1997)........................... 89

Appointing Powers; Ad Interim Appointments (Q4-2005) .............................................. 90

Cabinet Members; limitation on accepting additional duties (1996) ............................. 90

Calling-out Power; President (Q1-2006) ........................................................................... 91

Declaration; State of Calamity; Legal Effects (Q1-2005)................................................ 91

Declaration; State of National Emergency (Q1-2006) .................................................... 91 Enterinto Contract or Guarantee Foreign Loans (1994)................................................ 91 Enter intoContract or Guarantee Foreign Loans (1999)................................................ 92 Enter intoExecutive Agreements (2003) .......................................................................... 92 Impose TariffRates, Import and Export Quotas (1999).................................................. 92 Martial Law &Suspension of Writ of Habeas Corpus (1987) ........................................ 92 Martial Law;Limitations (2000).......................................................................................... 93 Martial Law;Sufficiency of the Factual Basis (Q3-2006)................................................ 94 Pardoning Power;

Amnesty (1993).................................................................................... 95 Pardoning Power;

Amnesty (1995).................................................................................... 95 Pardoning Power;Breach of Condition; Revocation (Q5-2005).................................... 95 Pardoning Power; ExecClemency; Pardon (1995)......................................................... 95 Pardoning Power; ExecutiveClemency (1997) ............................................................... 96 Pardoning Power; ExecutiveClemency (1999) ............................................................... 96 Pardoning Power; Kinds(1988).......................................................................................... 96 Pardoning Power; Pardon,Conditional (1997) ................................................................ 97 President; Participation;Legislative Process (1996)....................................................... 97 Presidential Immunity fromSuit (1997) ............................................................................. 97 Prohibition Against MultiplePositions & Additional Compensation (2002) ................. 97 Prohibition against MultiplePositions by Gov’t Officials (1987) .................................... 98 Suspension of Writ of Habeas

Corpus (1997).................................................................. 99ARTICLE VIII Judicial Department .................................................................................... 99

Cases to be Heard En Banc; Supreme Court (1999)...................................................... 99

Contempt Powers (1996)..................................................................................................... 99

Finality of Void Judgments (1993)...................................................................................... 99

Fiscal Autonomy (1999)..................................................................................................... 100

Function; Continuing Constitutional Convention (2000) ............................................... 100

Issuance of Restraining Orders and Injunctions (1992) ............................................... 100

Judicial & Bar Council (1988)............................................................................................ 101

Judicial & Bar Council (1999)............................................................................................ 101




Judicial Department; Writ of Amparo (1991) .................................................................. 101

Judicial Independence; Safeguard (2000)...................................................................... 101

Judicial Power (1989)......................................................................................................... 102

Judicial Power (1992)......................................................................................................... 102

Judicial Power (1998)......................................................................................................... 103

Judicial Power; Scope (1994) ........................................................................................... 103

Judicial Review; Locus Standi (1992).............................................................................. 104

Judicial Review; Requisites (1994).................................................................................. 104

Jurisdiction of HLURB (1993) ........................................................................................... 104

Mandatory Period For Deciding Cases (1989)............................................................... 105

Political Question (1995).................................................................................................... 105

Political Question Doctrine (1997).................................................................................... 105

Political Question: Separation of Powers (2004) ........................................................... 106

Political Question; To Settle Actual Controversies (2004) ........................................... 106

Political Questions (1988).................................................................................................. 106 ProHac Vice Cases (1999)............................................................................................... 107 Removal

of Lower Court Judges (1993) ......................................................................... 107 ReviewExecutive Acts (1996).......................................................................................... 107 Supervision;Courts & its Personnel (Q5-2005)............................................................. 108 Taxpayer's Suit;

Locus Standi (1995).............................................................................. 108 Term of Office;Justices (1996) ........................................................................................ 108 Votes required for

declaring a law unconstitutional (1996).......................................... 109 ARTICLE IX

Constitutional Commissions .................................................................. 109 RotationalScheme (1999)................................................................................................. 109 Constitutional

Commissions & Council (Q7-2006) ........................................................ 109 ARTICLE IX Civil

Service Commission........................................................................ 109 Career Service;Characteristics (1999) ........................................................................... 109 Civil Service

Commission vs. COA (2004) ..................................................................... 109 Function of CSC(1994) ..................................................................................................... 110 GOCCs Without

Original Charter vs. GOCCs With Original Charter (1998)............. 110 Jurisdiction over the

GOCCs (1999)................................................................................ 111 Jurisdiction over theGOCCs (2003)................................................................................ 111 Modes of Removal from

Office (1993) ............................................................................ 111 Receiving of IndirectCompensation (1997) ................................................................... 111 Security of Tenure

(1988).................................................................................................. 112 Security of Tenure(Q5-2005) ........................................................................................... 112 Security of Tenure;

Meaning (1999) ................................................................................ 113 ARTICLE IX COMELEC

.................................................................................................... 113 Electoral Tribunal; Functions& Composition (Q5-2006).............................................. 113 Fair Election; Equal Space & Time

in Media (1989) ..................................................... 113 Grant of Pardon in Election Offenses(1991) ................................................................. 114 Judicial Review of Decisions

(2001)................................................................................ 114 Removal from Office;Commissioners (1998) ................................................................ 114 Right to Vote; Jurisdiction

(2001) ..................................................................................... 114 Election Laws

........................................................................................................................ 114 2nd Placer Rule(2003)..................................................................................................... 114 2nd Placer Rule

(1990)...................................................................................................... 115 2nd Placer Rule; inQuo Warranto Cases (1992).......................................................... 115 2nd Placer Rule; Rule of

Succession (1996) ................................................................ 115 Appreciation of Ballots(1994)........................................................................................... 116 Disqualification; Grounds

(1991)...................................................................................... 116



Disualifications (1999)........................................................................................................ 116

Effect of Filing of Certificate of Candidacy; Appointive Officer vs Elective Officer(2002).................................................................................................................................... 116

Effect of Filing of Certificate of Candidacy; Fair Election Act (2003) .......................... 117

Election Offenses; Conspiracy to Bribe Voters (1991) ................................................. 117

Election Protest (1990) ...................................................................................................... 117

Election Protest vs. Quo Warranto (2001)...................................................................... 118

Election Protest vs. Quo Warranto (Q5-2006) ............................................................... 118

Election Protest; Jurisdiction (1996) ................................................................................ 118

Expiration of term bars service thereof (2000)............................................................... 118

Petition to Declare Failure of Elections; Requisites & Effects (1995)......................... 118

Pre-Proclamation Contest (1987)..................................................................................... 119

Pre-Proclamation Contest (1988)..................................................................................... 119

Pre-Proclamation Contest vs. Election Contests (1997) .............................................. 120

Pre-Proclamation Contest; Proper Issues (1996).......................................................... 121

Process; Illiterate Voters (1987) ....................................................................................... 121

Process; Principle of Idem Sonans (1994) ..................................................................... 121

Process; Stray Ballot (1994) ............................................................................................. 121

Recall (2002) ....................................................................................................................... 122

Three-Term Limit Rule (2001) .......................................................................................... 122

Three-Term Limit; from Municipality to Newly-Created City (Q9-2005).................... 122

Vacancy; Effect of Vice-Mayor Acting As Mayor (2002)............................................... 123

Vacancy; Rule of Succession (1995)............................................................................... 123

Vacancy; SB; Rule on Succession (2002)...................................................................... 124

ARTICLE IX Commission on Audit ............................................................................... 124

COA; Jurisdiction (2001).................................................................................................... 124 COA;Money Claims (1998) .............................................................................................. 124

ARTICLE X Local Government ..................................................................................... 125

Appointment of Budget Officer; control vs supervision (1999) .................................... 125

Boundary Dispute Resolution; LGU; RTC’s Jurisdiction (Q10-2005)........................ 126

Boundary Dispute Settlement; Authority; Jurisdiction (1999) ...................................... 126Creation of New Local Government Units; Plebiscite Requirement (2004) .............. 126 DeFacto Public Corporations; Effect (2004).................................................................. 126

Devolution of Power (1999)............................................................................................... 126

Franchise; prior approval of LGU necessary (1988) ..................................................... 126 Lawfixing the terms of local elective officials (Q4-2006) ............................................. 127

Ordinance; Use & Lease of Properties; Public Use (1997).......................................... 127

Ordinance; Validity; Closure or Lease of Properties for Public Use (2003) .............. 127

Ordinance; Validity; Compensation; Tortuous Act of an Employee (1994) ............... 127

Ordinance; Validity; Local Taxation vs. Special Assessment (1987) ......................... 128

Ordinance; Validity; Preventing Immorality (1987) ........................................................ 128

Ordinance; Validity; Utilization & Development; National Wealth (1991) .................. 128Ordinances; Validity; Amending Nat’l Laws (1988) ....................................................... 128

Ordinances; Validity; Gambling Prohibition (1995)........................................................ 129

Ordinances; Validity; Limitation of Penalties (1991) ..................................................... 129

Ordinances; Veto Power (1996) ....................................................................................... 129

Police Power; LLDA (1995)............................................................................................... 130

Power to Issue Subpoena & Cite For Contempt (1993) ............................................... 130

Power; Eminent Domain; LGU; Right to Exercise (Q10-2005).................................... 131

Powers of Barangay Assembly (2003)............................................................................ 131

Powers; Liga ng mga Barangay (2003)........................................................................... 131




Requisites; Contracts Involving LGU (1991) .................................................................. 131

Requisites; Contracts involving LGU (1995) .................................................................. 132

Taxation; GOCC Liability For Real Estate Tax (1999) .................................................. 132

Taxation; Sources of Revenue (1999)............................................................................. 132

Withdrawal of Public Property from Public Use (1990)................................................. 132

ARTICLE XI Accountability of Public Officers........................................................... 133

Abandonment of Office (2000).......................................................................................... 133

Discipline; Clemency; Doctrine of Condonation (2000)................................................ 133

Discipline; Effect of Pardon Granted in Favor of Public Officers (1999) .................... 134

Discipline; Preventive Suspension & Appeal; entitlement to salary pendente (2001)............................................................................................................................................... 134

Discipline; Preventive Suspension (1990) ...................................................................... 134

Discipline; Preventive Suspension (2002) ...................................................................... 135

Elective and Appointive Officials: disciplinary authority (2004) ................................... 135

Elective Public Officer; De Facto Officer (2000) ............................................................ 135

Elective Public Officers; De Facto Officer; effects (2004) ............................................ 136 Graftand Corruption; Prescription of Crime (2002) ...................................................... 136

Impeachment; Cronyism (2000) ....................................................................................... 137

Impeachment; Grounds (1999)......................................................................................... 137

Impeachment; Nature; Grounds; PD 1606 (1988)......................................................... 137 Lawof Public Officers; Next-in-Rank Rule (1994)......................................................... 137 Liability

For Damages in Performance of Official Functions (1990) ........................... 138 LocalElective Officials; Limitations On Additional Duties (1995) ............................... 139

Ombudsman: Power to Suspend; Preventive Suspension (2004) ............................. 139

Ombudsman; Power to Investigate (2003) ..................................................................... 139

Ombudsman; Power to Suspend; Preventive Suspension (1996) ............................. 140

Power to Issue Subpoena; validity of delegation (1989) .............................................. 140

Prohibition On Elective Officer to Hold Public Office (2002) ........................................ 140

Public Office; Public Trust (1998)..................................................................................... 140

Retirement Benefits (1996) ............................................................................................... 141

ARTICLE XII National Economy and Patrimony......................................................... 142

Acquisition and Lease of Public Lands (1998)............................................................... 142

Acquisition of Lands (1987)............................................................................................... 142

Acquisition of Lands (2000)............................................................................................... 143

Acquisition of Lands by Hereditary Succession (2002) ................................................ 143

Acquisition of Lands; Citizenship issue (1989) .............................................................. 143



Acquisition of Lands; Prohibition; acquisition of private lands by aliens (1994) ....... 145

Citizenship Requirement in Management of Advertising Industry (1989) ................. 145

Engagement in Business & Exercise of Profession (1987) .......................................... 145

Exploration and Development of Minerals (1994) ......................................................... 146

Expropriation of Public Utilities (1992) ............................................................................ 146

Lease of Private Agricultural Lands (2001) .................................................................... 146

National Economy & Patrimony; Constitutional Prohibition (2004)............................. 147

National Patrimony; definition (1999) .............................................................................. 147

Nationalized Activities (1994)............................................................................................ 147

Ownership Requirement of Mass Media (1989) ............................................................ 148

Chinese citizens; engaging in retail trade (Q4-2006).................................................... 148

Exploration, development, and utilization of natural resources (Q4-2006) ............... 148

ARTICLE XIII Social Justice and Human Rights ......................................................... 148



Agrarian Reform Law; Coverage (1992) ......................................................................... 148

Commission on Human Rights; Power to investigate (1992) ...................................... 149

Commission on Human Rights; Power to issue TRO (1997) ...................................... 149

Commission on Human Rights; Power to issue TRO (2001) ...................................... 149

Commission on Human Rights; Power; Limitations (Q4-2005)................................... 150

Labor; Right to Self-Organization (1988) ........................................................................ 151

Labor; Right to Strike (1988)............................................................................................. 151

Labor; Right to Strike (1993)............................................................................................. 151

Social Justice under the Present Constitution (1995)................................................... 152

Women (2000)..................................................................................................................... 152

ARTICLE XIV Education, Science and Technology, Arts ......................................... 153

Education; Academic Freedom (1987)............................................................................ 153



Education; Academic Freedom; Extent (1999) .............................................................. 154

Education; Alien Enrollees & Donors (1999).................................................................. 154

Education; Duties of State in Re Education (1999)....................................................... 154

Education; Flag Salute (1987) .......................................................................................... 155

Education; Right to Choose Profession (2000).............................................................. 155

Education; Right to Quality Education (2003) ................................................................ 156

Education; Teaching of Religion (1999).......................................................................... 156

Education; Validity of Academic Requirements (1994) ................................................ 156

ARTICLE XVI General Provisions .................................................................................. 156

General Provisions; Local Dialect (1987)........................................................................ 156 AFP;limitation on accepting additional duties (1996)................................................... 157 ARTICLE

XVII Amendments or Revisions .................................................................... 157 People’s

Initiative (2004) ................................................................................................... 157 Amendmentsand Revisions; Modes (1997) .................................................................. 157 REFERENDUM vs.

INITIATIVE (Q1-2005).................................................................... 157 ARTICLE XVIII

Transitory Provisions.............................................................................. 158 Transitory

Provisions; Foreign Military Bases (1996) ................................................... 158 TransitoryProvisions; Foreign Military Bases (1988) ................................................... 158 PUBLIC

INTERNATIONAL LAW ........................................................................................ 158 BasicPrinciples in Public Int’l Law (1991) ...................................................................... 158

Constitutive Theory vs. Declaratory Theory (2004)....................................................... 160

Contiguous Zone vs. Exclusive Economic Zone (2004).............................................. 160

Diplomatic Immunity (2000) .............................................................................................. 160




Diplomatic Immunity; Ambassador (Q3-2005) ............................................................... 162

Diplomatic Immunity; Ambassadors (1990).................................................................... 162

Diplomatic Immunity; Coverage (Q3-2005) .................................................................... 163

Diplomatic Immunity; Diplomatic Envoy and Consular Officers (1995) ...................... 164

Diplomatic Immunity; Diplomatic Envoy and Consular Officers (1997) ...................... 165

Exclusive Economic Zone (2000)..................................................................................... 165

Executive Agreements; Binding Effect (2003)................................................................ 165

Extradition vs. Deportation (1993).................................................................................... 166

Extradition; Doctrine of Specialty (1993)......................................................................... 166

Extradition; Effectivity of treaty (1996)............................................................................. 166

Extradition; Grounds (2002).............................................................................................. 167



Admin Law; Rules and Regulations; Due Process (2000) ........................................... 187

Government Agency vs. Government Instrumentality (Q7-2005)............................... 188

Quasi-Judicial Body or Agency (Q5-2006) ..................................................................... 188



1987 CONSTITUTION OF THEPHILIPPINES Phil Con 87; New

Features (1991)

No 1: How is the Bill of Rights strengthened inthe 1987 Constitution?

SUGGESTED ANSWER:

There are several ways in which the Bill of Rights

is strengthened in the 1987 Constitution.1 New rights are given explicit recognition suchas, the prohibition against detention by reason ofpolitical beliefs and aspirations. The waiver of Mirandarights is now required to be made in writing with theassistance of counsel. The use of solitary,incommunicado and secret detention places isprohibited, while the existence of substandard andinadequate penal facilities is made the concern oflegislation.2 There is also recognition of the right ofexpression, an express prohibition against the use of

torture, a mandate to the State to provide compensationand rehabilitation for victims of torture and theirfamilies.3 Some rights have been expanded. Forinstance, free access to courts now includes access toquasi-judicial bodies and to adequate legal assistance.4 The requirements for interfering with somerights have been made more strict. For instance, onlyudges can now issue search warrants or warrants ofarrest. There must be a law authorizing the ExecutiveDepartment to interfere with the privacy ofcommunication, the liberty of abode, and the right totravel before these rights may be impaired or curtailed.

5 The Constitution now provides that thesuspension of the privilege of the writ of habeas corpusdoes not suspend the right to bail, thus resolving adoctrinal dispute of long standing.6 The suspension of the privilege of the writ ofhabeas corpus and the proclamation of martial lawhave been limited to sixty (60) days and are nowsubject to the power of Congress to revoke. Inaddition, the Supreme Court is given the jurisdiction,upon the petition of any citizen to determine thesufficiency of the factual basis of the suspension of theprivilege of the writ of habeas corpus and theproclamation of martial law.

7. The Supreme Court is empowered toadopt rules for the protection and enforcement ofconstitutional rights.

8. Art. II. Sec. 11 commits the State to apolicy which places value on the dignity of everyhuman person and guarantees full respect forhuman rights.

9. A Commission on Human Rights is

created.10. Under Article XVI. Sec. 5(2) the State ismandated to promote respect for the people'srights among the members of the military in theperformance of their duty.

Phil Con 87; People Power (1987)

No. XVIII: The framers of the 1987 Constitutionand the people who ratified it made sure thatprovisions institutionalizing people power wereincorporated in the fundamental law, Brieflydiscuss at least two such provisions.

SUGGESTED ANSWER:

Art. VI, Sec. 1, while vesting in Congress thelegislative power, nonetheless states that suchconferment of power shall be subject to thereservation made in favor of the people byprovisions on initiatives and referendum. For thispurpose, Congress is required, as early aspossible, to provide for a system of initiative ofreferendum whereby the people can directlypropose and enact laws or approve or reject anact or law or part thereof passed by the Congressor the legislative bodies after the registration of a

petition therefor, signed by at least 10% of thetotal number of registered voters, of which everylegislative district must be represented by at least3% of the registered voters. (Id., sec. 32) TheConstitution also provides that through initiative,upon a petition of at least 12% of the totalnumbers of registered voters, of which everylegislative district must be represented by at least3% of the registered voters therein, amendmentsto the Constitution may be directly proposed bythe people.

Art, XIII, sec. 15 states that the state shall respectthe role of independent people's organization toenable them to pursue and protect, within thedemocratic framework, their legitimate andcollective interests and aspirations throughpeaceful lawful means. For this purpose, theConstitution guarantees to such organizations theright to participate at all levels of social, politicaland economic decision-making and the state isrequired to validate the



establishment of adequate mechanism for thispurpose. (Id., sec, 16)


No IX. Is the concept of People Power recognizedin the Constitution? Discuss briefly. (3%)

SUGGESTED ANSWER:

Yes, the concept of People Power is recognized inthe Constitution. Under Section 32. Article VI of theConstitution, through initiative and referendum, thepeople can directly propose and enact laws orapprove or reject any act or law or part thereofpassed by the Congress or local legislative bodyafter the registration of a petition therefor signed byat least ten per centum of the total number ofregistered voters, of which every legislative districtmust be represented by at least three per centumof the registered voters thereof. Under Section 16,

Article XIII of the Constitution, the right of the

people and their organizations to effective andreasonable participation at all levels of social,political and economic decision-making shall not beabridged. The State shall, by law facilitate theestablishment of adequate consultationmechanisms. Under Section 2. Article XVII of theConstitution, the people may directly proposeamendments to the Constitution through initiativeupon a petition of at least twelve per centum of thetotal number of registered voters, of which everylegislative district must be represented by at leastthree per centum of the registered voters therein.


No I -Is "people power" recognized by the 1987Constitution? Explain fully.

SUGGESTED ANSWER:

"People power" is recognized in the Constitution.

Article III, Section 4 of the 1987 Constitution

guarantees the right of the people peaceable toassemble and petition the government for redressof grievances.

Article VI, Section 32 of the 1987 Constitutionrequires Congress to pass a law allowing thepeople to directly propose and enact lawsthrough initiative and to approve or reject any actor law or part of it passed by Congress or a locallegislative body.

Article XIII, Section 16 of the 1987 Constitutionprovides that the right of the people and theirorganizations to participate at all levels of social,political, and economic decision-making shall notbe abridged and that the State shall, by law,facilitate the establishment of adequateconsultation mechanisms.

Article XVII, Section 2 of the 1987 Constitutionprovides that subject to the enactment of an

implementing law, the people may directlypropose amendments to the Constitution throughinitiative.

Nature of the Constitution: ConstitutionalSupremacy (2004)(10-a) BNN Republic has a defense treaty withEVA Federation. According to the Republic'sSecretary of Defense, the treaty allows temporarybasing of friendly foreign troops in case of trainingexercises for the war on terrorism. The MajorityLeader of the Senate contends that whether

temporary or not, the basing of foreign troopshowever friendly is prohibited by the Constitutionof BNN which provides that, "No foreign militarybases shall be allowed in BNN territory." In casethere is indeed an irreconcilable conflict betweena provision of the treaty and a provision of theConstitution, in a jurisdiction and legal system likeours, which should prevail: the provision of thetreaty or of the Constitution? Why? Explain withreasons, briefly. (5%) SUGGESTED ANSWER: Incase of conflict between a provision of a treatyand a provision of the Constitution, the provisionof the Constitution should prevail. Section 5(2)(a),

Article VIII of the 1987 Constitution authorizes thenullification of a treaty when it conflicts with theConstitution. (Gonzales v. Hechanova, 9 SCRA230 [1963]).

Government Presidential Form vs. Parlia-mentary Form (Q6-2006)1. a) What is the principal identifying feature ofa presidential form of government? Explain.

(2.5%)SUGGESTED ANSWER:The principal identifying feature of a presidentialform of government is embodied in the separationof powers doctrine. Each department ofgovernment exercises powers granted to it by theConstitution and may not control, interfere with orencroach upon the acts done within theconstitutional competence of the others. However,the Constitution also gives each department certainpowers by which it



may definitely restrain the others from improvidentaction, thereby maintaining a system of checksand balances among them, thus, preserving thewill of the sovereign expressed in the Constitution.

b) What are the essential characteristics of aparliamentary form of government? (2.5%)SUGGESTED ANSWER:

The essential characteristics of a parliamentaryform of government are: the fusion of the legislativeand executive branches in parliament; the primeminister, who is the head of government, and themembers of the cabinet, are chosen from amongthe members of parliament and as such areaccountable to the latter; and the prime ministermay be removed from office by a vote of loss ofconfidence of parliament. There may be a head ofstate who may or may not be elected.

ARTICLE I NationalTerritoryArchipelagic Doctrine (1989)No. 20: What do you understand by thearchipelagic doctrine? Is this reflected in the 1987Constitution?SUGGESTED ANSWER:The ARCHIPELAGIC DOCTRINE emphasizesthe unity of land and waters by defining anarchipelago either as a group of islandssurrounded by waters or a body of watersstudded with islands. For this purpose, it requiresthat baselines be drawn by connecting theappropriate points of the "outermost islands to

encircle the islands within the archipelago. Thewaters on the landward side of the baselinesregardless of breadth or dimensions are merelyinternal waters.

Yes, the archipelagic doctrine is reflected in the1987 Constitution. Article I, Section 1 providesthat the national territory of the Philippinesincludes the Philippine archipelago, with all theislands and waters embraced therein; and thewaters around, between, and connecting theislands of the archipelago, regardless of theirbreadth and dimensions, form part of the internal

waters of the Philippines.

Contiguous Zone vs. Exclusive EconomicZone (2004)(2-a-2) Distinguish: The contiguous zone and theexclusive economic zone. SUGGESTEDANSWER: CONTIGUOUS ZONE is a zonecontiguous to the territorial sea and extends upto 12 nautical miles from the territorial sea andover which the coastal state may exercisecontrol necessary to

prevent infringement of its customs, fiscal,immigration or sanitary laws and regulationswithin its territory or territorial sea. (Article 33 ofthe Convention on the Law of the Sea.)

The EXCLUSIVE ECONOMIC ZONE is a zoneextending up to 200 nautical miles from thebaselines of a state over which the coastal statehas sovereign rights for the purpose of exploring

and exploiting, conserving and managing thenatural resources, whether living or nonliving, ofthe waters superjacent to the seabed and of theseabed and subsoil, and with regard to otheractivities for the economic exploitation andexploration of the zone. (Articles 56 and 57 of theConvention on the Law of the Sea.)

Exclusive Economic Zone; Rights of theCoastal State (1994)

No. 11: In the desire to improve the fishing

methods of the fishermen, the Bureau ofFisheries, with the approval of the President,entered into a memorandum of agreement toallow Thai fishermen to fish within 200 miles fromthe Philippine sea coasts on the condition thatFilipino fishermen be allowed to use Thai fishingequipment and vessels, and to learn moderntechnology in fishing and canning.

1) Is the agreement valid?

SUGGESTED ANSWER:1) No. the President cannot authorize the Bureauof Fisheries to enter into a memorandum of

agreement allowing Thai fishermen to fish withinthe exclusive economic zone of the Philippines,because the Constitution reserves to Filipinocitizens the use and enjoyment of the exclusiveeconomic zone of the Philippines.

Section 2. Article XII of the Constitution provides:―The State shall protect the nation's marine part inits archipelagic waters, territorial sea, andexclusive economic zone, and reserve its use andenjoyment to Filipino citizens."

Section 7, Article XIII of the Constitution provides:"The State shall protect the rights of subsistencefishermen, especially of local communities, to thepreferential use of the communal marine andfishing resources, both inland and offshore. It shallprovide support to such fishermen throughappropriate technology and research, adequatefinancial, production, and marketing assistance,and other services. The State shall also protect,develop, and conserve such resources. Theprotection shall extend to offshore fishing groundsof



subsistence fishermen against foreign intrusion.Fishworkers shall receive a just share from theirlabor in the utilization of marine and fishingresources.

Exclusive Economic Zone; Rights of theCoastal State (Q1-2005)(c) Enumerate the rights of the coastal state inthe exclusive economic zone. (3%)

ALTERNATIVE ANSWER:In the EXCLUSIVE ECONOMIC ZONE, thecoastal State has sovereign rights for the purposeof exploring and exploiting, conserving andmanaging the natural resources, whether living ornon-living, of the waters superjacent to the seabedand of the seabed and its subsoil, and with regardto other activities for the economic exploitationand exploration of the zone, such as theproduction of energy from the water, currents andwinds in an area not extending more than 200nautical miles beyond the baseline from which theterritorial sea is measured. Other rights include

the production of energy from the water, currentsand winds, the establishment and use of artificialislands, installations and structures, marinescientific research and the protection andpreservation of the marine environment. (Art. 56,U.N. Convention on the Law of the Sea)

ALTERNATIVE ANSWER:SOVEREIGN RIGHTS — for the purpose ofexploring and exploiting, conserving andmanaging the natural resources, whether living ornon-living, of the seabed and subsoil and thesuperjacent waters, and with regard to otheractivities such as the production of energy fromthe water, currents and winds in an area notextending more than 200 nautical miles beyondthe baseline from which the territorial sea ismeasured. (See Art. 56, UNCLOS) Jurisdiction,inter alia, with regard to:(1) the establishment and use of artificialislands, installations and structures;(2) marine scientific research;and(3) the protection and preservation of themarine environment.

Flag State vs. Flag of Convenience (2004)(2-a-3) Distinguish: The flag state and the flagof convenience. SUGGESTED ANSWER: FLAGSTATE means a ship has the nationality of theflag of the state it flies, but there must be agenuine link between the state and the ship.

(Article 91 of the Convention on the Law of the Sea.)

FLAG OF CONVENIENCE refers to a state with which avessel is registered for various reasons

such as low or non-existent taxation or lowoperating costs although the ship has no genuinelink with that state. (Harris, Cases andMaterials on International Law, 5th ed., 1998, p. 425.)

Territory & Government (1996)No. 8: A law was passed dividing the Philippinesinto three regions (Luzon, Visayas, and Mindanao),each constituting an independent state except on

matters of foreign relations, national defense andnational taxation, which are vested in the Centralgovernment. Is the law valid? Explain.

SUGGESTED ANSWER:The law dividing the Philippines into threeregions, each constituting an independent stateand vesting in a central government matters offoreign relations, national defense, and nationaltaxation, is unconstitutional.

First, it violates Article I, which guarantees theintegrity of the national territory of the Philippines

because it divided the Philippines into threestates.

Second, it violates Section 1, Article II of theConstitution, which provides for the establishmentof democratic and republic States by replacing itwith three States organized as a confederation.

Third, it violates Section 22, Article II of theConstitution, which, while recognizing andpromoting the rights of indigenous culturalcommunities, provides for national unity anddevelopment.

Fourth, it violates Section 15, Article X of theConstitution, which, provides for autonomousregions in Muslim Mindanao and in the Cordilleraswithin the framework of national sovereignty aswell as territorial integrity of the Republic of thePhilippines.

Fifth, it violates the sovereignty of the Republicof the Philippines.

Territorial Sea vs. Internal Waters (2004)(2-a-1) Distinguish: The territorial sea and theinternal waters of the Philippines. SUGGESTEDANSWER: TERRITORIAL SEA is an adjacentbelt of sea with a breadth of 12 nautical milesmeasured from the baselines of a state and overwhich the state has sovereignty. (Articles 2 and 3of the Convention on the Law of the Sea.) Ship ofall states enjoy the right of innocent passage



through the territorial sea. (Article 14 of theConvention on the Law of the Sea.)

Under Section 1, Article I of the 1987 Constitution,the INTERNAL WATERS of the Philippinesconsist of the waters around, between andconnecting the islands of the Philippine

Archipelago, regardless of their breadth anddimensions, including the waters in bays, rivers

and lakes. No right of innocent passage forforeign vessels exists in the case of internalwaters. (Harris, Cases and Materials onInternational Law, 5th ed., 1998, p. 407.) Internalwaters are the waters on the landward side ofbaselines from which the breadth of the territorialsea is calculated. (Brownlie, Principles of Public

International Law, 4th ed., 1990, p. 120.)

ARTICLE II Declaration ofPrinciples and State Policies

Armed Forces; Servant of the People (2003)No I - Article II. Section 3, of the 1987Constitution expresses, in part, that the "ArmedForces of the Philippines is the protector of thepeople and (of) the State." Describe briefly whatthis provision means. Is the Philippine NationalPolice covered by the same mandate?FIRST ALTERNATIVE ANSWER:

Article II, Section 3 of the 1987 Constitutionmeans that the Armed Forces of the Philippinesshould not serve the interest of the President butof the people and should not commit abuses

against the people. (Record of the ConstitutionalCommission, Vol. V, p. 133.) This provision isspecifically addressed to the Armed Forces of thePhilippines and not to the Philippine NationalPolice, because the latter is separate and distinctfrom the former. (Record of the ConstitutionalCommission, Vol. V, p. 296; Manalo v. Sistoza. 312SCR A 239 [1999].)SECOND ALTERNATIVE ANSWER:

Article II, Section 3 of the 1987 Constitution canbe interpreted to mean that the Armed Forces ofthe Philippines can be a legitimate instrument forthe overthrow of the civilian government if it hasceased to be the servant of the people. (Bernas,

The 1987 Constitution of the Philippines: ACommentary, 2003 ed., p. 66.) This provision doesnot apply to the Philippine National Police,because it is separate and distinct from the

Armed Forces of the Philippines. (Record of theConstitutional Commission, Vol. V, p. 296, Manalo v.Sistoza. 312 SCRA 239 [1999].)

Doctrine of Incorporation; Constitutional Law(1997)

No. 1; What do you understand by the "Doctrineof Incorporation" in Constitutional Law?SUGGESTED ANSWER:The DOCTRINE OF INCORPORATION meansthat the rules of International law form part of thelaw of the land and no legislative action isrequired to make them applicable to a country.The Philippines follows this doctrine, becauseSection 2. Article II of the Constitution states that

the Philippines adopts the generally acceptedprinciples of international law as part of the law ofthe land.

Doctrine of Incorporation; Pacta SuntServanda (2000)No X. The Philippines has become a member ofthe World Trade Organization (WTO) andresultantly agreed that it "shall ensure theconformity of its laws, regulations andadministrative procedures with its obligations asprovided in the annexed Agreements." This isassailed as unconstitutional because this

undertaking unduly limits, restricts and impairsPhilippine sovereignty and means among othersthat Congress could not pass legislation that willbe good for our national interest and generalwelfare if such legislation will not conform with theWTO Agreements. Refute this argument. (5%)

SUGGESTED ANSWER: According to Tanada v. Angara, 272 SCRA 18(1997), the sovereignty of the Philippines issubject to restriction by its membership in thefamily of nations and the limitations imposed oftreaty limitations. Section 2. Article II of theConstitution adopts the generally acceptedprinciples of international law as part of the law ofthe land. One of such principles is pacta suntservanda. The Constitution did not envision ahermit-like isolation of the country from the rest ofthe world.

Freedom from Nuclear Weapons; ForeignMilitary Bases (1988)No. 22: The Secretary of Justice had recently ruledthat the President may negotiate for a modificationor extension of military bases agreement with the

United States regardless of the "no nukes"provisions in the 1987 Constitution. The Presidentforthwith announced that she finds the same opinion"acceptable" and will adopt it. The Senators on theother hand, led by the Senate President, areskeptical, and had even warned that no treaty orinternational agreement may go into effect withoutthe concurrence of two-thirds of all members of theSenate.



A former senator had said, "it is completelywrong, if not erroneous," and "is an amendmentof the Constitution by misinterpretation." Somemembers of the Lower House agree withSecretary Ordonez, while others lament thelatter's opinion as "questionable, unfortunate, andwithout any basis at all." Do you or do you notagree with the aforementioned ruling of theDepartment of Justice? Why?

SUGGESTED ANSWER:No. The Constitution provides that if foreignmilitary bases, troops or facilities are to beallowed after the expiration of the presentPhilippine-American Military Bases Agreement in1991, it must be "under a treaty duly concurred inby the Senate and, when the Congress sorequires, ratified by a majority of the votes cast bythe people in a national referendum." (Art. XVIII,sec. 25) A mere agreement, therefore, not atreaty, without the concurrence of at least 2/3 ofall the members of the Senate will not be valid

(Art. VII, sec. 21, Art. XVIII, sec. 4). With respectto the provision allowing nuclear weapons withinthe bases, the Constitution appears to ban suchweapons from the Philippine territory. It declaresas a state policy that "the Philippines, consistentwith the national interest, adopts and pursues apolicy of freedom from nuclear weapons in itsterritory." (Art, II, sec. 8) However, thedeliberations of the Constitutional Commissionwould seem to indicate that this provision of theConstitution is "not something absolute nor 100percent without exception." It may therefore be

that circumstances may justify a provision onnuclear weapons.

Philippine Flag (Q4-2006)State whether or not the law is constitutional.Explain briefly.1. A law changing the design of thePhilippine flag. (2%)ALTERNATIVE ANSWER:The law is invalid considering that under ArticleXVI, Section 1 of the 1987 Constitution, the flagof the Philippines shall be red, white, and blue,

with a sun and three stars, as consecrated andhonored by the people and recognized by law.Since the Constitution itself prescribes thedesign, it can only be changed by constitutionalamendment.ALTERNATIVE ANSWER:The law is valid, provided that the new designdoes not change the elements and color schemeof the flag as stated in the Constitution, and theflag is consecrated and honored by the people.Since the Constitution itself states that

the flag must be recognized by law, it impliesthat certain aspects of the flag are subject tochange through legislative action.

Principle of Civilian Supremacy (Q6-2006)2. What Constitutional provisions institutionalizethe principle of civilian supremacy? (2.5%)SUGGESTED ANSWER:The following constitutional provisions

institutionalize the principle of civilian supremacy:

Civilian authority is at all times supremeover the military. [Article II, Section 3]

The installation of the President, thehighest civilian authority, as theCommander-in-Chief of the military. [Article VII,Section 18]

The requirement that members of the AFPswear to uphold and defend the Constitution, whichis the fundamental law of the civil government.[Article XVI, Section 5(1)]

The requirement that members of the AFP

shall have respect for people's rights in theperformance of their duty. [Article XVI, Section5(2)]

Professionalism in the armed forces.[Article XVI, Section 5(3)]

Insulation of the AFP from partisan politics.[Article XVI, Section 5(3)]

Prohibition against the appointment of an AFP member in the active service to a civilianposition. [Article XVI, Section 5(4)]

Compulsory retirement of officers withoutextension of service. [Article XVI, Section 5(5)]

Requirement of proportional recruitmentfrom all provinces and cities, so as to avoid anyregional clique from forming within the AFP. [ArticleXVI, Section 5(7)]

A 3-year limitation on the tour of duty of theChief of Staff, which although extendible in case ofemergency by the President, depends onCongressional declaration of emergency. [ArticleXVI, Section 5(6)]

The establishment of a police force that is not

only civilian in character but also under the localexecutives. [Article XVI, Section 5(7)]

State Immunity from Suit (1991)No. 13; In February 1990, the Ministry of the

Army. Republic of Indonesia, invited bids for thesupply of 500,000 pairs of combat boots for theuse of the Indonesian Army. The Marikina ShoeCorporation, a Philippine corporation, which hasno branch office and no assets in Indonesia,submitted a bid to supply 500,000 pairs of



combat boots at U.S. $30 per pair delivered inJakarta on or before 30 October 1990. Thecontract was awarded by the Ministry of the Armyto Marikina Shoe Corporation and was signed bythe parties in Jakarta. Marikina Shoe Corporationwas able to deliver only 200,000 pairs of combatboots in Jakarta by 30 October 1990 and itreceived payment for 100,000 pairs or a total ofU.S. $3,000,000.00. The Ministry of the Army

promised to pay for the other 100,000 pairsalready delivered as soon as the remaining300,000 pairs of combat boots are delivered, atwhich time the said 300,000 pairs will also be paidfor. Marikina Shoe Corporation failed to deliverany more combat boots.

On 1 June 1991, the Republic of Indonesia filedan action before the Regional Trial Court of Pasig.Rizal, to compel Marikina Shoe Corporation toperform the balance of its obligations under thecontract and for damages. In its Answer,Marikina Shoe Corporation sets up a counterclaim

for U.S. $3,000,000.00 representing the paymentfor the 100,000 pairs of combat boots alreadydelivered but unpaid. Indonesia moved to dismissthe counterclaim, asserting that it is entitled tosovereign Immunity from suit. The trial courtdenied the motion to dismiss and issued two writsof garnishment upon Indonesian Governmentfunds deposited in the Philippine National Bankand Far East Bank. Indonesia went to the Court of

Appeals on a petition for certiorari under Rule 65of the Rules of Court. How would the Court of

Appeals decide the case?

SUGGESTED ANSWER:The Court of Appeals should dismiss the petitioninsofar as it seeks to annul the order denying themotion of the Government of Indonesia to dismissthe counterclaim. The counterclaim in this case isa compulsory counterclaim since it arises fromthe same contract involved in the complaint. Assuch it must be set up otherwise it will be barred.

Above all, as held in Froilan vs. Pan OrientalShipping Co., 95 Phil. 905, by filing a complaint,the state of Indonesia waived its immunity from

suit. It is not right that it can sue in the courts butit cannot be sued. The defendant thereforeacquires the right to set up a compulsorycounterclaim against it.

However, the Court of Appeals should grant thepetition of the Indonesian government insofar asit sought to annul the garnishment of the funds ofIndonesia which were deposited in the PhilippineNational Bank and Far East Bank.

Consent to the exercise of jurisdiction of a foreigncourt does not include waiver of the separateimmunity from execution. (Brownlie, Principles ofPublic International Law, 4th ed., p. 344.) Thus, inDexter vs. Carpenter vs. KungligJarnvagsstyrelsen, 43 Fed 705, it was held theconsent to be sued does not give consent to theattachment of the property of a sovereigngovernment.

State Immunity from Suit (1996)No. 6; The Republic of the Balau (formerly PalauIslands) opened and operated in Manila an officeengaged in trading Balau products with Philippineproducts. In one transaction, the local buyercomplained that the Balau goods delivered to himwere substandard and he sued the Republic ofBalau, before the Regional Trial Court of Pasig,for damages. a) How can the Republic of Balauinvoke its sovereign immunity? Explain. b) Willsuch defense of sovereign immunity prosper?Explain.

SUGGESTED ANSWER: A) The Republic of Balau can invoke its sovereignImmunity by filing a motion to dismiss inaccordance with Section l(a), Rule 16 of theRules of Court on the ground that the court hasno jurisdiction over its person.

According to the Holy See vs. Rosario, 238 SCRA524, in Public International Law, when a Statewishes to plead sovereign immunity in a foreigncourt, it requests the Foreign Office of the Statewhere it is being sued to convey to the court that itis entitled to immunity. In the Philippines, thepractice is for the foreign government to firstsecure an executive endorsement of its claim ofsovereign immunity. In some cases, the defenseof sovereign immunity is submitted directly to thelocal court by the foreign government throughcounsel by filing a motion to dismiss on theground that the court has no Jurisdiction over itsperson.

b) No, the defense of sovereign Immunity will notprosper. The sale of Balau products is a contract

involving a commercial activity. In United States vs.Ruiz, 136SCRA487 and United States vs. Guinto,182 SCRA 644, it was stated that a foreign Statecannot invoke Immunity from suit if it enters into acommercial contract. The Philippines adheres toRESTRICTIVE SOVEREIGN IMMUNITY.

State Immunity from Suit (1989)No. 13: A property owner filed an action directlyin court against the Republic of the Philippines



May the NLIA validly invoke the immunity of theState from suit? Discuss thoroughly.SUGGESTED ANSWER:



No, the Northern Luzon Irrigation Authority maynot invoke the immunity of the State from suit,because, as held in Fontanilla vs. Maliaman, 179SCRA 685 and 194 SCRA 486, irrigation is aproprietary function. Besides, the Northern LuzonIrrigation Authority has a juridical personalityseparate and distinct from the government, a suitagainst it is not a suit against the State. Since thewaiver of the immunity from suit is without

qualification, as held in Rayo vs. Court of FirstInstance of Bulacan, 110 SCRA 456, the waiverincludes an action based on a quasi-delict.

State Immunity from Suit (1999) A. 1.) What do you understand by state immunityfrom suit? Explain. (2%)2.) How may consent of the state to be sued begiven? Explain. (2%) SUGGESTED ANSWER:1.) STATE IMMUNITY FROM SUIT means thatthe State cannot be sued without its consent. Acorollary of such principle is that properties used

by the State in the performance of itsgovernmental functions cannot be subject toudicial execution.

2.) Consent of the State to be sued may be madeexpressly as in the case of a specific, expressprovision of law as waiver of State immunity fromsuit is not inferred lightly (e.g. C.A. 327 as amended

by PD 1445} or impliedly as when the Stateengages in proprietary functions (U.S.

v. Ruiz, U.S. v. Guinto) or when it files a suit in whichcase the adverse party may file a counterclaim(Froilan v. Pan Oriental Shipping) or when the doctrinewould in effect be used to perpetuate an injustice(Amigable v. Cuenca, 43SCRA 360).

State Immunity from Suit (1999)No VI - B. The employees of the PhilippineTobacco Administration (PTA) sued to recoverovertime pay. In resisting such claim, the PTAtheorized that it is performing governmentalfunctions. Decide and explain. (2%)SUGGESTED ANSWER:

As held in Philippine Virginia Tobacco Administration v. Court of Industrial Relations, 65SCRA 416, the Philippine Tobacco Administrationis not liable for overtime pay, since it is performinggovernmental functions. Among its purposes areto promote the effective merchandising of tobaccoso that those engaged in the tobacco industry willhave economic security, to stabilize the price oftobacco, and to improve the living and

economic conditions of those engaged in thetobacco industry.

State Immunity from Suit (1987)(a) "X" filed a case against the Republic of thePhilippines for damages caused his yacht, whichwas rammed by a navy vessel.(b) "X" also sued in another case theSecretary of Public Works and the Republic of the

Philippines for payment of the compensation ofthe value of his land, which was used as part ofthe tarmac of the Cebu International Airport,without prior expropriation proceedings.

The Solicitor General moved to dismiss the twocases invoking state immunity from suit Decide.SUGGESTED ANSWER:(a) The government cannot be sued for damagesconsidering that the agency which caused thedamages was the Philippine Navy. Under Art.2180 of the Civil Code, the state consents to be

sued for a quasi-delict only when the damage iscaused by its special agents. Hence, the SolicitorGeneral's motion should be granted and the suitbrought by "X" be dismissed.

(b) But the government CANNOT INVOKE thestate's immunity from suit. As held in Ministeriov. Court of First Instance. 40 SCRA 464 (1971),which also involved the taking of private propertywithout the benefit of expropriation proceeding,"The doctrine of governmental immunity from suitcannot serve as an instrument for perpetrating aninjustice on a citizen. . . . When the governmenttakes any property for public use, which isconditional upon the payment of justcompensation, to be judicially ascertained, itmakes manifest that it submits to the jurisdictionof the court." The Solicitor General's motion todismiss should, therefore, be denied.

State Immunity vs. Waiver of Immunity (1997)

No, 6: It is said that "waiver of immunity by the

State does not mean a concession of its liability".What are the implications of this phrase?

SUGGESTED ANSWER:The phrase that waiver of immunity by the Statedoes not mean a concession of liability meansthat by consenting to be sued, the State does notnecessarily admit it is liable. As stated inPhilippine Rock Industries, Inc. vs. Board ofLiquidators, 180 SCRA 171, in such a case theState is merely giving the plaintiff a chance to



armed forces with general or flag rank filedupon their assumption of office shall bedisclosed to the public in the manner providedby law.

1 Section 21, Article XII of the Constitutiondeclares: "Information on foreign loans obtained orguaranteed by the government shall be made availableto the public."

2 As held in Valmonte vs. Belmonte, G.R. No.74930, Feb. 13, 1989, these provisions on publicdisclosures are intended to enhance the role of thecitizenry in governmental decision-making as well as inchecking abuse in government.

Transparency; Matters of Public Interest(2000)No V. State at least three constitutional provisionsreflecting the State policy on transparency inmatters of public interest. What is the purpose of

said policy? (5%)SUGGESTED ANSWER:The following are the constitutional provisionsreflecting the State policy on transparency inmatters of public interest:1. "Subject to reasonable conditions prescribedby law, the State adopts and Implements a policyof full public disclosure of all its transactionsinvolving public interest." (Section 28, Article II)

2. The right of the people to information onmatters of public concern shall be recognized.

Access to official records, and to documents, andpapers pertaining to official acts, transactions, ordecisions, as well as to government research dataused as basis for policy development, shall beafforded to citizen, subject to such limitations asmay be provided by law." (Section 7, Article III)

3. The records and books of accounts of theCongress shall be preserved and be open to thepublic in accordance with law, and such booksshall be audited by the Commission on Audit

which shall publish annually an itemized list ofamounts paid to and expenses incurred for eachMember." (Section 20. Article VI)

4. The Office of the Ombudsman shall have thefollowing powers, functions, and duties: XXXXXX

(6) Publicize matters covered by itsinvestigation when circumstances sowarrant and with due prudence," (Section12, Article XI)

5. "A public officer or employee shall, uponassumption of office, and as often as thereaftermay be required by law, submit a declaration underoath of his assets, liabilities, and net worth. In thecase of the President, the Vice President, theMembers of the Cabinet, the Congress, theSupreme Court, the Constitutional Commissions

and other constitutional offices, and officers of thearmed forces with general or flag rank, thedeclaration shall be disclosed to the public in themanner provided by law." (Section 17, Article XI)

6. "Information on foreign loans obtained orguaranteed by the Government shall be madeavailable to the public." (Section 21 Article XII)

As explained In Valmonte v. Belmonte,170 SCRA 256 (1989), the purpose of thepolicy is to protect the people from abuseof governmental power. If access toinformation of public concern is denied,

the postulate "public office is a publictrust" would be mere empty words. {Note:The examinee should be given full credit ifhe gives any three of theabove-mentioned provisions.}

ARTICLE III Bill of Rights

Bill of Attainder (1987)No. XI: Congress passed a law relating toofficials and employees who had served in the

Government for the period from September 21,1972 up to February 25, 1986.

(a) One provision of the law declared allofficials from the rank of assistant head of adepartment, bureau, office or agency "Unfit" forcontinued service in the government and declaredtheir respective positions vacant.(b) Another provision required all the otherofficials and employees to take an oath of loyaltyto the flag and government as a condition fortheir continued employment. Are the twoprovisions valid? Why?SUGGESTED ANSWER:(a) The law is a bill of attainder by whichCongress, by assuming judicial magistracy, ineffect declares all officials and employees duringmartial law (September 21, 1972February 25,1986) as disloyal and, on this basis, removessome while subjecting others to a loyalty test.

With respect to the provision declaring positionsvacant, even the power to reorganize can not



be invoked because under the FreedomConstitution such power can be exercised only bythe President and only up to February 25, 1987.Since the law under question was presumablypassed after February 25, 1987 and by Congress,it is unconstitutional.

(b) With respect to the provision requiring theloyalty test, loyalty as a general rule is a relevant

consideration in assessing employees' fitness.However, the requirement in this case is not ageneral requirement but singles out "martial law"employees and therefore is administered in adiscriminatory manner. Loyalty, therefore, while arelevant consideration in other circumstances, isbeing employed in this case for an unconstitutionalpurpose.

Bill of Attainder (1990)No. 1; Executive Orders Nos. 1 and 2 issued byPresident Corazon C. Aquino created the

Presidential Commission on Good Government(PCGG) and empowered it to sequester anyproperty shown prima facie to be ill-gotten wealthof the late President Marcos, his relatives andcronies. Executive Order No. 14 vests on theSandiganbayan jurisdiction to try hidden wealthcases. On April 14, 1986, after an investigation,the PCGG sequestered the assets of XCorporation, Inc.(1) X Corporation, Inc. claimed that President

Aquino, as President, could not lawfully issueExecutive Orders Nos. 1, 2 and 14, which havethe force of law, on the ground that legislation isa function of Congress. Decide.

(2) Said corporation also questioned thevalidity of the three executive orders on theground that they are bills of attainder and,therefore, unconstitutional. Decide.SUGGESTED ANSWER:(1) Executive Orders Nos. 1, 2 and 14 wereissued in 1986. At that time President Corazon

Aquino exercised legislative power ....

(2) Executive Orders Nos. 1, 2 and 14 are not

bills of attainder. A bill of attainder is a legislativeact which inflicts punishment without judicial trial.

Accordingly, it was held in Bataan Shipyards andEngineering company. Inc. v. PresidentialCommission on Good Government, thatExecutive Orders Nos. 1, 2 and 14 are not bills ofattainder, because they do not inflict anypunishment. On the contrary, they expresslyprovide that any judgment that the propertysequestered is ill-gotten wealth is to be made bya court (the Sandiganbayan) only after trial.

Custodial Investigation; Extrajudicial Confession(2001)No IX - Rafael, Carlos and Joseph were accused ofmurder before the Regional Trial Court of Manila.

Accused Joseph turned state witness against hisco-accused Rafael and Carlos, and wasaccordingly discharged from the information.

Among the evidence presented by the prosecution

was an extrajudicial confession made by Josephduring the custodial Investigation, implicatingRafael and Carlos who, he said, together with him(Joseph), committed the crime. The extrajudicialconfession was executed without the assistance ofcounsel.

Accused Rafael and Carlos vehemently objectedon the ground that said extrajudicial confessionwas inadmissible in evidence against them.

Rule on whether the said extrajudicial confessionis admissible in evidence or not. (5%)

FIRST ALTERNATIVE ANSWER: According to People vs. Balisteros, 237 SCRA499 (1994), the confession is admissible. UnderSection 12, Article III of the Constitution, theconfession is inadmissible only against the onewho confessed. Only the one whose rights wereviolated can raise the objection as his right ispersonal.SECOND ALTERNATIVE ANSWER;

According to People us. Jara, 144 SCRA516(1986), the confession is inadmissible. If it isinadmissible against the one who confessed, withmore reason it should be inadmissible againstothers.

Custodial Investigation; ExtrajudicialConfession; Police Line-Up (1994)No. 10: An information for parricide was filedagainst Danny. After the NBI found an eyewitnessto the commission of the crime. Danny wasplaced in a police line-up where he was identifiedas the one who shot the victim. After the line-up,

Danny made a confession to a newspaperreporter who interviewed him. 1) Can Danny claimthat his identification by

the eyewitness be excluded on the groundthat the line-up was made without benefit

of his counsel? 2) Can Danny claim that hisconfession be

excluded on the ground that he was notafforded his "Miranda" rights?SUGGESTED ANSWER:



1) No, the identification of Danny, a privateperson, by an eyewitness during the line-upcannot be excluded in evidence. In accordancewith the ruling in People vs. Hatton, 210 SCRA 1,the accused is not entitled to be assisted bycounsel during a police line-up, because it is notpart of custodial investigation.

ALTERNATIVE ANSWER;

Yes, in United States v. Wade, 338 U.S. 218(1967) and Gilbert v. California, 338 U.S. 263(1967). it was held that on the basis of the Sixth,rather than the Fifth Amendment (equivalent to

Art. III, Sec. 14 (2) rather than Sec. 12(1)), thepolice line-up is such a critical stage that it carries"potential substantial prejudice" for which reasonthe accused is entitled to the assistance ofCounsel.

2) No. Danny cannot ask that his confession to anewspaper reporter should be excluded inevidence. As held in People vs. Bernardo, 220

SCRA 31, such an admission was not madeduring a custodial interrogation but a voluntarystatement made to the media.

Custodial Investigation; Police Line-Up (1997)

No. 10: A, while on board a passenger jeep onenight, was held up by a group of three teenagerswho forcibly divested her of her watch, necklaceand wallet containing P100.00. That done, the trioumped off the passenger jeep and fled. B, theeep driver, and A complained to the police towhom they gave description of the culprits.

According to the jeep driver, he would be able toidentify the culprits if presented to him. Nextmorning A and B were summoned to the policestation where five persons were lined up beforethem for identification. A and B positively identifiedC and D as the culprits. After preliminaryinvestigation. C and D and one John Doe werecharged with robbery in an information filedagainst them in court. C and D set up, in defense,the illegality of their apprehension, arrest andconfinement based on the identification made ofthem by A and B at a police line-up at which they

were not assisted by counsel. How would youresolve the issues raised by C and D?

SUGGESTED ANSWER:The arguments of the accused are untenable. Asheld in People vs. Acot, 232 SCRA 406, thewarrantless arrest of accused robbers Immediatelyafter their commission of the crime by policeofficers sent to look for them on the basis of theinformation related by the victims is

valid under Section 5(b).Rule 113 of the Rules onCriminal Procedure. According to People vs.Lamsing, 248 SCRA 471, the right to counseldoes not extend to police line-ups, because theyare not part of custodial investigations. However,according to People vs. Macan 238 SCRA 306,after the start of custodial investigation, if theaccused was not assisted by counsel, anyidentification of the accused in a police line-up is

inadmissible.

Custodial Investigation; Right to Counsel(1988)No. 15: Armando Salamanca, a notorious policecharacter, came under custodial investigation fora robbery in Caloocan City. From the outset, thepolice officers informed him of his right to remainsilent, and also his right to have a counsel of hischoice, if he could afford one or if not, thegovernment would provide him with suchcounsel.

He thanked the police investigators, and declaredthat he fully understands the rights enumerated tohim, but that, he is voluntarily waiving them.Claiming that he sincerely desires to atone for hismisdeeds, he gave a written statement on hisparticipation in the crime under investigation.

In the course of the trial of the criminal case forthe same robbery, the written admission ofSalamanca which he gave during the custodialinvestigation, was presented as the only evidenceof his guilt. If you were his counsel, what wouldyou do? Explain your answer.SUGGESTED ANSWER:I would object to it on the ground that the waiverof the rights to silence and to counsel is void,having been made without the presence ofcounsel. (Art. III, sec. 12(1); People v. Galit, 135SCRA 465 (1980). The waiver must also be inwriting, although this requirement might possiblyhave been complied with in this case byembodying the waiver in the written confession. Itshould also be noted that under Rule 134, sec. 3,even if the extrajudicial confession is valid, it is

not a sufficient ground for conviction if it is notcorroborated by evidence of corpus delicti.

Custodial Investigation; Right to Counsel(1993)No. 17; In his extrajudicial confession executedbefore the police authorities, Jose Walangtakotadmitted killing his girlfriend in a fit of jealousy.This admission was made after the followinganswer and question to wit:



T -Ikaw ay may karapatan pa rin kumuha ngserbisyo ng isang abogado para makatulong mosa imbestigasyong ito at kung wala kangmakuha, ikaw ay aming bibigyan ng librengabogado, ano ngayon ang iyong masasabi?" "S- Nandiyan naman po si Fiscal (point to Assistant Fiscal Aniceto Malaputo) kaya hindiko na kinakailanganang abogado."

During the trial. Jose Walangtakot repudiated his

confession contending that it was made withoutthe assistance of counsel and thereforeInadmissible in evidence. Decide.SUGGESTED ANSWER:The confession of Jose Walangtakot isinadmissible in evidence. The warning given tohim is insufficient in accordance with the ruling inPeople v. Duero, 104 SCRA 379, he should havebeen warned also that he has the right to remainsilent and that any statement he makes may beused as evidence against him. Besides, under Art.III, Sec. 12(1) of the Constitution, the counselassisting a person being investigated must be

independent. Assistant Fiscal Aniceto Malaputocould not assist Jose Walangtakot. As held inPeople v. Viduya, 189 SCRA 403, his function isto prosecute criminal cases. To allow him to act asdefense counsel during custodial investigationswould render nugatory the constitutional rights ofthe accused during custodial investigation. Whatthe Constitution requires is a counsel who willeffectively undertake the defense of his clientwithout any conflict of interest. The answer ofJose Walangtakot indicates that he did not fullyunderstand his rights. Hence, it cannot be saidthat he knowingly and intelligently waived thoserights.

Custodial Investigation; Right to Counsel(2000)No XI. On October 1, 1985, Ramos wasarrested by a security guard because heappeared to be "suspicious" and brought to apolice precinct where in the course of theinvestigation he admitted he was the killer in anunsolved homicide committed a week earlier. Theproceedings of his investigation were put in

writing and dated October 1, 1985, and the onlyparticipation of counsel assigned to him was hismere presence and signature on the statement.The admissibility of the statement of Ramos wasplaced in issue but the prosecution claims thatthe confession was taken on October 1, 1985 andthe 1987 Constitution providing for the right tocounsel of choice and opportunity to retain, tookeffect only on February 2, 1987 and cannot begiven retroactive effect. Rule on this. (3%)

SUGGESTED ANSWER:The confession of Ramos is not admissible, sincethe counsel assigned to him did not advise him ofhis rights. The fact that his confession was takenbefore the effectivity of the 1987 Constitution is ofno moment. Even prior to the effectivity of the1987 Constitution, the Supreme Court alreadylaid down strict rules on waiver of the rightsduring investigation in the case of People v. Galit,

135 SCRA 465 (1985).

Custodial Investigation; Right to Counsel;Receipt of Property Seized (2002)No VIII. One day a passenger bus conductor founda man's handbag left in the bus. When theconductor opened the bag, he found inside acatling card with the owner's name (Dante Galang)and address, a few hundred peso bills, and a smallplastic bag containing a white powdery substance.He brought the powdery substance to the NationalBureau of Investigation for laboratory examination

and it was determined to be methamphetaminehydrochloride or shabu, a prohibited drug. DanteGalang was subsequently traced and found andbrought to the NBI Office where he admittedownership of the handbag and its contents. In thecourse of the interrogation by NBI agents, andwithout the presence and assistance of counsel,Galang was made to sign a receipt for the plasticbag and its shabu contents. Galang was chargedwith illegal possession of prohibited drugs and wasconvicted. On appeal he contends that -

A. The plastic bag and its contents areinadmissible in evidence being the product of anillegal search and seizure; (3%) andB. The receipt he signed is alsoinadmissible as his rights under custodialinvestigation were not observed. (2%)Decide the case with reasons.SUGGESTED ANSWER:

A. It is admissible...B. The receipt which Galang signed without theassistance of counsel is not admissible in

evidence. As held in People v. Castro, 274 SCRA115 {1997), since the receipt is a documentadmitting the offense charged, Galang shouldhave been assisted by counsel as required by

Article III, Section 11 of the Constitution.

Custodial Investigation; Police Line-up (1993)

No. 9: Johann learned that the police werelooking for him in connection with the rape of an



18-year old girl, a neighbor. He went to the policestation a week later and presented himself to thedesk sergeant. Coincidentally, the rape victimwas in the premises executing an extrajudicialstatement. Johann, along with six(6) other suspects, were placed in a police lineupand the girl pointed to him as the rapist. Johannwas arrested and locked up in a cell. Johann wascharged with rape in court but prior to

arraignment invoked his right to preliminaryinvestigation. This was denied by the judge, andthus, trial proceeded. After the prosecutionpresented several witnesses, Johann throughcounsel, invoked the right to bail and filed amotion therefor, which was denied outright by theJudge. Johann now files a petition for certioraribefore the Court of Appeals arguing that: 2) Heshould have been informed of his right to berepresented by counsel prior to his identificationvia the police line up. Decide.

SUGGESTED ANSWER:

2} Pursuant to the decision in People us.Castmillo. 213. SCRA 777, Johann need not beinformed of his right to counsel prior to hisidentification during the police line-up. The policeline-up is not part of custodial investigation, sinceJohann was not being questioned but was merelybeing asked to exhibit his body for identification bya witness.ALTERNATIVE ANSWERIt may be argued that in United States vs. Wade.388 U.S. 218 (1967) and Gilbert vs. California.388 U.S. 263 (1967) It was held that on the basisof the Sixth, rather than the Fifth Amendment(equivalent to Art. III. sec. 14 (2) rather than sec.12 (1)), the police lineup is such a "critical stage"that it carries "potential substantial prejudice" forwhich reason the accused is entitled to theassistance of counsel.

Custodial Investigation; Rights (1990)No. 9; Some police operatives, acting under alawfully issued warrant for the purpose ofsearching for firearms in the House of X located atNo. 10 Shaw Boulevard, Pasig, Metro Manila,found, instead of firearms, ten kilograms of

cocaine.(1) May the said police operatives lawfullyseize the cocaine? Explain your answer.(2) May X successfully challenge the legalityof the search on the ground that the peaceofficers did not inform him about his right toremain silent and his right to counsel? Explainyour answer.(3) Suppose the peace officers were able tofind unlicensed firearms in the house in anadjacent lot, that is. No, 12 Shaw

Boulevard, which is also owned by X. Maythey lawfully seize the said unlicensedfirearms? Explain your answer.

SUGGESTED ANSWER:(1) Yes, the police operatives may lawfully seizethe cocaine, ....

(2) No, X cannot successfully challenge the

legality of the search simply because the peaceofficers did not inform him about his right toremain silent and his right to counsel. Section12(1), Article III of the 1987 Constitution provides:

"Any person under investigation for thecommission of an offense shall have theright to be informed of his right to remainsilent and to have competent andindependent counsel preferably of hisown choice."

As held in People v. Dy, 158 SCRA 111. for this

provision to apply, a suspect must be underinvestigation. There was no investigation involvedin this case.

(3) The unlicensed firearms stored at 12 ShawBoulevard may lawfully be seized ...

Custodial Investigation; Rights (1993)No. 4: Larry was an overnight guest in a motel.

After he checked out the following day, thechambermaid found an attache case which shesurmised was left behind by Larry. She turned itover to the manager who, to determine the nameand address of the owner, opened the attache caseand saw packages which had a peculiar smell andupon squeezing felt like dried leaves. His curiosityaroused, the manager made an opening on one ofthe packages and took several grams of thecontents thereof. He took the packages to the NBI,and in the presence of agents, opened thepackages, the contents of which upon laboratoryexamination, turned out to be marijuana floweringtops, Larry was subsequently found, brought to theNBI Office where he admitted ownership of theattache case and the packages. He was made to

sign a receipt for the packages. Larry was chargedin court for possession of prohibited drugs. He wasconvicted. On appeal, he now poses the followingissues: 1) The packages are inadmissible inevidence

being the product of an illegal search and



2) Neither is the receipt he signed admissible,his rights under custodial investigation not

having been observed. Decide. SUGGESTEDANSWER: On the assumption that the issueswere timely raised the answers are as follows: 1)The packages are admissible in evidence. ...

2) The receipt is not admissible in evidence.

According to the ruling in People vs. Mirantes,209 SCRA 179, such receipt is in effect anextrajudicial confession of the commission of anoffense. Hence, if it was signed without theassistance of counsel, in accordance with Section12(3), Article IV of the Constitution, it isinadmissible in evidence. [People v. Duhan, 142SCRA 100 (1986)].

Custodial Investigation; Rights (1996)No. 3: 1) A, who was arrested as a suspect in amurder case was not represented by counselduring the "question and answer" stage. However,

before he was asked to sign his statements to thepolice investigator, the latter provided A with acounsel, who happened to be at the policestation. After conferring with A, the counsel toldthe police investigator that A was ready to signthe statements.

Can the statements of A be presented in courtas his confession? Explain.SUGGESTED ANSWER:1) No, the statements of A cannot be presented incourt as his confession. He was not assisted bycounsel during the actual questioning. There is noshowing that the lawyer who belatedly conferredwith him fully explained to him the nature andconsequences of his confession. In People vs.Compil 244 SCRA 135, the Supreme Court heldthat the accused must be assisted by counselduring the actual questioning and the belatedassistance of counsel before he signed theconfession does not cure the defect.

ALTERNATIVE ANSWER:Yes, the statements of A can be presented incourt as his confession. As held in People vs.

Rous, 242 SCRA 732, even if the accused wasnot assisted by counsel during the questioning,his confession is admissible if he was able toconsult a lawyer before he signed.

Custodial Investigation; Rights (1989)No. 7: Pursuing reports that great quantities ofprohibited drugs are being smuggled at nighttimethrough the shores of Cavite, the Southern LuzonCommand set up checkpoints at the end of theCavite coastal road to search

passing motor vehicles. A 19-year old boy, whofinished fifth grade, while driving, was stopped bythe authorities at the checkpoint. Without anyobjection from him, his car was inspected, andthe search yielded marijuana leaves hidden in thetrunk compartment of the car. The prohibited drugwas promptly seized, and the boy was brought tothe police station for questioning.

(1) Was the search without warrant legal?(2) Before interrogation, the policeman on dutyinformed the boy in English that he does "have aright to remain silent and the right to counsel."However, there was no counsel available as itwas midnight. He declared orally that he did notneed any lawyer as he was innocent, since hewas only bringing the marijuana leaves to hisemployer in Quezon City and was not a druguser. He was charged with illegal possession ofprohibited drugs. Is his waiver of the right tocounsel valid?SUGGESTED ANSWER:

(1) No, the search was not valid, because therewas no probable cause ....

(2) No, the waiver of the right to counsel is notvalid, since it was not reduced in writing andmade in the presence of counsel. Under Section12(1), Article III of the 1987 Constitution to bevalid, the waiver must be made in writing and inthe presence of counsel.

Double Jeopardy (1988)No. 21: The Filipino seamen detained at KotaKinabalu, allegedly fishing in Malaysian territorialwaters, had been acquitted, after trial, by thesessions court in the same city. They could not bereleased and returned to the Philippines, becausethe prosecution had appealed the judgment ofacquittal to the Supreme Court of Malaysia.

Assume the situations had been reversed and aMalaysian had been apprehended in Shasi, Sulu,for an alleged offense, charged before theRegional Trial Court and after trial acquitted.

May the Provincial Fiscal of Sulu appeal suchudgment of acquittal to the Supreme Court, likewhat the Malaysians did in the case of theFilipino fishermen at Kota Kinabalu? Explain youranswer.SUGGESTED ANSWER:No, because it would place the accused indouble jeopardy, contrary to Art. III, sec. 21 ofour Constitution. PD No. 1599 prohibits anyperson not a citizen to explore or exploit any ofthe resources of the exclusive economic zone



and makes violation of the prohibition a crimepunishable by a fine of P2,000.00 to P100,000.00and/or imprisonment of not less than 6 months normore than 10 years. If aliens are arrested forfishing within this zone but for some reason areacquitted, the decision against them cannot beappealed to the Court of Appeals because thatwould place them in double jeopardy. This is sowell established that the Supreme Court turned

down many pleas for re-examination of thedoctrine first announced in Kepner v. UnitedStates. 11 Phil. 669 (1904). The doctrine is said tobe part and parcel not only of settledurisprudence but also of constitutional law. Nordoes it matter that the accused are aliens. Thisguarantee has been applied even to aliens withoutthought of their citizenship. (See e.g., People v. Ang ChioKio, 95 Phil. 475

(1954) (Chinese previously convicted of murder); People v.Pomeroy, 97 Phil 927 (1955) ( American previously convicted ofrebellion with murder, arson and robbery).

Double Jeopardy (1993)No. 13: A Pajero driven by Joe sideswiped amotorcycle driven by Nelson resulting in damageto the motorcycle and injuries to Nelson. Joe spedon without giving assistance to Nelson. The Fiscalfiled two informations against Joe, to wit: (1)reckless imprudence resulting in damage toproperty with physical injuries under Art. 365,RPC, before the RTC; and (2) abandonment ofone's victim under par. 2 Art 275, before the MTC.

Joe was arraigned, tried and convicted for

abandonment of one's victim in the MTC. Heappealed to the RTC. It was only a year later thathe was arraigned in the reckless imprudencecharge before the RTC. He pleaded not guilty.

Subsequently, the RTC affirmed the decision ofthe MTC relative to the abandonment of one'svictim charge. Joe filed a petition for review beforethe Court of Appeals, invoking his right to doubleJeopardy, contending that the prosecution forabandonment under Art. 275 of the Revised PenalCode is a bar to the prosecution for negligence

under Article 365 of the same Code. Decide.

SUGGESTED ANSWER:Joe cannot claim that his conviction forabandoning his victim in violation of Article 275 ofthe Revised Penal Code is a bar to hisprosecution for negligence under Article 365 ofthe Revised Penal Code. As held in Lamera v.Court of Appeals, 198 SCRA 186, there is nodouble jeopardy, because these two offenses arenot identical. Reckless imprudence is a

crime falling under the chapter on criminalnegligence, while abandonment of one's victim isa crime falling under the chapter on crimesagainst security. The former is committed bymeans of culpa, while the latter is committed bymeans of dolo. Failure to help one's victim is notan offense by itself nor an element of recklessimprudence. It merely Increases the penalty byone degree.

Double Jeopardy (1997)No. 2: The Sangguniang Panlungsod of Manilaapproved an ordinance (No. 1000) prohibiting theoperation in the streets within the city limits oftaxicab units over eight years old (from year ofmanufacture). The imposable penalty for violationthereof is a fine of P4,000.00 or imprisonment forone year upon the erring operator. Thereafter andwhile the city ordinance was already in effect.Congress enacted a law (Republic Act No. 500)prohibiting the operation in the streets of citiesthroughout the country of taxicab units beyond ten

years old. The imposable penalty for violationthereof is the same as in Ordinance No. 1000. A,an owner/operator of a taxicab unit operating inthe City of Manila, was charged with violation ofthe city ordinance. Upon arraignment, he pleadednot guilty; whereupon, trial was set five daysthereafter. For failure of the witnesses to appear atthe trial, the City Court dismissed the case against

A. The City Prosecutor of Manila forthwith filedanother information in the same court charging Awith violation of Republic Act No. 500 for operatingthe taxicab unit subject of the information in the

first case. The accused moved to dismiss thesecond case against him invoking doubleJeopardy.

How would you rule on A's motion if you werethe Judge?SUGGESTED ANSWER:If I were the judge, I would grant the motion. Thedismissal of the first case for failure of thewitnesses to appear terminated the first jeopardy.

As held in Caes vs. Intermediate Appellate Court,

179 SCRA 54, the dismissal of a case for failureof the witnesses for the prosecution to appearconstitutes an acquittal. The acquittal of A forviolation of Ordinance No. 1000 bars hisprosecution for violation of Republic Act No. 500.Under Section 21, Article in of the Constitution, ifan act is punished by a law and an ordinance,conviction or acquittal under either bars anotherprosecution for the same act.

ALTERNATIVE ANSWER:



If I were the judge, I would deny the motion. Thedismissal of the first case is void and does notgive rise to double jeopardy. The dismissal of thefirst case is arbitrary and denied the prosecutiondue process of law. The trial was set five daysafter the arraignment. There was no sufficienttime to subpoena the witnesses and this was thefirst time the witnesses failed to appear. As heldin People vs. Declaro 170 SCRA 142, the

dismissal of a case for failure of the witnesses toappear at the initial hearing is arbitrary and voidand does not give rise to double jeopardy.

Double Jeopardy (1999) A. Discuss the right of every accused againstdouble jeopardy? (2%)SUGGESTED ANSWER:

According to Melo v. People, 85 Phil. 766, therule of double jeopardy means that when aperson was charged with an offense and thecase was terminated by acquittal or conviction or

in any other manner without his consent, hecannot again be charged with the same oridentical offense.

Double Jeopardy (1999)C. On October 21, 1986, 17 year old VirginiaSagrado brought a complaint against MartinGeralde for consented abduction. With theaccused pleading not guilty upon arraignment,trial ensued. After trial, a judgment of convictionwas rendered against Geralde. When the casewas appealed to it, the Court of Appeals reversedthe judgment of the Trial Court, ratiocinating andruling as follows: "This is not to say that theappellant did nothing wrong...she was seduced bythe appellant with promises (of marriage) just toaccomplish his lewd designs." Years later, Virginiabrought another complaint for Qualified Seduction.Geralde presented a Motion to Quash on theground of double jeopardy, which motion and hissubsequent motion for reconsideration weredenied: Question: May Geralde validly invokedouble jeopardy in questioning the institution ofthe case for Qualified Seduction? He placedreliance principally on the "same evidence" test to

support his stance. He asserted that the offenseswith which he was charged arose from the sameset of facts. Furthermore, he averted that thecomplaint for Qualified Seduction is barred bywaiver and estoppel on the part of thecomplainant, she having opted to consider thecase as consented abduction. Finally, he arguedthat her delay of more than eight (8) years beforefiling the second case against him constitutedpardon on the part of

the offended party. How would you resolveGerald's contentions? Explain. (4%)SUGGESTED ANSWER:Geralde cannot invoke double jeopardy. Accordingto Perez v. Court of Appeals, 168 SCRA 236,there is no identity between consented abductionand qualified seduction.

CONSENTED ABDUCTION requires that the

taking away of the offended party must be withher consent, after solicitation or cajolery from theoffender, and the taking away of the offendedparty must be with lewd designs. On the otherhand, QUALIFIED SEDUCTION requires that thecrime be committed by abuse of authority,confidence or relationship and the offender hadsexual intercourse with the woman.

The delay in filing the second case does notconstitute pardon, according to Article 344 of theRevised Penal Code, to be valid the pardon of

the offender by the offended party must beexpressly given.

Double Jeopardy (2000)No XV. Charged by Francisco with libel, Pablowas arraigned on January 3, 2000, Pre-trial wasdispensed with and continuous trial was set forMarch 7, 8 and 9, 2000. On the first setting, theprosecution moved for its postponement andcancellation of the other settings because itsprincipal and probably only witness, the privatecomplainant Francisco, suddenly had to go

abroad to fulfill a professional commitment. Theudge instead dismissed the case for failure toprosecute. b) Would the reversal of the trialcourt's assailed dismissal of the case place theaccused in double jeopardy? (3%)

SUGGESTED ANSWER:b) Since the postponement of the case would notviolate the right of the accused to speedy trial,the precipitate dismissal of the case is void. Thereversal of the dismissal will not place theaccused in double Jeopardy.ALTERNATIVE ANSWER:

b) Since the dismissal of the case is valid, itsreversal will place the accused in doubleeopardy.

Double Jeopardy (2001)No X - For the death of Joey, Erning wascharged with the crime of homicide before theRegional Trial Court of Valenzuela. He wasarraigned. Due to numerous postponements ofthe scheduled hearings at the instance of theprosecution, particularly based on the ground of



unavailability of prosecution witnesses who couldnot be found or located, the criminal case waspending trial for a period of seven years. Uponmotion of accused Erning who invoked his right tospeedy trial, the court dismissed the case.

Eventually, the prosecution witnesses surfaced,and a criminal case for homicide, involving the

same incident was filed anew against Erning. Accused Erning moved for dismissal of the caseon the ground of double jeopardy. Theprosecution objected, submitting the reason that itwas not able to present the said witnesses earlierbecause the latter went into hiding out of fear.Resolve the motion. (5%)SUGGESTED ANSWER:The motion should be granted. As held in Caesus. Intermediate Appellate Court, 179 SCRA 54(1989), the dismissal of a criminal casepredicated on the right of the accused to a speedytrial amounts to an acquittal for failure of the

prosecution to prove his guilt and bars hissubsequent prosecution for the same offense.

Double Jeopardy (2002)No IX. A Tamaraw FX driven by AsiongCascasero, who was drunk, sideswiped apedestrian along EDSA in Makati City, resulting inphysical injuries to the latter. The publicprosecutor filed two separate informations againstCascasero, the first for reckless imprudenceresulting in physical injuries under the RevisedPenal Code, and the second for violation of anordinance of Makati City prohibiting andpenalizing driving under the influence of liquor.Cascasero was arraigned, tried and convicted forreckless imprudence resulting in physical injuriesunder the Revised Penal Code. With regard to thesecond case (i.e., violation of the city ordinance),upon being arraigned, he filed a motion to quashthe information invoking his right against doubleeopardy. He contended that, under Art. III,Section 21 of the Constitution, if an act ispunished by a law and an ordinance, conviction oracquittal under either shall constitute a bar toanother prosecution for the same act He argued

that the two criminal charges against himstemmed from the same act of driving allegedlyunder the influence of liquor which caused theaccident. Was there double jeopardy? Explainyour answer (5%)

FIRST ALTERNATIVE ANSWER:Yes, there is double jeopardy. Under the secondsentence of Article III, Section 21 of theConstitution, if an act is punished by a law and

an ordinance, conviction or acquittal under eithershall constitute a bar to another prosecution forthe same act. In this case, the same act isinvolved in the two cases. The recklessimprudence which resulted in physical injuriesarose from the same act of driving under theinfluence of liquor. In Yap v. Lutero,G.R. No. L-12669, April 30, 1959, the SupremeCourt held that an accused who was acquitted of

driving recklessly in violation of an ordinancecould not be prosecuted for damage to propertythrough reckless imprudence because the twocharges were based on the same act. In Peoplev, Relova, 148 SCRA 292 (1987), it was held thatwhen there is identity in the act punished by alaw and an ordinance, conviction or acquittalunder either shall bar prosecution under theother.SECOND ALTERNATIVE ANSWER:There is no double jeopardy because the actpenalized under the Revised Penal Code isdifferent from the act penalized by the ordinance

of Makati City. The Revised Penal Code penalizesreckless imprudence resulting in physical injuries,while the ordinance of Makati City penalizesdriving under the influence of liquor.

Double Jeopardy; Requisites (1999)B. What are the requisites of double jeopardy?(2%)SUGGESTED ANSWER:

As held in Cuison v. Court of Appeals, 289SCRA 159, for a claim of double jeopardy toprosper, 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; and5 the dismissal or termination of the casewithout the express consent of the accused.

Due Process; Absence of Denial (1999)No VIII - B. On April 6, 1963, Police OfficerMario Gatdula was charged by the Mayor withGrave Misconduct and Violation of Law before theMunicipal Board. The Board investigated Gatdulabut before the case could be decided, the Citycharter was approved. The City Fiscal, citingSection 30 of the city charter, asserted that he wasauthorized thereunder to investigate city officersand employees. The case against Gatdula wasthen forwarded to



him, and a re-investigation was conducted. Theoffice of the Fiscal subsequently recommendeddismissal. On January 11, 1966, the City Mayorreturned the records of the case to the City Fiscalfor the submission of an appropriate resolutionbut no resolution was submitted. On March 3,1968, the City Fiscal transmitted the records tothe City Mayor recommending that final actionthereon be made by the City Board of

Investigators (CBI). Although the CBI did notconduct an investigation, the records show thatboth the Municipal Board and the Fiscal's Officeexhaustively heard the case with both partiesafforded ample opportunity to adduce theirevidence and argue their cause. The PoliceCommission found Gatdula guilty on the basis ofthe records forwarded by the CBI. Gatdulachallenged the adverse decision of the PoliceCommission theorizing that he was deprived ofdue process. Questions: Is the PoliceCommission bound by the findings of the CityFiscal? Is Gatdula's protestation of lack or

non-observance of due process well-grounded?Explain your answers. (4%)SUGGESTED ANSWER:The Police Commission is not bound by thefindings of the City Fiscal. In Mangubat v. deCastro, 163 SCRA 608, it was held that the PoliceCommission is not prohibited from making its ownfindings on the basis of its own evaluation of therecords. Likewise, the protestation of lack of dueprocess is not well-grounded, since the hearingsbefore the Municipal Board and the City Fiscaloffered Gatdula the chance to be heard. There is

no denial of due process if the decision wasrendered on the basis of evidence contained inthe record and disclosed to the parties affected.

Due Process; Deportation (1994)No. 9: A complaint was filed by Intelligence agentsof the Bureau of Immigration and Deportation (BID)against Stevie, a German national, for hisdeportation as an undesirable alien. TheImmigration Commissioner directed the SpecialBoard of Inquiry to conduct an Investigation. At thesaid Investigation, a lawyer from the Legal

Department of the BID presented as witnesses thethree Intelligence agents who filed the complaint.On the basis of the findings, report andrecommendation of the Board of Special Inquiry,the BID Commissioners unanimously voted forStevie's deportation. Stevie's lawyer questioned thedeportation order 1) On the ground that Stevie wasdenied due process because the BIDCommissioners who rendered the decision werenot the ones who

received the evidence, in violation of the "He whodecides must hear" rule. Is he correct? 2) On theground that there was a violation of due processbecause the complainants, the prosecutor and thehearing officers were all subordinates of the BIDCommissioners who rendered the deportationdecision. Is he correct?

SUGGESTED ANSWER:

1) No, Stevie is not correct. As held in Adamson A Adamson, Inc. vs. Amores, 152 SCRA 237,administrative due process does not require thatthe actual taking of testimony or the presentationof evidence before the same officer who willdecide the case.

In American Tobacco Co. v. Director of Patents,67 SCRA 287, the Supreme Court has ruled thatso long as the actual decision on the merits of thecases is made by the officer authorized by law todecide, the power to hold a hearing on the basis ofwhich his decision will be made can be delegated

and is not offensive to due process. The Courtnoted that: "As long as a party is not deprived ofhis right to present his own case and submitevidence in support thereof, and the decision issupported by the evidence in the record, there isno question that the requirements of due processand fair trial are fully met. In short, there is noabrogation of responsibility on the part of theofficer concerned as the actual decision remainswith and is made by said officer. It is, however,required that to give the substance of a hearing,which is for the purpose of making determinations

upon evidence the officer who makes thedeterminations must consider and appraise theevidence which justifies them.

2) No, Stevie was not denied due process simplybecause the complainants, the prosecutor, and thehearing officers were all subordinates of theCommissioner of the Bureau of Immigration andDeportation. In accordance with the ruling inErianger & Galinger, Inc. vs. Court of IndustrialRelations, 110 Phil. 470, the findings of thesubordinates are not conclusive upon the

Commissioners, who have the discretion to acceptor reject them. What is important is that Stevie wasnot deprived of his right to present his own caseand submit evidence in support thereof, thedecision is supported by substantial evidence, andthe commissioners acted on their own independentconsideration of the law and facts of the case, anddid not simply accept the views of theirsubordinates in arriving at a decision.



Due Process; Forfeiture Proceedings (1993)No. 14: The S/S "Masoy" of Panamanian registry,while moored at the South Harbor, was found tohave contraband goods on board. The CustomsTeam found out that the vessel did not have therequired ship's permit and shipping documents.The vessel and its cargo were held and a warrantof Seizure and Detention was issued after dueinvestigation. In the course of the forfeiture

proceedings, the ship captain and the ship'sresident agent executed sworn statements beforethe Custom legal officer admitting that contrabandcargo were found aboard the vessel. Theshipping lines object to the admission of thestatements as evidence contending that duringtheir execution, the captain and the shippingagent were not assisted by counsel, in violation ofdue process. Decide.

SUGGESTED ANSWER:The admission of the statements of the captainand the shipping agent as evidence did not

violate due process even if they were notassisted by counsel. In Feeder International Line,Pts. Ltd. v. Court of Appeals, 197 SCRA 842, Itwas held that the assistance of counsel is notindispensable to due process in forfeitureproceedings since such proceedings are notcriminal in nature.

Moreover, the strict rules of evidence andprocedure will not apply in administrativeproceedings like seizure and forfeitureproceedings. What is important is that the partiesare afforded the opportunity to be heard and thedecision of the administrative authority is based onsubstantial evidence.

Due Process; Media Coverage during Hearing(1996)No 2: At the trial of a rape case where thevictim-complainant was a well known personalitywhile the accused was a popular movie star, a TVstation was allowed by the trial judge to televise theentire proceedings like theO.J. Simpson trial. The accused objected to theTV coverage and petitioned the Supreme Court

to prohibit the said coverage. As the SupremeCourt, how would you rule on the petition?Explain.SUGGESTED ANSWER:The Supreme Court should grant the petition. Inits Resolution dated October 22, 1991, theSupreme Court prohibited live radio and televisioncoverage of court proceedings to protect the rightof the parties to due process, to prevent thedistraction of the participants in

the proceedings, and in the last analysis to avoida miscarriage of justice.

Due Process; Meeting vs. Hearing (1999)No VIII - C. On November 7, 1990, nine lawyers ofthe Legal Department of Y Bank who were allunder Fred Torre, sent a complaint tomanagement accusing Torre of abusive conductand mismanagement. Furnished with a copy of

the complaint, Torre denied the charges. Twodays later, the lawyers and Torre were called to aconference in the office of the Board Chairman togive their respective sides of the controversy.However, no agreement was reached thereat.Bank Director Romulo Moret was tasked to lookfurther into the matter. He met with the lawyerstogether with Torre several times but to no avail.Moret then submitted a report sustaining thecharges of the lawyers. The Board Chairmanwrote Torre to inform him that the bank hadchosen the compassionate option of "waiting" forTorre's resignation. Torre was asked, without

being dismissed, to turn over the documents of allcases handled by him to another official of thebank but Torre refused to resign and requested fora "full hearing". Days later, he reiterated hisrequest for a "full hearing", claiming that he hadbeen "constructively dismissed". Moret assuredTorre that he is "free to remain in the employ ofthe bank" even if he has no particular workassignment. After another request for a "fullhearing" was ignored, Torre filed a complaint withthe arbitration branch of NLRC for illegaldismissal. Reacting thereto, the bank terminated

the services of Torre. Questions: (a) Was Torre"constructively dismissed" before he filed hiscomplaint? (b) Given the multiple meetings heldamong the bank officials, the lawyers and Torre, isit correct for him to say that he was not given anopportunity to be heard? Explain your answers.(4%)

SUGGESTED ANSWER:a) Torre was constructively dismissed, as held inEquitable Banking Corporation v. National LaborRelations Commission, 273 SCRA 352. Allowing

an employee to report for work without beingassigned any work constitutes constructivedismissal.

b) Torre is correct in saying that he was not giventhe chance to be heard. The meetings in thenature of consultations and conferences cannotbe considered as valid substitutes for the properobservance of notice and hearing.

Due Process; Notice by Publication (1988)



No. 9: Macabebe, Pampanga has several barriosalong the Pampanga river. To service the needsof their residentst the municipality has beenoperating a ferry service at the same river, for anumber of years already.

Sometime in 1987, the municipality was served acopy of an order from the Land TansportationFranchising and Regulatory Board (LTFRB),

granting a certificate of public convenience to Mr.Ricardo Macapinlac, a resident of Macabebe, tooperate ferry service across the same river andbetween the same barrios being servicedpresently by the municipality's ferry boats. A checkof the records of the application of Macapinlacshows that the application was filed some monthsbefore, set for hearing, and notices of suchhearing were published in two newspapers ofgeneral circulation in the town of Macabebe, andin the province of Pampanga. The municipality hadnever been directly served a copy of that notice ofhearing nor had the Sangguniang Bayan been

requested by Macapinlac for any operate. Themunicipality immediately filed a motion forreconsideration with the LTFRB which was denied.It went to the Supreme Court on a petition forcertiorari to nullify the order granting a certificateof public convenience to Macapinlac on twogrounds:1 Denial of due process to the municipality;2 For failure of Macapinlac to secure approval ofthe Sangguniang Bayan for him to operate a ferryservice in Macabebe,Resolve the two points in the petition withreasons.SUGGESTED ANSWER:The petition for certiorari should be granted,1. As a party directly affected by the operation of theferry service, the Municipality of Macabebe,Pampanga was entitled to be directly notified bythe LTFRB of its proceedings relative toMacapinlac's application, even if the Municipalityhad not notified the LTFRB of the existence of themunicipal ferry service. Notice by publication wasnot enough. (Municipality of Echague v. Abellera,146 SCRA 180 (1986)).

2. Where a ferry operation lies entirely within themunicipality, the prior approval of the Municipalgovernment is necessary. ....

Due Process; Permit to Carry Firearm OutsideResidence (Q6-2006)3. Does a Permit to Carry Firearm OutsideResidence (PTCFOR) constitute a property rightprotected by the Constitution? (2.5%)SUGGESTED ANSWER:

No, it is not a property right under the dueprocess clause of the Constitution. Just likeordinary licenses in other regulated fields, it maybe revoked any time. It does not confer anabsolute right, but only a personal privilege,subject to restrictions. A licensee takes hislicense subject to such conditions as theLegislature sees fit to impose, and may berevoked at its pleasure without depriving the

licensee of any property (Chavez v. Romulo,G.R. No. 157036, June 9, 2004).

Due Process; PPA-Pilots (2001)No XIII - The Philippine Ports Authority (PPA)General Manager issued an administrative order tothe effect that all existing regular appointments toharbor pilot positions shall remain valid only up toDecember 31 of the current year and thathenceforth all appointments to harbor pilotpositions shall be only for a term of one year fromdate of effectivity, subject to yearly renewal orcancellation by the PPA after conduct of a rigidevaluation of performance. Pilotage as aprofession may be practiced only by duly licensedindividuals, who have to pass five governmentprofessional examinations.

The Harbor Pilot Association challenged thevalidity of said administrative order arguing that itviolated the harbor pilots' right to exercise theirprofession and their right to due process of lawand that the said administrative order was issuedwithout prior notice and hearing. The PPA

countered that the administrative order was validas it was issued in the exercise of itsadministrative control and supervision overharbor pilots under PPA's legislative charter, andthat in issuing the order as a rule or regulation, itwas performing its executive or legislative, andnot a quasi-Judicial function.

Due process of law is classified into two kinds,namely, procedural due process and substantivedue process of law. Was there, or, was there noviolation of the harbor pilots' right to exercise theirprofession and their right to due process of law?

(5%)



SUGGESTED ANSWER:The right of the harbor pilots to due process wasviolated. Am held in Corona vs. United HarborPilots Association of the Philippines, 283 SCRA31 (1997) pilotage as a profession is a propertyright protected by the guarantee of due process.The pre-evaluation cancellation of the licenses ofthe harbor pilots every year is unreasonable andviolated their right to substantive due process.The renewal is



require a drive to take the breathalyzer test evenif there is no probable causeALTERNATIVE ANSWER:Requiring a driver to take a breathalyzer test doesnot violate his right against self-incrimination,because he is not being compelled to givetestimonial evidence. He is merely being asked tosubmit to a physical test. This is not covered bythe constitutional guarantee against

self-incrimination. Thus, in South Dakota vs.Neville, 459 U.S. 553, it was held for this reasonthat requiring a driver to take a blood-alcohol testis valid.

As held in Mackey vs. Afontrya 443 U.S. 1, becauseof compelling government interest in safety alongthe streets, the license of a driver who refuses totake the breathalyzer test may be suspendedimmediately pending a post-suspension hearing,but there must be a provision for a post-suspensionhearing. Thus, to save the proposed law fromunconstitutionally on the ground of denial of due

process, it should provide for an immediate hearingupon suspension of the driver's license. Theproposed law violates the right againstunreasonable searches and seizures. It willauthorize police authorities to stop any driver andask him to take the breathalyzer test even in theabsence of a probable cause.

Due Process; Urgent Public Need (1987)No. II: The Manila Transportation Companyapplied for upward adjustment of its rates beforethe Transportation Regulatory Board. Pending thepetition, the TRB, without previous hearing,granted a general nationwide provisional increaseof rates. In another Order, TRB required thecompany to pay the unpaid supervisory feescollectible under the Public Service Law. After duenotice and hearing, on the basis of the evidencepresented by Manila Transportation Company andthe Oppositors, TRB issued an Order reducing therates applied for by one-fourth.

Characterize the powers exercised by the TRB in this

case and determine whether under the presentconstitutional system the Transportation RegulatoryBoard can be validly conferred the powers exercisedby it in issuing the Orders given above. Explain.

SUGGESTED ANSWER:The orders in this case involve the exercise ofudicial function by an administrative agency, andtherefore, as a general rule, the cardinal primaryrights enumerated in Ang Tibay v. CIR, 69 Phil.635 (1940) must be observed. In Vigart

Electric Light Co, v. PSC, 10 SCRA 46 (1964) itwas held that a rate order, which appliesexclusively to a particular party and is predicatedon a finding of fact, partakes of the nature of aquasi judicial, rather than legislative, function.

The first order, granting a provisional rateincrease without hearing, is valid if justified by

URGENT PUBLIC NEED, such as increase in thecost of fuel. The power of the Public ServiceCommission to grant such increase was upheld inseveral cases. (Silva v. Ocampo, 90 Phil. 777(1952); Halili v. PSC, 92 Phil. 1036(1953))

The second order requiring the company to payunpaid supervisory fees under the Public Service

Act cannot be sustained. The company has aright to be heard, before it may be ordered to pay.(Ang Tibay v. CIR, 69 Phil. 635 (1940)) The thirdorder can be justified. The fact that the TRB hasallowed a provisional rate increase does not bind

it to make the order permanent if the evidencelater submitted does not justify increase but, onthe contrary, warrants the reduction of rates.

Eminent Domain; Garnishment (1994)No. 14: The Municipality of Antipolo, Rizal,expropriated the property of Juan Reyes for use asa public market. The Municipal Councilappropriated Pl,000,000.00 for the purchase of thelot but the Regional Trial Court, on the basis of theevidence, fixed the value at P2,000,000.00. 1)What legal action can Juan Reyes take to

collect the balance? 2) Can Juan Reyes ask theRegional Trial

Court to garnish the Municipality's accountwith the Land Bank? SUGGESTED ANSWER: 1)To collect the balance of Judgment, as stated inTan Toco vs. Municipal Counsel of Iloilo, 49 Phil.52, Juan Reyes may levy on patrimonialproperties of the Municipality of Antipolo. If it hasno patrimonial properties, in accordance with theMunicipality of Makati vs. Court of Appeals, 190

SCRA 206, the remedy of Juan Reyes is to file apetition for mandamus to compel the Municipalityof Antipolo to appropriate the necessary funds tosatisfy the judgment.

2) Pursuant to the ruling in Pasay CityGovernment vs. Court of First Instance of Manila,132 SCRA 156, since the Municipality of Antipolohas appropriated P1,000,000 to pay



for the lot, its bank account may be garnishedbut up to this amount only.

Eminent Domain; Garnishment (1998)No VI - 2, If the City of Cebu has money in bank,can it be garnished? [2%]SUGGESTED ANSWER:2. No, the money of the City of Cebu in the bankcannot be garnished if it came from public funds.

As held in Municipality of Makati vs. Court of Appeals, 190 SCRA 206, 212, public funds areexempted from garnishment.

Eminent Domain; immunity from suit (2001)No III - The Republic of the Philippines, throughthe Department of Public Works and Highways(DPWH), constructed a new highway linkingMetro Manila and Quezon province, and whichmajor thoroughfare traversed the land owned byMang Pandoy. The government neither filed anyexpropriation proceedings nor paid anycompensation to Mang Pandoy for the land thus

taken and used as a public road.

Mang Pandoy filed a suit against the governmentto compel payment for the value of his land. TheDPWH filed a motion to dismiss the case on theground that the State is immune from suit. MangPandoy filed an opposition. Resolve the motion.(5%)

SUGGESTED ANSWER:The motion to dismiss should be denied. As held in

Amigable v. Cuenca, 43 SCRA 300 (1972), whenthe Government expropriates private propertywithout paying compensation, it is deemed to havewaived its immunity from suit. Otherwise, theconstitutional guarantee that private property shallnot be taken for public use without payment of justcompensation will be rendered nugatory.

Eminent Domain; Indirect Public Benefit(1990)No. 2: The City of Cebu passed an ordinanceproclaiming the expropriation of a ten (10)hectare property of C Company, which property

is already a developed commercial center. TheCity proposed to operate the commercial centerin order to finance a housing project for cityemployees in the vacant portion of the saidproperty. The ordinance fixed the price of theland and the value of the improvements to bepaid C Company on the basis of the prevailingland value and cost of construction.(1) As counsel for C Company, give twoconstitutional objections to the validity of theordinance.

(2) As the judge, rule on the said objections.SUGGESTED ANSWER:

(1) As counsel for C Company, I will argue that thetaking of the property is not for a public use andthat the ordinance cannot fix the compensation tobe paid C Company, because this is a judicialquestion that is for the courts to decide.

(2) As judge, I will sustain the contention that thetaking of the property of C Company to operatethe commercial center established within it tofinance a housing project for city employees is notfor a public use but for a private purpose. As theCourt indicated in a dictum in Manotok. v. NationalHousing Authority, 150 SCRA 89, that theexpropriation of a commercial center so that theprofits derived from its operation can be used forhousing projects is a taking for a private purpose.

I will also sustain the contention that the ordinance,even though it fixes the compensation for the landon the basis of the prevailing land value cannotreally displace judicial determination of the price forthe simple reason that many factors, some of themsupervening, cannot possibly be considered by thelegislature at the time of enacting the ordinance.There is greater reason for nullifying the use of thecost of construction in the ordinance as basis forcompensation for the improvements. The fairmarket value of the improvements may not beequal to the cost of construction. The original cost

of construction may be lower than the fair marketvalue, since the cost of construction at the time ofexpropriation may have increased.

ALTERNATIVE ANSWER:The taking of the commercial center is justifiedby the concept of indirect public benefit since itsoperation is intended for the development of thevacant portion for socialized housing, which isclearly a public purpose.

Eminent Domain; Just Compensation (1988)

No. 8: Mr. Roland Rivera is the owner of four lotssought to be expropriated by the ExportProcessing Zone Authority for the expansion of theexport processing zone at Baguio City. The sameparcels of land had been valued by the Assessorat P120.00 per square meter, while Mr. Rivera hadpreviously fixed the market value of the same atP100 per square meter. The Regional Trial Courtdecided for expropriation and ordered the paymentto Mr. Rivera at the rate of P100 a square meter



should be SIX per cent (6%) a year. CentralBank Circular No. 416, which increased the legalinterest to twelve percent (12%) a year is notapplicable to the expropriation of property and islimited to loans, since its issuance is based onPresidential Decree No, 116, which amended theUsury Law.

Eminent Domain; Non-observance of the

policy of "all or none" (2000)No VIII. Madlangbayan is the owner of a 500square meter lot which was the birthplace of thefounder of a religious sect who admittedly playedan important role in Philippine history and culture.The National Historical Commission (NHC) passeda resolution declaring it a national landmark and onits recommendation the lot was subjected toexpropriation proceedings. This was opposed byMadlangbayan on the following grounds: a) that thelot is not a vast tract; b) that those to be benefitedby the expropriation would only be the members ofthe religious sect of its founder, and c) that the NHC

has not initiated the expropriation of birthplaces ofother more deserving historical personalities.Resolve the opposition raised by Madlangbayan.(5%)

SUGGESTED ANSWER:The arguments of Madlangbayan are notmeritorious. According to Manosca v. Court of

Appeals, 252 SCRA 412 (1996), the power ofeminent domain is not confined to expropriation ofvast tracts of the land. The expropriation of the lotto preserve it as the birthplace of the founder ofthe religious sect because of his role in Philippinehistory and culture is for a public purpose,because public use is no longer restricted to thetraditional concept. The fact that the expropriationwill benefit the members of the religious sect ismerely incidental. The fact that other birthplaceshave not been expropriated is likewise not a validbasis for opposing the expropriation. As held inJ.M. Tuason and Company, Inc. v. Land Tenure

Administration, 31 SCRA 413 (1970), theexpropriating authority is not required to adhere tothe policy of "all or none".

Eminent Domain; Power to Exercise (2005)(10-2) The Sangguniang Bayan of the Municipalityof Santa, Ilocos Sur passed Resolution No. 1authorizing its Mayor to initiate a petition for theexpropriation of a lot owned by Christina as sitefor its municipal sports center. This was approvedby the Mayor. However, the SangguniangPanlalawigan of Ilocos Sur disapproved theResolution as there might still

be other available lots in Santa for a sportscenter.

Nonetheless, the Municipality of Santa, through itsMayor, filed a complaint for eminent domain.Christina opposed this on the following grounds:

1 the Municipality of Santa has no power toexpropriate;

2 Resolution No. 1 has been voided sincethe Sangguniang Panlalawigan disapproved it forbeing arbitrary; and3 the Municipality of Santa has other andbetter lots for that purpose. Resolvethe case with reasons. (5%)

SUGGESTED ANSWERS:a) Under Section 19 of R.A. No. 7160, thepower of eminent domain is explicitly granted to themunicipality, but must be exercised through anordinance rather than through a resolution.(Municipality ofParanaque v. V.M. Realty Corp.,

G.R. No. 127820, July 20, 1998)

b) The Sangguniang Panlalawigan of IlocosSur was without the authority to disapproveResolution No. 1 as the municipality clearly hasthe power to exercise the right of eminent domainand its Sangguniang Bayan the capacity topromulgate said resolution. The only ground uponwhich a provincial board may declare anymunicipal resolution, ordinance or order invalid iswhen such resolution, ordinance or order is

beyond the powers conferred upon the council orpresident making the same. Such is not thesituation in this case. (Moday v. Court of Appeals,G.R. No. 107916, February 20, 1997)

c) The question of whether there is genuinenecessity for the expropriation of Christina's lot orwhether the municipality has other and better lotsfor the purpose is a matter that will have to beresolved by the Court upon presentation ofevidence by the parties to the case.

Eminent Domain; Public Use (1987)No. XVI: In January 1984, Pasay City filedexpropriation proceedings against severallandowners for the construction of an aqueduct forflood control in a barangay. Clearly, only theresidents of that barangay would be benefited bythe project. As compensation, the city offered topay only the amount declared by the owners intheir tax



declarations, which amount was lower than theassessed value as determined by the assessor.The landowners oppose the expropriation on thegrounds that:(a) the same is not for public use; and(b) assuming it is for public use, thecompensation must be based on the evidencepresented in court and not, as provided inpresidential decrees prescribing payment of the

value stated in the owner's tax declarations or thevalue determined by the assessor, whichever islower.

If you were judge, how would you rule on theissue? Why?SUGGESTED ANSWER:(a) The contention that the taking of privateproperty for the purpose of constructing anaqueduct for flood control is not for public use" isuntenable- The idea that "PUBLIC USE" meansexclusively use by the public has been discarded.

As long as the purpose of the taking is public, the

exercise of power of eminent domain is justifiable.Whatever may be beneficially employed for thegeneral welfare satisfies the requirement of publicuse. (Heirs ofJuancho Ardona v. Reyes, 123 SCR A 220 (1983))

(b) But the contention that the Presidential Decreesproviding that in determining just compensation thevalue stated by the owner in his tax declaration orthat determined by the assessor, whichever is lower,in unconstitutional is correct. In EPZA v. Dulay.

G.R. No. 59603, April 29, 1987, it was held thatthis method prescribed for ascertaining justcompensation constitutes an impermissibleencroachment on the prerogatives of courts. Ittends to render courts inutile in a matter which,under the Constitution, is reserved to them for finaldetermination. For although under the decrees thecourts still have the power to determine justcompensation, their task is reduced to simplydetermining the lower value of the property asdeclared either by the owner or by the assessor."JUST COMPENSATION" means the value of theproperty at the time of the taking. Its determination

requires that all facts as to the condition of theproperty and its surroundings and itsimprovements and capabilities must beconsidered, and this can only be done in a judicialproceeding.

Eminent Domain; Socialized Housing (1996)No. 4 - The City of Pasig initiated expropriationproceedings on a one-hectare lot which is part ofa ten-hectare parcel of land devoted to thegrowing of vegetables. The purpose of the

expropriation is to use the land as a relocationsite for 200 families squatting along the Pasigriver. a) Can the owner of the property opposethe

expropriation on the ground that only 200out of the more than 10,000 squatterfamilies in Pasig City will benefit from the

expropriation? Explain. b) Can the Department of Agrarian Reform

require the City of Pasig to first secureauthority from said Department beforeconverting the use of the land from

agricultural to housing? Explain. SUGGESTEDANSWER: a) No, the owner of the propertycannot oppose the expropriation on the groundthat only 200 out of more than 10,000 squatterfamilies in Pasig City will benefit from theexpropriation. As held in Philippine Columbian

Association vs. Pants, 228 SCRA 668, theacquisition of private property for socializedhousing is for public use and the fact that only afew and not everyone will benefit from the

expropriation does not detract from the nature ofthe public use.

b) No, the Department of Agrarian Reform cannotrequire Pasig City to first secure authority from itbefore converting the use of the land fromagricultural to residential. According to Provinceof Camarines Sur vs. Court of Appeals, 222SCRA 173, there is no provision in theComprehensive Agrarian Reform Law whichsubjects the expropriation of agricultural lands bylocal government units to the control of the

Department of Agrarian Reform and to requireapproval from the Department of Agrarian Reformwill mean that it is not the local government unitbut the Department of Agrarian Reform who willdetermine whether or not the expropriation is for apublic use.

Eminent Domain; Writ of Possession (1993)No, 5: In expropriation proceedings: Can theudge validly withhold issuance of the writ ofpossession until full payment of the final value ofthe expropriated property?



SUGGESTED ANSWER:

No, the judge cannot validly withhold the issuanceof the writ of possession until full payment of thefinal value of the expropriated property. As held inNational Power Corporation vs. Jocson, 206SCRA 520. it is the rninisterial duty of the Judgeto issue the writ of possession upon deposit of theprovisional value of the expropriated property withthe National or Provincial Treasurer.

ALTERNATIVE ANSWER:



(per Dondee) in Republic vs. Gingoyon, GR no.166429, Dec. 19, 2005, the SC held that RA 8974now requires full payment before the State mayexercise proprietary rights in an expropriationproceeding and making the previous ruling obiterdictum.

Equal Protection; Alien Employment (1989)No 18: An ordinance of the City of Manila requires

every alien desiring to obtain employment ofwhatever kind, including casual and part-timeemployment, in the city to secure an employmentpermit from the City Mayor and to pay a workpermit fee of P500. Is the ordinance valid?

SUGGESTED ANSWER:No, the ordinance is not valid. In Villegas vs. HiuChiong Tsai Pao Ho, 86 SCRA 270, it was heldthat such an ordinance violates equal protection. Itfailed to consider the valid substantial differencesamong the aliens required to pay the fee. Thesame among it being collected from every

employed alien, whether he is casual orpermanent, part-time or full-time. The ordinancealso violates due process, because it does notcontain any standard to guide the mayor in theexercise of the power granted to him by theordinance. Thus, it confers upon him unrestrictedpower to allow or prevent an activity which islawful per se.

Equal Protection; Invidious Discrimination(1987)No. VI: Marina Neptunia, daughter of a sea captainand sister to four marine officers decided as a childto follow in her father's footsteps. In her growing upyears she was as much at home on board a boatas she was in the family home by the sea. In timeshe earned a Bachelor of Science degree inMarine Transportation, major in Navigation andSeamanship. She served her apprenticeship for ayear in a merchant marine vessel registered forforeign trade and another year on a merchantmarine vessel registered for coastwise trade. Butto become a full-fledged marine officer she had topass the appropriate board examinations before

she could get her professional license andregistration. She applied in January 1986 to takeexamination for marine officers but her applicationwas rejected for the reason that the law Regulatingthe Practice of Marine Profession in the Philippines(Pres. Dec. No. 97 (1973) ) specifically prescribesthat "No person shall be qualified for examinationas marine officer unless he is:

Marina feels very aggrieved over the denial andhas come to you for advice. She wants to know:(1) Whether the Board of Examiners had anyplausible or legal basis for rejecting herapplication in 1986. Explain briefly.(2) Whether the 1987 Constitutionguarantees her the right to admission to take thecoming January 1988 marine officersexaminations. Explain and cite relevant

provisions.SUGGESTED ANSWER:(a) The disqualification of females from the practiceof marine profession constitutes as invidiousdiscrimination condemned by the Equal ProtectionClause of that Constitution (Art. IV, Sec. 1) In theUnited States, under a similar provision, whileearlier decisions of the Supreme Court upheld thevalidity of a statute prohibiting women frombartending unless she was the wife or daughter ofa male owner (Goesart v. Cleary, 335 U.S. 464 (1948)

and denying to women the right to practice law(Bradwell v. State, 83 U.S. (16 Wall) 130 (1873), recent

decisions have invalidated statutes or regulationsproviding for differential treatment of females basedon nothing stereotypical and inaccurategeneralizations. The Court held that "classificationbased on sex, like classifications based upon race,alienage, or national origin, are inherently suspect,and must therefore be subjected to strict judicialscrutiny." Accordingly, the Court invalidated astatute permitting a male serviceman to claim hisspouse as a dependent to obtain increased quarterallowance, regardless of whether the wife isactually dependent on him, while denying the same

right to a servicewoman unless her husband was infact dependent on her for over one half of hissupport. (Frontierro v Richardson, 411 U.S. 687

(1973); Accord Craig, v. Boren, 429 U.S. 190 (1976)

(providing for sale of beer to males under 21 andto females under 18); Reed v. Reed. 404U.S. 71 (1971) (preference given to men overwomen for appointment as administrators ofestates invalid).

(b) In addition to the Equal Protection Clause, the

1987 Constitution now requires the State to"ensure the fundamental equality before the law ofwomen and men" (Art II, Sec. 14) and to providethem with "such facilities and opportunities that willenhance their welfare and enable them to realizetheir full potential in the service of the nation." (Art.XIII, Sec. 14). These provisions put in seriousdoubt the validity of PD 97 limiting the practice ofmarine profession to males.



Equal Protection; Invidious Discrimination(1987)No. 10: "X", a son of a rich family, applied forenrolment with the San Carlos Seminary inMandaluyong, Metro Manila. Because he hadbeen previously expelled from another seminaryfor scholastic deficiency, the Rector of San CarlosSeminary denied the application without giving anygrounds for the denial. After "X" was refused

admission, the Rector admitted another applicant,who is the son of a poor farmer who was alsoacademically deficient.(a) Prepare a short argument citing rules, laws,or constitutional provisions in support of "X's"motion for reconsideration of the denial of hisapplication.SUGGESTED ANSWER:The refusal of the seminary to admit "X"constitutes invidious discrimination, violative of theEqual Protection Clause (Art. III, Sec. 1) of theConstitution. The fact, that the other applicant isthe son of a poor farmer does not make the

discrimination any less invidious since the otherapplicant is also academically deficient. Thereverse discrimination practiced by the seminarycannot be justified because unlike the raceproblem in America, poverty is not a condition ofinferiority needing redress.

Equal Protection; Police Power (2000)No IV. Undaunted by his three failures in theNational Medical Admission Test (NMAT), Cruzapplied to take it again but he was refusedbecause of an order of the Department ofEducation, Culture and Sports (DECS) disallowingflunkers from taking the test a fourth time. Cruzfiled suit assailing this rule raising theconstitutional grounds of accessible qualityeducation, academic freedom and equalprotection. The government opposes this,upholding the constitutionality of the rule on theground of exercise of police power. Decide thecase discussing the grounds raised. (5%)SUGGESTED ANSWER:

As held in Department of Education, Culture andSports v. San Diego,180 SCRA 533 (1989), therule is a valid exercise of police power to ensure

that those admitted to the medical profession arequalified. The arguments of Cruz are notmeritorious. The right to quality education andacademic freedom are not absolute. UnderSection 5(3), Article XIV of the Constitution, theright to choose a profession is subject to fair,reasonable and equitable admission andacademic requirements. The rule does not violateequal protection. There is a substantial distinctionbetween medical students and other students.Unlike other

professions, the medical profession directlyaffects the lives of the people.

Equal Protection; Right to Education (1994)No. 12; The Department of Education, Culture andSports Issued a circular disqualifying anyone whofails for the fourth time in the National EntranceTests from admission to a College of Dentistry. Xwho was thus disqualified, questions the

constitutionality of the circular. 1) Did the circulardeprive her of her

constitutional right to education? 2) Did thecircular violate the equal protectionclause of the Constitution? SUGGESTEDANSWER: 1) No, because it is a permissivelimitation to right to education, as it is intended toensure that only those who are qualified to bedentists are admitted for enrollment....

2) No, the circular did not violate the equal

protection clause of the Constitution. There is asubstantial distinction between dentistry studentsand other students. The dental profession directlyaffects the lives and health of people. Otherprofessions do not involve the same delicateresponsibility and need not be similarly treated.This is in accordance with the ruling in Departmentof Education, Culture and Sports vs. San Diego,180 SCRA 533.

Equal Protection; Subsidiary Imprisonment(1989)No. 4: "X" was sentenced to a penalty of 1 yearand 5 months of prision correctional and to pay afine of P8,000.00, with subsidiary imprisonment incase of solvency. After serving his prison term, "X"asked the Director of Prisons whether he couldalready be released. "X" was asked to pay the fineof P5,000.00 and he said he could not afford it,being an indigent. The Director informed him hehas to serve an additional prison term at the rate ofone day per eight pesos in accordance with Article39 of the Revised Penal Code, The lawyer of "X"filed a petition for habeas corpus contending thatthe further incarceration of his client for unpaid

fines violates the equal protection clause of theConstitution. Decide.

SUGGESTED ANSWER:(1) The petition should be granted, because

Article 39 of the Revised Penal Code isunconstitutional. In Tate vs. Short, 401 U.S. 395,the United States Supreme Court held thatimposition of subsidiary imprisonment upon aconvict who is too poor to pay a fine violatesequal protection, because economic status



cannot serve as a valid basis for distinguishingthe duration of the imprisonment between aconvict who is able to pay the fine and a convictwho is unable to pay it.

(2) On the other hand, in United States ex rel.Privitera vs. Kross, 239 F Supp 118, it was heldthat the imposition of subsidiary imprisonment forinability to pay a fine does not violate equal

protection, because the punishment should betailored to fit the individual, and equal protectiondoes not compel the eradication of everydisadvantage caused by indigence. The decisionwas affirmed by the United States Circuit Court of

Appeals in 345 F2d 533, and the United StatesSupreme Court denied the petition for certiorari in382 U.S. 911. This ruling was adopted by theIllinois Supreme Court in People vs. Williams, 31

ALR3d 920.

Freedom of Expression; Censorship (2003)No IX - May the COMELEC (COMELEC) prohibit

the posting of decals and stickers on "mobile"places, public or private, such as on a privatevehicle, and limit their location only to theauthorized posting areas that the COMELEC itselffixes? Explain.SUGGESTED ANSWER:

According to Adiong v. COMELEC. 207 SCRA712 [1992], the prohibition is unconstitutional. Itcurtails the freedom of expression of individualswho wish to express their preference for acandidate by posting decals and stickers on theircars and to convince others to agree with them. Itis also overbroad, because it encompassesprivate property and constitutes deprivation ofproperty without due process of law. Ownership ofproperty includes the right to use. The prohibitionis censorship, which cannot be justified.

Freedom of Expression; Prior Restraint (1988)

No. 16: The Secretary of Transportation andCommunications has warned radio stationoperators against selling blocked time, on theclaim that the time covered thereby are often used

by those buying them to attack the presentadministration. Assume that the departmentimplements this warning and orders owners andoperators of radio stations not to sell blocked timeto interested parties without prior clearance fromthe Department of Transportation andCommunications.

You are approached by an interested party affectedadversely by that order of the Secretary ofTransportation and

Communications. What would you do regardingthat ban on the sale of blocked time? Explainyour answer.SUGGESTED ANSWER:I would challenge its validity in court on theground that it constitutes a prior restraint onfreedom of expression. Such a limitation is validonly in exceptional cases, such as where thepurpose is to prevent actual obstruction to

recruitment of service or the sailing dates oftransports or the number and location of troops,or for the purpose of enforcing the primaryrequirements of decency or the security ofcommunity life. (Near v. Minnesota, 283 U.S, 697(1931)). Attacks on the government, on the otherhand, cannot justify prior restraints. For as hasbeen pointed out, "the interest of society and themaintenance of good government demand a fulldiscussion of public affairs. Complete liberty tocomment on the conduct of public men is ascalpel in the case of free speech. The sharpincision of its probe relieves the abscesses of

officialdom. Men in public life may suffer under ahostile and an unjust accusation; the wound canbe assuaged with the balm of a clearconscience," (United States v Bustos, 37 Phil.741 (1918)).

The parties adversely affected may also disregardthe regulation as being on its face void. As hasbeen held, "any system of prior restraints ofexpression comes to the court bearing a heavypresumption against its constitutional validity,"and the government "thus carries a heavy burden

of showing justification for the imposition of such arestraint." (New York Times Co. v. United States,403 U.S. 713 (1971)).

The usual presumption of validity that inheres inlegislation is reversed in the case of laws imposingprior restraint on freedom of expression.

Freedom of Religion; Convicted Prisoners(1989)No. 5: "X" is serving his prison sentence in

Muntinlupa. He belongs to a religious sect thatprohibits the eating of meat. He asked theDirector of Prisons that he be served withmeatless diet. The Director refused and "X" suedthe Director for damages for violating hisreligious freedom. Decide.SUGGESTED ANSWER:Yes, the Director of Prison is liable under Article32 of the Civil Code for violating the religiousfreedom of "X". According to the decision of theUnited States Supreme Court in the case of



O'Lone vs. Estate of Shabazz, 107 S. Ct. 2400,convicted prisoners retain their right to freeexercise of religion. At the same time, lawfulincarceration brings about necessary limitationsof many privileges and rights justified by theconsiderations underlying the penal system. Inconsidering the appropriate balance betweenthese two factors, reasonableness should be thetest. Accommodation to religious freedom can be

made if it will not involve sacrificing the interestsof security and it will have no impact on theallocation of the resources of the penitentiary. Inthis case, providing "X" with a meatless diet willnot create a security problem or unduly increasethe cost of food being served to the prisoners. Infact, in the case of O' Lone vs. Estate ofShabazz, it was noted that the Moslem prisonerswere being given a different meal whenever porkwould be served.ALTERNATIVE ANSWER:The suit should be dismissed. The Free ExerciseClause of the Constitution is essentially a restraint

on governmental interference with the right ofindividuals to worship as they please. It is not amandate to the state to take positive, affirmativeaction to enable the individual to enjoy hisfreedom. It would have been different had theDirector of Prisons prohibited meatless diets in thepenal institution.

Freedom of Religion; Limitations (1998)No XV. - A religious organization has a weeklytelevision program. The program presents andpropagates its religious, doctrines, and comparestheir practices with those of other religions.

As the Movie and Television Review andClassification Board (MTRCB) found as offensiveseveral episodes of the program which attackedother religions, the MTRCB required theorganization to submit its tapes for review prior toairing.

The religious organization brought the case tocourt on the ground that the action of the MTRCB

suppresses its freedom of speech and interfereswith its right to free exercise of religion. Decide.[5%]SUGGESTED ANSWER:The religious organization cannot invoke freedomof speech and freedom of religion as grounds forrefusing to submit the tapes to the Movie andTelevision Review and Classification Board forreview prior to airing. When the religiousorganization started presenting its program overtelevision, it went into the realm

of action. The right to act on one's religious beliefis not absolute and is subject to police power forthe protection of the general welfare. Hence thetapes may be required to be reviewed prior toairing.

In Iglesia ni Cristo vs. Court of Appeals, 259SCRA 529, 544, the Supreme Court held: "We thusreject petitioner's postulate that Its religious

program is per se beyond review by therespondent Board. Its public broadcast on TV of

its religious program brings it out of the bosom ofinternal belief. Television is a medium thatreaches even the eyes and ears of children. The

Court reiterates the rule that the exercise of

religions freedom can be regulated by the Statewhen it will bring about the CLEAR AND

PRESENT DANGER of some substantive evilwhich the State is duty bound to prevent, i.e.,

serious detriment to the mere overriding Interest

of public health, public morals, or publicwelfare."

However, the Movie and Television Review andClassification Board cannot ban the tapes on theground that they attacked other religions. InIglesia ni Cristo vs. Court of Appeals,. 259 SCRA

529, 547, the Supreme Court held:"Even a side glance at Section 3 of PD No. 1986will reveal that it is not among the grounds to justify an order prohibiting the broadcast ofpetitioner's television program."

Moreover, the broadcasts do not give rise to aclear and present danger of a substantive evil.In the case of Iglesia ni Cristo vs. Court ofAppeals, 259 SCRA 529, 549:

"Prior restraint on speech, including thereligious speech, cannot be justified byhypothetical fears but only by the showing of asubstantive and imminent evil which has takenthe reality already on the ground."

Freedom of Religion; Flag Salute (1997)No. 12: Section 28. Title VI, Chapter 9, of the

Administrative Code of 1987 requires all

educational institutions to observe a simple anddignified flag ceremony, including the playing orsinging of the Philippine National Anthem,pursuant to rules to be promulgated by theSecretary of Education. Culture and Sports, Therefusal of a teacher, student or pupil to attend orparticipate in the flag ceremony is a ground fordismissal after due investigation. The Secretary ofEducation Culture and Sports issued amemorandum implementing said provision of law.

As ordered, the flag ceremony



would be held on Mondays at 7:30 a.m. duringclass days. A group of teachers, students andpupils requested the Secretary that they beexempted from attending the flag ceremony on theground that attendance thereto was against theirreligious belief. The Secretary denied the request.The teachers, students and pupils concerned wentto Court to have the memorandum circulardeclared null and void. Decide the case.

SUGGESTED ANSWER:The teachers and the students should beexempted from the flag ceremony. As held inEbralinag vs. Division Superintendent of Schoolsof Cebu, 251 SCRA 569. to compel them toparticipate in the flag ceremony will violate theirfreedom of religion. Freedom of religion cannot beimpaired except upon the showing of a clear andpresent danger of a substantive evil which theState has a right to prevent. The refusal of theteachers and the students to participate in the flagceremony does not pose a clear and present

danger.

Freedom of Religion; Flag Salute (2003)No III - Children who are members of a religioussect have been expelled from their respectivepublic schools for refusing, on account of theirreligious beliefs, to take part in the flag ceremonywhich includes playing by a band or singing thenational anthem, saluting the Philippine flag andreciting the patriotic pledge. The students andtheir parents assail the expulsion on the groundthat the school authorities have acted in violation

of their right to free public education, freedom ofspeech, and religious freedom and worship.Decide the case.

SUGGESTED ANSWER:The students cannot be expelled from school. Asheld in Ebralinag v. The Division Superintendentof Schools of Cebu. 219 SCRA 256 [1993], tocompel students to take part in the flag ceremonywhen it is against their religious beliefs will violatetheir religious freedom. Their expulsion alsoviolates the duty of the State under Article XIV,Section 1 of the Constitution to protect and

promote the right of all citizens to qualityeducation and make such education accessible toall.

Freedom of Religion; Non-EstablishmentClause (1988)No. 7: - Tawi-Tawi is a predominantly Moslemprovince. The Governor, the Vice-Governor, andmembers of its Sang-guniang Panlalawigan areall Moslems. Its budget provides the Governorwith a certain amount as his

discretionary funds. Recently, however, theSangguniang Panlalawigan passed a resolutionappropriating P100,000 as a special discretionaryfund of the Governor to be spent by him in leadinga pilgrimage of his provincemates to Mecca, Saudi

Arabia, Islam's holiest city.

Philconsa, on constitutional grounds, has filed

suit to nullify the resolution of the SangguniangPanlalawigan giving the special discretionaryfund to the Governor for the stated purpose. Howwould you decide the case? Give your reasons.

SUGGESTED ANSWER:The resolution is unconstitutional First, it violatesart. VI, sec. 29(2) of the Constitution whichprohibits the appropriation of public money orproperty, directly or indirectly, for the use, benefitor support of any system of religion, and, second,it contravenes art. VI, sec, 25(6) which limits theappropriation of discretionary funds only for public

purposes. The use of discretionary funds forpurely religious purpose is thus unconstitutional,and the fact that the disbursement is made byresolution of a local legislative body and not byCongress does not make it any less offensive tothe Constitution. Above all, the resolutionconstitutes a clear violation of theNon-establishment Clause (art. III, sec. 5) of theConstitution.

Freedom of Religion; Non-EstablishmentClause (1992)No. 10: Recognizing the value of education inmaking the Philippine labor market attractive toforeign investment, the Department of Education,Culture and Sports offers subsidies to accreditedcolleges and universities in order to promotequality tertiary education. The DECS grants asubsidy to a Catholic school which requires itsstudents to take at least 3 hours a week ofreligious instruction. a) Is the subsidy permissible?Explain, b) Presuming that you answer in thenegative,

would it make a difference if the subsidy

were given solely in the form of laboratoryequipment in chemistry and physics? c)Presume, on the other hand, that the

subsidy is given in the form of scholarshipvouchers given directly to the student andwhich the student can use for paying tuitionin any accredited school of his choice,whether religious or non-sectarian. Will

your answer be different?SUGGESTED ANSWER:



a) No, the subsidy is not permissible. It will fosterreligion, since the school gives religiousinstructions to its students. Besides, it will violatethe prohibition in Section 29[2J, Article VI of theConstitution against the use of public funds to aidreligion. In Lemon vs Kurtzman. 403 U.S. 602, itwas held that financial assistance to a sectarianschool violates the prohibition against theestablishment of religion if it fosters an excessive

government entanglement with religion. Since theschool requires its students to take at least threehours a week of religious instructions, to ensurethat the financial assistance will not be used forreligious purposes, the government will have toconduct a continuing surveillance. This involvesexcessive entanglement with religion.

b) If the assistance would be in the form oflaboratory equipment in chemistry and physics, itwill be valid. The purpose of the assistance issecular, i.e., the improvement of the quality of

tertiary education. Any benefit to religion ismerely incidental. Since the equipment can onlybe used for a secular purpose, it is religiouslyneutral. As held in Tilton vs. Richardson, 403U.S. 672, it will not involve excessive governmententanglement with religion, for the use of theequipment will not require surveillance.

c) In general, the giving of scholarship vouchersto students is valid. Section 2(3), Article XIV ofthe Constitution requires the State to establish asystem of subsidies to deserving students in bothpublic and private schools. However, the law isvague and over-broad. Under it, a student whowants to study for the priesthood can apply forthe subsidy and use it for his studies. This willinvolve using public funds to aid religion.

Freedom of Religion; Non-EstablishmentClause (1997)No. 4: Upon request of a group of overseascontract workers in Brunei, Rev. Father Juan dela Cruz, a Roman Catholic priest, was sent to that

country by the President of the Philippines tominister to their spiritual needs. The travelexpenses, per diems, clothing allowance andmonthly stipend of P5,000 were ordered chargedagainst the President's discretionary fund. Uponpost audit of the vouchers therefor, theCommission on Audit refused approval thereofclaiming that the expenditures were in violation ofthe Constitution.

Was the Commission on Audit correct indisallowing the vouchers in question?SUGGESTED ANSWER:Yes, the Commission on Audit was correct indisallowing the expenditures. Section 29(2),

Article VI of the Constitution prohibits theexpenditure of public funds for the use, benefit, orsupport of any priest. The only exception is whenthe priest is assigned to the armed forces, or to

any penal institution or government orphanage orleprosarium. The sending of a priest to minister tothe spiritual needs of overseas contract workersdoes not fall within the scope of any of theexceptions.

Freedom of Speech; Ban on Tobacco AD(1992)No. 1: Congress passes a law prohibitingtelevision stations from airing any commercialadvertisement which promotes tobacco or in anyway glamorizes the consumption of tobaccoproducts.

This legislation was passed in response tofindings by the Department of Health about thealarming rise in lung diseases in the country. TheWorld Health Organization has also reported thatU.S. tobacco companies have-shifted marketingefforts to the Third World due to dwindling sales inthe health-conscious American market.

Cowboy Levy's, a Jeans company, recentlyreleased an advertisement featuring modelRichard Burgos wearing Levy's jackets and jeansand holding a pack of Marlboro cigarettes.

The Asian Broadcasting Network (ABN), aprivately owned television station, refuses to airthe advertisement in compliance with the law. a)

Assume that such refusal abridges thefreedom of speech. Does the constitutionalprohibition against the abridgement of thefreedom of speech apply to acts done by

ABN, a private corporation? Explain. b) MayCowboy Levy's, a private corporation,

invoke the free speech guarantee in itsfavor? Explain. c) Regardless of your answersabove, decidethe constitutionality of the law in question.SUGGESTED ANSWER: a) The constitutionalprohibition against the freedom of speech does notapply to ABN, a private corporation. As stated inHudgens vs. National Labor Relations Board, 424U.S. 507, the constitutional guarantee of freedomof speech is a guarantee only against



abridgement by the government. It does nottherefore apply against private parties.ALTERNATIVE ANSWER:Since ABN has a franchise, it may be consideredan agent of the government by complying with thelaw and refusing to air the advertisement, italigned itself with the government. Thus itrendered itself liable for a lawsuit which is basedon abridgement of the freedom of speech. Under

Article 32 of the Civil Code, even private partiesmay be liable for damages for impairment of thefreedom of speech.

b) Cowboy Levy's may invoke the constitutionalguarantee of freedom of speech in its favor. In First

National Bank of Boston vs. Bellotti, 435 U.S. 765 , it wasruled that this guarantee extends to corporations. InVirginia

State Board of Pharmacy vs. Virginia Citizens Consumer

Council Inc., 425 U.S. 748, it was held that this rightextends to commercial advertisements. In Ayer

Productions Pty, Ltd. vs. Capulong, 160 SCRA 861, theSupreme Court held that even if the production ofa film is a commercial activity that is expected toyield profits, it is covered by the guarantee offreedom of speech.

c) The law is constitutional. It is a valid exerciseof police power, ....

Freedom of the Press; Actual Malice (2004)(5-a) The STAR, a national daily newspaper,carried an exclusive report stating that SenatorXX received a house and lot located at YY Street,Makati, in consideration for his vote cuttingcigarette taxes by 50%. The Senator sued theSTAR, its reporter, editor and publisher for libel,claiming the report was completely false andmalicious. According to the Senator, there is noYY Street in Makati, and the tax cut was only20%. He claimed one million pesos in damages.The defendants denied "actual malice," claimingprivileged communication and absolute freedomof the press to report on public officials andmatters of public concern. If there was any error,

the STAR said it would publish the correctionpromptly. Is there "actual malice" in STAR'Sreportage? How is "actual malice" defined? Arethe defendants liable for damages? (5%)

FIRST ALTERNATIVE ANSWER:Since Senator XX is a public person and thequestioned imputation is directed against him inhis public capacity, in this case actual malicemeans the statement was made with

knowledge that it was false or with recklessdisregard of whether it was false or not (Borja v.Court of Appeals, 301 SCRA 1 /1999). Sincethere is no proof that the report was publishedwith knowledge that it is false or with recklessdisregard of whether it was false or not, thedefendants are not liable for damage.

SECOND ALTERNATIVE ANSWER:

Since Senator XX is a public person and thequestioned imputation is directed against him inhis public capacity, in this case actual malicemeans the statement was made with knowledgethat it was false or with reckless disregard ofwhether it was false or not (Borjalv. Court of Appeals, 301 SCRA 1 /1999]). Since itis a matter of public knowledge that there is noYY Street in Makati, the publication was madewith reckless disregard of whether or not it isfalse. The defendants may be held liable fordamages.

Freedom of the Press; Wartime Censorship(1987)No. XIV: In the morning of August 28, 1987,during the height of -the fighting at Channel 4 andCamelot Hotel, the military closed Radio StationXX, which was excitedly reporting the successesof the rebels and movements towards Manila andtroops friendly to the rebels. The reports werecorrect and factual. On October 6, 1987, afternormalcy had returned and the Government hadfull control of the situation, the NationalTelecommunications Commission, without notice

and hearing, but merely on the basis of the reportof the military, cancelled the franchise of stationXX. Discuss the legality of:

(a) The action taken against the station on August 28, 1987;(b) The cancellation of the franchise of thestation on October 6, 1987.SUGGESTED ANSWER:(a) The closing down of Radio Station XX duringthe fighting is permissible. With respect newsmedia, wartime censorship has been upheld onthe ground that "when a nation is at war many

things that might be said in time of peace aresuch a hindrance to its efforts that their utterancewill not be endured so long as men fight and thatno Court could regard them as protected by anyconstitutional right." The security of communitylife may be protected against incitements to actsof violence and the overthrow by force of orderlygovernment. (Near v. Minnesota, 283 U.S. 697(1931), quoting Justice Holme's opinion inSchenck v. United States, 249 U.S. 47 (1919);New York



Times v. United States, 403 U.S. 713 (1971) )With greater reason then may censorship in timesof emergency be justified in the case of broadcastmedia since their freedom is somewhat lesser inscope. The impact of the vibrant speech, asJustice Gutierrez said, is forceful and immediate.Unlike readers of the printed work, a radioaudience has lesser opportunity to cogitate,analyze and reject the utterance. (Eastern

Broadcasting Corp (DYRE) v, Dans, 137 SCRA647 (1985) ). In FCC v. Pacifica Foundation, 438U.S. 726 (1978), it was held that "of all forms ofcommunication, it is broadcasting which hasreceived the most limited First AmendmentProtection."

Impairment Clause; Basic Human Rights(1992)No. 2: Sheila, an actress, signed a two-yearcontract with Solidaridad Films, The film companyundertook to promote her career and to featureher as the leading lady in at least four movies. In

turn, Sheila promised that, for the duration of thecontract, she shall not get married or have a baby;otherwise, she shall be liable to refund to the filmcompany a portion of its promotion expenses. a)Does this contract impair, or impinge upon,

any constitutionally protected liberty ofSheila? Explain. b) If Solidaridad Films tries toenforce this

contract judicially, will this constitutionallyprotected liberty prevail? Explain. SUGGESTEDANSWER: a) Yes, the contract impairs the right ofSheila to marry and to procreate. The case ofLoving vs. Virginia, 388 U.S. 1 and Zablocki vs.Redhail 434 U.S. 374 recognized the right tomarry is a basic civil right. Likewise, the case ofSkinner vs Oklahoma, 316 U.S. 535 recognizedthat the right to procreate is a basic civil right.These rights are part of the liberty protected bythe due process clause in Section

1. Article 1 of the Constitution.

b) Yes, the constitutionally protected liberty ofSheila will prevail, because it involves basic human

rights. The waiver of these basic human rights isvoid. What Solidaridad Films is seeking to recoverare promotion expenses. These involve propertyrights. As held in Philippine Blooming MillsEmployees Organization vs. Philippine BloomingMills, Inc., 51 SCRA 189, civil rights are superior toproperty rights.

ALTERNATIVE ANSWER;The waiver of the right to marry and the right toprocreate is valid. Enforcement of the contract

does not entail enforcement of the stipulation notto marry and not to have a baby. It is limited to arefund of a portion of the promotion expensesincurred by Solidaridad Films.

Involuntary Servitude (1993)No. 16; - Joy, an RTC stenographer, retired at theage of 65. She left unfinished the transcription ofher notes in a criminal case which was on appeal.

The Court of Appeals ordered Joy to transcribeher notes. She refused to comply with the orderreasoning that she was no longer in thegovernment service. The CA declared Joy incontempt of court and she was incarcerated. Joyfiled a petition for habeas corpus arguing that herincarceration is tantamount to illegal detentionand to require her to work sans compensationwould be involuntary servitude. Decide.

SUGGESTED ANSWER:Joy can be incarcerated for contempt of court forrefusing to transcribe her stenographic notes. As

held In Adoracion v. Gatmaitan, 64 SCRA 132,her incarceration does not constitute illegaldetention. It is lawful, because it is theconsequence of her disobedience of the courtorder. Neither can she claim that to require her towork without compensation is tantamount toinvoluntary servitude. Since courts have theInherent power to Issue such orders as arenecessary for the administration of Justice, theCourt of Appeals may order her to transcribe herstenographic notes even if she is no longer In thegovernment service.

Liberty of Abode; Limitations (1998)No VIII - Juan Casanova contracted Hansen'sdisease (leprosy) with open lesions. A lawrequires that lepers be isolated upon petition ofthe City Health Officer. The wife of JuanCasanova wrote a letter to the City Health Officerto have her formerly philandering husbandconfined in some isolated leprosarium. JuanCasanova challenged the constitutionality of thelaw as violating his liberty of abode. Will the suitprosper? [5%]SUGGESTED ANSWER:

No, the suit will not prosper. Section 6, Article IIIof the Constitution provides:

"The liberty of abode and of changingthe same within the limits prescribed bylaw shall not be impaired except uponlawful order of the court."

The liberty of abode is subject to the policepower of the State. Requiring the segregation oflepers is a valid exercise of police power. In



Lorenzo us. Director of Health. 50 Phil 595,598, the Supreme Court held:

"Judicial notice will be taken of the fact thatleprosy is commonly believed to be aninfectious disease tending to cause oneafflicted with it to be shunned and excludedfrom society, and that compulsorysegregation of lepers as a means ofpreventing the spread of the disease is

supported by high scientific authority."

Liberty of Abode; Temporary (1996)No 2: The military commander-in charge of theoperation against rebel groups directed theinhabitants of the island which would be the targetof attack by government forces to evacuate thearea and offered the residents temporary militaryhamlet.

Can the military commander force the residentsto transfer their places of abode without a courtorder? Explain.

SUGGESTED ANSWER:No, the military commander cannot compel theresidents to transfer their places of abode withouta court order. Under Section 6, Article III of theConstitution, a lawful order of the court isrequired before the liberty of abode and ofchanging the same can be impaired.ALTERNATIVE ANSWER;Yes, the military commander can compel theresidents to transfer their places of abode withouta court order. If there is no reasonable time to geta court order and the change of abode is merelytemporary, because of the exigency, this exerciseof police power may be justified.

Non-Imprisonment for Non-Payment of Debt(1993)No 12: Sec. 13 of PD 115 (Trust Receipts Law)provides that when the entrustee in a trust receiptagreement fails to deliver the proceeds of the saleor to return the goods if not sold to theentrustee-bank, the entrustee is liable for estafaunder the RPC. Does this provision not violate theconstitutional right against imprisonment for

non-payment of a debt? Explain.

SUGGESTED ANSWER:No, Section 13 of Presidential Decree No. 115does not violate the constitutional right againstimprisonment for non-payment of a debt. As heldin Lee vs. Rodil, 175 SCRA 100, the criminalliability arises from the violation of the trustreceipt, which is separate and distinct from theloan secured by it. Penalizing such an act is

a valid exercise of police power. (See alsoPeople vs. Nitafan, 207 SCRA 730)

Police Power; Abatement of Nuisance (2004)(9-b) The City of San Rafael passed an ordinanceauthorizing the City Mayor, assisted by the police,to remove all advertising signs displayed orexposed to public view in the main city street, forbeing offensive to sight or otherwise a nuisance.

AM, whose advertising agency owns and rentsout many of the billboards ordered removed bythe City Mayor, claims that the City should pay forthe destroyed billboards at their current marketvalue since the City has appropriated them for thepublic purpose of city beautification. The Mayorrefuses to pay, so AM is suing the City and theMayor for damages arising from the taking of hisproperty without due process nor justcompensation. Will AM prosper? Reason briefly.(5%) FIRST ALTERNATIVE ANSWER: The suitof AM will not prosper. The removal of thebillboards is not an exercise of the power of

eminent domain but of police power (Churchill

v. Rafferty, 32 Phil. 580 [19150- The abatement of anuisance in the exercise of police power does notconstitute taking of property and does not entitle theowner of the property involved to compensation.(Association of Small Landowners in the Philippines,Inc. v. Secretary of Agrarian Reform, 175 SCRA 343[1989]).

SECOND ALTERNATIVE ANSWER:The removal of the billboards for the purpose ofbeautification permanently deprived AM of theright to use his property and amounts to itstaking. Consequently, he should be paid justcompensation. (People v. Fajardo, 104 Phil. 44311958]).

Police Power; Ban on Tobacco AD (1992)No. 1: Congress passes a law prohibitingtelevision stations from airing any commercialadvertisement which promotes tobacco or in anyway glamorizes the consumption of tobaccoproducts.

This legislation was passed in response tofindings by the Department of Health about thealarming rise in lung diseases in the country. TheWorld Health Organization has also reported thatU.S. tobacco companies have-shifted marketingefforts to the Third World due to dwindling sales inthe health-conscious American market,



In the criminal case against "B" for murder, is thetape-recorded conversation containing hisadmission admissible in evidence? Why? (5%)SUGGESTED ANSWER:The tape-recorded conversation is not admissiblein evidence. As held in Salcedo-Ortanez vs. Courtof Appeals, 235 SCRA 111 (1994). Republic ActNo. 4200 makes the tape-recording of a telephoneconversation done without the authorization of all

the parties to the conversation, inadmissible inevidence. In addition, the taping of theconversation violated the guarantee of privacy ofcommunications enunciated in Section 3, Article IIIof the Constitution.

Privacy of Correspondence (1998)No VII. - The police had suspicions that JuanSamson, member of the subversive NewProletarian Army, was using the mail forpropaganda purposes in gaining new adherentsto its cause. The Chief of Police of Bantolan,

Lanao del Sur ordered the Postmaster of the townto intercept and open all mail addressed to andcoming from Juan Samson in the interest of thenational security. Was the order of the Chief ofPolice valid? (5%)SUGGESTED ANSWER:No, the order of the Chief of Police is not valid,because there is no law which authorizes him toorder the Postmaster to open the lettersaddressed to and coming from Juan Samson. Anofficial in the Executive Department cannotinterfere with the privacy of correspondence andcommunication in the absence of a lawauthorizing him to do so or a lawful order of thecourt. Section 3(1), Article III of the Constitutionprovides:

"The privacy of communication andcorrespondence shall be inviolableexcept upon lawful order of the court, orwhen public safety or order requiresotherwise as prescribed by law."

Privacy of Correspondence; Jail (1989)No. 8: While serving sentence in Muntinlupa forthe crime of theft, "X" stabbed dead one of his

guards, "X" was charged with murder. During histrial, the prosecution introduced as evidence aletter written in prison by "X" to his wife tending toestablish that the crime of murder was the resultof premeditation. The letter was writtenvoluntarily. In the course of inspection, it wasopened and read by a warden pursuant to therules of discipline of the Bureau of Prisons andconsidering its contents, the letter was turnedover to the prosecutor. The lawyer of "X"objected to the presentation of the letter and

moved for its return on the ground that it violatesthe right of "X" against unlawful search andseizure. Decide.SUGGESTED ANSWER:The objection of the lawyer must be sustained,Section 3(1), Article IV of the 1987 Constitutionprovides:

"The privacy of communication andcorrespondence shall be inviolable except

upon lawful order of the court, or when publicsafety or order requires otherwise asprescribed by law."

There was no court order which authorized thewarden to read the letter of "X". Neither is thereany law specifically authorizing the Bureau ofPrisons to read the letter of "X", Under Section3(1), Article III of the 1987 Constitution, tointerfere with any correspondence when there isno court order, there must be a law authorizing itin the interest of public safety or order.

The ruling of the United States Supreme Court inthe case of Stroud vs. United States, 251U.S. 15 is not applicable here, because Section3(1), Article III of the 1987 Constitution has nocounterpart in the American Constitution. Hence,in accordance with Section 3(2), Article III of the1987 Constitution, the letter is inadmissible inevidence.

ALTERNATIVE ANSWER:The objection of the lawyer must be overruled. InHudson vs. Palmer, 468 U.S. 517, it was held that

the constitutional prohibition against illegalsearches and seizures does not extend to theconfines of the prison. In Stroud vs. United States,251 U.S. 15, the United States Supreme Court heldthat letters voluntarily written by a prisoner andexamined by the warden which containedincriminatory statements were admissible inevidence. Their inspection by the prison authoritiesdid not violate the constitutional prohibition againstillegal searches and seizures. This is anestablished practice reasonably designed topromote discipline within the penitentiary.

Right to Assembly; Permit Application;Freedom Parks (Q2-2006)The Samahan ng mga Mahihirap (SM) filed withthe Office of the City Mayor of Manila anapplication for permit to hold a rally on MendiolaStreet on September 5, 2006 from 10:00 a.m. to3:00 p.m. to protest the political killings ofournalists. However, the City Mayor denied theirapplication on the ground that a rally at the



bar topnotcher who was in the premisesvisiting a relative. Atty. Barroso ably assistedMariano when the latter gave a statement.However, Mariano assailed the investigationclaiming that he was deprived of counsel ofhis choice.

Was the NBI correct in dismissing Atty.Santos and appointing Atty. Barroso in his

stead? Is Mariano's statement, made with theassistance of Atty. Barroso, admissible inevidence? (5%)

ALTERNATIVE ANSWER:The NBI was not correct in dismissing Atty. Santosand appointing Atty. Barroso in his stead. ArticleIII, Section 12(1) of the 1987 Constitution requiresthat a person under investigation for thecommission of an offense shall have no less than"competent and independent counsel preferably ofhis own choice " This is meant to stress theprimacy accorded to the voluntariness of the

choice under the uniquely stressful conditions of acustodial investigation' Thus, the lawyer called tobe present during such investigation should be asfar as reasonably possible, the choice of theindividual undergoing questioning. Theappointment of Atty. Barroso is questionablebecause he was visiting a relative working in theNBI and thus his independence is doubtful.Lawyers engaged by the police, whatevertestimonials are given as proof of their probity andsupposed independence, are generally suspect, asin many areas, the relationship between lawyers

and law enforcement authorities can be symbiotic.Considering that Mariano was deprived of counselof his own choice, the statement is inadmissible inevidence. (People v. Januario, G.R. No. 98252,February 7, 1997)

ALTERNATIVE ANSWER:The NBI was correct in dismissing Atty. Santos ashe was incompetent. The 1987 Constitutionrequires counsel to be competent andindependent. Atty. Barroso, being a bar topnotcher

ably assisted Mariano and there is no showingthat his having a relative in the NBI affected hisindependence. Moreover, the accused has thefinal choice of counsel as he may reject the onechosen for him and ask for another. A lawyerprovided by the investigators is deemed engagedby the accused where he raises no objectionagainst the lawyer during the course of theinvestigation, and the accused thereaftersubscribes to the truth of his statement before theswearing officer. Thus,

once the prosecution shows there was compliancewith the constitutional requirement onpre-interrogation advisories, a confession ispresumed to be voluntary and the declarant bearsthe burden of proving that his confession isinvoluntary and untrue. A confession is admissibleuntil the accused successfully proves that it wasgiven as a result of violence, intimidation, threat orpromise of reward or leniency which are not

present in this case. Accordingly, the statement isadmissible.(People v. Jerez, G.R. No. 114385, January 29, 1998)

Rights of the Accused; Presumption ofInnocence vs. Presumption of Theft (2004)(5-b) OZ lost five head of cattle which he reportedto the police as stolen from his barn. He requestedseveral neighbors, including RR, for help in lookingfor the missing animals. After an extensive search,the police found two head in RR's farm. RR couldnot explain to the police how they got hidden in aremote area of his farm. Insisting on his

innocence, RR consulted a lawyer who told him hehas a right to be presumed innocent under the Billof Rights. But there is another presumption of theftarising from his unexplained possession of stolencattle— under the penal law. Are the twopresumptions capable of reconciliation In thiscase? If so, how can they be reconciled? If not,which should prevail? (5%)

SUGGESTED ANSWER:The two presumptions can be reconciled. Thepresumption of innocence stands until thecontrary is proved. It may be overcome by acontrary presumption founded upon humanexperience. The presumption that RR is the onewho stole the cattle of OZ is logical, since he wasfound in possession of the stolen cattle. RR canprove his innocence by presenting evidence torebut the presumption. The burden of evidence isshifted to RR, because how he came intopossession of the cattle is peculiarly within hisknowledge. (Dizon-Pamintuan v. People, 234SCRA 63 (1994)).

Rights of the Accused; Right to Bail (1993)No. 9: Johann learned that the police werelooking for him in connection with the rape of an18-year old girl, a neighbor. He went to the policestation a week later and presented himself to thedesk sergeant. Coincidentally. the rape victimwas in the premises executing an extrajudicialstatement. Johann, along with six(6) other suspects, were placed in a police lineupand the girl pointed to him as the rapist. Johannwas arrested and locked up in a cell.



admitted by the accused at the pre-trial.When should the accused invoke theprivilege against self-incrimination?

3. In an administrative case for malpracticeand the cancellation of license to practicemedicine filed against C, the complainant calledC to the witness stand. When should C invokethe privilege against self-incrimination?

Explain your answers to the three questions.SUGGESTED ANSWER:(1) As held in Bagadiong v, De Guzman, 94 SCRA906, the defendant should take the witness standand object when a question calling for anincriminating question is propounded. Unlike inproceedings which are criminal in character inwhich the accused can refuse to testify, thedefendant must wait until a question calling for anincriminatory answer is actually asked. (Suarez v.Tongco, 2 SCRA 71)

(2) As held in Chavez v. Court of Appeals, 24

SCRA 663, in a criminal case the accused mayaltogether refuse to take the witness and refuseto answer any question, because the purpose ofcalling him as a witness for the prosecution hasno other purpose but to incriminate him.

(3) As in a criminal case, C can refuse to take thewitness stand and refuse to answer any question.In Pascual v. Board of Medical Examiners, 28SCRA 344, it was held that an administrative casefor malpractice and cancellation of the license topractice medicine is penal in character, becausean unfavorable decision would result in therevocation of the license of the respondent topractice medicine. Consequently, he can refuse totake the witness stand.

Rights of the Accused; Self-Incrimination(1992)No, 3; Congress is considering a law againstdrunken driving. Under the legislation, policeauthorities may ask any driver to take a"breathalyzer test", wherein the driver exhalesseveral times into a device which can determine

whether he has been driving under the influenceof alcohol. The results of the test can be used, inany legal proceeding against him. Furthermore,declaring that the issuance of a driver's licensegives rise only to a privilege to drive motorvehicles on public roads, the law provides that adriver who refuses to take the test shall beautomatically subject to a 90-day suspension ofhis driver's license,

Cite two [2] possible constitutional objections tothis law. Resolve the objections and explainwhether any such infirmities can be cured.SUGGESTED ANSWER:Possible objections to the law are that requiring adriver to take the breathalyzer test will violate hisright against self-incrimination, that providing forthe suspension of his driver's license without anyhearing violates due process, and that the

proposed law will violate the right againstunreasonable searches and seizures, because itallows police authorities to require a drive to takethe breathalyzer test even if there is no probablecause.

Requiring a driver to take a BREATHALYZERTEST does not violate his right againstself-incrimination, because he is not beingcompelled to give testimonial evidence. He ismerely being asked to submit to a physical test.This is not covered by the constitutional guaranteeagainst self-incrimination. Thus, in South Dakota

vs. Neville, 459 U.S. 553, it was held for thisreason that requiring a driver to take ablood-alcohol test is valid.



As held in Mackey vs. Afontrya 443 U.S. 1, becauseof compelling government interest in safety alongthe streets, the license of a driver who refuses totake the breathalyzer test may be suspendedimmediately pending a post-suspension hearing,but there must be a provision for a post-suspensionhearing. Thus, to save the proposed law fromunconstitutionally on the ground of denial of due

process, it should provide for an immediate hearingupon suspension of the driver's license. Theproposed law violates the right againstunreasonable searches and seizures. It willauthorize police authorities to stop any driver andask him to take the breathalyzer test even in theabsence of a probable cause.

Rights of the Accused; Self-Incrimination(2000)No XI. b) A man was shot and killed and his killerfled. Moments after the shooting, an eyewitness

described to the police that the slayer wore whitepants, a shirt with floral design, had boots andwas about 70 kilos and1.65 meters. Borja, who fit the description given,was seen nearby. He was taken into custody andbrought to the police precinct where his pants,shirt and boots were forcibly taken and he wasweighed, measured, photographed,fingerprinted and subjected to paraffin testing. Athis trial, Borja objected to the admission inevidence of the apparel, his



height and weight, his photographs, fingerprintscomparison and the results of the paraffin test,asserting that these were taken in violation of hisright against self-incrimination. Rule on theobjection. (2%)SUGGESTED ANSWER:b) The objection of Borja is not tenable. As heldin People v. Paynor, 261 SCRA 615 (1996), therights guaranteed by Section 12, Article in of the

Constitution applies only against testimonialevidence. An accused may be compelled to bephotographed or measured, his garments maybe removed, and his body may be examined.

Rights of the Accused; Self-Incrimination(Q7-2006)Select the best answer and explain.1. An accused's right against self-incrimination isviolated in the following cases: (5%)

When he is ordered by the trial court toundergo a paraffin test to prove he is guilty of murder;

When he is compelled to produce his

bankbooks to be used as evidence against his fathercharged with plunder;

When he is ordered to produce a sample of hishandwriting to be used as evidence that he is theauthor of a letter wherein he agreed to kill the victim;

When the president of a corporation is sub-poenaed to produce certain documents as proofs he isguilty of illegal recruitment.

SUGGESTED ANSWER:The best answer is c) when he is ordered toproduce a sample of his handwriting to be usedas evidence that he is the author of a letterwherein he agreed to kill the victim. Under ArticleHI, Section 17 of the 1987 Constitution, "noperson shall be compelled to be a witnessagainst himself." Since the provision prohibitscompulsory testimonial incrimination, it does notmatter whether the testimony is taken by oral orwritten means as either way it involves the USEOF INTELLECTUAL FACULTIES. The purposeof the privilege is to avoid and prohibit therebythe repetition and recurrence of compelling a

person, in a criminal or any other case, to furnishthe missing evidence necessary for his conviction(Bermudez v. Castillo, Per Rec. No. 714-A, July26, 1937; Beltran v. Samson, G.R. No. 32025,September 23,1929).

Searches and Seizure; Private Individuals(Q8-2005)(2) Emilio had long suspected that Alvin, hisemployee, had been passing trade secrets to hiscompetitor, Randy, but he had no

proof. One day, Emilio broke open the desk of Alvin and discovered a letter wherein Randythanked Alvin for having passed on to himvital trade secrets of Emilio. Enclosed in theletter was a check for P50,000.00 drawnagainst the account of Randy and payable to

Alvin. Emilio then dismissed Alvin from hisemployment. Emilio's proof of Alvin's perfidyare the said letter and check which are

objected to as inadmissible for having beenobtained through an illegal search. Alvin fileda suit assailing his dismissal. Rule on theadmissibility of the letter and check. (5%)

ALTERNATIVE ANSWER: As held in People v. Marti (G.R. No. 81561,January 18, 1991), the constitution, in laying downthe principles of the government and fundamentalliberties of the people, does not governrelationships between individuals. Thus, if the

search is made at the behest or initiative of theproprietor of a private establishment for its ownand private purposes and without the interventionof police authorities, the right againstunreasonable search and seizure cannot beinvoked for only the act of private individuals, notthe law enforcers, is involved. In sum, the

protection against unreasonable searches andseizures cannot be extended to acts committed byPRIVATE INDIVIDUALS so as to bring it withinthe ambit of alleged unlawful intrusion by thegovernment. Accordingly, the letter and check are

admissible in evidence. (Waterous Drug Corp. v.NLRC, G.R. No. 113271, October 16, 1997)

ALTERNATIVE ANSWER:The letter is inadmissible in evidence. Theconstitutional injunction declaring the privacy ofcommunication and correspondence to beinviolable is no less applicable simply because itis the employer who is the party against whom theconstitutional provision is to be enforced. The onlyexception to the prohibition in the Constitution is ifthere is a lawful order from the court or when

public safety or order requires otherwise, asprescribed by law. Any violation of this provisionrenders the evidence obtained inadmissible forany purpose in any proceeding. (Zulueta v. Courtof Appeals, G.R. No. 107383, February 20, 1996)

Searches and Seizures; Aliens (2001)No IV - A is an alien. State whether, in thePhilippines, he: Is entitled to the right against



No. 4: Larry was an overnight guest in a motel. After he checked out the following day, thechambermaid found an attache case which shesurmised was left behind by Larry. She turned itover to the manager who, to determine the nameand address of the owner, opened the attachecase and saw packages which had a



peculiar smell and upon squeezing felt like driedleaves. His curiosity aroused, the manager madean opening on one of the packages and tookseveral grams of the contents thereof. He took thepackages to the NBI, and in the presence ofagents, opened the

subsequently found, brought to the NBI Officewhere he admitted ownership of the attache caseand the packages. He was made to sign a receiptfor the packages. Larry was charged in court for

possession of prohibited drugs. He was convicted.On appeal, he now poses the following issues: 1)The packages are inadmissible in evidence

being the product of an illegal search and

seizure; .2) Neither is the receipt he signed admissible,

his rights under custodial investigation nothaving been observed. Decide. SUGGESTED

ANSWER: On the assumption that the issueswere timely raised the answers are as follows: 1)The packages are admissible in evidence. Theone who opened the packages was the managerof the motel without any interference of the agentsof the National Bureau of Investigation. As held inPeople vs. Marti, 193 SCRA 57, the constitutionalright against unreasonable searches and seizuresrefers to unwarranted intrusion by the governmentand does not operate as a restraint upon privateindividuals. 2) The receipt is not admissible inevidence. ...

Searches and Seizures; search made by aprivate citizen (2002)No VIII. One day a passenger bus conductor founda man's handbag left in the bus. When theconductor opened the bag, he found inside acatling card with the owner's name (Dante Galang)and address, a few hundred peso bills, and a smallplastic bag containing a white powdery substance.He brought the powdery substance to the NationalBureau of Investigation for laboratory examination

and it was determined to be methamphetaminehydrochloride or shabu, a prohibited drug. DanteGalang was subsequently traced and found andbrought to the NBI Office where he admittedownership of the handbag and its contents. In thecourse of the interrogation by NBI agents, andwithout the presence and assistance of counsel,Galang was made to sign a receipt for the plasticbag and its shabu contents. Galang was chargedwith illegal

possession of prohibited drugs and wasconvicted. On appeal he contends that -

(1) The plastic bag and its contents areinadmissible in evidence being the product of anillegal search and seizure; (3%) and(2) The receipt he signed is also inadmissible ashis rights under custodial investigation were notobserved. (2%)

Decide the case with reasons.SUGGESTED ANSWER: A. The plastic bag and its contents are admissiblein evidence, since it was not the National Bureauof Investigation but the bus conductor whoopened the bag and brought it to the NationalBureau of Investigation. As held In People v.Marti, 193 SCRA 57 (1991), the constitutionalright against unreasonable search and seizure isa restraint upon the government. It does notapply so as to require exclusion of evidencewhich came into the possession of theGovernment through a search made by a private

citizen.B. It is inadmissible....

Searches and Seizures; Valid WarrantlessSearch (2000)a) Crack officers of the Anti-Narcotics Unit wereassigned on surveillance of the environs of acemetery where the sale and use of dangerousdrugs are rampant. A man with reddish andglassy eyes was walking unsteadily movingtowards them but veered away when he sensedthe presence of policemen. They approached

him, introduced themselves as police officers andasked him what he had clenched in his hand. Ashe kept mum, the policemen pried his hand openand found a sachet of shabu, a dangerous drug.

Accordingly charged in court, the accusedobjected to the admission in evidence of thedangerous drug because it was the result of anillegal search and seizure. Rule on the objection.(3%) b) What are the instances when warrantlesssearches may be effected? (2%)

SUGGESTED ANSWER:a) The objection is not tenable. In accordance

with Manalili v. Court of Appeals, 280 SCRA 400(1997). since the accused had red eyes and waswalking unsteadily and the place is a knownhang-out of drug addicts, the police officers hadsufficient reason to stop the accused and to friskhim. Since shabu was actually found during theinvestigation, it could be seized without the needfor a search warrant.

packages,

the contents of which upon

laborator

examination,

turned out to be



b) A warrantless search may be effected in thefollowing cases: a) Searches incidental to alawful arrest: b) Searches of moving vehicles; c)Searches of prohibited articles in plain view: d)Enforcement of customs law; e) Consentedsearches; f) Stop and frisk (People v. Monaco,285

SCRA 703 [1998]);

g) Routine searches at borders and ports ofentry (United States v. Ramsey, 431 U.S. 606[1977]); andh) Searches of businesses in the exercise ofvisitorial powers to enforce police regulations (NewYork v. Burger, 482 U.S. 691 (1987]).

Searches and Seizures; Visual Search (1992)No. 5: During the recent elections, checkpointswere set up to enforce the election period banon firearms.

During one such routine search one night, whilelooking through an open window with a flashlight,the police saw firearms at the backseat of a carpartially covered by papers and clothes. Antonio,owner and driver of the car in question,

was charged for violation of the firearmsban. Are the firearms admissible inevidence against him? Explain.

If, upon further inspection by the police, prohibiteddrugs were found inside the variouscompartments of Antonio's car, can the drugs beused in evidence against Antonio if he isprosecuted for possession of prohibited drugs?Explain.SUGGESTED ANSWER:a) Yes, the firearms are admissible in evidence,because they were validly seized. In Valmontevs. De Villa, 178 SCRA 211 and 185 SCRA 665,the Supreme Court held that checkpoints may beset up to maintain peace and order for the benefitof the public and checkpoints are a securitymeasure against unauthorized firearms. Sincethe search which resulted in the discovery of thefirearms was limited to a visual search of the car,

it was reasonable. Because of the ban onfirearms, the possession of the firearms wasprohibited. Since they were found in plain view inthe course of a lawful search, in accordance withthe decision in Magancia vs. Palacio, 80 Phil.770, they are admissible in evidence.

b) No, the drugs cannot be used in evidenceagainst Antonio if he is prosecuted for possessionof prohibited drugs. The drugs

were found after a more extensive search of thevarious compartments of the car. As held inValmonte vs. De Villa, 185 SCRA 665, for such asearch to be valid, there must be a probablecause. In this case, there was no probable cause,as there was nothing to indicate that Antonio hadprohibited drugs inside the compartments of hiscar.

Searches and Seizures; Waiver of Consent(1989)No. 7: Pursuing reports that great quantities ofprohibited drugs are being smuggled at nighttimethrough the shores of Cavite, the Southern LuzonCommand set up checkpoints at the end of theCavite coastal road to search passing motorvehicles. A 19-year old boy, who finished fifthgrade, while driving, was stopped by theauthorities at the checkpoint. Without anyobjection from him, his car was inspected, and thesearch yielded marijuana leaves hidden in thetrunk compartment of the car. The prohibited drug

was promptly seized, and the boy was brought tothe police station for questioning. Was the searchwithout warrant legal?

SUGGESTED ANSWER:No, the search was not valid, because there wasno probable cause for conducting the search. Asheld in Almeda Sanchez vs. United States, 413U.S. 266, while a moving vehicle can be searchedwithout a warrant, there must still be probablecause. In the case in question, there was nothingto indicate that marijuana leaves were hidden inthe trunk of the car. The mere fact that the boydid not object to the inspection of the car does notconstitute consent to the search. As ruled inPeople vs. Burgos, 144 SCRA 1, the failure toobject to a warrantless search does not constituteconsent, especially in the light of the fact.

ALTERNATIVE ANSWER:Yes. The requirement of probable cause differsfrom case to case. In this one, since the policeagents are confronted with large-scalesmuggling of prohibited drugs, existence of whichis of public knowledge, they can set up

checkpoints at strategic places, in the same waythat of in a neighborhood a child is kidnapped, itis lawful to search cars and vehicles leaving theneighborhood or village: This situation is alsosimilar to warrantless searches of movingvehicles in customs area, which searches havebeen upheld. (Papa vs. Mago, 22 SCRA 857(1968). The rule is based on practical necessity.



shown in some cases by their membership in thelegislative Yuan after their naturalization ascitizens of the Philippines. The prohibition doesnot apply in situations brought about by dualcitizenship, such as the one involved in theproblem. Indeed, a Filipino woman can have dualallegiance resulting from her marriage to aforeigner under Sec. 4, so long as she does notdo or omit to do an act amounting to renunciation

under Commonwealth Act. No. 63, Sec. 1(2).Under this law, express renunciation is differentfrom an act of allegiance to a foreign power as aground for loss of Philippine citizenship.Moreover, what constitutes "dual allegiance"inimical to national interest is and what thesanctions for such dual allegiance will be, will stillhave to be defined by law pending adoption ofsuch legislation, objection based on dualallegiance will be premature.

Dual Allegiance vs. Dual Citizenship (1988)

No. 13: Robert Brown was born in Hawaii on May15, 1962, of an American father and a Filipinamother. On May 16, 1983 while holding an

American passport, he registered as a Filipinowith the Philippine Consulate at Honolulu, Hawaii.In September, 1983 he returned to thePhilippines, and took up residence at Boac,Marinduque, hometown of his mother. Heregistered as a voter, voted, and even participatedas a leader of one of the candidates in that districtin the 1984 Batasan elections. In the elections of1987, he ran for Congressman, and won. His sole

opponent is now questioning his qualifications andis trying to oust him on two basic claims:

(1) He is not a natural born Filipino citizen, but isin fact, an American, born in Hawaii, an integralportion of the U.S.A., who holds an Americanpassport;(2) He did not meet the age requirement; and(3) He has a "green card" from the U.S.Government.

Assume that you are a member of the HouseElectoral Tribunal where the petition for Brown's

ouster is pending. How would you decide thethree issues raised against him?SUGGESTED ANSWER:The first and third grounds have no merit. Butthe second is well taken and, therefore, Brownshould be disqualified.1. Robert Brown is a natural born citizen of thePhilippines. A person born of a Filipino motherand an alien father before January 17, 1973, whothereafter upon reaching the age of majority electPhilippine citizenship, is a citizen

of the Philippines (Art. IV, sec. 1(3)). Under Art.IV, sec, 2 he is also deemed a natural-borncitizen.

2. The Constitution requires, among other things,that a candidate for member of the House ofRepresentatives must be at least 25 years of age"on the day of the election." (Art. VI, sec. 6). AsBrown was born on May 15, 1962, he did not

become 25 years old until May 15, 1987. Henceon May 11, 1987, when the election was held, hewas 4 days short of the required age.

3. The Constitution provides that those who seekeither to change their citizenship or to acquire thestatus of an immigrant of another country "duringtheir tenure" shall be dealt with by law (Art. XI,sec. 17). The provision cannot apply to Brown forthe following reasons: First, Brown is in additionan American citizen and thus has a dualcitizenship which is allowed by the Constitution.

(Cf. Art. IV, sec. 4), Second, Brown did not seekto acquire the status of an immigrant, but is an

American by birth under the principle of jus soliobtaining in the United States. Third, he did notseek to change his status during his tenure as apublic officer. Fourth, the provision of Art. XI, sec.17 is not self-executing but requires animplementing law. Fifth, but above all, the HouseElectoral Tribunal has no jurisdiction to decide thisquestion since it does not concern thequalification of a member-elect.

Dual Citizenship (1994)No. 8: In 1989, Zeny Reyes married Ben Tulog, anational of the State of Kongo. Under the laws ofKongo, an alien woman marrying a Kongo nationalautomatically acquires Kongo citizenship. After hermarriage, Zeny resided in Kongo and acquired aKongo passport. In 1991, Zeny returned to thePhilippines to run for Governor of Sorsogon.

(1) Was Zeny qualified to run for Governor?(2) Suppose instead of entering politics. Zenyust got herself elected as vice-president of the

Philippine Bulletin, a local newspaper. Was shequalified to hold that position?SUGGESTED ANSWER:1) Under Section 4, Article IV of the Constitution.Zeny retained her Filipino citizenship. Since shealso became a citizen of Kongo, she possessesdual citizenship. Pursuant to Section 40 (d) of theLocal Government Code, she is disqualified to runfor governor. In addition, if Zeny returned to thePhilippines, less than a year immediately before



the day of the election, Zeny is not qualified to runfor Governor of Sorsogon. Under Section 39(a) ofthe Local Government Code, a candidate forgovernor must be a resident in the provincewhere he intends to run at least one(1) year immediately preceding the day of theelection. By residing in Kongo upon her marriagein 1989, Zeny abandoned her residence in thePhilippines. This is in accordance with the

decision in Caasi vs. Court of Appeals, 191 SCRA229.ALTERNATIVE ANSWER:No. Zeny was not qualified to run for Governor.Under the Constitution, "citizens of the Philippineswho marry aliens shall retain their citizenship,unless by their act or omission they are deemed,under the law to have renounced it." (Sec. 4, Art.IV, Constitution). Her residing in Kongo andacquiring a Kongo passport are indicative of herrenunciation of Philippine citizenship, which is aground for loss of her citizenship which she wassupposed to have retained. When she ran for

Governor of Sorsogon, Zeny was no longer aPhilippine citizen and, hence, was disqualified forsaid position.

2) Although under Section 11(1), Article XVI of theConstitution, mass media must be wholly owned byFilipino citizens and under Section 2 of the

Anti-Dummy Law aliens may not intervene in themanagement of any nationalized business activity.Zeny may be elected vice president of the PhilippineBulletin, because she has remained a Filipinocitizen. Under Section 4, Article IV of theConstitution, Filipino citizens who marry aliensretains their citizenship unless by their act oromission they are deemed, under the law, to haverenounced it. The acts or omission which will resultin loss of citizenship are enumerated inCommonwealth Act No, 63. Zeny is not guilty of anyof them. As held in Kawakita vs. United States, 343U.S. 717, a person who possesses dual citizenshiplike Zeny may exercise rights of citizenship in bothcountries and the use of a passport pertaining toone country does not result in loss of citizenship inthe other country.

ALTERNATIVE ANSWER:Neither, was Zeny qualified to hold the position ofvice-president of Philippine Bulletin. Under theConstitution, "the ownership and management ofmass media shall be limited to citizens, of thePhilippines, or to corporation, cooperatives orassociations wholly owned and managed by suchcitizens" (Section XI [1], Art. XVI), Being anon-Philippine citizen, Zeny can

not qualify to participate in the management ofthe Bulletin as Vice-President thereof.

Effect of Marriage; Filipino (1989)No, 2: (1) Lily Teh arrived in Manila on one of herregular tours to the Philippines from Taipeh. Shemet Peter Go, a naturalized Filipino citizen. After awhirlwind courtship, Lily and Peter were married atthe San Agustin Church. A week after the wedding,

Lily Teh petitioned in administrative proceedingsbefore immigration authorities to declare her aFilipino citizen stating that she had none of thedisqualifications provided in the RevisedNaturalization Law. The jilted Filipino girlfriend ofPeter Go opposed the petition claiming that LilyTeh was still a minor who had not even celebratedher 21st birthday, who never resided in thePhilippines except during her one-week visit astourist from Taipeh during the Chinese New Year,who spoke only Chinese, and who had radicalideas liked advocating unification of Taiwan withmainland China. Lily Teh, however, swore that she

was renouncing her Chinese allegiance and whileshe knew no Filipino customs and traditions as yet,she evinced a sincere desire to learn and embracethem. Would Lily Teh succeed in becoming aFilipino citizen through her marriage to Peter Go?Explain.

SUGGESTED ANSWER:Yes, Lily Teh ipso facto became a Philippinecitizen upon her marriage to Peter Go, who is aPhilippine citizen, provided she possesses none ofthe disqualifications laid down in Section 4 of theRevised Naturalization Law. According to to theruling in Moy Ya Lim Yao vs. Commissioner ofImmigration, 41 SCRA 292, an alien woman whomarries a Filipino husband ipso facto becomes aFilipino citizen without having to possess any ofthe qualifications prescribed in Section 2 of theRevised Naturalization Law provided shepossesses none of the disqualifications set forth inSection 4 of the same law. All of the groundsinvoked by the former girlfriend of Peter Go foropposing the petition of Lily Teh, except for the lastone, are qualifications, which Lily Teh need not

possess. The fact that Lily Teh is advocating theunification of Taiwan with mainland China is not aground for disqualification under Section 4 of theRevised Naturalization Law.

Effect of Oath of Allegiance (2004)(4-a) TCA, a Filipina medical technologist, left in1975 to work in ZOZ State. In 1988 she marriedODH, a citizen of ZOZ. Pursuant to ZOZ's law,by taking an oath of allegiance, she



acquired her husband's citizenship. ODH died in2001, leaving her financially secured. Shereturned home in 2002, and sought elective officein 2004 by running for Mayor of APP, herhometown. Her opponent sought to have herdisqualified because of her ZOZ citizenship. Shereplied that although she acquired ZOZ'scitizenship because of marriage, she did not loseher Filipino citizenship. Both her parents, she

said, are Filipino citizens. Is TCA qualified to runfor Mayor? (5%)

SUGGESTED ANSWER:On the assumption that TCA took an oath ofallegiance to ZOZ to acquire the citizenship ofher husband, she is not qualified to run formayor. She did not become a citizen of ZOZmerely by virtue of her marriage, she also tookan oath of allegiance to ZOZ. By this act, she losther Philippine citizenship. (Section 1 [3],Commonwealth Act No. 63.)

Effect of Repatriation (1999)No III - B. Julio Hortal was born of Filipinoparents. Upon reaching the age of majority, hebecame a naturalized citizen in another country.Later, he reacquired Philippine citizenship. CouldHortal regain his status as natural born Filipinocitizen? Would your answer be the same whetherhe reacquires his Filipino-citizenship byrepatriation or by act of Congress? Explain. (3%)

FIRST ALTERNATIVE ANSWER:Julian Mortal can regain his status as a naturalborn citizen by repatriating. Since repatriationinvolves restoration of a person to citizenshippreviously lost by expatriation and Julian Mortalwas previously a natural born citizen, in case herepatriates he will be restored to his status as anatural born citizen. If he reacquired his citizenshipby an act of Congress, Julian Hortal will not be anatural born citizen, since he reacquired hiscitizenship by legislative naturalization.

SECOND ALTERNATIVE ANSWER:Julian Hortal cannot regain his status as a natural

born citizen by repatriating. He had to performan act to acquire his citizenship, i.e., repatriation.Under Section 2, Article IV of the Constitution,natural born citizens are those who are citizensfrom birth without having to perform an act toacquire or perfect their citizenship. If hereacquired his citizenship by an act of Congress,Julian Hortal will not be a natural born citizensince he reacquired his citizenship by legislativenaturalization.

Effect of Repatriation (2002)No I - A was born in the Philippines of Filipinoparents. When martial law was declared in thePhilippines on September 21, 1972, he went to theUnited States and was naturalized as an Americancitizen. After the EDSA Revolution, he came hometo the Philippines and later on reacquired Philippinecitizenship by repatriation. Suppose in the May2004 elections he is elected Member of the House

of Representatives and a case is filed seeking hisdisqualification on the ground that he is not anatural-born citizen of the Philippines, how shouldthe case against him be decided? Explain youranswer. (5%)

SUGGESTED ANSWER:The case should be decided in favor of A. As heldIn Bengson v. House of Representatives ElectoralTribunal , 357 SCRA 545 (2001), repatriationresults in the recovery of the original nationality.Since A was a natural-born Filipino citizen beforehe became a naturalized American citizen, he

was restored to his former status as anatural-born Filipino when he repatriated.

Effect of Repatriation (2003)No IV - Juan Cruz was born of Filipino parents in1960 in Pampanga. In 1985, he enlisted in theU.S. Marine Corps and took an oath of allegianceto the United States of America. In 1990, he wasnaturalized as an American citizen. In 1994, hewas repatriated under Republic Act No. 2430.During the 1998 National Elections, he ran for

and was elected representative of the FirstDistrict of Pampanga where he resided since hisrepatriation. Was he qualified to run for theposition? Explain.SUGGESTED ANSWER:Cruz was qualified to run as representative of theFirst District of Pampanga. Since his parents wereFilipino citizens, he was a natural-born citizen.

Although he became a naturalized Americancitizen, under the ruling in Bengson v. House ofRepresentatives Electoral Tribunal. 357 SCRA545 [2001], by virtue of his repatriation, Cruz wasrestored to his original status as a natural-born

Filipino citizen.

Effects of Marriages (1999)No III- What are the effects of marriages of:1 a citizen to an alien; (1%)2 an alien to a citizen; on their spousesand children? Discuss. (1%)SUGGESTED ANSWER:1.) According to Section 4, Article IV of theConstitution, Filipino citizens who marry aliensretain their citizenship, unless by their act or



omission they are deemed, under the law, tohave renounced it.

2) According to Mo Ya Lim Yao v. Commissionerof Immigration, 41 SCRA 292, under Section 15 ofthe Revised Naturalization Law, a foreign womanwho marries a Filipino citizen becomes a Filipinocitizen provided she possesses none of thedisqualifications for naturalization. A foreign man

who marries a Filipino citizen does not acquirePhilippine citizenship. However, under Section 3of the Revised Naturalization Act, in such a casethe residence requirement for naturalization will bereduced from ten (10) to five (5) years. UnderSection 1(2), Article IV of the Constitution, thechildren of an alien and a Filipino citizen arecitizens of the Philippines.

Effects of Philippine Bill of 1902 (2001)No I - From mainland China where he was bornof Chinese parents, Mr Nya Tsa Chan migrated

to the Philippines in 1894. As of April 11, 1899,he was already a permanent resident of thePhilippine Islands and continued to reside in thiscountry until his death. During his lifetime andwhen he was already in the Philippines, Mr. NyaTsa Chan married Charing, a Filipina, with whomhe begot one son, Hap Chan, who was born onOctober 18. 1897. Hap Chan got married also toNimfa, a Filipina, and one of their children wasLacqui Chan who was born on September 27,1936. Lacqui Chan finished the course Bachelorof Science in Commerce and eventually engaged

in business.In the May 1989 election, Lacqui Chan ran for andwas elected Representative (Congressman). His rivalcandidate, Ramon Deloria, filed a quo warranto ordisqualification case against him on the ground thathe was not a Filipino citizen. It was pointed out inparticular, that Lacqui Chan did not elect Philippinecitizenship upon reaching the age of 21.

Decide whether Mr. Lacqui Chan suffers from adisqualification or not. (5%)

SUGGESTED ANSWER:Lacqui Chan is a Filipino citizen and need notelect Philippine citizenship. His father, Hap Chan,was a Spanish subject, was residing in thePhilippines on April 11, 1899, and continued toreside in the Philippines. In accordance withSection 4 of the Philippine Bill of 1902, he was aFilipino citizen. Hence, in accordance withSection 1(3} of the 1935 Constitution, LacquiChan is a natural born Filipino citizen, since hisfather was a Filipino citizen.

Elected Official (1992)No. 16: Edwin Nicasio, born in the Philippines ofFilipino parents and raised in the province ofNueva Ecija, ran for Governor of his homeprovince. He won and he was sworn into office. Itwas recently revealed, however, that Nicasio is anaturalized American citizen. a) Does he stillpossess Philippine citizenship? b) If the

second-placer in the gubernatorialelections files a quo warranto suit againstNicasio and he is found to be disqualifiedfrom office, can the second-placer be sworn

into office as governor? c) If, instead, Nicasiohad been born (of the

same set of parents) in the United Statesand he thereby acquired Americancitizenship by birth, would your answer be

different? SUGGESTED ANSWER: a) No, Nicasiono longer possesses Philippine citizenship. As heldin Frivaldo vs. COMELEC, 174 SCRA 245, bybecoming a naturalized American citizen, Nicasio

lost his Philippine citizenship. Under Section 1(1) ofCommonwealth Act No. 63, Philippine citizenship islost by naturalization in a foreign country,

b) 2nd placer can’t be sworn to office...

c) If Nicasio was born in the United States, hewould still be a citizen of the Philippines, since hisparents are Filipinos. Under Section 1(2), thosewhose fathers or mothers are citizens of thePhilippines are citizens of the Philippines. Nicasiowould possess dual citizenship, since under

American Law persons born in the United Statesare American citizens. As held in Aznor vs.COMELEC. 185 SCRA 703, a person whopossesses both Philippine and Americancitizenship is still a Filipino and does not lose hisPhilippine citizenship unless he renounces it.

Electing Philippine Citizenship (Q8-2006)1. Atty. Emily Go, a legitimate daughter of a

Chinese father and a Filipino mother, was born in1945. At 21, she elected Philippine citizenshipand studied law. She passed the barexaminations and engaged in private practice formany years. The Judicial and Bar Councilnominated her as a candidate for the position of

Associate Justice of the Supreme Court. But hernomination is being contested by Atty. JurisCastillo, also an aspirant to the position. She



claims that Atty. Emily Go is not anatural-born citizen, hence, not qualified tobe appointed to the Supreme Court. Is thiscontention correct? (5%)

SUGGESTED ANSWER:The contention is not correct. Under Article IV,Section 1(3) of the 1987 Constitution, it isprovided that those born before January 17, 1973of Filipino mothers, who elect Philippine

Citizenship upon reaching the age of majority areFilipino citizens. Atty. Emily Go was born of aFilipino mother in 1945 and elected citizenshipupon reaching the age of 21. She is a natural bornFilipino citizen as provided by Article IV, Section 2of the Constitution — "x x x those who electPhilippine citizenship in accordance withparagraph (3), Section 1 hereof shall be deemednatural-born citizens." Hence she is qualified to beappointed to the Supreme Court.

Electing Philippine Citizenship; When Proper

(Q8-2006)2. Atty. Richard Chua was born in 1964. He isa legitimate son of a Chinese father and a Filipinomother. His father became a naturalized Filipinocitizen when Atty. Chua was still a minor.Eventually, he studied law and was allowed by theSupreme Court to take the bar examinations,subject to his submission to the Supreme Courtproof of his Philippine citizenship. Although henever complied with such requirement, Atty. Chuapracticed law for many years until one NoelEugenio filed with the Supreme Court a complaint

for disbarment against him on the ground that he isnot a Filipino citizen. He then filed with the Bureauof Immigration an affidavit electing Philippinecitizenship. Noel contested it claiming it was filedmany years after Atty. Chua reached the age ofmajority. Will Atty. Chua be disbarred? Explain.(5%)

SUGGESTED ANSWER:No, Atty. Chua will not be disbarred. Atty. Chua is

already a Filipino citizen and there was no needfor him to file the affidavit electing Filipinocitizenship. An election of Philippine citizenshippresupposes that the person electing is an alien.His father, however, already became a Filipinocitizen when Atty. Chua was still a minor andthus, he was already a Filipino before the age ofmajority (Co v. HRET, G.R. Nos. 92191-92, July30,1991).

Natural Born Filipino (1989)

No, 2: (2) A child was born to a Japanese fatherand a Filipina mother. Would he be eligible to runfor the position of Member of the House ofRepresentatives upon reaching twenty-five yearsof age?SUGGESTED ANSWER:The child can run for the House of Representativesprovided upon reaching the age of majority heelected Philippine citizenship. Under Section 6,

Article VI of the 1987 Constitution, to qualify to bea member of the House of Representatives, onemust be a natural-born Philippine citizen.

According to Section 1 (3), Article IV of the 1987Constitution, children born before January 17,1973 of Filipino mothers, who elect Philippinecitizenship upon reaching the age of majority arePhilippine citizens.

Section 2, Article IV of the 1987 Constitutionprovides: "Those who elect Philippine citizenship inaccordance with paragraph (3), Section 1 hereof

shall be deemed natural-born citizens." On theother hand, if the child was born after January 17,1973, he would be considered a natural borncitizen without need of election pursuant to Art. IV,Sec. 1(2).

Natural Born Filipino (1998)No IV - Andres Ang was born of a Chinese fatherand a Filipino mother in Sorsogon, Sorsogon. OnJanuary 20, 1973, in 1988, his father wasnaturalized as a Filipino citizen. On May 11, 1998,

Andres Ang was elected Representative of theFirst District of Sorsogon. Juan Bonto whoreceived the second highest number of votes,filed a petition for Quo Warranto against Ang. Thepetition was filed with the House ofRepresentative Electoral Tribunal (HRET). Bontocontends that Ang is not a natural born citizen ofthe Philippines and therefore is disqualified to bea member of the House.

The HRET ruled in favor of Ang. Bonto filed apetition for certiorari in the Supreme Court. Thefollowing issues are raised:

(1) Whether the case is justiciable considering that Article VI. Section 17 of the Constitution declaresthe HRET to be the "sole Judge" of all contestsrelating to the election returns anddisqualifications of members of the House ofRepresentatives. [5%](2) Whether Ang is a natural bom citizen of thePhilippines. |5%] How should this case bedecided? SUGGESTED ANSWER:



1. The case is justiciable. (grave abuse ofdiscretion)...2. Andres Ang should be considered a naturalborn citizen of the Philippines. He was born of aFilipino mother on January 20, 1973. This wasafter the effectivity of the 1973 Constitution onJanuary 17, 1973. Under Section (1), Article III ofthe 1973 Constitution, those whose fathers ormothers are citizens of the Philippines are citizens

of the Philippines. Andres Ang remained a citizenof the Philippines after the effectivity of the 1987Constitution. Section 1, Article IV of the 1987Constitution provides: "The following are citizensof the Philippines: "(l) Those who are citizens ofthe Philippines at the time of the adoption of thisConstitution;"

Natural-Born Filipino(1993)No. 1: In 1964, Ruffa, a Filipina domestic helperworking in Hongkong, went to Taipei for avacation, where she met Cheng Sio Pao, whomshe married. Under Chinese Law, Ruffa

automatically became a Chinese citizen. Thecouple resided in Hongkong, where on May 9,1965, Ruffa gave birth to a boy named Ernest.Upon reaching the age of majority, Ernest electedPhilippine citizenship. After the EDSA Revolution,Ernest decided to live permanently in thePhilippines, where he prospered as abusinessman. During the May 11, 1993 election,Ernest ran and won as a congressman. Hisopponent, noting Ernest's Chinese ancestry, filed apetition to disqualify the latter on the followinggrounds; (1) Ernest Cheng is not a natural born

Filipino; and (2) he is under-aged. Decide.SUGGESTED ANSWER:1) Ernest cannot be disqualified. Section 1, ArticleIV of the Constitution provides: "The following arecitizens of the Philippines; XXX XXX XXX "(3)Those born before January 17, 1973, of Filipinomothers, who elect Philippine citizenship uponreaching the age of majority;" Ernest could electPhilippine citizenship since he was born beforeJanuary 17, 1973 and his mother is a Filipino. Asstated in the cases of Torres vs. Tan Chim, 69 Phil.518 and Cu vs. Republic, 83 Phil. 473, for this

provision to apply, the mother need not be aFilipino citizen at the time she gave birth to thechild in question. It is sufficient that she was aFilipino citizen at the time of her marriage.Otherwise, the number of persons who would bebenefited by the foregoing provision would belimited.

Having elected Philippine citizenship, Ernest is anatural-born Filipino citizen in accordance

with Section 2, Article IV of the Constitution,which reads:

Those who elect Philippine citizenship inaccordance with paragraph (3), Section 1hereof shall be deemed natural born citizens."

2) Ernest is not under-aged. (minimum 25 yrs

old)....

Naturalization; Cancellation of Citizenship(1998)No X. - Lim Tong Biao, a Chinese citizen appliedfor and was granted Philippine citizenship by thecourt. He took his oath as citizen of the Philippinesto July 1963, in 1975, the Office of the SolicitorGeneral filed a petition to cancel his Philippinecitizenship for the reason that in August 1963, theCourt of Tax Appeals found him guilty of taxevasion for deliberately understating his incometaxes for the years 1959-1961.

(1) Could Lim Tong Biao raise the defense of

prescription of the action for cancellation of hisFilipino citizenship? [3%](2) Supposing Lim Tong Biao had availed of theTax Amnesty of the government for his taxliabilities, would this constitute a valid defense tothe cancellation of his Filipino citizenship? [2%]

SUGGESTED ANSWER:1. No, Lim Tong Biao cannot raise the defense ofprescription. As held in Republic us. Go Bon Lee,1 SCRA 1166, 1170, a decision grantingcitizenship is not res judicata and the right of thegovernment to ask for the cancellation of acertificate cancellation is not barred by the lapseof time.

2. The fact that Lim Tong Biao availed of the taxamnesty is not a valid defense to the cancellationof his Filipino citizenship. In Republic vs. Li Yao,214 SCRA 748, 754, the Supreme Court held:

"In other words, the tax amnesty does not havethe effect of obliterating his lack of good moralcharacter and irreproachable conduct whichare grounds for denaturalization,"

Residency Requirements; Elective Official(Q9-2005)(1) In the May 8,1995 elections for localofficials whose terms were to commence on June30, 1995, Ricky filed on March 20, 1995 hiscertificate of candidacy for the Office of Governorof Laguna. He won, but his qualifications as anelected official was questioned. It is admitted that



lawfully married just two years ago. Is Miguel Sina Filipino citizen?SUGGESTED ANSWER:Miguel Sin is a Filipino citizen because he is thelegitimate child of a Filipino mother. Under ArticleIV, Section 4 of the 1987 Constitution, his motherretained her Philippine citizenship despite hermarriage to an alien husband, and according to

Article IV, Section 1(2) of the 1987 Constitution,

children born of a Filipino mother are Filipinocitizens.

Ways of Reacquiring Citizenship (2000)No XVIII. - Cruz, a Filipino by birth, became an

American citizen. In his old age he has returnedto the country and wants to become a Filipinoagain. As his lawyer, enumerate the ways bywhich citizenship may be reacquired. (2%)SUGGESTED ANSWER:Cruz may reacquire Philippine citizenship in thefollowing ways:1 By naturalization;

2 By repatriation pursuant to Republic Act No.8171; and3 By direct act of Congress (Section 2 ofCommonwealth Act No. 63).

ARTICLE VI LegislativeDepartment

Appropriation of Public Funds (1988)No. 6: - Metropolitan newspapers have reported thatthe Philippine Games and Amusement Corporation(PAGCOR) gives hefty contributions to Malacanang,

to fund "socioeconomic and civic projects" of thePresident, The reports add that for 1988 alone,some six hundred million (P600M) pesos havealready been earmarked for remittance to the Officeof the President. PAGCOR had also been reportedto have funded, as coordinated by a Congressmanfrom Mindanao, special projects of quite a number ofmembers of the House of Representatives.

Assuming that money earned by PAGCOR from its

operations are public funds, are such contributionsto Malacañang and to certain Congressmen andtheir expenditure as reported, legal? Citeconstitutional or decisional rules in support of youranswer.SUGGESTED ANSWER:The contributions made to Malacañang and tocertain congressmen are Illegal. Under art. VI, sec.29(1) no money can be paid out of the Treasuryexcept in pursuance of an appropriation made bylaw. The disbursement

of public funds by PAGCOR, not being madepursuant to an appropriation made by law,violates the Constitution.

Appropriation of Public Funds; Debt Servicing(1992)No 13: Explain how the automatic appropriation ofpublic funds for debt servicing can be reconciledwith Article VI, Section 29(1) of the Constitution.

Said provision says that "no money shall be paidout of the Treasury except in pursuance of anappropriation made by law".SUGGESTED ANSWER:

As stated in Guingona vs. Carague, 196 SCRA221, the presidential decrees providing for theappropriation of funds to pay the public debt do notviolate Section 29(1), Article VI of the Constitution.They provide for a continuing appropriation, thereis no constitutional prohibition against this. Thepresidential decrees appropriate as much moneyas is needed to pay the principal, interest, taxesand other normal banking charges on the loan.

Although no specific amounts are mentioned, theamounts are certain because they can becomputed from the books of the National Treasury.

Appropriation of Public Funds; PublicPurposes (1988)No. 7: - Tawi-Tawi is a predominantly Moslemprovince. The Governor, the Vice-Governor, andmembers of its Sangguniang Panlalawigan are allMoslems. Its budget provides the Governor with acertain amount as his discretionary funds.Recently, however, the Sangguniang Panlalawiganpassed a resolution appropriating P100,000 as aspecial discretionary fund of the Governor, to. bespent by him in leading a pilgrimage of hisprovincemates to Mecca, Saudi Arabia, Islam'sholiest city.

Philconsa, on constitutional grounds, has filedsuit to nullify the resolution of the SangguniangPanlalawigan giving the special discretionaryfund to the Governor for the stated purpose. How

would you decide the case? Give your reasons.

SUGGESTED ANSWER:The resolution is unconstitutional First, it violatesart. VI, sec. 29(2) of the Constitution whichprohibits the appropriation of public money orproperty, directly or indirectly, for the use, benefitor support of any system of religion, and, second,it contravenes art. VI, sec, 25(6) which limits theappropriation of discretionary funds only for publicpurposes.



The use of discretionary funds for purely religiouspurpose is thus unconstitutional, and the fact thatthe disbursement is made by resolution of a locallegislative body and not by Congress does notmake it any less offensive to the Constitution.

Above all, the resolution constitutes a clearviolation of the Non-establishment Clause (art. III,sec. 5) of the Constitution.

Commission on Appointments (2002)No III - Suppose there are 202 members in theHouse of Representatives. Of this number, 185belong to the Progressive Party of the Philippinesor PPP, while 17 belong to the Citizens Party orCP. How would you answer the following questionsregarding the representation of the House in theCommission on Appointments?

A. A How many seats would the PPP be entitledto have in the Commission on Appointments?Explain your answer fully. (5%)

B. Suppose 15 of the CP representatives, whilemaintaining their party affiliation, entered into apolitical alliance with the PPP in order to form the"Rainbow Coalition'' in the House. What effect, ifany, would this have on the right of the CP to havea seat or seats in the Commission on

Appointments? Explain your answer fully. (5%)

SUGGESTED ANSWER: A. The 185 members of the Progressive Party ofthe Philippines represent 91.58 per cent of the 202members of the House of Representatives. Inaccordance with Article VI, Section 18 of theConstitution, it is entitled to have ten of the twelveseats in the Commission on Appointments.

Although the 185 members of Progressive Party ofthe Philippines represent10.98 seats in the Commission on Appointments,under the ruling in Guingona v. Gonzales, 214SCRA 789 (1992), a fractional membership cannotbe rounded off to full membership because it willresult in over-representation of that political partyand under-representation of the other politicalparties.

B. The political alliance formed by the 15members of the Citizens Party with theProgressive Party of the Philippines will not resultin the diminution of the number of seats in theCommission on Appointments to which theCitizens Party is entitled. As held in Cunanan v.Tan, 5 SCRA 1 (1962), a temporary alliancebetween the members of one political party andanother political party does not authorize achange in the membership of the

Commission on Appointments, Otherwise, theCommission on Appointments will have to bereorganized as often as votes shift from one side toanother in the House of Representatives.

Delegation of Powers (2002)No XVII. - Suppose that Congress passed a lawcreating a Department of Human Habitat and

authorizing the Department Secretary topromulgate implementing rules and regulations.Suppose further that the law declared that violationof the implementing rules and regulations soissued would be punishable as a crime andauthorized the Department Secretary to prescribethe penalty for such violation. If the law definescertain acts as violations of the law and makesthem punishable, for example, with imprisonmentof three (3) years or a fine in the amount ofP10,000.00, or both such imprisonment and fine,in the discretion of the court, can it be provided inthe implementing rules and regulations

promulgated by the Department Secretary thattheir violation will also be subject to the samepenalties as those provided in the law itself?Explain your answer fully. (5%)

SUGGESTED ANSWER:The rules and regulations promulgated by theSecretary of Human Habitat cannot provide thatthe penalties for their violation will be the sameas the penalties for the violation of the law. Asheld in United States v. Barrias, 11 Phil. 327(1908), the fixing of the penalty for criminal

offenses involves the exercise of legislativepower and cannot be delegated. The law itselfmust prescribe the penalty.

Delegation of Powers; (Q6-2005)(2) Section 32 of Republic Act No. 4670 (TheMagna Carta for Public School Teachers) reads:

Sec. 32. Penal Provision. — A person who shallwillfully interfere with, restrain or coerce anyteacher in the exercise of his rights guaranteedby this Act or who shall in any other mannercommit any act to defeat any of the provisions of

this Act shall, upon conviction, be punished by afine of not less than one hundred pesos normore than one thousand pesos, or byimprisonment, in the discretion of the court.

Is the proviso granting the court the authority toimpose a penalty or imprisonment in its discretionconstitutional? Explain briefly. (4%)SUGGESTED ANSWER:



The proviso is unconstitutional. Section 32 ofR.A. No. 4670 provides for an indeterminableperiod of imprisonment, with neither a minimumnor a maximum duration having been set by thelegislative authority. The courts are thus givenwide latitude of discretion to fix the term ofimprisonment, without even the benefit of anysufficient standard, such that the duration thereofmay range, in the words of respondent judge,

from one minute to the life span of the accused.This cannot be allowed. It vests in the courts apower and a duty essentially legislative in natureand which, as applied to this case, does violenceto the rules on separation of powers as well asthe non-delegability of legislative powers. (Peoplev. Judge Dacuycuy,G.R. No. L-45127, May 5, 1989)

Delegation of Powers; Completeness Test;Sufficient Standard Test (Q6-2005)(1) The two accepted tests to determinewhether or not there is a valid delegation of

legislative power are the Completeness Test andthe Sufficient Standard Test. Explain each. (4%)

ALTERNATIVE ANSWER:Under the COMPLETENESS TEST, a law mustbe complete in all its terms and provisions whenit leaves the legislature that nothing is left to theudgment of the delegate. The legislature doesnot abdicate its functions when it describes whatob must be done, who is to do it, and what is thescope of his authority. However, a delegation ofpower to make the laws which necessarilyinvolves a discretion as to what it shall be maynot constitutionally be done. (Eduv. Ericta, G.R. No. L-32096, October 24, 1970)

Under the SUFFICIENCY OF STANDARDSTEST, the statute must not only define afundamental legislative policy, mark its limits andboundaries, and specify the public agency toexercise the legislative power. It must alsoindicate the circumstances under which thelegislative command is to be effected. To avoidthe taint of unlawful delegation, there must be a

standard, which implies at the very least that thelegislature itself determines matters of principleand lays down fundamental policy. (FreeTelephone Workers Union v. Minister of Labor,G.R. No. L-58184, October 30, 1981)

ALTERNATIVE ANSWER:COMPLETENESS TEST. The law must becomplete in all its essential terms and conditionswhen it leaves the legislature so that there will benothing left for the delegate to do

when it reaches him except to enforce it. (SeeITS v. Ang Tang Ho, G.R. No. L-17122, February27, 1922)

SUFFICIENT STANDARD TEST. A sufficientstandard is intended to map out the boundaries ofthe delegate's authority by defining the legislativepolicy and indicating the circumstances underwhich it is to be pursued and effected; intended to

prevent a total transference of legislative powerfrom the legislature to the delegate. The standard isusually indicated in the law delegating legislativepower. (See Ynot u. Intermediate Appellate Court,G.R. No. 74457, March 20, 1987)

Discipline; Modes of Removal (1993)No. 11: - How may the following be removedfrom office: 1) Senators & Congressmen 2)Judges of lower courts 3) Officers andemployees in the Civil Service

SUGGESTED ANSWER:1) In accordance with Art. III, section 16(3), of theConstitution, Senators and Congressmen may beremoved by their EXPULSION for disorderlybehavior, with the concurrence of at leasttwo-thirds of all the members of the House towhich they belong. In addition, they may also beremoved in consequence of an election contestfiled with the Senate or House of RepresentativesElectoral Tribunal.

2) As to Judges, Art. VIII, sec. 11 of theConstitution, ....

3) As to Civil Service Employees, Art. IX-B. Sec.2(3) of the Constitution....

Discipline; Suspension of a Member of theCongress (2002)No II. - Simeon Valera was formerly a ProvincialGovernor who ran and won as a Member of theHouse of Representatives for the SecondCongressional District of lloilo. For violation ofSection 3 of the Anti-Graft and Corrupt Practices

Act (R.A. No.3019), as amended, allegedlycommitted when he was still a ProvincialGovernor, a criminal complaint was filed againsthim before the Office of the Ombudsman forwhich, upon a finding of probable cause, acriminal case was filed with the Sandiganbayan.During the course of trial, the Sandiganbayanissued an order of preventive suspension for 90days against him.



Representative Valera questioned the validity ofthe Sandiganbayan order on the ground that,under Article VI, Section 16(3) of the Constitution,he can be suspended only by the House ofRepresentatives and that the criminal caseagainst him did not arise from his actuations as amember of the House of Representatives. IsRepresentative Valera's contention correct? Why?(5%)

SUGGESTED ANSWER:The contention of Representative Valera is notcorrect As held in Santiago v. Sandiganbayan,356 SCRA 636, the suspension contemplated in

Article VI, Section 16(3) of the Constitution is apunishment that is imposed by the Senate orHouse of Representatives upon an erringmember, it is distinct from the suspension underSection 13 of the Anti-Graft and Corrupt Practices

Act, which is not a penalty but a preventivemeasure. Since Section 13 of the Anti-Graft andCorruption Practices Act does not state that thepublic officer must be suspended only in the office

where he is alleged to have committed the actswhich he has been charged, it applies to anyoffice which he may be holding.

Elected Official; De Facto Officer (2004) (10-b) AVE ran for Congressman of QU province.However, his opponent, BART, was the oneproclaimed and seated as the winner of theelection by the COMELEC. AVE filed seasonablya protest before HRET (House of RepresentativesElectoral Tribunal). After two years, HRETreversed the COMELEC's decision and AVE wasproclaimed finally as the duly electedCongressman. Thus, he had only one year toserve in Congress.

Can AVE collect salaries and allowances fromthe government for the first two years of his termas Congressman?

Should BART refund to the government thesalaries and allowances he had received asCongressman?

What will happen to the bills that BART aloneauthored and were approved by the House ofRepresentatives while he was seated asCongressman? Reason and explain briefly. (5%)

SUGGESTED ANSWER: AVE cannot collectsalaries and allowances from the government forthe first two years of his term, because in themeanwhile BART collected the salaries andallowances. BART

was a de facto officer while he was in possessionof the office. To allow AVE to collect the salariesand allowances will result in making thegovernment pay a second time. (Mechem, ATreatise on the Law of Public Offices and PublicOfficers, [1890] pp. 222-223.)

BART is not required to refund to the governmentthe salaries and allowances he received. As a de

facto officer, he is entitled to the salaries andallowances because he rendered services duringhis incumbency. (Rodriguez v. Tan, 91 Phil. 724[1952])

The bills which BART alone authored and wereapproved by the House of Representatives arevalid because he was a de facto officer duringhis incumbency. The acts of a de facto officer arevalid insofar as the public is concerned. (Peoplev. Garcia, 313 SCRA 279 [1999]).

Electoral Tribunal; HRET Members’ Right &

Responsibilities (2002)No IV. In an election case, the House ofRepresentatives Electoral Tribunal rendered adecision upholding the election protest ofprotestant A, a member of the Freedom Party,against protestee B, a member of the FederalParty. The deciding vote in favor of A was cast byRepresentative X, a member of the Federal Party.

For having voted against his party mate,Representative X was removed by Resolution ofthe House of Representatives, at the instance ofhis party (the Federal Party), from membership inthe HRET. Representative X protested hisremoval on the ground that he voted on the basisof the evidence presented and contended that hehad security of tenure as a HRET Member andthat he cannot be removed except for a validcause.

With whose contention do you agree, that of theFederal Party or that of Representative X? Why?(5%)SUGGESTED ANSWER:

I agree with the contention of Representative X. Asheld In Bondoc v. Pineda, 201 SCRA 792 (1991),the members of the House of RepresentativesElectoral Tribunal are entitled to security of tenurelike members of the judiciary. Membership in it maynot be terminated except for a just cause. Disloyaltyto party is not a valid ground for the expulsion of amember of the House of Representatives ElectoralTribunal. Its members must discharge theirfunctions with impartiality and



independence from the political party to whichthey belong.

Electoral Tribunal; Senate; Jurisdiction (1990)

No. 3: Y was elected Senator in the May 1987national elections. He was born out of wedlock in1949 of an American father and a naturalizedFilipina mother. Y never elected Philippine

citizenship upon reaching the age of majority.Before what body should T, the losingcandidate, question the election of Y?

State the reasons for your answer. Is Y aFilipino citizen? Explain your answer.SUGGESTED ANSWER:(1) T, the losing candidate, should question theelection of Y before the Senate Electoral Tribunal,because the issue involved is the qualification ofY to be a Senator. Section 17, Article VI of the1987 Constitution provides that. The Senate andthe House of Representatives shall each-have anElectoral Tribunal which shall be the sole judge of

all contests relating to the election, returns, andqualifications of their respective Members."

(2) Yes, Y is a natural born Filipino citizen. ....

Foreign Affairs; Role of House of Rep (1996)No. 7: 5) Can the House of Representatives takeactive part in the conduct of foreign relations,particularly in entering into treaties andinternational agreements? Explain.SUGGESTED ANSWER:No, the House of Representatives cannot takeactive part in the conduct of foreign relations,particularly in entering into treaties andinternational agreements. As held in United Statesvs. Curtiss-Wright Export Corporation, 299 U.S.304, the President alone is the representative ofthe nation in the conduct of foreign affairs.

Although the Senate has the power to concur intreaties, the President alone negotiates treatiesand Congress is powerless to intrude into this.However, if the matter involves a treaty or anexecutive agreement, the House ofRepresentatives may pass a resolution

expressing its views on the matter.

Foreign Affairs; Role of Senate (1994)No. 13: 1) Under the Constitution, what is therole of the Senate in the conduct of foreignaffairs?SUGGESTED ANSWER:The Senate plays a role in the conduct of foreignaffairs, because of the requirement in Section 21,

Article VII of the Constitution that to be valid andeffective a treaty or international

agreement must be concurred in by at leasttwo-thirds of all the Members of the Senate.

Section 4, Article XVIII of the Constitutionprovides: "All existing treaties or internationalagreements which have not been ratified shall notbe renewed or extended without the concurrenceof at least two-thirds of all the Members of theSenate.‖

Investigations in Aid of Legislation (1992)No. 8: A case was filed before the Sandiganbayanregarding a questionable government transaction.In the course of the proceedings, newspaperslinked the name of Senator J. de Leon to thescandal.

Senator de Leon took the floor of the Senate tospeak on a "matter of personal privilege" tovindicate his honor against those "baseless andmalicious" allegations. The matter was referred tothe Committee on Accountability of Public

Officers, which proceeded to conduct a legislativeinquiry. The Committee asked Mr. VinceLedesma, a businessman linked to the transactionand now a respondent before the Sandiganbayan,to appear and to testify before the Committee.

Mr Ledesma refuses to appear and file suit beforethe Supreme Court to challenge the legality of theproceedings before the Committee. He also askswhether the Committee had the power to requirehim to testify.

Identify the issues Involved and resolve them.SUGGESTED ANSWER:The issues involved in this case are the following:

1 Whether or not the Supreme Court hasurisdiction to entertain the case;2 Whether or not the Committee on

Accountability of Public Officers has the power toinvestigate a matter which is involved in a casepending in court; and3 Whether or not the petitioner can invoke

his right against self-incrimination.



All these Issues were resolved in the case ofBengzon vs. Senate Blue Ribbon Committee,203 SCRA 767.

The Supreme Court has jurisdiction over the case(determination of grave abuse of discretion)....



provides: "No law shall be passed authorizing anytransfer of appropriations; however, the President,the President of the Senate, the Speaker of theHouse of Representatives, the Chief Justice of theSupreme Court, and the heads of ConstitutionalCommissions may, by law, be authorized toaugment any item in the



general appropriation law for their respectiveoffices from savings in other Items of theirrespective appropriations."

In Philippine Constitution vs Enriquez, 235 SCRA506, 544, the Supreme Court held that a provision inthe General Appropriation Act authorizing the Chiefof Staff to use savings to augment the funds of the

AFP Retirement and Separation Benefits Systems

was unconstitutional. "While Section 25(5) allows asan exception the realignment of savings to augmentitems in the general appropriations law for theexecutive branch, such right must and can beexercised only by the President pursuant to a specificlaw."

Law-Making; Appropriation Law; RiderProvision (2001)No VII - Suppose that the forthcoming General

Appropriations Law for Year 2002, in the portionpertaining to the Department of Education,

Culture and Sports, will contain a provision to theeffect that the Reserve Officers Training Course(ROTC) in all colleges and universities is herebyabolished, and in lieu thereof all male collegestudents shall be required to plant ten(10) trees every year for two (2) years in areas tobe designated by the Department of Environmentand Natural Resources in coordination with theDepartment of Education, Culture and Sports andthe local government unit concerned. It furtherprovides that the same provision shall beincorporated In future General appropriations Acts.There is no specific item of appropriation of fundsfor the purpose.Comment on the constitutionalityof said provision. (5%)

SUGGESTED ANSWER:The provision is unconstitutional, because it is arider. Section 25(2), Article VI of the Constitutionprovides, "No provision or enactment shall beembraced in the general appropriations bill unless itrelates specifically to some particular appropriationtherein." The abolition of the Reserve OfficersTraining Course involves a policy matter. As held inPhilippine Constitution Association vs. Enriquez,

235 SCRA 506 (1994), this cannot be incorporatedin the General Appropriations Act but must beembodied in a separate law.

Law-Making; Foreign Affairs; Treaties (1996)No 5: Are the following bills filed in Congressconstitutional? 2) A bill creating a jointlegislative-executive commission to give, onbehalf of the Senate, its advice, consent andconcurrence to treaties

entered into by the President. The bill containsthe guidelines to be followed by the commissionIn the discharge of its functions. Explain.SUGGESTED ANSWER:

A bill creating a joint legislative-executivecommission to give, on behalf of the Senate, itsadvice, consent and concurrence to treatiesentered into by the President. The Senate cannotdelegate this function to such a commission,

because under Section 21, Article VII of theConstitution, the concurrence of at leasttwo-thirds of the Senate itself is required for theratification of treaties.

Law-Making; Overriding the Presidential Veto(1991)No. 2: The President signs into law the

Appropriations Act passed by Congress but shevetoes separate items therein, among which is aprovision stating that the President may notincrease an item of appropriation by transfer ofsavings from other items.

The House of Representatives chooses not tooverride this veto. The Senate, however,proceeds to consider two options: (1) to overridethe veto and (2) to challenge the constitutionalityof the veto before the Supreme Court. a) Is option(1) viable? If so. what is the vote

required to override the veto? b) Is option (2)viable? If not. why not? If

viable, how should the Court decide thecase? SUGGESTEDANSWER:(a) Option 1 is not viable in as much as the Houseof Representatives, from which the Appropriations

Act originated and to which the President musthave returned the law, is unwilling to override thepresidential veto. There is, therefore, no basis forthe Senate to even consider the possibility ofoverriding the President's veto. Under theConstitution the vote of two-third of all themembers of the House of Representatives andthe Senate, voting separately, will be needed tooverride the presidential veto.

(b) It is not feasible to question the constitutionalityof the veto before the Supreme Court. In Gonzalesvs. Macaraig, 191 SCRA 152, the Supreme Courtupheld the constitutionality of a similar veto. Under

Article VI, Sec. 27(2) of the Constitution, a distinctand severable part of the General Appropriationsact may be the subject of a separate veto.Moreover, the vetoed provision does not relate toany particular appropriation and is more an



expression of a congressional policy in respect ofaugmentation from savings than a budgetaryprovision. It is therefore an inappropriateprovision and it should be treated as an item forpurposes of the veto power of the President.

The Supreme Court should uphold the validity ofthe veto in the event the question is broughtbefore it.

Law-Making; Passage of a Law (1988)No. 12: - 2. A bill upon filing by a Senator or aMember of the House of Representatives goesthrough specified steps before it leaves theHouse of Representatives or the Senate, as thecase may be. After leaving the legislature, pleasename the three methods by which said bill maybecome a law.SUGGESTED ANSWER:

A bill passed by Congress may become a law inany of the following cases: If it is signed into lawby the President. (Art. VI,

sec. 27(1)).

If it is re-passed over the President's veto by thevote of two thirds of all the members of theHouse of Representatives and of the Senate.(Id.)

If the President fails to veto it within thirty daysafter receipt thereof and communicate the vetoto the House from which it originated, (Id.)

Legislative Power; Pres. Aquino’s Time (1990)

No. 1; - Executive Orders Nos. 1 and 2 issued byPresident Corazon C. Aquino created thePresidential Commission on Good Government(PCGG) and empowered it to sequester anyproperty shown prima facie to be ill-gotten wealthof the late President Marcos, his relatives andcronies. Executive Order No. 14 vests on theSandiganbayan jurisdiction to try hidden wealthcases. On April 14, 1986, after an investigation,the PCGG sequestered the assets of XCorporation, Inc. X Corporation, Inc. claimed that

President Aquino, as President, could not lawfully issueExecutive Orders Nos. 1, 2 and 14, whichhave the force of law, on the ground thatlegislation is a function of Congress. Decide.

Said corporation also questioned the validity ofthe three executive orders on the ground that theyare bills of attainder and, therefore,unconstitutional. Decide.SUGGESTED ANSWER:

(1) The contention of X Corporation should berejected. Executive Orders Nos. 1, 2 and 14 wereissued in 1986. At that time President Corazon

Aquino exercised legislative power Section 1, Article II of the Provisional Constitutionestablished by Proclamation No, 3, provided:

"Until a legislature is elected and convenedunder a new constitution, the President shall

continue to exercise legislative power."

Likewise, Section 6, Article XVIII of the 1987Constitution reads:

The incumbent President shall continue toexercise legislative power until the firstCongress is convened."

In the case of Kapatiran ng mga Naglilingkod saPama-halaan ng Pilipinas. Inc. v. Tan, 163 SCRA371. the Supreme Court ruled that the ProvisionalConstitution and the 1987 Constitution, bothrecognized the power of the president to exercise

legislative powers until the first Congress createdunder the 1987 Constitution was convened on July27, 1987.(2) Executive Orders Nos. 1, 2 and 14 are notbills of attainder. ....

Legislative Powers (1989)No. 14: An existing law grants governmentemployees the option to retire upon reaching theage of 57 years and completion of at least 30years of total government service. As a fiscalretrenchment measure, the Office of the Presidentlater issued a Memorandum Circular requiringphysical incapacity as an additional condition foroptional retirement age of 65 years. A governmentemployee, whose application for optionalretirement was denied because he was below 65years of age and was not physically incapacitated,filed an action in court questioning the disapprovalof his application claiming that the MemorandumCircular is void. Is the contention of the employeecorrect? Explain.

SUGGESTED ANSWER:Yes, the contention of the employee is correct. In

Marasigan vs. Cruz, 150 SCR A 1, it was held thatsuch a memorandum circular is void. Byintroducing physical capacity as an additionalcondition for optional retirement, thememorandum circular tried to amend the law.Such a power is lodged with the legislative branchand not with the executive branch.

Loans Extended to Members of Congress(1991)



No. 9: A. After 2 February 1987, the PhilippineNational Bank (PNB) grants a loan toCongressman X. Is the loan violative of theConstitution?

Suppose the loan had instead been grantedbefore 2 February 1987, but was outstanding onthat date with a remaining balance on theprincipal in the amount of P50,000.00, can the

PNB validly give Congressman X an extension oftime after said date to settle the obligation?SUGGESTED ANSWER:

A. Whether or not the loan is violative of the 1987Constitution depends upon its purpose. If it wasobtained for a business purpose, it is violative ofthe Constitution. If it was obtained for some otherpurpose, e.g., for housing. It is not violative of theConstitution because under Section 16, Article XI.Members of Congress are prohibited fromobtaining loans from government-owned banksonly if it is for a business purpose.

If the loan was granted before the effectivity ofthe Constitution on February 2, 1987, thePhilippine National Bank cannot extend itsmaturity after February 2, 1987, if the loan wasobtained for a business purpose. In such a casethe extension is a financial accommodation whichis also prohibited by the Constitution.

Multi-Party System (1999)No XIV - Discuss the merits and demerits of themulti-party system. (2%)SUGGESTED ANSWER:

A multi-party system provides voters with agreater choice of candidates, ideas, and platformsinstead of limiting their choice to two parties,whose ideas may be sterile. It also leaves roomfor deserving candidates who are not acceptableto those who control the two dominant parties toseek public office.

On the other hand, a multi-party system maymake it difficult to obtain a stable and workablemajority, since probably no party will get amajority. Likewise, the opposition will be

weakened if there are several minority parties.

Non-Legislative Powers (1988)No. 12: Legislative powers had been vested bythe Constitution in the Congress of thePhilippines. In addition, the Constitution alsogranted the lawmaking body, non-legislativepowers. Kindly name five of the latter.SUGGESTED ANSWER:Congress has the following non-legislativepowers:

(1) To act as national board of canvassersfor President and Vice President. (Art. VII, sec. 4).

(2) To decide whether the President istemporarily disabled in the event he reassumeshis office after the Cabinet, by a majority of vote ofits members, declared that he is unable todischarge the powers and duties of his office andnow within five days insists that the President is

really unable to discharge the powers and dutiesof the presidency. (Art. VII, sec. 11)

(3) To concur in the grant of amnesty by thePresident. (Art. VII, sec. 19),

(4) To initiate through the House ofRepresentatives and, through the Senate, to try allcases of impeachment against the President, VicePresident, the Members of the Supreme Court, theMembers of the Constitutional Commissions andthe Ombudsman, for culpable violation of the

Constitution, treason, bribery, graft and corruption,other high crimes, or betrayal of public trust. (Art.XI, secs. 2-3).

(5) To act as a constituent assembly for therevision or amendment of the Constitution. (Art.XVII).

Non-Legislative Powers; Emergency Powers;Requisites (1997)No. 11: During a period of national emergency.Congress may grant emergency powers to thePresident, State the conditions under which suchvesture is allowed.SUGGESTED ANSWER:Under Section 23(2), Article VI of the Constitution.Congress may grant the President emergencypowers subject to the following conditions:

(1) There is a war or other national emergency:(2) The grant of emergency powers must be fora limited period;(3) The grant of emergency powers is subject tosuch restrictions as Congress may prescribe; and

(4) The emergency powers must be exercised tocarry out a declared national policy.

Prohibitions and Inhibitions of Public Office(2004) (3-a) JAR faces a dilemma: should heaccept a Cabinet appointment now or run later forSenator? Having succeeded in law practice aswell as prospered in private business where heand his wife have substantial investments, he



now contemplates public service but withoutlosing the flexibility to engage in corporate affairsor participate in professional activities withinethical bounds.

Taking into account the prohibitions andinhibitions of public office whether as Senator orSecretary, he turns to you for advice to resolve hisdilemma. What is your advice? Explain briefly.

(5%)SUGGESTED ANSWER:I shall advise JAR to run for SENATOR. As aSenator, he can retain his investments in hisbusiness, although he must make a full disclosureof his business and financial interests and notifythe Senate of a potential conflict of interest if heauthors a bill. (Section 12, Article VI of the 1987Constitution.) He can continue practicing law, buthe cannot personally appear as counsel beforeany court of justice, the Electoral Tribunals, orquasi-judicial and other administrative bodies.(Section 14, Article VI of the 1987 Constitution.)

As a member of the Cabinet, JAR cannot directlyor indirectly practice law or participate in anybusiness. He will have to divest himself of hisinvestments in his business. (Section 13, ArticleVII of the 1987 Constitution.) In fact, theConstitutional prohibition imposed on members ofthe Cabinet covers both public and private officeor employment. (Civil Liberties Union v.Executive Secretary, 194 SCRA 317)

Qualifications; Congressmen (1988)No. 13: -Robert Brown was born in Hawaii on May15, 1962, of an American father and a Filipinamother. On May 16, 1983 while holding an

American passport, he registered as a Filipinowith the Philippine Consulate at Honolulu, Hawaii.In September, 1983 he returned to thePhilippines, and took up residence at Boac,Marinduque, hometown of his mother. Heregistered as a voter, voted, and even participatedas a leader of one of the candidates in that districtin the 1984 Batasan elections. In the elections of1987, he ran for Congressman, and won. His sole

opponent is now questioning his qualifications andis trying to oust him on two basic claims: He is nota natural born Filipino citizen, but is in

fact, an American, born in Hawaii, anintegral portion of the U.S.A., who holds an

American passport; He did not meet the agerequirement; and He has a "green card" from theU.S.

Government.

Assume that you are a member of the HouseElectoral Tribunal where the petition for Brown'souster is pending. How would you decide thethree issues raised against him?SUGGESTED ANSWER:The first and third grounds have no merit. Butthe second is well taken and, therefore, Brownshould be disqualified.1. Robert Brown is a natural born citizen of the

Philippines. A person born of a Filipino motherand an alien father before January 17, 1973, whothereafter upon reaching the age of majority electPhilippine citizenship, is a citizen of thePhilippines (Art. IV, sec. 1(3)). Under Art. IV, sec,2 he is also deemed a natural-born citizen.

2. The Constitution requires, among other things,that a candidate for member of the House ofRepresentatives must be at least 25 years of age"on the day of the election." (Art. VI, sec. 6). AsBrown was born on May 15, 1962, he did not

become 25 years old until May 15, 1987. Henceon May 11, 1987, when the election was held, hewas 4 days short of the required age.

3. The Constitution provides that those who seekeither to change their citizenship or to acquire thestatus of an immigrant of another country "duringtheir tenure" shall be dealt with by law (Art. XI,sec. 17). The provision cannot apply to Brown forthe following reasons: First, Brown is in additionan American citizen and thus has a dualcitizenship which is allowed by the Constitution.(Cf. Art. IV, sec. 4), Second, Brown did not seekto acquire the status of an immigrant, but is an

American by birth under the principle of jus soliobtaining in the United States. Third, he did notseek to change his status during his tenure as apublic officer. Fourth, the provision of Art. XI, sec.17 is not self-executing but requires animplementing law. Fifth, but above all, the HouseElectoral Tribunal has no jurisdiction to decide thisquestion since it does not concern thequalification of a member-elect.

Qualifications; Congressmen; (1993)No. 1: In 1964. Ruffa, a Filipina domestic helperworking in Hongkong, went to Taipei for avacation, where she met Cheng Sio Pao. whomshe married. Under Chinese Law, Ruffaautomatically became a Chinese citizen. Thecouple resided in Hongkong, where on May 9,1965, Ruffa gave birth to a boy named Ernest.Upon reaching the age of majority, Ernest electedPhilippine citizenship. After the EDSA



Revolution, Ernest decided to live permanently inthe Philippines, where he prospered as abusinessman. During the May 11, 1993 election,Ernest ran and won as a congressman. Hisopponent, noting Ernest's Chinese ancestry, filed apetition to disqualify the latter on the followinggrounds; (1) Ernest Cheng is not a natural bomFilipino; and (2) he is underaged. Decide.

SUGGESTED ANSWER:1) Ernest cannot be disqualified.....

2) Ernest is not under-aged. Having been born onMay 9, 1965, he was over twenty-five years old onthe date of the May 11, 1993 election. (Electionwas held on May 11, 1992). Section 6, Article VI ofthe Constitution, requires congressmen to be atleast twenty-five years of age on the day of theelection.

Qualifications; Congressmen; (1999)No III - C. Victor Ahmad was born on December

16, 1972 of a Filipino mother and an alien father.Under the law of his father's country, his motherdid not acquire his father's citizenship. Victorconsults you on December 21, 1993 and informsyou of his intention to run for Congress in the1995 elections. Is he qualified to run? Whatadvice would you give him? Would your answerbe the same if he had seen and consulted you onDecember 16, 1991 and informed you of hisdesire to run for Congress in the 1992 elections?Discuss your answer. (3%)

FIRST ALTERNATIVE ANSWER:C. No, Victor Ahmad is not qualified to run forCongress in the 1995 elections. Under Section 6,

Article VI of the Constitution, a member of theHouse of Representatives must be at leasttwenty-five (25) years of age on the day of theelection. Since he will be less than twenty-five(25) years of age in 1995, Victor Ahmad is notqualified to run.

Under Section 2, Article IV of the Constitution, tobe deemed a natural-born citizen, Victor Ahmadmust elect Philippine citizenship upon reaching

the age of majority. I shall advise him to electPhilippine citizenship, if he has not yet done so,and to wait until the 1998 elections.

My answer will be the same if he consulted mein 1991 and informed me of his desire to run inthe 1992 elections.

SECOND ALTERNATIVE ANSWER:C. Under Section 2, Article IV of the Constitution,Victor Ahmad must have elected

Philippine citizenship upon reaching the age ofmajority to be considered a natural born citizenand qualified to run for Congress. Republic ActNo. 6809 reduced the majority age to eighteen(18) years. Cuenco v. Secretary of Justice, 5SCRA 108 recognized three (3) years fromreaching the age of majority as the reasonableperiod for electing Philippine citizenship. SinceRepublic Act No. 6809 took effect in 1989 and

there is no showing that Victor Ahmad electedPhilippine citizenship within three (3) years fromthe time he reached the age of majority onDecember 16, 199C, he is not qualified to run forCongress.

If he consulted me on December 16, 1991, Iwould inform him that he should elect Philippinecitizenship so that he can be considered anatural born citizen.

Separation of Powers (1988)No. 25: Can any other department or agency of

the Government review a decision of theSupreme Court? Why or why not?SUGGESTED ANSWER:No. The Supreme Court is the highest arbiter oflegal questions. (Javier v. Comelec, 144 SCRA194 (1986)) To allow review of its decision by theother departments of government would upset theclassic pattern of separation of powers anddestroy the balance between the judiciary and theother departments of government. As the Justicessaid in their answer to the complaint forimpeachment in the Committee on Justice of the

House of Representatives, "Just as it iscompletely unacceptable to file charges againstthe individual members of Congress for the lawsenacted by them upon the argument that theselaws are violative of the Constitution, or are abetrayal of public trust, or are unjust. So too,should it be equally impermissible to make theindividual members of the Supreme Courtaccountable for the court's decisions or rulings.

Separation of Powers (2003)No II - A group of losing litigants in a case

decided by the Supreme Court filed a complaintbefore the Ombudsman charging the Justiceswith knowingly and deliberately rendering anunjust decision in utter violation of the penal lawsof the land. Can the Ombudsman validly takecognizance of the case? Explain.SUGGESTED ANSWER:No, the Ombudsman cannot entertain thecomplaint. As stated in the case of In re: Laureta.148 SCRA 382 [1987], pursuant to the principle ofseparation of powers, the



correctness of the decisions of the SupremeCourt as final arbiter of all justiciable disputes isconclusive upon all other departments of thegovernment; the Ombudsman has no power toreview the decisions of the Supreme Court byentertaining a complaint against the Justices ofthe Supreme Court for knowingly rendering anunjust decision.SECOND ALTERNATIVE ANSWER:

Article XI, Section 1 of the 1987 Constitutionprovides that public officers must at all times beaccountable to the people. Section 22 of theOmbudsman Act provides that the Office of theOmbudsman has the power to investigate anyserious misconduct allegedly committed byofficials removable by impeachment for thepurpose of filing a verified complaint forimpeachment if warranted. The Ombudsman canentertain the complaint for this purpose.

Three-Term Limit: Congressmen (1996)No. 13: - X, a member of the House of

Representatives, was serving his third consecutiveterm in the House. In June 1996 he wasappointed Secretary of National Defense. Can herun for election to the Senate in the 1998elections? Explain.

SUGGESTED ANSWER:Yes, X can run for the Senate in the 1988 election.Under Section 7, Article X of the Constitution,having served for three consecutive terms asMember of the House of Representatives. X is onlyprohibited from running for the same position.

Three-Term Limit; Congressmen (2001)No V - During his third term, "A", a Member of theHouse of Representatives, was suspended fromoffice for a period of 60 days by his colleaguesupon a vote of two-thirds of all the Members ofthe House. In the next succeeding election, hefiled his certificate of candidacy for the sameposition. "B", the opposing candidate, filed anaction for disqualification of "A" on the groundthat the latter's, candidacy violated Section 7.

Article VI of the Constitution which provides that

no Member of the House of Representatives shallserve for more than three consecutive terms. "A"answered that he was not barred from runningagain for that position because his service wasinterrupted by his 60day suspension which wasinvoluntary. Can 'A', legally continue with hiscandidacy or is he already barred? Why? (5%)

SUGGESTED ANSWER:"A" cannot legally continue with his candidacy.He was elected as Member of the House of

Representatives for a third term. This term shouldbe included in the computation of the term limits,even if "A" did not serve for a full term. (Record ofthe Constitutional Commission, Vol. n, p. 592.) Heremained a Member of the House ofRepresentatives even if he was suspended.

ARTICLE VII ExecutiveDepartment

Appointing Power; Acting vs. Permanent

Appointment (2003)No V - What is the nature of an "actingappointment" to a government office? Does suchan appointment give the appointee the right toclaim that the appointment will, in time, ripen intoa permanent one? Explain.SUGGESTED ANSWER:

According to Sevilla v. Court of Appeals. 209

SCRA 637 [1992], an acting appointment ismerely temporary. As held in Marohombsar v.

Alonto, 194 SCRA 390 [1991], a temporaryappointment cannot become a permanentappointment, unless a new appointment which ispermanent is made. This holds true unless theacting appointment was made because of atemporary vacancy. In such a case, the temporaryappointee holds office until the assumption ofoffice by the permanent appointee.

Appointing Power; ad interim appointments

(1991)No. 3: - On 3 May 1992, while Congress is on ashort recess for the elections, the presidentappoints Renato de Silva to the rank of General(4-star) in the Armed Forces. She also designateshim as Chief of Staff of the AFP. He immediatelytakes his oath and assumes that office, with therank of 4-star General of the AFP.

When Congress resumes its session on 17 May1992, the Commission on Appointments informs

the Office of the President that it has receivedfrom her office only the appointment of De Silva tothe rank of 4-star General and that unless hisappointment to the Office of the Chief of Staff ofthe AFP is also submitted, the Commission will notact on the matter.

The President maintains that she has submittedto the Commission all that the Constitution callsfor.(a) Who is correct?



(b) Did Gen. de Silva violate the Constitution inimmediately assuming office prior to aconfirmation of his appointment?(c) Are the appointment and designation valid?SUGGESTED ANSWER:(a) The President is correct. Under PresidentialDecree No. 360, the grade of four-star general isconferred only upon the Chief of Staff. Hence, theappointment of Renato de Silva as a four-star

general must be deemed to carry with it hisappointment as Chief of Staff of the AFP,

(b) Gen. Renato de Silva did not violate theConstitution when he immediately assumed officebefore the confirmation of his appointment, sincehis appointment was an ad interim appointment.Under Article VI I, Sec. 16 of the Constitution, suchappointment is immediately effective and is subjectonly to disapproval by the Commission on

Appointments or as a result of the next adjournmentof the Congress.

(c) The appointment and designation of Gen. deSilva are valid for reasons given above. However,from another point of view they are not validbecause they were made within the period of theban for making appointments. Under Article VII,Sec. 15 the President is prohibited from makingappointments within the period of two (2) monthspreceding the election for President and VicePresident. The appointment in this case will bemade on May 3, 1992 which is just 8 days awayfrom the election for President and Vice Presidenton May 11, 1992. For this reason the appointmentand designation of Gen. de Silva are after allinvalid.

[Note: May 3, 1991 and May 17, 1992 areSundays. However the Committee finds norelevance in the fact that these are holidays andtherefore decided to ignore this fact.]

Appointing Power; Ad Interim Appointments(1994)No. 16; In December 1988, while Congress was inrecess, A was extended an ad interimappointment as Brigadier General of the

Philippine Army, in February 1989. WhenCongress was in session, B was nominated asBrigadier General of the Philippine Army. B'snomination was confirmed on August 5, 1989while A's appointment was confirmed onSeptember 5, 1989. Who is deemed more seniorof the two, A or B? Suppose Congress adjournedwithout the

Commission on Appointments acting onboth appointments, can A and B retain theiroriginal ranks of colonel?

SUGGESTED ANSWER:1) A is senior to B. In accordance with the rulingin Summers vs. Ozaeta. 81 Phil. 754, the adinterim appointment extended to A is permanentand is effective upon his acceptance although it issubject to confirmation by the Commission on

Appointments.

2) If Congress adjourned without the appointments

of A and B having been confirmed by theCommission on Appointments, A cannot return tohis old position. As held in Summers vs. Qzaeta,81 Phil. 754, by accepting an ad interimappointment to a new position, A waived his rightto hold his old position. On the other hand, since Bdid not assume the new position, he retained hisold position.

Appointing Power; Appointments RequiringConfirmation; RA 6975-Unconstitutional (2002)

No V - On December 13, 1990, the Presidentsigned into law Republic Act No. 6975(subsequently amended by RA No. 8551) creatingthe Department of Interior and Local Government.Sections 26 and 31 of the law provide that seniorofficers of the Philippine National Police (PNP),from Senior Superintendent, Chief Superintendent,Deputy Director General to Director General orChief of PNP shall, among others, be appointed bythe President subject to confirmation by theCommission on Appointments.

In 1991 the President promoted ChiefSuperintendent Roberto Matapang and SeniorSuperintendent Conrado Mahigpit to the positions ofDirector and Chief Superintendent of the PNP,respectively. Their appointments were in apermanent capacity. Without undergoingconfirmation by the Commission on Appointments,Matapang and Mahigpit took their oath of office andassumed their respective positions. Thereafter, theDepartment of Budget and Management authorizeddisbursements for their salaries and otheremoluments.

Juan Bantay filed a taxpayer's suit questioning thelegality of the appointments and disbursementsmade. Bantay argues that the appointments areinvalid inasmuch as the same have not beenconfirmed by the Commission on Appointments, asrequired under Sections 26 and 31 of R.A. No.6975.



APPOINTMENT as one Issued upon the priorauthorization of the Civil Service Commission inaccordance with its provisions and the rules andstandards promulgated in pursuance thereto to aperson who has not qualified in an appropriateexamination but who otherwise meets therequirements for appointment to a regular positionin the competitive service, whenever a vacancyoccurs and the filling thereof is necessary in the

interest of the service and there is no appropriateregister of eligibles at the time of appointment.

Provisional appointments in general have alreadybeen abolished by Republic Act 6040. However, itstill applies with regard to teachers under theMagna Carta for Public School Teachers.

ALTERNATIVE ANSWER:The case of Regis vs. Osmena, 197 SCRA 308,laid down the distinction between a provisionaland a temporary appointment.

A PROVISIONAL APPOINTMENT is extended toa person who has not qualified in an appropriateexamination but who otherwise meets therequirements for appointment to a regular positionin the competitive service whenever a vacancyoccurs and the filling thereof is necessary in theinterest of the service and there is no appropriateregister of eligible at the time of the appointment.On the other hand, a TEMPORARY

APPOINTMENT given to a non-civil serviceeligible is without a definite tenure and is

dependent on the pleasure of the appointingpower.

A provisional appointment is good only untilreplacement by a civil service eligible and in nocase beyond 30 days from date of receipt by theappointing officer of the certificate of eligibility.(Sec. 24 [c|. Republic Act 2260).

A provisional appointment contemplates a differentsituation from that of a temporary appointment.Whereas a temporary appointment is designed to filla position needed only for a limited period not

exceeding six (6) months, a provisional appointment,on the other hand, is intended for the contingencythat "a vacancy occurs and the filling thereof isnecessary in the interest of the service and there isno appropriate register of eligibles at the time of theappointment."

In other words, the reason for extending aprovisional appointment is not because there isan occasional work to be done and is expected

to be finished in not more than six months butbecause the interest of the service requires thatcertain work be done by a regular employee, onlythat no one with appropriate eligibility can beappointed to it. Hence, any other eligible may beappointed to do such work in the meantime that asuitable eligible does not qualify for the position.

To be more precise, a provisional appointmentmay be extended only to a person who has notqualified in an appropriate examination but whootherwise meets the requirements for appointmentto a regular position in the competitive service,meaning one who must any way be a civil serviceeligible.

In the case of a temporary appointment, all that thelaw enjoins is that "preference in filling suchposition be given to persons on appropriate eligiblelists." Merely giving preference presupposes thateven a non-eligible may be appointed. Under the

law, even if the appointee has the required civilservice eligibility, his appointment is still temporarysimply because such is the nature of the work tobe done.

NOTE: Since provisional appointments havealready been abolished examinees should begiven full credit for whatever answer they mayor may not give.

Appointing Power; Limitations on PresidentialAppointments (1997)No. 7: A month before a forthcoming election, "A"one of the incumbent Commissioners of the

COMELEC, died while in office and "B", anotherCommissioner, suffered a severe stroke. In viewof the proximity of the elections and to avoidparalyzation in the COMELEC, the President whowas not running for any office, appointedCommissioner C of the Commission on Audit,who was not a lawyer but a certified publicaccountant by profession, ad interimCommissioner to succeed Commissioner A anddesignated by way of a temporary measure.

Associate Justice D of the Court of Appeals asacting Associate Commissioner during theabsence of Commissioner B.

Did the President do the right thing in extendingsuch ad interim appointment in favor ofCommissioner C and designating Justice D actingCommissioner of the COMELEC?SUGGESTED ANSWER:No. The President was wrong in extending an adinterim appointment in favor of Commissioner C. InSummers vs. Ozaeta, 81 Phil. 754, it was held thatan ad interim appointment is a permanentappointment.



Under Section 15, Article VII of the Constitution,within two months immediately before the nextpresidential elections and up to the end of histerm, the President cannot make permanentappointments. The designation of Justice D asacting Associate Commissioner is also invalid.Section 1(2). Article IX-C of the Constitutionprohibits the designation of any Commissioner ofthe COMELEC in a temporary or acting capacity.

Section 12, Article VIII of the Constitution prohibitsthe designation of any member of the Judiciary toany agency performing quasi-judicial oradministrative functions.

Appointing Powers; Ad Interim Appointments(Q4-2005)(1) In March 2001, while Congress wasadjourned, the President appointed Santos asChairman of the COMELEC. Santos immediatelytook his oath and assumed office. While hisappointment was promptly submitted to the

Commission on Appointments for confirmation, itwas not acted upon and Congress againadjourned. In June 2001, the President extended asecond ad interim appointment to Santos for thesame position with the same term, and thisappointment was again submitted to theCommission on Appointments for confirmation.Santos took his oath anew and performed thefunctions of his office.

Reyes, a political rival, filed a suit assailingcertain orders issued by Santos. He alsoquestioned the validity of Santos' appointment.Resolve the following issues: (5%)

(a) Does Santos' assumption of office on thebasis of the ad interim appointments issued bythe President amount to a temporaryappointment which is prohibited by Section1(2), Article IX-C of the Constitution?

ALTERNATIVE ANSWER:No, Santos' appointment does not amount to a

temporary appointment. An ad interim appointmentis a permanent appointment because it takes effectimmediately and can no longer be withdrawn bythe President once the appointee has qualified intooffice. The fact that it is subject to confirmation bythe Commission on Appointments does not alter itspermanent character. The Constitution itself makesan ad interim appointment permanent in characterby making it effective until disapproved by theCommission on Appointments or until the next

adjournment of Congress. A temporary or actingappointee does not enjoy any security of tenure,no matter how briefly. (Matibag v. Benipayo, G.R.No. 149036, April 2, 2002)ALTERNATIVE ANSWER:

An ad interim appointment is a permanentappointment and does not violate Section 1(2),

Article IX-C of the Constitution. (Pamantasan ngLungsod ng Maynila v. IAC, G.R. No. L65439,

November 13,1985)

(b) Assuming the legality of the first ad interimappointment and assumption of office bySantos, were his second ad interimappointment and subsequent assumption ofoffice to the same position violations of theprohibition on reappointment under Section1(2), Article IX-C of the Constitution?

SUGGESTED ANSWER:No, the second ad interim appointment andsubsequent assumption of office does not violate

the Constitution. The prohibition on reappointmentin Section 1(2), Article IX-C of the Constitutiondoes not apply to by-passed ad interimappointments. It can be revived by a new adinterim appointment because there is no finaldisapproval under Section 16, Article VII of theConstitution, and such new appointment will notresult in the appointee serving beyond the fixedterm of seven years. The phrase "withoutreappointment" applies only to one who has beenappointed by the President and confirmed by theCommission on Appointments, whether or not

such person completes his term of office. To holdotherwise will lead to absurdities and negate thePresident's power to make ad interimappointments. (Matibag v. Benipayo, G.R. No.149036, April 2, 2002)

Cabinet Members; limitation on acceptingadditional duties (1996)1996 No. 7: Can the Secretary of Finance beelected Chairman of the Board of Directors ofthe San Miguel Corporation? Explain.SUGGESTED ANSWER:

No, the Secretary of Finance cannot be electedChairman of the Board of Directors of the SanMiguel Corporation. Under Section 13, Article VIIof the Constitution, members of the Cabinetcannot hold any other office or employmentduring their tenure unless it is otherwise providedin the Constitution. They shall not also duringsaid tenure participate in any business or befinancially interested in any contract with, or inany franchise, or special privilege granted by theGovernment or any



subdivision, agency or instrumentality thereof,including government-owned or controlledcorporations or their subsidiaries. They shallstrictly avoid conflict of interest in the conduct oftheir office.

Calling-out Power; President (Q1-2006)1. What do you mean by the "Calling-outPower" of the President under Section 18, Article

VII of the Constitution? (5%)SUGGESTED ANSWER:Under Article VII, Sec. 18 of the 1987Constitution, whenever it becomes necessary, thePresident, as Commander-in-Chief, may call outthe armed forces to aid him in preventing orsuppressing lawless violence, invasion orrebellion (David v. Arroyo, G.R. No. 171396, May3, 2006).

Declaration; State of Calamity; Legal Effects(Q1-2005)(b) To give the much needed help to the

Province of Aurora which was devastated bytyphoons and torrential rains, the Presidentdeclared it in a "state of calamity." Give at leastfour (4) legal effects of such declaration. (4%)SUGGESTED ANSWER:Declaration of a state of calamity produces, interalia, these legal effects within the Province of

Aurora — 1. Automatic Price Control — under R.A.No. 7581, The Price Act;2. Authorization for the importation of riceunder R.A. No. 8178, The AgriculturalTarrification Act;3. Automatic appropriation under R.A. No.7160 is available for unforeseen expendituresarising from the occurrence of calamities in areasdeclared to be in a state of calamity;

4. Local government units may enact asupplemental budget for supplies and materials orpayment of services to prevent danger to or lossof life or property, under

R.A. No. 7160;5. Entitlement to hazard allowance for PublicHealth Workers (under R.A. No. 7305, Magna

Carta for Public Health Workers), who shall becompensated hazard allowances equivalent to atleast twenty-five percent (25%) of the monthlybasic salary of health workers receiving salarygrade 19 and below, and five percent (5%) forhealth workers with salary grade 20 and above;

6. Entitlement to hazard allowance forscience and technological personnel of thegovernment under R.A. No. 8439; and

7. A crime committed during the state ofcalamity will be considered aggravated under Art.14, par. 7 of the Revised Penal Code.

Declaration; State of National Emergency(Q1-2006)2. On February 24, 2006, President GloriaMacapagal-Arroyo issued Proclamation No. 1017

declaring a state of national emergency. Is thisProclamation constitutional? Explain. (2.5%)

SUGGESTED ANSWER:The proclamation is constitutional insofar as itconstitutes a call by the President for the AFP toprevent or suppress lawless violence as this issustained by Section 18, Article VII of theConstitution.

However, PP 1017's provisions giving thePresident express or implied power (1) to issuedecrees; (2) to direct the AFP to enforce

obedience to all laws even those not related tolawless violence as well as decrees promulgatedby the President; and (3) to impose standards onmedia or any form of prior restraint on the press,are ultra vires and unconstitutional. Likewise,under Section 17, Article XII of the Constitution,the President, in the absence of legislation, cannottake over privately-owned public utilities andbusinesses affected with the public interest (Davidv. Arroyo, G.R. No. 171396, May 3, 2006).

3. During the effectivity of this Proclamation,Gener, Lito and Bong were arrested by the policefor acts of terrorism. Is the arrest legal? Explain.(2.5%)SUGGESTED ANSWER:The arrest, apparently done without a validwarrant, is illegal. However, a warrantless arrestwould be valid if those accused are caughtcommitting crimes en flagrante delicto. On theother hand, if the arrest is made pursuant to avalid warrant, then it is lawful. The term "acts ofterrorism" has not been legally defined and madepunishable by Congress. No law has been

enacted to guide the law enforcement agents,and eventually the courts, to determine the limitsin making arrests for the commission of said actsof terrorism (David v. Arroyo, G.R. No. 171396,May 3, 2006).Enter into Contract or Guarantee ForeignLoans (1994)No. 13: The President of the Philippinesauthorized the Secretary of Public Works andHighways to negotiate and sign a loan agreementwith the German Government for



the construction of a dam. The Senate, by aresolution, asked that the agreement be submittedto it for ratification. The Secretary of Foreign

Affairs advised the Secretary of Public Works andHighways not to comply with the request of theSenate. 2) Is the President bound to submit theagreement to the Senate for ratification?

SUGGESTED ANSWER:

No, the President is not bound to submit theagreement to the Senate for ratification. UnderSection 20, Article VII of the Constitution, only theprior concurrence of the Monetary Board isrequired for the President to contract foreignloans on behalf of the Republic of the Philippines.

Enter into Contract or Guarantee ForeignLoans (1999)No I - What are the restrictions prescribed by theConstitution on the power of the President tocontract or guarantee foreign loans on behalf of

the Republic of the Philippines? Explain. (2%)

SUGGESTED ANSWER:Under Section 20, Article VII of the Constitution,the power of the President to contract orguarantee loans on behalf of the Republic of thePhilippines is subject to the prior concurrence ofthe Monetary Board and subject to suchlimitations as may be prescribed by law.

Enter into Executive Agreements (2003)No XX - An Executive Agreement was executedbetween the Philippines and a neighboring State.The Senate of the Philippines took it upon itself toprocure a certified true copy of the Executive

Agreement and, after deliberating on it, declared,by a unanimous vote, that the agreement wasboth unwise and against the best interest of thecountry. Is the Executive Agreement binding (a)from the standpoint of Philippine law and (b) fromthe standpoint of international law? Explain

SUGGESTED ANSWER:(a) From the standpoint of Philippine law, theExecutive Agreement is binding. According to

Commissioner of Customs v. Eastern SeaTrading. 3 SCRA 351 [1961], the President canenter into an Executive Agreement without thenecessity of concurrence by the Senate.

(b) The Executive Agreement is also bindingfrom the standpoint of international law...

Impose Tariff Rates, Import and ExportQuotas (1999)

No I - What are the limitations/restrictionsprovided by the Constitution on the power ofCongress to authorize the President to fix tariffrates, import and export quotas, tonnage andwharfage dues. Explain. (2%)SUGGESTED ANSWER:

According to Section 28(2), Article VI of theConstitution, Congress may, by law, authorize thePresident to fix within specified limits, and subject

to such limitations and restrictions it may impose,tariff rates, import and export quotas, tonnage andwharfage dues and other duties or imposts withinthe framework of the national developmentprogram of the Government.

Martial Law & Suspension of Writ of HabeasCorpus (1987)No. XVII: One of the features of the governmentestablished under the 1987 Constitution is therestoration of the principle of checks andbalances. This is especially noteworthy in the

Commander-in-Chief powers of the Presidentwhich substantially affects what was styled underthe past dispensation as the "calibratedresponse" to national emergencies,(a) Discuss fully the provisions of the 1987Constitution, giving the scope, limits and the roleof the principle of checks and balances on thePresident's exercise of the power:

To suspend the privilege of the writ ofhabeas corpus

Proclamation of martial law.

(b) Considering the pressing problems ofinsurgency, rebel activities, liberation movementsand terrorist violence, which in your consideredopinion among the options available to thePresident as Commander-in-Chief would be themost effective in meeting the emergencies by thenation? Explain.SUGGESTED ANSWER:(a) The President's power to suspend the privilegeof the writ of habeas corpus and to proclaimmartial law is subject to several checks byCongress and by the Supreme Court. ThePresident is required to report to Congress within

48 hours his action in declaring martial law orsuspending the privilege of the writ, and Congressis in turn required to convene, if it is not insession, within 24 hours following theproclamation of martial law or the suspension ofthe privilege without need of any call, inaccordance with its rules. The proclamation ofmartial law or suspension of the writ is effective for60 days only, but Congress can cut short itseffectivity by revoking the proclamation by thevote of at least a majority of



all its members, voting, jointly. Any extension ofthe proclamation of martial law or suspension ofthe writ can only be granted by Congress whichwill determine also the period of such extension.

On the other hand, the Supreme Court exercises acheck on Executive action in the form of judicialreview at the instance of any citizen. The

Constitution embodies in this respect the ruling inGarcia v. Lansang, 42 SCRA 448 (1971) that theCourt can determine the sufficiency of the factualbasis of the proclamation of martial law or thesuspension of the privilege or the extensionthereof not for the purpose of supplanting theudgment of the President but to determinewhether the latter did not act arbitrarily. Indeed,

Art. VIII, Sec. 1 imposes upon the courts the dutyof determining whether or not there has beengrave abuse of discretion amounting to lack orexcess of jurisdiction on the part of the otherbranches of the government, in this case, the

President.

The President cannot, by means of theproclamation of martial law, suspend theConstitution or supplant the courts and thelegislature. Neither can he authorize the trial ofcivilians by military tribunals so long as courts areopen and functioning, thus overruling the case of

Aquino v. Military Commission No. 2, 63 SCRA546 (1975). His proclamation of martial law doesnot carry with it the suspension of the writ of

habeas corpus, so that the decision on Aquino v.Ponce Enrile, 59 SCRA 183 (1973) is nowoverruled. Nor does the suspension of the writdeprive courts of their power to admit persons tobail, where proper. The Constitution thusoverrules the cases of Garcia-Padilla v. PonceEnrile, 121 SCRA 472 (1983) and Morales v.Ponce Enrile. 121 SCRA 538 (1983).

(b) The President has three options: (1) TO CALLOUT the armed forces to prevent or suppresslawless violence, invasion or rebellion; (2) TOSUSPEND the privilege of the writ of habeas

corpus or (3) TO PROCLAIM martial law. The lasttwo options can be resorted to only in cases ofinvasion or rebellion when public safety requireseither the supension of the privilege or theproclamation of martial law.

It is submitted that the most effective means ofmeeting the current emergency which is broughtabout by rebellion, liberation

movements, and terrorism is to simply call outthe armed forces for the following reasons: 1)the exigencies to be met are not solely

those caused by invasion or rebellion butterrorism and other crimes.

2) Suspension of the privilege will only befor a limited period and then the period ofretention is limited to 3 days which may not reallybe effective. On the other hand, public criticism of

the action may only erode the President'sauthority.3) There is practically little difference, as faras the ability of the President to meet anemergency is concerned, between option 1, onthe other hand, the options 2 and 3.

The President may well take comfort in thefollowing thought: "Government of limited powerneed not be anemic government. Assurance thatrights are secure tends to diminish fear andealousy of strong government, and, by makingus feel safe to live under it makes for its better

support." (West Vs. State Brd. of Educ. v.Barnette, 319 U.S. 624 (1943))

Martial Law; Limitations (2000)No XVII. Declaring a rebellion, hostile groupshave opened and maintained armed conflicts onthe Islands of Sulu and Basilan. a) To quell this,can the President place under

martial law the islands of Sulu and Basilan?Give your reasons? (3%)

b) What are the constitutional safeguardson the exercise of the President's power toproclaim martial law? (2%)SUGGESTED ANSWER:a) If public safety requires it, the President canplace Sulu and Basilan under martial law sincethere is an actual rebellion. Under Section 18,

Article VII of the Constitution, the President canplace any part of the Philippines under martiallaw in case of rebellion, when public safetyrequires it.

b) The following are the constitutional safeguardson the exercise of the power of the President toproclaim martial law: a) There must be actual

invasion or rebellion; b) The duration of theproclamation shall not

exceed sixty days:c) Within forty-eight hours, the Presidentshall report his action to Congress. If Congressis not in session, it must convene withintwenty-four hours;d) Congress may by majority vote of all itsmembers voting Jointly revoke the proclamation,and the President cannot set aside the revocation;



e) By the same vote and in the samemanner, upon Initiative of the President,Congress may extend the proclamation If theinvasion or rebellion continues and public safetyrequires the extension;f) The Supreme Court may review thefactual sufficiency of the proclamation, and theSupreme Court must decide the case within thirtydays from the time it was filed;

g) Martial law does not automaticallysuspend the privilege of the writ of habeascorpus or the operation of the Constitution.h) It does not supplant the functioning of thecivil courts and of Congress. Military courts haveno Jurisdiction over civilians where civil courtsare able to function. (Cruz, Philippine PoliticalLaw, 1995 ed., pp. 213214.)

Martial Law; Sufficiency of the Factual Basis(Q3-2006)The President issued a Proclamation No. 1018

placing the Philippines under Martial Law on theground that a rebellion staged by lawlesselements is endangering the public safety.Pursuant to the Proclamation, suspected rebelswere arrested and detained and military tribunalswere set up to try them. Robert dela Cruz, acitizen, filed with the Supreme Court a petitionquestioning the validity of Proclamation No. 1018.

1. Does Robert have a standing tochallengeProclamation No. 1018? Explain. (2.5%)SUGGESTED ANSWER: Yes, Robert hasstanding. Under Article VIII, Section 17 of the1987 Constitution, the Supreme Court mayreview, in an appropriate proceeding filed by anycitizen, the sufficiency of the factual basis of theproclamation of martial law. As citizen therefore,Robert may file the petition questioningProclamation No. 1018.

2. In the same suit, the Solicitor Generalcontends that under the Constitution, the Presidentas Commander-in-Chief, determines whether theexigency has arisen requiring the exercise of hispower to declare Martial Law and that his

determination is conclusive upon the courts. Howshould the Supreme Court rule? (2.5%)

SUGGESTED ANSWER:The Supreme Court should rule that his deter-mination is not conclusive upon the courts. The1987 Constitution allows a citizen, in anappropriate proceeding, to file a petitionquestioning the sufficiency of the factual basis ofsaid proclamation. Moreover, the power to

suspend the privilege of the writ of habeas corpusand the power to impose martial law involve thecurtailment and suppression of certain basic civilrights and individual freedoms, and thusnecessitate safeguards by Congress and reviewby the Supreme Court (IBP v. Zamora, G.R. No.141284, August 15, 2000).

3. The Solicitor General argues that, in anyevent, the determination of whether the rebellionposes danger to public safety involves a questionof fact and the Supreme Court is not a trier offacts. What should be the ruling of the Court?(2.5%)SUGGESTED ANSWER:Judicial power includes the duty of the courts ofustice to settle actual controversies involvingrights which are legally demandable andenforceable, and to determine whether or not therehas been a grave abuse of discretion amounting tolack or excess of jurisdiction on the part of any

branch or instrumentality of the Government (Art.Vin, Sec. 1, par. 2,1987 Constitution). When thegrant of power is qualified, conditional or subject tolimitations, the issue of whether the prescribedqualifications or conditions have been met or thelimitations respected, is justiciable — the problembeing one of legality or validity, not its wisdom.

Article VII, Section 18 of the 1987 Constitutionspecifically grants the Supreme Court the powerto review, in an appropriate proceeding filed byany citizen, the sufficiency of the factual basis ofthe proclamation of martial law. Thus, in thematter of such declaration, two conditions mustconcur: (1) there must be an actual invasion orrebellion; and (2) public safety must require it.The Supreme Court cannot renege on itsconstitutional duty to determine whether or notthe said factual conditions exist (IBP v. Zamora,G.R. No. 141284, August 15, 2000).

4. Finally, the Solicitor General maintainsthat the President reported to Congress such

proclamation of Martial Law, but Congress did notrevoke the proclamation. What is the effect of theinaction of Congress on the suit brought byRobert to the Supreme Court? (2.5%)

SUGGESTED ANSWER:The inaction of Congress has no effect on thesuit brought by Robert to the Supreme Court as

Article VIII, Section 18 provides for checks onthe President's power to declare martial law tobe exercised separately by Congress and the



Supreme Court. Under said provision, theduration of martial law shall not exceed sixty daysbut Congress has the power to revoke theproclamation or extend the period. On the otherhand, the Supreme Court has the power to reviewthe said proclamation and promulgate its decisionthereon within thirty days from its filing (ArticleVIII, Section 18).

Pardoning Power; Amnesty (1993)No 20: - The National Unification Commissionhas recommended the grant of absolute andunconditional amnesty to all rebels. There is theview that it is not necessary for the rebels toadmit the commission of the crime charged, itbeing enough that the offense falls within thescope of the amnesty proclamation following thedoctrine laid down in Barrioquinto vs. Fernandez,82 Phil. 642. In other words, admission of guilt isnot a condition sine qua non for the availment ofamnesty. Is this correct? Explain.

SUGGESTED ANSWER:The view that it is not necessary for rebels toadmit the commission of the crime charged inorder to avail themselves of the benefits ofamnesty is not correct. As stated in Vera v.People, 7 SCRA 156, the doctrine laid down inBorrioquinto vs. Fernandez, 82 Phil. 642 hasbeen overturned. Amnesty presupposes thecommission of a crime. It is inconsistent forsomeone to seek for forgiveness for a crimewhich he denies having committed. (People vs.Pasilan, 14 SCRA 694).

Pardoning Power; Amnesty (1995)No. 5: Lucas, a ranking member of the NDF, wascaptured by policemen while about to board apassenger bus bound for Sorsogon. Chargedwith rebellion he pleaded not guilty whenarraigned. Before trial he was granted absolutepardon by the President to allow him toparticipate in the peace talks between thegovernment and the communist rebels.

3. Instead of a pardon, may the President grantthe accused amnesty if favorably recommended

by the National Amnesty Commission? Explain.

4. May the accused avail of the benefits ofamnesty despite the fact the he continued toprofess innocence? Explain.SUGGESTED ANSWER:3. The President may grant the accused amnesty.

According to Barrioquinto vs. Fernandez, 82 Phil.642, Amnesty may be granted before or after theinstitution of the criminal prosecution.

4. No, the accused cannot avail of the benefits ofamnesty if he continues to profess his innocence.In Vera vs. People, 7 SCRA 152. since amnestypresupposes the commission of a crime. It isinconsistent for an accused to seek forgivenessfor something which he claims he has notcommitted.

Pardoning Power; Breach of Condition;Revocation (Q5-2005)(1) Bruno still had several years to serve on hissentence when he was conditionally pardoned bythe President. Among the conditions imposed wasthat he would "not again violate any of the penallaws of the Philippines." Bruno accepted all of theconditions and was released. Shortly thereafter,Bruno was charged with 2 counts of estafa. Hewas then incarcerated to serve the i expiredportion of his sentence following the revocation bythe President of the pardon.

Bruno's family filed a petition for habeascorpus, alleging that it was error to have himrecommitted as the charges were false, infact, half of them were already dismissed.Resolve the petition with reasons. (4%)

SUGGESTED ANSWER:The petition should not be given due course. Thegrant of pardon and the determination of theterms and conditions of a conditional pardon arePURELY EXECUTIVE ACTS which are notsubject to judicial scrutiny. The acceptancethereof by the convict or prisoner carried with itthe authority or power of the Executive todetermine whether a condition or conditions of thepardon has or have been violated. Where thePresident opts to revoke the conditional pardongiven, no judicial pronouncement of guilt of asubsequent crime is necessary, much lessconviction therefor by final judgment of a court, inorder that a convict may be recommended for theviolation of his conditional pardon. Thedetermination of the occurrence of a breach of acondition of a pardon, and the proper

consequences of such breach, is a purelyexecutive act, not subject to judicial scrutiny.(Torres v. Gonzales, G.R. No. 76872, July 23,1987)

Pardoning Power; Exec Clemency; Pardon(1995)No. 5: Lucas, a ranking member of the NDF, wascaptured by policemen while about to board apassenger bus bound for Sorsogon. Chargedwith rebellion he pleaded not guilty



when arraigned. Before trial he was grantedabsolute pardon by the President to allow him toparticipate in the peace talks between thegovernment and the communist rebels.(1) Is the pardon of the President valid?Explain.(2) Assuming that the pardon is valid, can Lucasreject it? Explain.SUGGESTED ANSWER:

1. The pardon is not valid. Under Section 19, Article VII of the 1987 Constitution, pardon maybe granted only after conviction by finalJudgment.2. Yes, Lucas can reject the pardon As held inUnited States vs. Wilson, 7 Pet. 150 and Burdickvs. United States, 274 U.S. 480. acceptance isessential to complete the pardon and the pardonmay be rejected by the person to whom it istendered, for it may inflict consequences ofgreater disgrace than those from which it purportsto relieve.ALTERNATIVE ANSWER:

No, Lucas cannot reject the pardon. According toBiddle vs. Perovich, 274 U.S. 480, acceptance isnot necessary, for the grant of pardon involves adetermination by the President that public welfarewill be better served by inflicting less than whatthe judgment fixed.

Pardoning Power; Executive Clemency (1997)

No. 15; Governor A was charged administrativelywith oppression and was placed under preventivesuspension from office during the pendency of hiscase. Found guilty of the charge, the Presidentsuspended him from office for ninety days. Later,the President granted him clemency by reducingthe period of his suspension to the period he hasalready served. The Vice Governor questioned thevalidity of the exercise of executive clemency onthe ground that it could be granted only in criminal,not administrative, cases. How should the questionbe resolved?

SUGGESTED ANSWER:The argument of the Vice Governor should be

rejected. As held in Llamas vs. Orbos, 202 SCRA844. the power of executive clemency extends toadministrative cases. In granting the power ofexecutive clemency upon the President, Section19, Article VII of the Constitution does notdistinguish between criminal and administrativecases. Section 19, Article VII of the Constitutionexcludes impeachment cases, which are notcriminal cases, from the scope of the power ofexecutive clemency. If this power may beexercised only

in criminal cases, it would have been unnecessaryto exclude impeachment cases from this scope. Ifthe President can grant pardons in criminal cases,with more reason he can grant executiveclemency in administrative cases, which are lessserious.

Pardoning Power; Executive Clemency (1999)

A. What are the constitutional limitations on thepardoning power of the President? (2%)

B. Distinguish between pardon and amnesty.(2%)SUGGESTED ANSWER:

A. The following are the limitations on thepardoning power of the President. 1) It cannot begranted in cases ofimpeachment; 2) Reprieves, commutations,pardon, and

remission of fines and forfeitures can begranted only after conviction by final

udgment.3) The favorable recommendation of theCOMELEC is required for violation of electionlaws, rules and regulations.

B. According to Barrioquinto v. Fernandez, 82Phil. 642, the following are the distinctionsbetween pardon and amnesty.1 Pardon is a private act and must bepleaded and proved by the person pardoned;while amnesty is a public act of which courts takeudicial notice;2 Pardon does not require the concurrenceof Congress, while amnesty requires theconcurrence of Congress;3 Pardon is granted to individuals, whileamnesty is granted to classes of persons orcommunities;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; and6 Pardon looks forward and relieves theoffender from the consequences of his offense,while amnesty looks backward and the person

granted it stands before the law as though he hadcommitted no offense.

Pardoning Power; Kinds (1988)No. 24: The first paragraph of Section 19 of

Article VII of the Constitution providing for thepardoning power of the President, mentionsreprieve, commutation, and pardon. Please



define the three of them, and differentiate onefrom the others.SUGGESTED ANSWER:The terms were defined and distinguished fromone another in People v. Vera, 65 Phil. 56, 111-112 (1930), as follows:(1) REPRIEVE is a postponement of theexecution of a sentence to a day certain,(2) COMMUTATION is a remission of a part of

the punishment, a substitution of less penalty forthe one originally imposed.(3) A PARDON, on the other hand, is an act ofgrace, proceeding from the power entrusted withthe execution of the laws which exempts theindividual on whom it is bestowed from thepunishment the law inflicts for a crime he hascommitted.

Pardoning Power; Pardon, Conditional (1997)

No. 16; A while serving imprisonment for estafa.upon recommendation of the Board of Pardons

and Parole, was granted pardon by the Presidenton condition that he should not again violate anypenal law of the land. Later, the Board of Pardonsand Parole recommended to the President thecancellation of the pardon granted him because Ahad been charged with estafa on 20 counts andwas convicted of the offense charged although hetook an appeal therefrom which was still pending.

As recommended, the President canceled thepardon he had granted to A. A was thus arrestedand imprisoned to serve the balance of hissentence in the first case. A claimed in his petition

for habeas corpus filed in court that his detentionwas illegal because he had not yet been convictedby final judgment and was not given a chance tobe heard before he was recommitted to prison. Is

A's argument valid?

SUGGESTED ANSWER:The argument of A is not valid. As held in Torresvs. Gonzales. 152 SCRA 272 a judicialpronouncement that a convict who was granted apardon subject to the condition that he should notagain violate any penal law is not necessary

before he can be declared to have violated thecondition of his pardon. Moreover, a hearing isnot necessary before A can be recommitted toprison. By accepting the conditional pardon, A,agreed that the determination by the Presidentthat he violated the condition of his pardon shallbe conclusive upon him and an order for hisarrest should at once issue.

President; Participation; Legislative Process(1996)

No. 7: Can the President take active part in thelegislative process? Explain.SUGGESTED ANSWER:Yes, The President can take active part in thelegislative process to the extent allowed by theConstitution. He can address Congress at anytime 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 theimmediate enactment of a bill to meet a publiccalamity or emergency. He can veto a bill.

Presidential Immunity from Suit (1997)No. 13: Upon complaint of the incumbentPresident of the Republic, "A" was charged withlibel before the Regional Trial Court. "A" movedto dismiss the information on the ground that theCourt had no jurisdiction over the offensecharged because the President, being immunefrom suit, should also be disqualified from filing acase against "A" in court. Resolve the motion.

SUGGESTED ANSWER:The motion should be denied according toSoliven us. Makasiar, 167 SCRA 393, theimmunity of the President from suit is personal tothe President. It may be invoked by the Presidentonly and not by any other person.

Prohibition Against Multiple Positions &Additional Compensation (2002)No VI. M is the Secretary of the Department ofFinance. He is also an ex-officio member of theMonetary Board of the Bangko Sentral ng Pilipinasfrom which he receives an additionalcompensation for every Board meeting attended.

N, a taxpayer, filed a suit in court to declareSecretary M's membership in the Monetary Boardand his receipt of additional compensation illegaland in violation of the Constitution. N invoked

Article VII, Section 13 of the Constitution whichprovides that the President, Vice-President, theMembers of the Cabinet, and their deputies orassistants shall not, unless otherwise provided in

the Constitution, hold any other office oremployment during their tenure. N also cited ArticleIX-B, Section 8 of the Constitution, which providesthat no elective or appointive public officer oremployee shall receive additional, double, orindirect compensation, unless specificallyauthorized by law. If you were the judge, howwould you decide the following:



a) the issue regarding the holding of multiplepositions? (3%) b) the issue on the payment ofadditional or double compensation?(2%) Explainyour answers fully.

SUGGESTED ANSWER:(a) If I were the judge, I would uphold the validityof the designation of Secretary M as ex officiomember of the Monetary Board, As stated in Civil

Liberties Union v. Executive Secretary, 194 SCRA317 (1991), the prohibition against the holding ofmultiple positions by Cabinet Members in ArticleVII, Section 13 of the Constitution does not applyto positions occupied in an ex officio capacity asprovided by law and as required by the primaryfunctions of their office.

(b) If I were the Judge, I would rule that SecretaryM cannot receive any additional compensation.

As stated in Civil Liberties Union v. ExecutiveSecretary, 194 SCRA 317 (1991), a Cabinet

Member holding an ex-officio position has noright to receive additional compensation, for hisservices in that position are already paid for bythe compensation attached to his principal office.

Prohibition against Multiple Positions byGov’t Officials (1987)No. I: Assume that a law has been passedcreating the Export Control Board composed of:

The Secretary of Trade and Industry asChairman and as Members:

The Chairman of the Senate Committee onTrade and Industry

An Associate Justice of the Supreme Courtdesignated by the Chief Justice

The Commissioner of Customs, andThe President of the Philippine Chamber of

Commerce and Industry,

The National Constitutional Association of thePhilippines has filed suit to challenge theconstitutionality of the law.

Determine whether the membership of each of

the above in the Board can be upheld. Citerelevant constitutional provisions.SUGGESTED ANSWER:a. The chairmanship of the Secretary of Tradeand Industry in the Board can be upheld on thebasis of Art. IX, B, Sec. 7, which allowsappointive officials to hold other offices if allowedby law (such as the law in this case creating theExport Control Board) or justified by the primaryfunctions of their offices. The functions of theBoard is related to his functions

as Secretary of Trade and Industry. The provisionof Art, VII, Sec, 13, prohibiting Cabinet membersfrom holding any other office or employment, issubject to the exceptions in Art. IX, B, Sec. 7.

b. Dean Sinco believes that members ofCongress cannot be members of the Board ofRegents of the University of the Philippines under

the Incompatibility Clause of the 1935Constitution which is similar to the provision of Art. VI, Sec. 13 of the present Constitution. Underthis view, the membership of the Chairman of theSenate Committee on Trade and Industry in theExport Control Board cannot be sustained.(Sinco, Philippine Political Law 136 (llth Ed.1962).

Moreover, since the apparent justification for themembership of the Chairman of the SenateCommittee is to aid him in his legislativefunctions, this purpose can easily be achieved

through legislative investigations under Art. VI,Sec.21.

On the other hand, Dean Cortes appears tosuggest a contrary view, noting that after thedecision in Government of the Philippine Islandsv. Springer 50 Phil. 259 (1927), in validating thelaw designating the Senate President andSpeaker as members of the Board of Control ofgovernment corporations, no other decision hasbeen rendered. On the contrary, laws have beenenacted, making members of Congress members

of various boards.

Indeed, the membership of the Chairman of theSenate Committee on Trade and Industry may beupheld as being in aid of his legislative functionssince what is prohibited by Art. VI, Sec. 13 is theacceptance of an incompatible office oremployment in the government. (Cortes,Philippine Presidency, pp. 111112(1966))

(c) The designation of an Associate Justice of

the Supreme Court cannot be sustained beingthe imposition on the members of the Court, ofnon-judicial duties, contrary to the principle ofseparation of powers. It is judicial power andudicial power only which the Supreme Court andits members may exercise. (Art VIII. Sec. 1;Manila Electric Co. v. Pasay Trans. Co., 57 Phil.600 (1932))

(d) The Commissioner of Customs may be mademember of the Board for the same



reason in the case of the Secretary of Trade andIndustry, under Art. IX, B, Sec. 7.

(e) The membership of the President of thePhilippine Chamber of Commerce may also beupheld on the ground that Congress has thepower to prescribe qualifications for the office.

Suspension of Writ of Habeas Corpus (1997)

(a) When may the privilege of the writ of habeascorpus be suspended?(b) If validly declared, what would be the fullconsequences of such suspension?SUGGESTED ANSWER:(a) Under Section 16, Article VII of theConstitution, the privilege of the writ of habeascorpus may be suspended when there is aninvasion or rebellion and public safety requires it.

(b) According to Section 18, Article VII of theConstitution, the suspension of the privilege ofthe writ of habeas corpus shall apply only to

persons judicially charged with rebellion oroffenses Inherent to or directly connected withinvasion. Any person arrested or detained shouldbe judicially charged within three days.Otherwise, he should be released. Moreover,under Section 13. Article III of the Constitution,the right to bail shall not be impaired even whenthe privilege of the writ of habeas corpus issuspended.

ARTICLE VIII Judicial

Department

Cases to be Heard En Banc; Supreme Court(1999)No XI - Enumerate the cases required by theConstitution to be heard en banc by the SupremeCourt? (2%)SUGGESTED ANSWER:The following are the cases required by theConstitution to be heard en banc by the SupremeCourt:

(1) Cases involving the constitutionality of a

treaty, international or executive agreement, or law;

(2) Cases which under the Rules of Courtare required to be heard en banc.

(3) Cases involving the constitutionality,application, or operation of presidential decrees,proclamations, orders, instructions, ordinances, andother regulations;

(4) Cases heard by a division when therequired majority is not obtained;

(5) Cases where a doctrine or principle of lawpreviously laid down will be modified or reversed;

(6) Administrative cases against judges whenthe penalty is dismissal; and

(7) Election contests for President or

Vice-President.

Contempt Powers (1996)No. 3: 2) On the first day of the trial of arape-murder case where the victim was a popularTV star, over a hundred of her fans rallied at theentrance of the courthouse, each carrying aplacard demanding the conviction of the accusedand the imposition of the death penalty on him.The rally was peaceful and did not disturb theproceedings of the case. a) Can the trial courtorder the dispersal of the rallyists under pain of

being punished for contempt of court, if they fail todo so? Explain. b) If instead of a rally, the fans ofthe victim wrote letters to the newspaper editorsdemanding the conviction of the accused, can thetrial court punish them for contempt? Explain.

SUGGESTED ANSWER:2. a) Yes, the trial court can order the dispersal ofthe rally under pain of being cited for contempt.The purpose of the rally is to attempt to influencethe administration of Justice. As stated in Peoplevs. Flores, 239 SCRA 83, any conduct by anyparty which tends to directly or indirectly Impede,obstruct or degrade the administration of justice issubject to the contempt powers of the court.

b) No, the trial court cannot punish for contemptthe fans of the victim who wrote letters to thenewspaper editors asking for the conviction of theaccused. Since the letters were not addressed tothe Judge and the publication of the lettersoccurred outside the court, the fans cannot bepunished in the absence of a clear and present

danger to the administration of Justice. InCabansag vs. Fernandez, 102 Phil 152, it washeld that a party who wrote to the PresidentialComplaints and Action Committee to complainabout the delay in the disposition of his casecould not be punished for contempt in theabsence of a clear and present danger to the fairadministration of Justice.

Finality of Void Judgments (1993)



No. 8; The ABC Realty, Inc, filed a complaintagainst Rico for the collection of unpaidinstallments on a subdivision lot purchased by thelatter, Rico failed to file an answer, was declaredin default; and after reception of plaintiffsevidence ex parte, judgment was renderedagainst him. The decision became final, and uponmotion by ABC Realty, the judge issued a writ ofexecution.

Rico now files a motion to quash the writ and tovacate the Judgment contending that it is theHousing and Land Use Regulatory Board(HLURB) which is vested with original andexclusive Jurisdiction over cases involving thereal estate business. Rico prays for the dismissalof the complaint and for the nullity of the decision.The realty firm opposes the motion arguing thatunder BP 129, RTCs have exclusive and originalurisdiction over cases in which the amount ofcontroversy exceeds P20,000.00. Answer thefollowing queries: 1) Who has jurisdiction over the

collection suit? 2) The RTC decision, havingbecome final and executory, can it still bevacated?SUGGESTED ANSWER:1} The HLURB 2) Yes, the decision of theRegional Trial Court can still be vacated, even ifit has become final and executory. Since theRegional Trial Court had no jurisdiction over thecase, the decision is void.

Fiscal Autonomy (1999)No XI - What do you understand by the mandateof the Constitution that the judiciary shall enjoyfiscal autonomy? Cite the constitutional provisionscalculated to bring about the realization of the saidconstitutional mandate. (2%)

SUGGESTED ANSWER:Under Section 3, Article VIII of the Constitution,the fiscal autonomy of the Judiciary means thatappropriations for the Judiciary may not bereduced by the legislature below the amountappropriated for the previous year and, afterapproval, shall be automatically and regularly

released.

In Bengzon v. Drilon, 208 SCRA 133, theSupreme Court explained that fiscal autonomycontemplates a guarantee of full flexibility toallocate and utilize resources with the wisdom anddispatch that the needs require. It recognizes thepower and authority to deny, assess and collectfees, fix rates of compensation not exceeding thehighest rates authorized by law for compensationand pay

plans of the government and allocate anddisburse such sums as may be provided by lawor prescribed by it in the course of the dischargeof its functions.

Function; Continuing Constitutional Convention(2000)No I. --One Senator remarked that the SupremeCourt is a continuing Constitutional Convention.

Do you agree? Explain. (2%)SUGGESTED ANSWER:I do not agree that the Supreme Court is acontinuing Constitutional Convention. The criticismis based on the assumption that in exercising itspower of judicial review the Supreme Court Is notmerely interpreting the Constitution but is trying toremake the Government on the basis of thepersonal predilections of the Members of theSupreme Court, this is a power that properlybelongs to the people and their electedrepresentatives.

The Supreme Court cannot decide cases merelyon the basis of the letter of the Constitution. It hasto interpret the Constitution to give effect to theintent of its framers and of the people adopting it.In Interpreting the Constitution, the SupremeCourt has to adopt it to the ever-changingcircumstances of society. When the SupremeCourt strikes down an act of the Legislative or theExecutive Department, it is merely discharging itsduty under the Constitution to determineconflicting claims of authority.

ALTERNATIVE ANSWER:To a certain extent, the Supreme Court is acontinuing Constitutional Convention. When acase is brought in court involving a constitutionalissue. It becomes necessary to interpret theConstitution, Since the Supreme Court is supremewithin its own sphere, its interpretation of theConstitution will form part of the law of the land.

Issuance of Restraining Orders and Injunctions(1992)No. 7: Congress is considering new measures to

encourage foreign corporations to bring theirinvestments to the Philippines. Congress hasfound that foreign investments are deterred by theuncertain investment climate in the Philippines.One source of such uncertainty is the heightenedudicial intervention in investment matters.

One such measure provides that "no court oradministrative agency shall issue any restrainingorder or injunction against the



Central Bank" in the Bank's exercise of itsregulatory power over specific foreign exchangetransactions.

Would this be a valid measure? Explain.SUGGESTED ANSWER:Yes, the measure is valid. In Mantruste Systems,Inc. vs. Court of Appeals, 179 SCRA 136, theSupreme Court held that a law prohibiting the

issuance of an injunction is valid, because underSection 2, Article VIII of the Constitution, theurisdiction of the courts may be defined by law.

ALTERNATIVE ANSWER:Since under Sections 1 and 5(2), Article VIII ofthe Constitution, the courts are given the powerof Judicial review, the measure is void, Suchpower must be preserved. The issuance ofrestraining orders and Injunctions is in aid of thepower of judicial review.

Judicial & Bar Council (1988)

No. 11: A novel feature of the present Constitutionis the Judicial and Bar Council. Please state:

1. Its principal function;2. Its composition; and3. Who supervises it, and takes care of itsappropriations?SUGGESTED ANSWER:1. The Judicial and Bar Council has the principalfunction of recommending appointees to theJudiciary. It may exercise such other functionsand duties as the Supreme Court may assign toit. (Art. VIII, sec. 8(5)).

2. The JBC is composed of the Chief Justice asex officio Chairman, the Secretary of Justice anda representative of the Congress as ex officioMembers, a representative of the Integrated Bar,a professor of law, a retired Member of theSupreme Court, and a representative of theprivate sector. (Art. VIII, sec. 8(1)).

3, The Supreme Court supervises the JBC andprovides in the annual budget of the Court the

appropriations of the JBC. (Art. VIII, sec. 8(4)).

Judicial & Bar Council (1999)No XI - What is the composition of the Judicialand Bar Council and the term of office of itsregular members? (2%)SUGGESTED ANSWER:The Judicial and Bar Council is composed of thefollowing:1. The Chief Justice as ex officio chairman;

1 The Secretary of Justice as ex officiomember;2 A representative of Congress as ex officiomember;3 A representative of the Integrated Bar;4 A professor of law;5 A retired Justice of the Supreme Court;and6 A representative of the private sector.

(Section 8 (1), Article VIII of the Constitution)The term of office of the regular members is four(4) years. (Section 8(2), Article VIII of theConstitution)

Judicial Department; Writ of Amparo (1991)No 1: What is a Constitutional writ of Amparoand what is the basis for such a remedy underthe Constitution?SUGGESTED ANSWER:The writ of Amparo in Mexican law is anextraordinary remedy whereby an interested partymay seek the invalidation of any executive,

legislative or judicial act deemed in violation of afundamental right. The adoption of such a remedyin the Philippines may be based on Article VIII,Sec. 5(5) of the Constitution, which empowers theSupreme Court to promulgate rules concerningthe protection and enforcement of constitutionalrights.

Judicial Independence; Safeguard (2000)No I. Name at least three constitutionalsafeguards to maintain judicial independence.(3%)SUGGESTED ANSWER:The following are the constitutional safeguardsto maintain judicial independence:

(1) The Supreme Court is a constitutionalbody and cannot be abolished by merelegislation.

(2) The members of the Supreme Courtcannot be removed except by impeachment.

(3) The Supreme Court cannot be deprivedof its minimum jurisdiction prescribed in Section5, Article X of the Constitution.

(4) The appellate jurisdiction of the SupremeCourt cannot be increased by law without itsadvice and concurrence.

(5) Appointees to the Judiciary are nominatedby the Judicial and Bar Council and are not subjectto confirmation by the Commission on

Appointments.



(6) The Supreme Court has administrativesupervision over all lower courts and theirpersonnel.

(7) The Supreme Court has exclusive powerto discipline Judges of lower courts.

(8) The Members of the Judiciary havesecurity of tenure, which cannot be undermined

by a law reorganizing the Judiciary.

(9) Members of the Judiciary cannot bedesignated to any agency performingquasi-Judicial or administrative functions.

(10) The salaries of Members of the Judiciarycannot be decreased during their continuance inoffice.

(11) The Judiciary has fiscalautonomy.(12) The Supreme Court has exclusive power

to promulgate rules of pleading, practice andprocedure.

(13) Only the Supreme Court can temporarilyassign judges to other stations.

(14) It is the Supreme Court who appoints allofficials and employees of the Judiciary. (Cruz,Philippine Political Law, 1995 ed. (pp. 229-31.)

Judicial Power (1989)No. 10: Where is judicial power vested? Whatare included in such power?SUGGESTED ANSWER:

According to Section 1, Article VIII of the 1987Constitution, judicial power is vested in oneSupreme Court and in such lower courts as maybe established by law. It includes the duty of thecourts of justice to settle actual controversiesinvolving rights which are legally demandable andenforceable, and to determine whether or notthere has been a grave abuse of discretionamounting to lack or excess of jurisdiction on the

part of any branch or instrumentality of theGovernment.

Judicial Power (1992)No. 8: A case was filed before the Sandiganbayanregarding a questionable government transaction.In the course of the proceedings, newspaperslinked the name of Senator J. de Leon to thescandal.

Senator de Leon took the floor of the Senate tospeak on a "matter of personal privilege" tovindicate his honor against those "baseless andmalicious" allegations. The matter was referred tothe Committee on Accountability of PublicOfficers, which proceeded to conduct a legislativeinquiry. The Committee asked Mr. VinceLedesma, a businessman linked to the transactionand now a respondent before the Sandiganbayan,

to appear and to testify before the Committee.

Mr Ledesma refuses to appear and file suit beforethe Supreme Court to challenge the legality of theproceedings before the Committee. He also askswhether the Committee had the power to requirehim to testify. Identify the issues Involved andresolve them.

SUGGESTED ANSWER:The issues involved in this case are the following:

1 Whether or not the Supreme Court hasurisdiction to entertain the case;2 Whether or not the Committee on

Accountability of Public Officers has the power toinvestigate a matter which is involved in a casepending in court; and3 Whether or not the petitioner can invokehis right against self-incrimination.

All these Issues were resolved in the case ofBengzon vs. Senate Blue Ribbon Committee,203 SCRA 767.

The Supreme Court has jurisdiction over thecase, because it involves the question of whetheror not the Committee on Accountability of PublicOfficers has the power to conduct theinvestigation. Under Section 1, Article VIII of theConstitution, judicial power includes the duty ofthe courts to determine whether or not any branchof the government is acting with grave of abuse ofdiscretion amounting to lack of jurisdiction. TheCommittee on Accountability of Public Officershas no power to investigate the scandal. Sincethe scandal is involved in a case pending in court,

the investigation will encroach upon the exclusivedomain of the court. To allow the investigation willcreate the possibility of conflicting judgmentsbetween the committee and the court. If thedecision of the committee were reached beforethat of the court, it might influence the judgmentof the court.

The petitioner can invoke his right againstself-incrimination, ...



Judicial Power (1998)IV. Andres Ang was born of a Chinese father and aFilipino mother in Sorsogon, Sorsogon. on January20, 1973. In 1988. his father was naturalizedas aFilipino citizen. On May 11,1998. Andres Ang waselected Representative of the First District ofSorsogon. Juan Bonto who received the secondhighest number of votes, filed a petition for Quo

Warranto against Ang. The petition was filed withthe House of Representative Electoral Tribunal(HRET). Bonto contends that Ang is not a naturalborn citizen of the Philippines and therefore isdisqualified to be a member of the House.

The HRET ruled in favor of Ang. Bonto filed apetition for certiorari in the Supreme Court. Thefollowing issues are raised:1 Whether the case is justiciable considering that

Article VI. Section 17 of the Constitution declares the

HRET to be the "sole Judge" of all contests relating to theelection returns and disqualifications of members of theHouse of Representatives. [5%]2 Whether Ang is a natural bom citizen of

the Philippines. |5%] How should this case bedecided? SUGGESTED ANSWER:

1. The case is justiciable. As stated InLazatin vs. House Electoral Tribunal 168 SCRA391, 404, since judicial power includes the duty todetermine whether or not there has been a graveabuse of discretion amounting to lack or excessof jurisdiction on the part of any branch orinstrumentality of the Government, the SupremeCourt has the power to review the decisions ofthe House of Representatives Electoral Tribunalin case of grave Abuse of discretion on its part.

2. Andres Ang should be considered a naturalborn citizen of the Philippines. ....

Judicial Power; Scope (1994)No. 2: 1} What is the difference, if any. between

the scope of Judicial power under the 1987Constitution on one hand, and the 1935 and1973 Constitutions on the other?SUGGESTED ANSWER:The scope of judicial power under the 1987Constitution is broader than its scope under the1935 and 1973 Constitution because of thesecond paragraph of Section 1, Article VIII of the1987 Constitution, which states that it includesthe duty to determine whether or not there hasbeen a grave abuse of discretion

amounting to lack or excess of jurisdiction on thepart of any branch or instrumentality of theGovernment. As held in Marcos us. Manglapus,177 SCRA 668. this provision limits resort to thepolitical question doctrine and broadens the scopeof juridical inquiry into areas which the courtsunder the 1935 and the 1973 Constitutions wouldnormally have left to the political departments todecide.

ALTERNATIVE ANSWER:Under the 1935 and 1973 Constitutions, therewas no provision defining the scope of judicialpower as vested in the judiciary. While theseConstitutions, both provided for vesture of judicialpower "in one Supreme Court and in such inferiorcourts as may be established by law," they weresilent as to the scope of such power.

The 1987 Constitution, on the other hand, re-wrote the provisions on the vesture of judicialpower originally appearing in the 1935 and 1973

Constitutions, as follows:"The judicial power shall be vested in oneSupreme Court and in such lower courts asmay be established by law.

"Judicial power includes the duty of the courtsof justice to settle actual controversiesInvolving rights which are legally demandableand enforceable, and to determine whether ornot there has been a grave abuse of discretionamounting to lack or excess of Jurisdiction onthe part of any branch or instrumentality of the

Government." (Sec. 1. Art. VIII)

The second paragraph of the cited provision wasnot found in the 1935 and 1973 Constitution, itcontains a new definition of judicial powerparticularly the scope thereof. The first portionthereof represents the traditional concept ofJudicial power, involving the settlement ofconflicting rights as by law, which presumably wasimplicit in the 1935 and 1973 Constitutions. Thesecond (latter) portion of the definition represents abroadening of the scope of judicial power or, in the

language of the Supreme Court, conferment of"expanded Jurisdiction" on the Judiciary (Daza v.Singson, 180 SCRA 496) to enable the courts toreview the exercise of discretion by the politicaldepartments of government. This new prerogativeof the judiciary as now recognized under the 1987Constitution was not constitutionally permissibleunder the 1935 and 1973 Charters.



Judicial Review; Locus Standi (1992)No. 6: The Philippine Environmentalists'Organization for Nature, a duly recognized non-governmental organization, intends to file suit toenjoin the Philippine Government from allocatingfunds to operate a power plant at Mount Tuba In asouthern island. They claim that there was noconsultation with the Indigenous culturalcommunity which will be displaced from ancestral

lands essential to their livelihood andindispensable to their religious practices.

The organization is based in Makati. All itsofficers live and work in Makati. Not one of its officersor members belong to the affected indigenous culturalcommunity. Do they have the standing in this dispute?Explain.

Would your answer be different if the PhilippinePower Corporation, a private company, were to operatethe plant? Explain.

SUGGESTED ANSWER:

a) Under Section 5, Article XII of the Constitution,the State should protect the rights of culturalIndigenous communities to their ancestral lands toensure their well-being. Under Section 17, ArticleXIV of the Constitution, the State should protectthe rights of indigenous cultural communities topreserve and develop this cultures, traditions, andinstitutions and should consider these rights in theformulation of national plans and policies. Thegovernment violated these provisions, because itdecided to operate the power plant withoutconsulting the indigenous cultural community and

the operation of the power plant will result in itsdisplacement.

If the projected lawsuit will be based on violationof the rights of the indigenous culturalcommunities, the Philippine EnvironmentalistsOrganization will have no standing to file thecase. None of its officers and members belong tothe indigenous cultural community. None of theirrights are affected.

If the lawsuit will seek to enjoin the use of publicfunds to operate the power plant, the PhilippineEnvironmentalists' Organization can file ataxpayer's suit. As held in Maceda us. Macaraig,197 SCRA 771, a taxpayer has standing toquestion the illegal expenditure of public funds.

b) The Philippine Environmentalists Organizationwill have no standing to file the case if it is aprivate company that will operate

the power plant, because no public funds will bespent for its operation. As held in Gonzales vs.Marcos, 65 SCRA 624, a taxpayer has nostanding to file a case if no expenditure of publicfunds is involved.

Since no member or officer of the PhilippineEnvironmentalists' Organization belongs to theaffected indigenous community, none of the rights

of the Philippine Environmentalists' Organizationand of its officers and members are affected. Inaccordance with the ruling in National EconomicProtectionism Association vs. Ongpin, 171 SCRA657, the organization has no standing to file thecase.

Judicial Review; Requisites (1994)No. 2: 2) Assume that the constitutional questionraised in a petition before the Supreme Court isthe Iis mota of the case, give at least two otherrequirements before the Court will exercise itspower of judicial review?

SUGGESTED ANSWER:2) According to Macasiano vs. National Housing

Authority, 224 SCRA 236, in addition to therequirement that the constitutional question raisedbe the lis mota of the case, the followingrequisites must be present for the exercise of thepower of judicial review:

1 There must be an actual case orcontroversy involving a conflict of legal rightssusceptible of Judicial determination;2 The constitutional question must be raisedby the proper party; and

3 The constitutional question must be raisedat the earliest opportunity.

Jurisdiction of HLURB (1993)No. 8; The ABC Realty, Inc, filed a complaintagainst Rico for the collection of unpaidinstallments on a subdivision lot purchased by thelatter, Rico failed to file an answer, was declaredin default; and after reception of plaintiffsevidence ex parte, judgment was renderedagainst him. The decision became final, and upon

motion by ABC Realty, the judge issued a writ ofexecution.

Rico now files a motion to quash the writ and tovacate the Judgment contending that it is theHousing and Land Use Regulatory Board(HLURB) which is vested with original andexclusive Jurisdiction over cases involving thereal estate business. Rico prays for the dismissalof the complaint and for the nullity of the decision.The realty firm opposes the



motion arguing that under BP 129, RTCs haveexclusive and original jurisdiction over cases inwhich the amount of controversy exceedsP20,000.00. Answer the following queries:(1) Who has jurisdiction over the collection suit?

(2) The RTC decision, having become final andexecutory, can it still be vacated?SUGGESTED ANSWER:

1} As held in Estate Developers and InvestorsCorporation vs. Court of Appeals, 213 SCRA 353,pursuant to Presidential Decree No. 1344, it isthe Housing and Land Use Regulatory Boardwhich has jurisdiction over the claim of adeveloper against a buyer for the payment of thebalance of the purchase price of a lot. Theurisdiction of the Regional Trial Court over casesin which the amount of controversy exceedsP20,000.00 exists only in all cases where thecase does not otherwise fall within the exclusiveurisdiction of any other court, tribunal, person orbody exercising Judicial or quasi-judicial

functions,

2) Yes, because it is void....

Mandatory Period For Deciding Cases (1989)No. 10: (2) Despite the lapse of 4 months fromthe time that the trial was terminated and thecase submitted for decision, the trial court failedto decide the case. The defense counsel movedto dismiss the case on the ground that after thelapse of 90 days, the court had lost jurisdiction todecide the case. Should the motion be granted?

SUGGESTED ANSWER:No, the motion should not be granted. Section 15(4), Article VIII of the 1987 Constitution provides:

"Despite the expiration of the applicablemandatory period, the court, without prejudiceto such responsibility as may have beenincurred in consequence thereof, shall decideor resolve the case or matter submittedthereto for determination, without furtherdelay."

Thus, the failure of the trial court to decide thecase within ninety days did not oust it ofurisdiction to decide the case.ALTERNATIVE ANSWER:The 1973 Constitution provided for certainconsequences on the decisions of courts in caseof the failure of the Supreme Court and otherinferior collegiate courts to decide cases withinprescribed periods. But it did not provide forconsequences on the decisions of trial courts asa result of their failure to decide cases

within three months (Art. X, Sec. 11). In Marcelinovs. Cruz, 121 SCRA 51 (1983) it was held thatthe periods prescribed are only directory, notmandatory.

Political Question (1995)No. 13: Judicial power as defined in Sec. 1, 2ndpar., Art. VIII, 1987 Constitution, now "includes theduty of the Courts of Justice to settle actual

controversies involving rights which are legallydemandable and enforceable, and to determinewhether or not there has been a grave abuse ofdiscretion amounting to lack of excess ofurisdiction on the part of any branch orinstrumentality of the Government. "This definitionis said to have expanded the power of theudiciary to include political questions formerlybeyond its jurisdiction.

(1) Do you agree with such as interpretation of theconstitutional definition of judicial power that wouldauthorize the courts to review and, if warranted,

reverse the exercise of discretion by the politicaldepartments (executive and legislative) of thegovernment, including the ConstitutionalCommissions? Discuss fully,(2) In your opinion, how should such definition beconstrued so as not to erode considerably ordisregard entirely the existing "political question"doctrine? Discuss fully.

SUGGESTED ANSWER:1. Yes, the second paragraph of Section 1,

Article VIII of the 1987 Constitution hasexpanded the power of the Judiciary toinclude political questions. This was not foundin the 1935 and the 1973 Constitution,Precisely, the framers of the 1987 constitutionintended to widen the scope of judicial review.

2. As pointed out in Marcos vs. Manglapus, 177SCRA 668, so as not to disregard entirely thepolitical question doctrine, the extent of

judicial review when political questions areinvolved should be limited to a determinationof whether or not there has been a graveabuse of discretion amounting to lack orexcess of jurisdiction on the part of the official

whose act is being questioned. If grave abuseof discretion is not shown, the courts shouldnot substitute their judgment for that of theofficial concerned and decide a matter whichby its nature or by law is for the latter alone todecide.

Political Question Doctrine (1997)No. 5; To what extent, if at all, has the 1987Constitution affected the "political questiondoctrine"?



SUGGESTED ANSWER:Section 1, Article VIII of the Constitution hasexpanded the scope of judicial power by includingthe duty of the courts of Justice to settle actualcontroversies involving rights which are legallydemandable and enforceable, and to determinewhether or not there has been a grave abuse ofdiscretion amounting to lack or excess ofurisdiction on the part of any branch or

instrumentality of the Government. In Marcos vs.Manglapus, 177 SCRA 668, the Supreme Courtstated that because of this courts of justice maydecide political questions if there was grave abuseof discretion amounting to lack or excess ofurisdiction on the part of the official whose actionis being questioned.

Political Question: Separation of Powers(2004)(b) SDO was elected Congressman. Before theend of his first year in office, he inflicted physical

injuries on a colleague, ET, in the course of aheated debate. Charges were filed in court againsthim as well as in the House Ethics Committee.Later, the House of Representatives, dividingalong party lines, voted to expel him. Claiming thathis expulsion was railroaded and tainted bybribery, he filed a petition seeking a declaration bythe Supreme Court that the House gravely abusedits discretion and violated the Constitution. Heprayed that his expulsion be annulled and that heshould be restored by the Speaker to his positionas Congressman. Is SDO's petition before the

Supreme Court justiciable? Cite pertinent issuesfor consideration. (5%)

SUGGESTED ANSWER:While under Section 1, Article VIII of the 1987Constitution the Supreme Court may inquirewhether or not the decision to expel SDO istainted with grave abuse of discretion amountingto lack or excess of jurisdiction, the petition shouldbe dismissed. In Alejandrino v. Quezon (46 Phil.83 [1924]), the Supreme Court held that it couldnot compel the Senate to reinstate a Senator who

assaulted another Senator and was suspended fordisorderly behavior, because it could not compel aseparate and co-equal department to take anyparticular action. In Osmeña v. Pendatun (109Phil. 863 [1960]), it was held that the SupremeCourt could not interfere with the suspension of aCongressman for disorderly behavior, because theHouse of Representatives is the judge of whatconstitutes disorderly behavior.

The assault of a fellow Senator constitutesdisorderly behavior.

Political Question; To Settle ActualControversies (2004)(a) The 1935, 1973 and 1987 Constitutionscommonly provide that "Judicial power shall bevested in one Supreme Court and in such lowercourts as may be established by law."

What is the effect of the addition in the 1987Constitution of the following provision: "Judicialpower includes the duty of the courts of justice tosettle actual controversies involving rights whichare legally demandable and enforceable, and todetermine whether or not there has been graveabuse of discretion amounting to lack or excessof jurisdiction on the part of any branch orinstrumentality of the government"? Discussbriefly, citing at least one illustrative case. (5%)SUGGESTED ANSWER:The effect of the second paragraph of Section 1,

Article VIII of the 1987 Constitution is to limitresort to the political question doctrine and tobroaden the scope of judicial inquiry into areaswhich the Judiciary, under the previousConstitutions, would have left to the politicaldepartments to decide. If a political question isinvolved, the Judiciary can determine whether ornot the official whose action is being questionedacted with grave abuse of discretion amounting tolack 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 Tribunalhas exclusive jurisdiction to decide electioncontests involving members of the House ofRepresentatives, the Supreme Court nullified theremoval of one of its members for voting in favorof the protestant, who belonged to a differentparty. (Bondoc v. Pineda, 201 SCRA 792 [1991]).

Political Questions (1988)No. 23: In accordance with the opinion of theSecretary of Justice, and believing that it wouldbe good for the country, the President enters into

an agreement with the Americans for anextension for another five (5) years of their stayat their military bases in the Philippines, inconsideration of:

(1) A yearly rental of one billion U.S. dollars,payable to the Philippine government in advance;(2) An undertaking on the part of the Americangovernment to implement immediately themini-Marshall plan for the country involving



ten billion U.S. dollars in aids andconcessional loans; and

(3) An undertaking to help persuade Americanbanks to condone interests and other charges onthe country's out-standing loans.

In return, the President agreed to allow Americannuclear vessels to stay for short visits at Subic,

and in case of vital military need, to store nuclearweapons at Subic and at Clark Field. A vitalmilitary need comes, under the agreement, whenthe sealanes from the Persian Gulf to the Pacific,are threatened by hostile military forces.

The Nuclear Free Philippine Coalition comes toyou for advice on how they could legally preventthe same agreement entered into by thePresident with the US government from goinginto effect. What would you advise them to do?Give your reasons.

SUGGESTED ANSWER:If the Agreement is not in the form of a treaty, it isnot likely to be submitted to the Senate forratification as required in Art. VII, sec. 21. It maynot, therefore, be opposed in that branch of thegovernment. Nor is judicial review feasible at thisstage because there is no justiciable controversy.While Art. VIII, sec. 1, par. 2 states that judicialpower includes the duty of court of justice to"determine whether or not there has been a graveabuse of discretion amounting to lack or excessof jurisdiction on the part of any branch or

instrumentality of the government," it is clear thatthis provision does not do away with the politicalquestion doctrine. It was inserted in theConstitution to prevent courts from making use ofthe doctrine to avoid what otherwise areusticiable controversies, albeit involving theExecutive Branch of the government during themartial law period. On the other hand, at thisstage, no justiciable controversy can be framed toustify judicial review, I would, therefore, advicethe Nuclear Free Philippine Coalition to resort tothe media to launch a campaign against the

Agreement.

Pro Hac Vice Cases (1999)No XI What does if mean when a Supreme CourtJustice concurs in a decision pro hac vice? (2%)

SUGGESTED ANSWER:When a decision is pro hac vice, it means theruling will apply to this particular case only.

Removal of Lower Court Judges (1993)

No. 11: How may the following be removed fromoffice: 1) Senators & Congressmen 2) Judges oflower courts 3) Officers and employees in theCivil Service

SUGGESTED ANSWER:1) As to Sen & Cong, Art. III, section 16(3), ofthe Constitution, ... 2) Under Art. VIII, sec. 11 ofthe Constitution, Judges of lower courts may be

removed by dismissal by the Supreme by a voteof a majority of the Members who actually tookpart in the deliberation on the issues in the caseand voted thereon. 3) As to Civ Service Empl,

Art. IX-B. Sec. 2(3) of the Constitution, ...

Review Executive Acts (1996)No. 10: 1) X, a clerk of court of the Regional TrialCourt of Manila, was found guilty of being absentwithout official leave for 90 days and considereddismissed from service by the Supreme Court. He

appealed to the President for executive clemency. Acting on the appeal, the Executive Secretary, byorder of the President commuted the penalty to asuspension of six months. a) Can the SupremeCourt review the

correctness of the action of the President incommuting the penalty imposed on X?Explain.

b) Was the action of the Presidentconstitutional and valid? Explain.SUGGESTED ANSWER:1. a) Yes, the Supreme Court can review thecorrectness of the action of the President Incommuting the penalty imposed on X. By doingso, the Supreme Court is not deciding a politicalquestion. The Supreme Court is not reviewing thewisdom of the commutation of the penalty. Whatit is deciding is whether or not the President hasthe power to commute the penalty of X, As statedin Daza vs. Singson. 180 SCRA 496, it is withinthe scope of Judicial power to pass upon thevalidity of the actions of the other departments ofthe Government.

b) The commutation by the President of thepenalty imposed by the Supreme Court upon X isunconstitutional. Section 6. Article VIII of theConstitution vests the Supreme Court with thepower of administrative supervision over allcourts and their personnel. In Garcia vs. De laPena, 229 SCRA 766, it was held that no otherbranch of the Government may intrude into thisexclusive power of the Supreme Court.



SUGGESTED ANSWER:No. A cannot hold over his position as AssociateJustice of the Supreme Court and participate inthe deliberations of the case on July 1, 1996.Under Section 11, Article VIII of the Constitution,

Members of the Supreme Court hold office untilthey reach the age of seventy years or becomeincapacitated to discharge their duties.Constitutional officers whose terms are fixed bythe Constitution have no right to hold over theirpositions until their successors shall have beenappointed and qualified unless otherwiseprovided in the Constitution. (Mechem, A Treatieson the Law of Public Offices and Officers, p. 258.)



Votes required for declaring a lawunconstitutional (1996)No. 7: Can five members of the Supreme Courtdeclare a municipal ordinance unconstitutional?Explain.SUGGESTED ANSWER:Yes. five Members of the Supreme Court sittingen-banc can declare a municipal ordinanceunconstitutional. Under Section 4(2). Article VIII of

the Constitution, a municipal ordinance can bedeclared unconstitutional with the concurrence of amajority of the Members of the Supreme Court whoactually took part in the deliberation on the issuesin the case and voted thereon. If only eightMembers of the Supreme Court actually took partin deciding the case, there will still be a quorum.Five Members will constitute a majority of thosewho actually took part in deciding the case.

ARTICLE IX ConstitutionalCommissions Rotational

Scheme (1999)No XIII - What are the requisites for the effectiveoperation of the so-called "Rotational Scheme" forConstitutional Commissions? (2%)

SUGGESTED ANSWER: As held in Republic v. Imperial, 96 Phil. 770, forthe effective operation of the rotational scheme ofthe Constitutional Commission, the firstCommissioner should start on a common dateand any vacancy before the expiration of the termshould be filled only for the unexpired balance ofthe term.

Constitutional Commissions & Council (Q7-2006)2. The legislature may abolish this body: (5%)

. Commission on Appointments

. Ombudsman

. Judicial and Bar Council

. Court of Tax Appeals

. Commission on Audit

SUGGESTED ANSWER:The legislature may abolish the d) COURT OFTAX APPEALS since it is merely a creation oflaw unlike the Commission on Appointments,Ombudsman, Judicial and Bar Council andCommission on Audit which are all constitutionalcreations. Thus, the latter agencies may only beabolished by way of an amendment or revision ofthe Constitution.

ARTICLE IX Civil ServiceCommission

Career Service; Characteristics (1999)No IX - What characterizes the career serviceand what are included in the career service?(2%)

SUGGESTED ANSWER: According to Section 7, Chapter 2, Title I, Book Vof the Administrative Code of 1987, the careerservice is characterized by(1) Entrance based on merit and fitness to bedetermined as far as practicable by competitiveexamination or based on highly technicalqualifications;(2) opportunity for advancement to highercareer positions; and(3) security of tenure.

The career service includes:

(1) OPEN CAREER POSITIONS forappointment to which prior qualifications in anappropriate examination is required;(2) CLOSED CAREER POSITIONS which arescientific or highly technical in nature;(3) Positions in the CAREER EXECUTIVESERVICE;(4) Career officers other than those in the careerexecutive service, who are appointed by thePresident;(5) Commissioned officers and enlisted men ofthe Armed Forces;(6) Personnel of government -owned orcontrolled corporations, whether performinggovernmental or proprietary functions, who do notfall under the non-career service; and

(7) Permanent laborers, whether skilled,semiskilled, or unskilled.

Civil Service Commission vs. COA (2004)(9-a) Former Governor PP of ADS Province haddismissed several employees to scale down theoperations of his Office. The employeescomplained to the Merit Systems Protection Board,

which ruled that the Civil Service rules wereviolated when the employees were dismissed. TheCivil Service Commission (CSC) affirmed theMSPB decision, and ordered ADS to reinstate theemployees with full backwages. ADS did notappeal and the order became final.

Instead of complying immediately, BOP, theincumbent Governor of ADS, referred the matterto the Commission on Audit (COA),



which ruled that the amounts due are thepersonal liabilities of the former Governor whodismissed the employees in bad faith. Thus, ADSrefused to pay. The final CSC decision, however,did not find the former Governor in bad faith. Theformer Governor was likewise not heard on thequestion of his liability.

Is ADS' refusal justified? Can COA disallow the

payment of backwages by ADS to the dismissedemployees due under a final CSC decision?Decide and reason briefly. (5%)

SUGGESTED ANSWER: A. The refusal of ADS is not justified, and theCommission on Audit cannot disallow the paymentof backwages by ADS to the dismissed employee.The Commission on Audit cannot make a ruling thatit is the former governor who should be personallyliable, since the former governor was not given theopportunity to be heard. In addition, the Commissionon Audit cannot set aside a final decision of the Civil

Service Commission. The payment of backwages toillegally dismissed government employee is not anirregular, unnecessary, excessive, extravagant orunconscionable expenditure. (Uy v. Commission on

Audit, 328 SCRA 607 [2000]).

Function of CSC (1994)No. 15 - 2) Can the Civil Service Commissionrevoke an appointment by the appointing powerand direct the appointment of an individual of its

choice?SUGGESTED ANSWER: According to the ruling in Medalla vs. Sto. Tomas,208 SCRA 351, the Civil Service Commissioncannot dictate to the appointing power whom toappoint. Its function is limited to determiningwhether or not the appointee meets the minimumqualification requirements prescribed for theposition. Otherwise, it would be encroachingupon the discretion of the appointing power.

GOCCs Without Original Charter vs. GOCCs

With Original Charter (1998)No II.-- The Constitution distinguishes between twotypes of owned and/or controlled corporations:those with original charters and those which aresubsidiaries of such corporations. In which of thefollowing rule/rules is such a distinction made?Consider each of the following items and explainbriefly your answer, citing pertinent provisions ofthe Constitution.

1 The rule prohibiting the appointment tocertain government positions, of the spouse andrelatives of the President within the fourth degreeof consanguinity or affinity. [2%]2 The rule making it incompatible formembers of Congress to hold offices oremployment in the government. [2%]3 The rule prohibiting members of theConstitutional Commissions, during their tenure,

to be financially interested in any contract with orany franchise or privilege granted by thegovernment, [2%]4 The rule providing for post audit by theCOA of certain government agencies. [2%]5 The rule requiring Congress to provide forthe standardization of compensation ofgovernment officials and employees. [2%]

SUGGESTED ANSWER:

1 Section 13. Article VII of the Constitution,which prohibits the President from appointing hisspouse and relatives within the fourth degree ofconsanguinity or affinity does not distinguish betweengovernment corporations with original charters andtheir subsidiaries, because the prohibition applies toboth.2 Section 13, Article VII of the Constitution,which prohibits Members of Congress from holdingany other office during their term without forfeitingtheir seat, does not distinguish between governmentcorporations with original charters and theirsubsidiaries, because the prohibition applies to both.3 Section 2, Article IX-A of the Constitution,which prohibits Members of the ConstitutionalCommissions from being financially interested in anycontract with or any franchise or privilege granted bythe Government, does not distinguish betweengovernment corporations with original charters andtheir subsidiaries, because the prohibition applies toboth.4 Section 2(1), Article IX-D of the Constitutionwhich provides for post audit by the Commission onaudit of government corporations, does not distinguish between government corporations with original

charters and their subsidiaries, because the provisionapplies to both.5 Section 5, Article IX-B of the Constitution,which provides for the standardization of the



compensation of government officials andemployees, distinguishes between governmentcorporations and their subsidiaries, for theprovision applies only to government corporationswith original charters.

Jurisdiction over the GOCCs (1999)No IX - Luzviminda Marfel, joined by eleven other

retrenched employees, filed a complaint with theDepartment of Labor and Employment (DOLE) forunpaid retrenchment or separation pay,underpayment of wages and non-payment ofemergency cost of living allowance. Thecomplaint was filed against Food Terminal, Inc.Food Terminal Inc. moved to dismiss on theground of lack of jurisdiction, theorizing that it is agovernment-owned and controlled corporation andits employees are governed by the Civil ServiceLaw and not by the Labor Code. Marfel opposedthe motion to dismiss, contending that although

Food Terminal, Inc. is a corporation owned andcontrolled by the government earlier created andorganized under the general corporation law as"The Greater Manila Food Terminal, Inc.", it hasstill the marks of a private corporation: it directlyhires its employees without seeking approval fromthe Civil Service Commission and its personnelare covered by the Social Security System and notthe Government Service Insurance System, Thequestion posed in the petition for certiorari at bar iswhether or not a labor law claim against agovernment-owned or controlled corporation likethe Food Terminal, Inc. falls within the jurisdiction

of the Department of Labor and Employment orthe Civil Service Commission? Decide andratiocinate. (4%)

SUGGESTED ANSWER:The claim of the retrenched employees falls underthe jurisdiction of the National Labor RelationsCommission and not under the jurisdiction of theCivil Service Commission. As held in Lumanta v.National Labor Relations Commission, 170 SCRA79, since Food Terminal, Inc. was organizedunder the Corporation Law and was not createdby a special law in accordance with Section 2(1),

Article IX-B of the Constitution, it is not covered bythe civil service.

Jurisdiction over the GOCCs (2003)No VII - A corporation, a holder of a certificate ofregistration issued by the Securities and ExchangeCommission, is owned and controlled by theRepublic of the Philippines. The Civil ServiceCommission (CSC), in a

memorandum-order, directs the corporation tocomply with Civil Service Rules in theappointment of all of its officers and employees.The memorandum-order of the CSC is assailed bythe corporation, as well as by its officers andemployees, before the court. How should the casebe resolved?SUGGESTED ANSWER:The memorandum-order of the Civil Service

Commission should be declared void. As held inGamogamo v. PNOC Shipping and TransitCorporation. 381 SCRA 742 (2002). under ArticleIX-B, Section 2(1) of the 1987 Constitutiongovernment-owned or controlled corporationsorganized under the Corporation Code are notcovered by the Civil Service Law but by the LaborCode, because only government-owned orcontrolled corporations with original charters arecovered by the Civil Service.

Modes of Removal from Office (1993)

No. 11: How may the following be removed fromoffice: 1) Senators & Congressmen 2) Judges oflower courts 3) Officers and employees in theCivil Service

SUGGESTED ANSWER:1) Senators, Cong., Art. III, section 16(3), of theConstitution, ...

2) Judges, Art. VIII, sec. 11 of the Constitution,

3) Under Art. IX-B. Sec. 2(3) of the Constitution,officers and employees in the Civil Service mayonly be removed for cause as provided by lawand after observance of due process.

Their removal must be effected by the appropriatedisciplinary authority in accordance with Ch. 7secs. 47-48 of Book V of the Administrative Codeof 1987 and the Civil Service Rules andRegulations.

Receiving of Indirect Compensation (1997)No. 18; A, while an incumbent Governor of hisprovince, was invited by the Government of

Cambodia as its official guest. While there, thesovereign king awarded Governor A with adecoration of honor and gifted him with a goldring of insignificant monetary value, both of whichhe accepted.

Was Governor A's acceptance of the decorationand gift violative of the Constitution?SUGGESTED ANSWER:Yes, it violated Section 8, Article IX-B of theConstitution. For his acceptance of the



decoration of honor and the gold ring from theGovernment of Cambodia to be valid, Governor

A should first obtain the consent of Congress.

Security of Tenure (1988)No. 10: Exercising power he claims had beengranted him by the Executive Order on thereorganization of the government, theCommissioner of Customs summarily dismissed

two hundred sixty-five officials and employees ofthe Bureau of Customs. Most of the oustedemployees appealed to the Civil ServiceCommission claiming their ouster illegal. The CivilService Commission, after hearing, later orderedthe Commissioner of Customs to reinstate most ofthose dismissed. Instead of following the order ofthe Civil Service Commission, Commissioner Misonintends to bring for review before the SupremeCourt, the same decision of the Commission.

1. If you were the counsel for the Commissioner of

Customs, how would you justify his dismissal ofcustoms officials and employees?

2. If on the other hand, you were a counsel forthe dismissed officials and employees, howwould you sustain the order of the Civil ServiceCommission reinstating most of them? State yourreasons.SUGGESTED ANSWER:1. I would invoke the resolution in Jose v. Arroyo,G.R. No. 78435, Aug. 11, 1987, in which theSupreme Court held that under Art. XVIII, sec, 16of the Constitution, career service employeesmay be removed "not for cause but as a result ofthe reorganization pursuant to Proclamation No.3 dated March 25, 1986 and the reorganizationfollowing the ratification of this Constitution." Byvirtue of this provision, it was held that thereorganization of the Bureau of Customs underExecutive Order No, 127 may continue even afterthe ratification of the Constitution, and careerservice employees may be separated from theservice without cause as a result of suchreorganization.

2. I would argue that art. XVIII, sec. 16 does notreally authorize the removal of career serviceemployees but simply provides for the payment ofseparation, retirement, and other benefits accruingto them under the applicable laws. The referenceto career service employees separated "as a resultof the reorganization following the ratification ofthis Constitution" is only to those separated as aresult of reorganization of the structure andfunctions of government (e.g., as a result of

abolition of offices) as distinguished from thereorganization of personnel which is what is referredto therein as "the reorganization pursuant toProclamation No. 3 dated March 25, 1986." For thepower of the government to terminate theemployment of elective and appointive officialspursuant to Art. III, sec. 2 of Proclamation No. 3(otherwise known as the Provisional Constitution),through the appointment or designation of their

successors has been repeatedly held to have endedon February 2, 1987, when the new Constitutiontook effect. (De Leon v. Esguerra, 153 SCRA 602(1987); Reyes v. Ferrer G.R. No. 77801, Dec. 11,1987; Osias v. Ferrer, G.R, No. 77049, March 28,1988), Moreover, such replacement of incumbentscan only be for cause as prescribed by ExecutiveOrder No. 17, dated May 28, 1986. Since thesummary dismissals in question are not for cause,the removal of the Bureau of Customs officialsviolates art. IX, B, sec, 2(3) of the Constitution.

Security of Tenure (Q5-2005)(3) Ricardo was elected Dean of the College ofEducation in a State University for a term of five (5)years unless sooner terminated. Many were notpleased with his performance. To appease thosecritical of him, the President created a new position,that of Special Assistant to the President with therank of Dean, without reduction in salary, andappointed Ricardo to said position in the interest ofthe service. Contemporaneously, the UniversityPresident appointed Santos as Acting Dean in place

of Ricardo. (5%)

(a) Does the phrase "unless soonerterminated" mean that the position of Ricardois terminable at will?

ALTERNATIVE ANSWER:No, the term "unless sooner terminated" couldnot mean that his position is terminable at will.Security of tenure means that dismissal shouldonly be for cause, as provided by law and nototherwise. (Palmera v. CSC, G.R. No. 110168,

August 4, 1994)

ALTERNATIVE ANSWER:No, his position is not terminable at will. Ricardo'scontract of employment has a fixed term of fiveyears. It is not an appointment in an actingcapacity or as officer-in-charge. A college deanappointed with a term cannot be separatedwithout cause. Ricardo, with a definite term ofemployment, may not thus be



removed except for cause. (Sta. Maria v. Lopez,G.R. No. L-30773, February 18,1970)

(b) Was Ricardo removed from hisposition as Dean of the College of Educationor merely transferred to the position of Special

Assistant to the President? Explain.

SUGGESTED ANSWER:

Ricardo was removed from his position as dean.Having an appointment with a fixed term, hecannot, without his consent, be transferred beforethe end of his term. He cannot be asked to giveup his post nor appointed as dean of anothercollege, much less transferred to another positioneven if it be dignified with a dean's rank. Morethan this, the transfer was a demotion becausedeanship in a university, being an academicposition which requires learning, ability andscholarship, is more exalted than that of a specialassistant who merely assists the President, as thetitle indicates. The special assistant does not

make authoritative decisions unlike the dean whodoes so in his own name and responsibility. Theposition of dean is created by law, while thespecial assistant is not so provided by law; it wasa creation of the university president. (Sta. Mariav. Lopez, G.R. No. L-30773, February 18, 1970)

Security of Tenure; Meaning (1999)No IX - -What is the meaning and guarantee ofsecurity of tenure? (2%)

SUGGESTED ANSWER: According to Palmera v. Civil Service Commission,235 SCRA 87, SECURITY OF TENURE meansthat no officer or employee in the Civil Serviceshall be suspended or dismissed except for causeas provided by law and after due process.

ARTICLE IX COMELEC Electoral

Tribunal; Functions & Composition(Q5-2006)1. What is the function of the SenateElectoral Tribunal and the House of

Representatives Electoral Tribunal? (2.5%)SUGGESTED ANSWER:Under Article VI, Section 17 of the 1987Constitution, the Senate and House ofRepresentatives Electoral Tribunals shall be thesole judge of all contests relating to the election,returns, and qualifications of their respectiveMembers.

2. What is the composition of each? (2.5%)SUGGESTED ANSWER:

Each Electoral Tribunal shall be composed ofNINE Members, three of whom shall be Justicesof the Supreme Court to be designated by theChief Justice, and the remaining six shall beMembers of the Senate or the House ofRepresentatives, as the case may be, who shallbe chosen on the basis of proportionalrepresentation from the political parties and theparties or organizations registered under the

party-list system represented therein. The seniorJustice in the Electoral Tribunal shall be itsChairman (Article VI, Section 17,1987Constitution).

Fair Election; Equal Space & Time in Media(1989)No. 16: A COMELEC (COMELEC) resolutionprovides that political parties supporting acommon set of candidates shall be allowed topurchase jointly air time and the aggregateamount of advertising space purchased forcampaign purposes shall not exceed that allotted

to other political parties or groups that nominatedonly one set of candidates. The resolution ischallenged as a violation of the freedom ofspeech and of the press. Is the resolutionconstitutionally defensible? Explain.SUGGESTED ANSWER:Yes, the resolution is constitutionally defensible.Under Section 4, Article IX-C of the 1987Constitution, during the election period theCOMELEC may supervise or regulate the mediaof communication or information to ensure equalopportunity, time, and space among candidateswith the objective of holding free, orderly, honest,peaceful, and credible elections. To allowcandidates which are supported by more than onepolitical party to purchase more air time andadvertising space than candidates supported byone political party only will deprive the latter ofequal time and space in the media.

ALTERNATIVE ANSWER:No. Although the expenditure limitation appliesonly to the purchase of air time, thus leavingpolitical parties free to spend for other forms ofcampaign, the limitation nonetheless results in a

direct and substantial reduction of the quantity ofpolitical speech by restricting the number ofissues that can be discussed, the depth of theirdiscussion and the size of the audience that canbe reached, through the broadcast media. Sincethe purpose of the Free Speech Clause is topromote the widest possible dissemination ofinformation, and the reality is that to do thisrequires the expenditure of money, a limitation onexpenditure for this purpose cannot be justified,not even for the purpose of equalizing



the opportunity of political candidates. This is theruling in Buckley vs. Valeo, 424 U.S. 1 (1976),which invalidated a law limiting the expendituresof candidates for campaigning in the UnitedStates. In the Philippines, a provision of theTañada-Singson Law, limiting the period forcampaigning, was nearly invalidated on this sameprinciple, except that the majority of court lackedone more vote to make their decision effective.

(See Gonzalez vs. Comelec, 27 SCRA 835(1969).

Grant of Pardon in Election Offenses (1991)No. 11 - In connection with the May 1987Congressional elections, Luis Millanes wasprosecuted for and convicted of an electionoffense and was sentenced to suffer imprisonmentfor six years. The court did not impose theadditional penalty of disqualification to hold publicoffice and of deprivation of the right of suffrage asprovided for in Section 164 of the OmnibusElection Code of the Philippines

(B.P. Blg. 881).

In April 1991, the President granted him absolutepardon on the basis of a strong recommendationof the Board of Pardons and Parole.

Then for the election in May 1992, Luis Millanesfiles his certificate of candidacy for the office ofMayor in his municipality.

(a) What is the effect of the failure of the court toimpose the additional penalty?(b) Is the pardon valid?SUGGESTED ANSWER:(a) No need to expressly impose – they areaccessory penalties.

(b) The pardon is void, since Luis Millanes wasconvicted for the commission of an electionoffense and his pardon was not made upon therecommendation of the COMELEC. Under ArticleIX, C, Sec. 5 of the Constitution, no pardon forviolation of an election law may be grantedwithout the favorable recommendation of the

COMELEC

Judicial Review of Decisions (2001)No XVI - In an election protest involving theposition of Governor of the Province of Lagunabetween "A", the protestee, and "B", theprotestant, the First Division of the COMELECrendered a decision upholding B's protest

Can "A" file a petition for certiorari with theSupreme Court under Rule 65 of the Rules of

Court, from the decision of the COMELEC FirstDivision? If yes. Why? If not what proceduralstep must he undertake first? ( 5%)SUGGESTED ANSWER:"A" cannot file a petition for certiorari with theSupreme Court. As held in Mastura vs.COMELEC, 285 SCRA 493 (1998), the SupremeCourt cannot review the decisions or resolutionsof a division of the COMELEC. "A" should first file

a motion for reconsideration with the COMELECen banc.

Removal from Office; Commissioners (1998)No IX. - Suppose a Commissioner of the COMELECis charged before the Sandiganbayan for allegedlytolerating violation of the election laws againstproliferation of prohibited billboards and electionpropaganda with the end in view of removing himfrom office. Will the action prosper? [5%]

SUGGESTED ANSWER:No, the action will not prosper. Under Section 8,

Article XI of the Constitution, the Commissioners ofthe COMELEC are removable by IMPEACHMENT.

As held in the case of In re Gonzales. 160 SCRA771, 774775, a public officer who is removable byimpeachment cannot be charged before theSandiganbayan with an offense which carries with itthe penalty of removal from office unless he is firstimpeached. Otherwise, he will be removed fromoffice by a method other than Impeachment.

Right to Vote; Jurisdiction (2001)No II - Let us suppose that Congress enacted alaw which amended the Omnibus Election Code(particularly Sections 138, 139, 142, 143) byvesting , in the COMELEC the jurisdiction overinclusion and exclusion cases filed by voters,instead of in the courts (MTC, then RTC). Is thelaw valid or not, and why? (5%)SUGGESTED ANSWER:The law granting the COMELEC jurisdiction overinclusion and exclusion cases is unconstitutional.Under Section 2(3), Article IXC of the Constitution,the COMELEC cannot decide the right to vote,

which refers to the inclusion and exclusion ofvoters. Under Section 2(6), Article IX-C of theConstitution, it can only file petitions in court forinclusion or exclusion of voters.

Election Laws 2nd

Placer Rule (2003)No VIII - In the municipal mayoralty elections in1980, the candidate who obtained the highestnumber of votes was subsequently declared to



be disqualified as a candidate and so ineligiblefor the office to which he was elected. Would thisfact entitle a competing candidate who obtainedthe second highest number of votes to ask and tobe proclaimed the winner of the elective office?Reasons.SUGGESTED ANSWER:

According to Trinidad v. COMELEC. 315 SCRA175 [1999], if the candidate who obtained the

highest number of votes is disqualified, thecandidate who obtained the second highestnumber of votes cannot be proclaimed thewinner. Since he was not the choice of thepeople, he cannot claim any right to the office.

2nd Placer Rule (1990)No. 7: A filed a protest with the House ElectoralTribunal questioning the election of B as Memberof the House of Representatives in the 1987national elections on the ground that B is not aresident of the district the latter is representing.While the case was pending. B accepted an

ad-interim appointment as Secretary of theDepartment of Justice.

(1) May A continue with his election protest inorder to determine the real winner in the saidelections? State your reason.(2) Can A, who got the second highest numberof votes in the elections, ask that he beproclaimed elected in place of B? Explain youranswer.SUGGESTED ANSWER:(1) No, A may not continue with his protest.....(2) No, A cannot ask that he be proclaimedelected in place of B. The votes cast for B werenot invalid votes. Hence, A garnered only thesecond highest number of votes. Only thecandidate who obtained the majority or plurality ofthe votes is entitled to be proclaimed elected. Onthis ground, it was held in Labo v. COMELEC,176 SCRA 1, that the fact that the candidate whoobtained the highest number of votes is noteligible does not entitle the candidate whoobtained the second highest number of votes tobe proclaimed the winner.

2nd Placer Rule; in Quo Warranto Cases(1992)No. 16: Edwin Nicasio, born in the Philippines ofFilipino parents and raised in the province ofNueva Ecija, ran for Governor of his homeprovince. He won and he was sworn into office. Itwas recently revealed, however, that Nicasio is anaturalized American citizen. a) Does he stillpossess Philippine citizenship?

b) If the second-placer in the gubematorialelections files a quo warranto suit against Nicasioand he is found to be disqualified from office, canthe second-placer be sworn into office asgovernor?c) If, instead, Nicasio had been born (of thesame set of parents) in the United States and hethereby acquired American citizenship by birth,would your answer be different?

SUGGESTED ANSWER:a) No, Nicasio no longer possesses Philippinecitizenship. ...

b) In accordance with the ruling in Abella us.COMELEC, 201 SCRA 253, the second placercannot be sworn to office, because he lost theelection. To be entitled to the office, he musthave garnered the majority or plurality of thevotes.

c) Yes because he will be a dual citizen ...

2nd Placer Rule; Rule of Succession (1996)No. 13: 1) A and B were the only candidates formayor of Bigaa, Bulacan in the May 1995 localelections. A obtained 10,000 votes as against3,000 votes for B. In the same elections, X got thehighest number of votes among the candidatesfor the Sangguniang Bayan of the same town. Adied the day before his proclamation. a) Whoshould the Board of Canvassers

proclaim as elected mayor, A, B or X? Explain, b)Who is entitled to discharge the functions of theoffice of the mayor, B or X? Explain.

SUGGESTED ANSWER:In accordance with Benito vs. COMELEC, 235SCRA 436, it is A who should be proclaimed aswinner, because he was the one who obtainedthe highest number of votes for the position ofmayor, but a notation should be made that hedied for the purpose of applying the rule onsuccession to office. B cannot be proclaimed,because the death of the candidate who obtainedthe highest number of votes does not entitle the

candidate who obtained the next highest numberof votes to be proclaimed the winner, since hewas not the choice of the electorate. X is notentitled to be proclaimed elected as mayor,because he ran for the Sangguniang Bayan.

Neither B nor X is entitled to discharge thefunctions of the office of mayor. B is not entitledto discharge the office of mayor, since he wasdefeated in the election. X is not entitled to



discharge the office of mayor. Under Section 44 ofthe Local Government Code, it is the vice mayorwho should succeed in case of permanentvacancy in the office of the mayor. It is only whenthe position of the vice mayor is also vacant thatthe member of the Sangguniang Bayan whoobtained the highest number of votes willsucceed to the office of mayor.

Appreciation of Ballots (1994)No. 3; If a candidate for town mayor is anengineer by profession, should votes for him withthe prefix "Engineer" be invalidated as "markedballots"?SUGGESTED ANSWER:3) No, a ballot in which the name of a candidatefor town mayor who is an engineer which isprefixed with "engineer" should not be invalidatedas a marked ballot. Under Rule No. 12 of therules for the appreciation of ballots, ballots whichcontain such prefixes are valid.

Disqualification; Grounds (1991)No. 11 - In connection with the May 1987Congressional elections, Luis Millanes wasprosecuted for and convicted of an electionoffense and was sentenced to suffer imprisonmentfor six years. The court did not impose theadditional penalty of disqualification to hold publicoffice and of deprivation of the right of suffrage asprovided for in Section 164 of the OmnibusElection Code of the Philippines(B.P. Blg. 881).

In April 1991, the President granted him absolutepardon on the basis of a strong recommendationof the Board of Pardons and Parole. Then for theelection in May 1992, Luis Millanes files hiscertificate of candidacy for the office of Mayor inhis municipality.

(c) Is a petition to disqualify Millanesviable?(d) What are the effects of a petition to disqualify?

SUGGESTED ANSWER:(c) In accordance with Sec. 68 of the Omnibus

Election Code, Luis Millanes may be disqualifiedfrom running for mayor as he was convicted of anelection offense.

(d) Under Sec. 6 of the Electoral Reforms Law,any candidate who has been declared by finaludgment to be disqualified shall not be votedfor, and votes cast for him shall not be counted.

If before the election he is not declared by finaludgment to be disqualified and he is voted for

and he receives the winning number of votes, thehearing on the question of disqualification shouldcontinue. Upon motion of the complainant or anyintervenor, the court or the COMELEC may orderthe suspension of the proclamation of the winningcandidate if the evidence of his guilt is strong.

Disualifications (1999)

No V - A.2. Under the Local Government Code,name four persons who are disqualified fromrunning for any elective position. (2%)SUGGESTED ANSWER: A2.) Under Section 40of the Local Government Code, the following aredisqualified from running for any local electiveposition: 1) Those sentenced by final judgment foran

offense involving moral turpitude or for anoffense punishable by one (1) year or moreof imprisonment, within two (2) years afterserving sentence;

2) Those removed from office as a result of

an administrative case;3) Those convicted by final judgment forviolating the oath of allegiance to the Republic ofthe Philippines;4) Those with dual citizenship; 5) Fugitivesfrom justice in criminal or nonpolitical caseshere or abroad;6) Permanent residents in a foreign countryor those who have acquired the right to resideabroad and continue to avail of the same rightafter the effectivity of the Local GovernmentCode; and7) The insane or feeble-minded.

Effect of Filing of Certificate of Candidacy;Appointive Officer vs Elective Officer (2002)No XIII. A, a City Legal Officer, and B, a CityVice-Mayor, filed certificates of candidacy for theposition of City Mayor in the May 14, 2001elections. a) Was A ipso facto consideredresigned and,if so, effective on what date? (2%) b) Was B ipsofacto considered resigned and,if so, effective on what date? (3%) In both cases,state the reason or reasons for your answer.

SUGGESTED ANSWER: A) A was considered ipso facto resigned uponthe filing of his certificate of candidacy, becausebeing a City Legal Officer, he is an appointiveofficial. Section 66 of the Omnibus Election Codeprovides that any person holding a publicappointive office shall be considered ipso factoresigned upon the filing of his certificate ofcandidacy.



B) B is not considered ipso facto resigned.Section 67 of the Omnibus Election Codeconsiders any elective official ipso facto resignedfrom office upon his filing of a certificate ofcandidacy for any office other than the one he isholding except for President and Vice-President,was repealed by the Fair Election Act

Effect of Filing of Certificate of Candidacy;Fair Election Act (2003)No X - (a) Pedro Reyes is an incumbentVice-Mayor of Quezon City. He intends to run inthe regular elections for the position of CityMayor of Quezon City whose incumbent mayorwould have fully served three consecutive termsby 2004. Would Pedro Reyes have to give up hisposition as Vice-Mayor-

(1) Once he files his certificate ofcandidacy; or(2) When the campaign period starts; or(3) Once and if he is proclaimed winner in

the election; or(4) Upon his assumption to the electiveoffice; or(5) None of the above. Choose thecorrect answer

(b) If Pedro Reyes were, instead, an incumbentCongressman of Quezon City, who intends toseek the mayoralty post in Quezon City, wouldyour choice of answer in no.(1) above be thesame? If not, which would be your choice?

SUGGESTED ANSWER:(a) The correct answer is (5). Section 14 of theFair Election Act repealed Section 67 of theOmnibus Election Code, which provided that anyelected official, whether national or local, who runsfor any office other than the one he is holding in apermanent capacity, except for President and VicePresident, shall be considered ipso facto resignedfrom his office upon the filing of his certificate ofcandidacy. Section 14 of the Fair Election Actlikewise rendered ineffective the first proviso in thethird paragraph of Section 11 of Republic Act No.8436.

Consequently, Pedro Reyes can run for Mayorwithout giving up his position as Vice-Mayor. Hewill have to give up his position as Vice-Mayorupon expiration of his term as Vice-Mayor onJune 30, 2004.

(Note: The question did not ask the examineeto explain the reason for his choice and thegeneral instructions requires such discussiononly to a "yes" or "no" answer.)

(b) The answer is the same if Pedro Reyes is aCongressman of Quezon City, because therepeal of Section 67 of the Omnibus ElectionCode covers both elective national and localofficials.

Election Offenses; Conspiracy to Bribe Voters(1991)No. 12: Discuss the disputable presumptions

(a) of conspiracy to bribe voters and (b) of theinvolvement of a candidate and of his principalcampaign managers in such conspiracy.SUGGESTED ANSWER:

(a) Under Sec, 28 of the Electoral Reforms Lawproof that at least one voter in different precinctsrepresenting at least twenty per cent of the totalprecincts in any municipality, city or province wasoffered, promised or given money, valuableconsideration or other expenditure by the relatives,leader or sympathizer of a candidate for thepurpose of promoting the candidacy of such

candidate, gives rise to a disputable presumptionof conspiracy to bribe voters.

(b) Under Sec. 28 if the proof affects at least 20%of the precincts of the municipality, city orprovince to which the public office aspired for bythe favored candidate relates, this shall constitutea disputable presumption of the involvement ofthe candidate and of his principal campaignmanagers in each of the municipalitiesconcerned, in the conspiracy.

Election Protest (1990)No. 7: A filed a protest with the House ElectoralTribunal questioning the election of B as Memberof the House of Representatives in the 1987national elections on the ground that B is not aresident of the district the latter is representing.While the case was pending. B accepted anad-interim appointment as Secretary of theDepartment of Justice.(1) May A continue with his election protest inorder to determine the real winner in the saidelections? State your reason.SUGGESTED ANSWER:



(1) No, A may not continue with his protest. Thereis no dispute as to who was the winner in theelection, as it is not disputed that it was B whoobtained the majority. The purpose of the protestis simply to seek the removal of B from office onthe ground that he is ineligible. However, Bforfeited his claim to the position of congressmanby accepting an ad interim appointment asSecretary of Justice, the protest against him hasbecome moot. Nothing will be gained byresolving it. In the case of Purisima v.



and honest elections. Several candidates formunicipal positions withdrew from the race. Onecandidate for Mayor petitioned the COMELEC forthe postponement of the elections and the holdingof special elections after the causes of suchpostponement or failure of elections shall haveceased.

1. How many votes of the COMELEC

Commissioners may be cast to grant the petition?Explain.

2. A person who was not a candidate at the timeof the postponement of the elections decided torun for an elective position and filed a certificateof candidacy prior to the special elections. Mayhis certificate of candidacy be accepted? Explain.

3. Suppose he ran as a substitute for a candidatewho previously withdrew his candidacy, will youranswer be the same? Explain.

SUGGESTED ANSWER:1. According to Section 7, Article IX-A of the1987 Constitution, the COMELEC shall decide bya MAJORITY VOTE of all its members any caseor matter brought before it In Cua vs. COMELEC,156 SCRA582, the Supreme Court stated that atwo-to-one decision rendered by a Division of theCOMELEC and a three-to-two decisionrendered by the COMELEC en banc was validwhere only five members took part in decidingthe case.

2. No, his certificate of candidacy cannot beaccepted. Under Section 75 of the OmnibusElection Code, as a rule in cases of postponementor failure of election no additional certificate ofcandidacy shall be accepted.

3. No, the answer will be different. Under Section75 of the Omnibus Election Code, an additionalcertificate of candidacy may be accepted in casesof postponement or failure of election if there wasa substitution of candidates; but the substitute

must belong to and must be endorsed by thesame party.

Pre-Proclamation Contest (1987)No. VII: "A" and "B" were candidates forrepresentatives in the 1987 National Elections, "B"filed a pre-proclamation contest with theCOMELEC on the ground that rampant votebuying and terrorism accompanied the elections.Particulars were supplied of "B's" followersbought-off and other followers

prevented from casting their votes. TheCOMELEC dismissed the pre-proclamationcontest on the ground that all the returns appearcomplete and untampered.

Determine if the COMELEC decided correctlyand if "B" has any recourse for contesting "A's"election.SUGGESTED ANSWER:

The COMELEC correctly dismissed "B's" PRE-PROCLAMATION CONTEST. Such a contest islimited to claims that the election returns areincomplete or that they contain material defectsor that they have been tampered with, falsified orprepared under duress or that they containdiscrepancies in the votes credited to thecandidates, the difference of which affects theresult of the election. (Omnibus Election Code,sees. 243, 234-236)

On the other hand, the question whether or notthere was terrorism, vote buying and other

irregularities in the elections cannot be thesubject of a pre-proclamation contest but must beraised in a regular election protest. (Sanchezv. COMELEC, GR. No. 78461; Ponce Enrile v.COMELEC, G.R. Nos. 79146 & 79212, Aug. 12,1987; Abes v. COMELEC, 21 SCRA 1252 (1967)) Since the basis of "B's" petition is that hisfollowers had been bought while others had beenprevented from casting their ballots, his remedyis to file an election contest and this should bebrought in the House or Senate Electoral Tribunalwhich, under Art. VI, Sec. 17, is the sole judge of

the election, returns and qualifications ofmembers of each House of Congress.

Pre-Proclamation Contest (1988)No. 18: In election law, what is apre-proclamation controversy? Where may it belitigated with finality? After the ultimate winnerhas been duly proclaimed, does the loser stillhave any remedy to the end than he may finallyobtain the position he aspired for in the election?Explain.SUGGESTED ANSWER:

A PRE-PROCLAMATION CONTROVERSY refersto any question pertaining to or affecting theproceedings of the board of canvassers whichmay be raised by any candidate or by anyregistered political party or coalition of politicalparties before the board or directly with theCOMELEC, or any matter raised under secs.233-236 of the Omnibus Election Code in relationto the preparation, transmission, receipt, custodyor appreciation of the election returns. (OmnibusElection Code, sec, 241).



The COMELEC has exclusive jurisdiction of allpre-proclamation controversies. (Id., sec. 241) Itsdecisions become executory after the lapse of 5days from receipt by the losing party of thedecision, unless restrained by the SupremeCourt. (Id., sec. 246)

A loser may still bring an election contest

concerning the election, returns, and qualificationsof the candidate proclaimed. In the case of electivebarangay officials, the contest may be filed with themunicipal trial courts; in the case of electivemunicipal officials, in the Regional Trial Court; inthe case of elective provincial and city officials, inthe COMELEC (Art. IX, C, sec. 2(2)); in the case ofSenators or Congressmen, in the Senate or HouseElectoral Tribunals (Art. VI, sec. 17); and in thecase of the President and Vice President, in thePresidential Electoral Tribunal. (Art. VII, sec. 4).

Pre-Proclamation Contest vs. ElectionContests (1997)No, 17: State how (a) pre-proclamationcontroversies, on the one hand, and (b) electionprotests, on the other, are initiated, heard andfinally resolved.SUGGESTED ANSWER:(A) PRE-PROCLAMATION CONTROVERSIES

a) Questions affecting the composition orproceedings of the board of canvassers maybe initiated in the board of canvassers ordirectly with the COMELEC.

b) Questions involving the electionreturns and the certificates of canvass shallbe brought in the first instance before theboard of canvassers only, (Section 17,Republic Act No, 2166.)c) The board of canvassers should ruleon the objections summarily. (Section 20,Republic Act No. 7166.)d) Any party adversely affected mayappeal to the COMELEC. (Section 20.Republic Act No. 7166.)

e) The decision of the Commission onElection may be brought to the Supreme Courton certiorari by the aggrieved party, (Section7, Article IX-A of the Constitution.)

All pre-proclamation controversies pending beforethe COMELEC shall be deemed terminated at thebeginning of the term of the office involved andthe rulings of the board of canvassers shall bedeemed affirmed, without

prejudice to the filing of an election protest.However, the proceedings may continue when onthe basis of the evidence presented so far, theCOMELEC or the Supreme Court determines thatthe petition appears to be meritorious. (Section 16,Republic Act No. 7166)

(B) ELECTION CONTESTS An election protest

is initiated by filing a protest containing thefollowing allegations:1. The protestant is a candidate who duly filed acertificate of candidacy and was voted for in theelection:2. The protestee has been proclaimed;and3. The date of the proclamation, (Miro vs.COMELEC, 121 SCRA 466)

The following have jurisdiction over electioncontests:

a) Barangay officials - Inferior Court;b) Municipal officials -Regional Trial

Court;c) Regional, provincial, and city officials

COMELEC (Section 2(2), Art. IX-C ofthe Constitution);

d) Congressman -House ofRepresentatives Electoral Tribunal.

e) Senators - Senate Electoral Tribunal.(Section 1. Article VI of theConstitution);

f) President and Vice President -Supreme Court (Section 4, Article VII ofthe Constitution).

The decision of the inferior court in electioncontests involving barangay officials and of theRegional Trial Court in election contests involvingmunicipal officials are appealable to theCOMELEC. (Section 2(2). Article IX-C of theConstitution.) The decision of the COMELEC maybe brought to the Supreme Court on certiorari onquestions of law. (Rivera vs. COMELEC, 199SCRA 178)

The decision of the COMELEC in electioncontests involving regional, provincial and city

officials may be brought to the Supreme Court oncertiorari (Section 7, Article IX-A and Section2(2), Article IX-C of the Constitution.)

The decisions of the Senate Electoral Tribunaland of the House of Representatives ElectoralTribunal may be elevated to the Supreme Courton certiorari if there was grave abuse ofdiscretion. (Lazatin vs COMELEC 168 SCRA391)



Pre-Proclamation Contest; Proper Issues(1996)No, 14: 2) Give three issues that can be properlyraised and brought in a pre-proclamation contest.

SUGGESTED ANSWER:2) According to Section 243 of the OmnibusElection Code, the following issues can beproperly raised.

1 The composition or proceedings of the board ofcanvassers are illegal;2 The canvassed election returns are incomplete,contain material defects, approved to be tampered with,or contain discrepancy in the same returns or in otherauthenticated copies;3 The election returns were prepared under duress,threats, coercion, or intimidation, or they are obviouslymanufactured or not authentic; and4 Substitute or fraudulent returns in controvertedpolling places were canvassed, the results of whichmaterially affected the standing of the aggrievedcandidate or candidates.

However, according to Section 15 of theSynchronized Election Law no pre-proclamationcases shall be allowed on matters relating to thepreparation, transmission, receipt, custody andappreciation of the election returns or thecertificates of canvass with respect to thepositions of President, Vice-President, Senatorand Member of the House of Representatives. Nopre-proclamation case are allowed in the case ofbarangay elections.

Process; Illiterate Voters (1987)No. XII: "A", while of legal age and of soundmind, is illiterate. He has asked your advice onhow he can vote in the coming election for hisbrother, who is running for mayor. This will bethe first time "A" will vote and he has neverregistered as a voter before. What advice willyou give him on the procedure he needs to followin order to be able to vote?SUGGESTED ANSWER:

The Constitution provides that until Congressshall have provided otherwise, illiterate anddisabled voters shall be allowed to vote underexisting laws and regulations (Art, V, Sec. 2). It isnecessary for any qualified voter to register inorder to vote. (Omnibus Election Code, Sec. 115)In the case of illiterate and disabled voters, theirvoter's affidavit may be prepared by any relativewithin the fourth civil degree of consanguinity oraffinity or by any member of the board of electioninspectors who shall

prepare the affidavit in accordance with the datasupplied by the applicant. (Id., sec. 127)

Process; Principle of Idem Sonans (1994)No. 3; 1) What is your understanding of theprinciple of idem sonans as applied in theElection Law?SUGGESTED ANSWER:1) Under Rule No. 7 of the rules for the

appreciation of ballots in Section 211 of theOmnibus Election Code, the idem sonans rulemeans that a name or surname incorrectly writtenwhich, when read, has a sound similar to thename or surname of a candidate when correctlywritten shall be counted in his favor.ALTERNATIVE ANSWERS:a) Idem sonans literally means the same orsimilar sound. This principle is made manifest inone of the rules for the appreciation of ballotsembodied in the Omnibus Election Code (Sec.211, BP 881) stating that "A name or surnameincorrectly written which when read, has a sound

similar to the name or surname of a candidatewhen correctly written shall be counted in hisfavor. Thus, if the name as spelled in the ballot,though different from the correct spelling thereof,conveys to the ears when pronounced accordingto the commonly accepted methods, a soundpractically Identical with the sound of the correctname as commonly pronounced, the name thusgiven is a sufficient designation of the personreferred to. The question whether one name isidem sonans with another is not a question ofspelling but of pronunciation. (Mandac v.

Samonte, 49 Phil. 284). Its application is aimed atrealizing the objective of every election which is toobtain the expression of the voters will.

b) The term means sounding the same or nearlyalike. The rule is based on the Idea that themisspelling of a name or lack of skill in writingshould not be taken as a ground for rejecting thevotes apparently intended for a candidate, solong as the intention of the voter appears to beclear. The Supreme Court has ruled that the

principle of idem sonans is liberally construed.Corpuz v. Ibay, 84 Phil. 184 (1949).

Process; Stray Ballot (1994)No. 3; 2) What is a "stray ballot"?SUGGESTED ANSWER:2) Under Rule No. 19 of the rules for theappreciation of ballots in Section 211 of theOmnibus Election Code, stray ballot is one castin favor of a person who has not filed a



certificate of candidacy or in favor of a candidatefor an office for which he did not present himself.

Although the Code does not provide for strayballot, it is presumed that stray ballot refers tostray vote.

Recall (2002)No XVI. Suppose the people of a province wantto recall the provincial governor before the end

of his three-year term of office, A. On what ground or grounds can the provincialgovernor be recalled? (1%)B. How will the recall be initiated? (2%)C. When will the recall of an elective local officialbe considered effective? {2%}SUGGESTED ANSWER:In accordance with Section 69 of the LocalGovernment Code, the Governor can be recalledfor LOSS OF CONFIDENCE.

Under Section 70 of the Local Government Code,the recall may be initiated by a resolution adopted

by a majority of all the members of thepreparatory recall assembly, which consists of allthe mayors, the vice-mayors, and thesangguniang members of the municipalities andcomponent cities, or by a written petition signedby at least twenty-five per cent (25%) of the totalnumber of registered voters in the province.

According to Section 72 of the Local GovernmentCode, the recall of an elective local official shalltake effect upon the election and proclamation ofa successor in the person of the candidatereceiving the highest number of votes cast duringthe election on recall.

Three-Term Limit Rule (2001)No XIX - In the May 1992 elections, ManuelManalo and Segundo Parate were elected asMayor and Vice Mayor, respectively. Upon thedeath of Manalo as incumbent municipal mayor,Vice Mayor Segundo Parate succeeded as mayorand served for the remaining portion of the term ofoffice. In the May 1995 election, Segundo Parateran for and won as mayor and then served for the

full term. In the May 1998 elections, Parate ran forreelection as Mayor and won again. In the May2001 election, Segundo Parate filed his certificateof candidacy for the same position of mayor, buthis rival mayoralty candidate sought hisdisqualification alleging violation of the three-termlimit for local elective officials provided for in theConstitution and in the Local Government Code.

Decide whether the disqualification case willprosper or not. (5%)SUGGESTED ANSWER:The disqualification case should be dismissed.

As held in Borja vs. COMELEC, 295 SCRA157(1996), in computing the three-term limitationimposed upon elective local officials, only theterm for which he was elected to should beconsidered. The term which he served as a

result of succession should not be included. It isnot enough that the official has served threeconsecutive terms. He must have been electedto the same position three consecutive times.

Three-Term Limit; from Municipality toNewly-Created City (Q9-2005)2. Manuel was elected Mayor of the Municipality ofTuba in the elections of 1992, 1995 and 1998. Hefully served his first two terms, and during his thirdterm, the municipality was converted into thecomponent City of Tuba. The said charterprovided for a holdover and so without

interregnum Manuel went on to serve as theMayor of the City of Tuba.

In the 2001 elections, Manuel filed his certificateof candidacy for City Mayor. He disclosed,though, that he had already served for threeconsecutive terms as elected Mayor when Tubawas still a municipality. He also stated in hiscertificate of candidacy that he is running for theposition of Mayor for the first time now that Tubais a city.

Reyes, an adversary, ran against Manuel andpetitioned that he be disqualified because he hadalready served for three consecutive terms asMayor. The petition was not timely acted upon,and Manuel was proclaimed the winner with20,000 votes over the 10,000 votes received byReyes as the only other candidate. It was onlyafter Manuel took his oath and assumed officethat the COMELEC ruled that he was disqualifiedfor having ran and served for three consecutiveterms. (5%)

(a) As lawyer of Manuel, present the

possible arguments to prevent hisdisqualification and removal.

SUGGESTED ANSWER: As lawyer of Manuel, I would argue that he shouldnot be disqualified and removed because he wasa three-term mayor of the municipality of Tuba,and, with its conversion to a component city, thelatter has a totally separate and differentcorporate personality from that of the municipality.Moreover, as a



rule, in a representative democracy, the peopleshould be allowed freely to choose those whowill govern them. Having won the elections, thechoice of the people should be respected.

(b) How would you rule on whether or notManuel is eligible to run as Mayor of thenewly-created City of Tuba immediately afterhaving already served for three (3)

consecutive terms as Mayor of the Municipalityof Tuba?

SUGGESTED ANSWER:Manuel is not eligible to run as mayor of the city ofTuba. The 1987 Constitution specifically includedan exception to the people's freedom to choosethose who will govern them in order to avoid theevil of a single person accumulating excessivepower over a particular territorial jurisdiction as aresult of a prolonged stay in the same office. Toallow Manuel to vie for the position of city mayorafter having served for three consecutive terms as

a municipal mayor would obviously defeat the veryintent of the framers when they wrote thisexception. Should he be allowed another threeconsecutive terms as mayor of the City of Tuba,Manuel would then be possibly holding office aschief executive over the same territorial jurisdictionand inhabitants for a total of eighteen consecutiveyears. This is the very scenario sought to beavoided by the Constitution, if not abhorred by it.(Latasa v. COMELEC, G.R. No. 154829,December 10, 2003)

(c) Assuming that Manuel is not aneligible candidate, rebut Reyes' claim that heshould be proclaimed as winner havingreceived the next higher number of votes.

ALTERNATIVE ANSWER:Reyes cannot be proclaimed winner for receivingthe second highest number of votes. TheSupreme Court has consistently ruled that the factthat a plurality or a majority of the votes are cast

for an ineligible candidate at a popular election, orthat a candidate is later declared to be disqualifiedto hold office, does not entitle the candidate whogarnered the second highest number of votes tobe declared elected. The same merely results inmaking the winning candidate's election a nullity.In the present case, 10,000 votes were cast forprivate respondent Reyes as against the 20,000votes cast for petitioner Manuel. The secondplacer is obviously not the choice of the people inthis

particular election. The permanent vacancy in thecontested office should be filled by succession.(Labo v. COMELEC, G.R. No. 105111, July3,1992)

ALTERNATIVE ANSWER:Reyes could not be proclaimed as winnerbecause he did not win the election. To allow thedefeated candidate to take over the Mayoralty

despite his rejection by the electorate is todisenfranchise the electorate without any fault ontheir part and to undermine the importance andmeaning of democracy and the people's right toelect officials of their choice. (Benito v.COMELEC, G.R. No. 106053, August 17, 1994)

Vacancy; Effect of Vice-Mayor Acting AsMayor (2002)No XIV. Suppose A, a Municipal Mayor, went ona sick leave to undergo medical treatment for a

period of four (4) months. During that time A. Will B, the Municipal Vice-Mayor, beperforming executive functions? Why? (2%)B. Will B at the same time be alsoperforming legislative functions as presidingofficer of the Sangguniang Bayan? Why? (3%)SUGGESTED ANSWER:

A. Since the Municipal Mayor is temporarilyincapacitated to perform his duties, in accordancewith Section 46(a) of the Local Government Code,the Municipal Vice-Mayor shall exercise hispowers and perform his duties and functions. TheMunicipal Vice-Mayor will be performing executivefunctions, because the functions of the MunicipalMayor are executive.

B. The Municipal Vice-Mayor cannot continue aspresiding officer of the Sangguniang Bayan whilehe is acting Municipal Mayor. In accordance withGamboa v. Aguirre, 310 SCRA 867 (1999), underthe Local Government Code, the Vice-MunicipalMayor was deprived of the power to preside overthe Sangguniang Bayan and is no longer amember of it. The temporary vacancy in the office

of the Municipal Mayor creates a correspondingtemporary vacancy in the Office of the MunicipalVice-Mayor when he acts as Municipal Mayor.This constitutes inability on his part to presideover the sessions of the Sangguniang Bayan.

Vacancy; Rule of Succession (1995)No. 7: The Vice Mayor of a municipality filed hiscertificate of candidacy for the same office in thelast elections. The Municipal Mayor was



of the Constitution, the Commission on Audit hasthe authority to settle all accounts pertaining toexpenditure of public funds. Raintree Corporationcannot file a case in court. The Republic of thePhilippines did not waive its immunity from suitwhen it entered into the contract with RaintreeCorporation for the supply of ponchos for the useof the Armed Forces of the Philippines. Thecontract involves the defense of the Philippines

and therefore relates to a sovereign function.

In United States vs. Ruiz, 136 SCRA 487, 492,the Supreme Court held; "The restrictiveapplication of State immunity is proper onlywhen the proceedings arise out of commercialtransactions of the foreign sovereign. Itscommercial activities or economic affairs.Stated differently, a State may be said to havedescended to the level of an individual andcan thus be deemed to have tacitly given itsconsent to be sued only when it enters into

business contracts. It does not apply wherethe contract relates to the exercise of itssovereign functions. In this case the projectsare an integral part of the naval base which isdevoted to the defense of both the UnitedStates and the Philippines, indisputably afunction of the government of the highestorder; they are not utilized for nor dedicated tocommercial or business purposes."

The provision for venue in the contract does notconstitute a waiver of the State Immunity fromsuit, because the express waiver of this immunitycan only be made by a statute.

In Republic us. Purisima 78 SCRA 470, 474,the Supreme Court ruled: "Apparentlyrespondent Judge was misled by the terms ofthe contract between the private respondent,plaintiff in his sala and defendant Rice andCorn Administration which, according to him,anticipated the case of a breach of contractbetween the parties and the suits that maythereafter arise. The consent, to be effective

though, must come from the State actingthrough a duly enacted statute as pointed outby Justice Bengzon in Mobil."

ALTERNATIVE ANSWER:In accordance with the doctrine of exhaustion ofadministrative remedies, Raintree Corporationshould first file a claim with the Commission on

Audit. If the claim is denied, it should file apetition for certiorari with the Supreme Court.

ARTICLE X Local GovernmentAppointment of Budget Officer; control vssupervision (1999)No V - D. On May 17, 1988, the position ofProvincial Budget Officer of Province X becamevacant. Pedro Castahon, governor of the province,pursuant to Sec. 1 of E.O. No. 112, submitted the

names of three nominees for the aforesaidposition to the Department of BudgetManagement (DBM), one of whom was that ofMarta Mahonhon. A month later, Castahoninformed the DBM that Mahonhon had assumedthe office of PBO and requested that she beextended the appropriate appointment. The DBMSecretary appointed Josefa Kalayon instead.Castahon protested the appointment of Kalayoninsisting that it is he who had the right to choosethe PBO by submitting the names of his threenominees and Kalayon was not one of them. The

DBM countered that none of the governor'snominees have the necessary qualifications forthe position. Specifically, Mahonhon lacked thefive-year experience in budgeting. Hence, theDBM was left with no alternative but to name onewho possesses all the requisite qualifications inthe person of Kalayon. It cited Section 6.0 of theDBM Local Budget Circular No. 31 which states,"The DBM reserves the right to fill up any existingvacancy where none of the nominees of the localchief executive meet the prescribedrequirements."(a) Was the DBM's appointment valid? (2%)

(b) What can you say regarding theabove-quoted Section 6.0 of DBM's Local BudgetCircular No. 31? Explain your answers. (2%)SUGGESTED ANSWER:D. (a) Under Section 1 of Executive Order No.112, the Provincial Budget Officer must berecommended by the Governor. Since JosefaKalayon was not recommended by the Governor,her appointment is not valid. As held in San Juanv. Civil Service Commission, 196 SCRA 69, if theperson recommended by the Governor is notqualified, what the Secretary of Budget andManagement should do is to ask him to

recommend someone who is eligible.

(b) DBM Local Budget Circular No. 31 is not valid,since it is inconsistent with Executive Order No.112, which requires that the appointee forProvincial Budget Officer be recommended by theGovernor. (Under the Local Government Code, itis now the local chief executive who isempowered to appoint the budget officer).



Franchising and Regulatory Board (LTFRB),granting a certificate of public convenience to Mr.Ricardo Macapinlac, a resident of Macabebe, tooperate ferry service across the same river andbetween the same barrios being servicedpresently by the municipality's ferry boats. A checkof the records of the application of Macapinlacshows that the application was filed some monthsbefore, set for hearing, and notices of such

hearing were published in two newspapers ofgeneral circulation in the town of Macabebe, andin the province of Pampanga. The municipality hadnever been directly served a copy of that notice ofhearing nor had the Sangguniang Bayan beenrequested by Macapinlac for any operate. Themunicipality immediately filed a motion forreconsideration with the LTFRB which was denied.It the went to the Supreme Court on a petition forcertiorari to nullify the order granting a certificateof public convenience to Macapinlac on twogrounds:(1) Denial of due process to the municipality; and

(2) For failure of Macapinlac to secure approval ofthe Sangguniang Bayan for him to operate a ferryservice in Macabebe,Resolve the two points in the petition withreasons.SUGGESTED ANSWER:The petition for certiorari should be granted,1. As a party directly affected by the operation ofthe ferry service, the Municipality of Macabebe,Pampanga was entitled to be directly notifiedby the LTFRB ....

2. It has been held that where a ferry operationlies entirely within the municipality, the priorapproval of the Municipal government isnecessary. Once approved, the operator mustthen apply with the LTFRB for a certificate ofpublic convenience and shall be subject toLTFRB supervision, (Municipality of Echague v.

Abellera, supra).

Law fixing the terms of local elective officials(Q4-2006)State whether or not the law is constitutional.

Explain briefly.3. A law fixing the terms of local electiveofficials, other than barangay officials, to 6 years.(2%)SUGGESTED ANSWER:The law is invalid. Under Article X, Section 8 ofthe 1987 Constitution, "the term of office ofelective local officials, except barangay officials,which shall be determined by law, shall be threeyears and no such official shall serve for morethan three consecutive terms." The law clearly

goes against the aforesaid constitutionalrequirement of three year terms for local officialsexcept for barangay officials.

Ordinance; Use & Lease of Properties; PublicUse (1997)No. 9: Due to over-crowding in the public marketin Paco, Manila, the City Council passed anordinance allowing the lease to vendors of parts

of the streets where the public market is located,provided that the lessees pay to the citygovernment a fee of P50 per square meter of thearea occupied by the lessees. The residents inthe area complained to the Mayor that the leaseof the public streets would cause serious trafficproblems to them. The Mayor cancelled the leaseand ordered the removal of the stalls constructedon the streets. Was the act of the Mayor legal?

SUGGESTED ANSWER:The cancellation of the lease and the removal ofthe stalls are valid. As held in Macasiano vs.

Diokno, 212 SCRA 464, the lease of publicstreets is void, since they are reserved for publicuse and are outside the commerce of man.

Ordinance; Validity; Closure or Lease ofProperties for Public Use (2003)No XI - An aggrieved resident of the City ofManila filed mandamus proceedings against thecity mayor and the city engineer to compel theseofficials to remove the market stalls from certaincity streets which they had designated as fleamarkets. Portions of the said city streets wereleased or licensed by the respondent officials tomarket stallholders by virtue of a city ordinance.Decide the dispute.FIRST ALTERNATIVE ANSWER:The petition should be granted. In accordancewith Macasiano v. Diokno. 212 SCRA 464 [1992],since public streets are properties for public useand are outside the commerce of man, the CityMayor and the City Engineer cannot lease orlicense portions of the city streets to marketstallholders.SECOND ALTERNATIVE ANSWER:

The petition should be denied. Under Section21(d)of the Local Government Code, a city mayby ordinance temporarily close a street so that aflea market may be established.

Ordinance; Validity; Compensation; Tortuous Actof an Employee (1994)No. 6; Johnny was employed as a driver by theMunicipality of Calumpit, Bulacan. While drivingrecklessly a municipal dump truck with its load ofsand for the repair of municipal streets,



Johnny hit a jeepney. Two passengers of theeepney were killed.

The Sangguniang Bayan passed an ordinanceappropriating P300,000 as compensation forthe heirs of the victims. 1) Is the municipalityliable for the negligence of Johnny? 2) Is themunicipal ordinance valid?

SUGGESTED ANSWER:2) The ordinance appropriating P300,000.00 forthe heirs of the victims of Johnny is void. Thisamounts to appropriating public funds for aprivate purpose. Under Section 335 of the LocalGovernment Code, no public money shall beappropriated for private purposes.

ALTERNATIVE ANSWER;Upon the foregoing considerations, the municipalordinance is null and void for being ultra vires. Themunicipality not being liable to pay compensation

to the heirs of the victims, the ordinance is utterlydevoid of legal basis. It would in fact constitute anillegal use or expenditure of public funds which is acriminal offense. What is more, the ordinance doesnot meet one of the requisites for validity ofmunicipal ordinances, ie., that it must be inconsonance with certain well-established andbasic principles of a substantive nature, to wit: itdoes not contravene the Constitution or the law, itis not unfair or oppressive. It is not partial ordiscriminatory. It is consistent with public policy,and it is not unreasonable.

Ordinance; Validity; Local Taxation vs. SpecialAssessment (1987)1987 No. V: State whether or not the followingcity ordinances are valid and give reasons insupport of your answers:

(b) An ordinance on business establishments toraise funds for the construction and maintenanceof roads in private subdivisions, which roads areopen for use by segments of the public who mayhave business inside the subdivision.

SUGGESTED ANSWER:(b) The ordinance is valid. The charge on thebusiness establishments is not a tax but aSPECIAL ASSESSMENT. Hence, the holding inPascual v. Secretary of Public Works, 110 Phil.331 (1960), that public funds cannot beappropriated for the construction of roads in aprivate subdivision, does not apply. As held in

Apostolic Prefect v. City Treasurer of Baguio, 71Phil. 547 (1941), special assessments may

be charged to property owners benefited by publicworks, because the essential difference betweena tax and such assessment is precisely that thelatter is based wholly on benefits received.

However, if the ordinance levies a tax on allbusiness establishments located outside theprivate subdivision, then it is objectionable on the

ground that it appropriate private funds for apublic purpose. (Pascual v. Secretary of PublicWorks, supra)

Ordinance; Validity; Preventing Immorality(1987)(c) An ordinance prohibiting barbershop operatorsfrom rendering massage service to theircustomers in a separate room.SUGGESTED ANSWER:(c) The ordinance is valid. In Velasco v, Villegas,120 SCRA 658 (1983) such ordinance wasupheld on the ground that it is a means of

enabling the City of Manila to collect a fee foroperating massage clinics and of preventingimmorality which might be committed by allowingthe construction of separate rooms in barbershops.

Ordinance; Validity; Utilization & Development;National Wealth (1991)No. 5; The province of Palawan passes anordinance requiring all owners/operators offishing vessels that fish in waters surrounding theprovince to invest ten percent (10%) of their netprofits from operations therein in any enterpriselocated in Palawan.

NARCO Fishing Corp., a Filipino corporation withhead office in Navotas, Metro Manila, challengesthe ordinance as unconstitutional. Decide thecase.SUGGESTED ANSWER:The ordinance is invalid. The ordinance wasapparently enacted pursuant to Article X, Sec. 7 ofthe Constitution, which entitles local governmentsto an equitable share in the proceeds of theutilization and development of the national wealth

within their respective areas. However, this shouldbe made pursuant to law. A law is needed toimplement this provision and a local governmentcannot constitute itself unto a law. In the absenceof a law the ordinance in question is invalid.

Ordinances; Validity; Amending Nat’l Laws(1988)No. 4: Jose Y. Sabater is a real estate developer.He acquires raw lands and converts



them into subdivisions. After acquiring a lot ofaround 15 hectares in Cabanatuan City, hecaused the preparation of a subdivision plan forthe property. Before he was able to submit thesubdivision plan to the Bureau of Lands and/orLand Registration Commission for verificationand/or approval, he was informed that he mustfirst present the plan to the City Engineer whowould determine whether the zoning ordinance of

the Cabanatuan City had been observed. He wassurprised when he was asked to pay the citygovernment a service fee of P0.30 per squaremeter of land, covered by his subdivision plan. Hewas even more surprised when informed that afine of P200.00 and/or imprisonment for notexceeding six months or both, have been fixed inthe ordinance as penalty for violation thereof.Believing that the city ordinance is illegal, he filedsuit to nullify the same. Decide the case withreasons.

SUGGESTED ANSWER:

The ordinance is null and void. In Villacorta v.Bernardo, 143 SCRA 480 (1986) the SupremeCourt held that a municipal ordinance cannotamend a national law in the guise of implementingit. In this case, the requirement actually conflictswith sec. 44 of Act No. 496 because the latterdoes not require subdivision plans to be submittedto the City Engineer before they can be submittedfor approval to, and verification by, the LandRegistration Commission and/or the Bureau ofLands.

Ordinances; Validity; Gambling Prohibition(1995)No. 4: 2. PAGCOR decided to operate a casino inTacloban City under authority of P.D. No. 1869. Itleased a portion of a building belonging to EllenMcGuire renovated and equipped it in preparationfor its inauguration. The Sangguniang Panlungsodof Tacloban City enacted an ordinance prohibitingthe operation of casinos in the City and providingpenalty for its violation. Ellen McGuire andPAGCOR assailed the validity of the ordinance incourt. How would you resolve the issue? Discussfully.

SUGGESTED ANSWER:The ordinance should be declared invalid. As heldin Magtajas vs. Pryce Properties Corporation. Inc.,234 SCRA 255. such an ordinance contravenesPresidential Decree No. 1869, which authorizesthe Philippine Amusement and GamingCorporation to operate casinos within the territorialJurisdiction of the Philippines, because it preventsthe said corporation from exercising the powerconferred on it to operate a casino in TaclobanCity. The

power of Tacloban City to suppress gamblingand prohibited games of chance excludes ofchance permitted by law. Implied repeals are notfavored. (Basco v. PAGCOR)

Ordinances; Validity; Limitation of Penalties(1991)No. 10: The municipality of Alcoy, Cebu, passedOrdinance No. 10, series of 1991, requiring

owners, administrators, or tenants of buildingsand premises to keep and maintain them insanitary condition, and should they fail to do so,cause them to be cleared and kept in sanitarycondition and the cost thereof to be assessedagainst the owner, administrator or tenant, as thecase may be, which cost shall constitute a lienagainst the property. It further penalizes violationthereof with a fine not exceeding One ThousandPesos (P1,000.00) or imprisonment for one (1)year at the discretion of the court. Is theordinance valid?SUGGESTED ANSWER:

The ordinance is valid insofar as it requiresowners, administrators, or tenants of buildingsand premises to keep and maintain them insanitary condition and provides that should theyfail to do so, the municipality shall cause them tobe cleaned and the cost shall be assessedagainst the owner, administrator, or tenant andshall be a lien against the property. This isexpressly authorized by Sec. 149(kk) of the LocalGovernment Code.

However, the penalty for the violation of theordinance is invalid, because it is excessive. Thepenalty in this case is a fine not exceeding P1,000or imprisonment for one year, in the discretion ofthe court. Under Sec. 149 (c) of the LocalGovernment Code, however, the penalty for theviolation of a municipal ordinance can not exceeda fine of P1,000.00 or Imprisonment for sixmonths, or both at the discretion of the court.

Ordinances; Veto Power (1996)(1) How does the local legislative assemblyoverride the veto by the local chief executive of an

ordinance?(2) On what grounds can a local chief executiveveto an ordinance?(3) How can an ordinance vetoed by a local chiefexecutive become a law without it beingoverridden by the local legislative assembly?

SUGGESTED ANSWER:(1) Under Sections 54 (a) and 55 (c) of the LocalGovernment Code, the local legislative assemblycan override the veto



of the local chief executive by two-thirds voteof all its members.

(2) Under Section 55[a] of the LocalGovernment Code, the local chief executive mayveto an ordinance on the ground that it is ULTRAVIRES or PREJUDICIAL TO THE PUBLICWELFARE.

(3) Pursuant to Section 54(b) of the LocalGovernment Code, an ordinance vetoed by thelocal chief executive shall be deemed approved ifhe does not communicate his veto to the locallegislative assembly within 15 days in the case ofa province and 10 days in the case of a city or amunicipality. Likewise, if the veto by the localexecutive has been overridden by the locallegislative assembly, a second veto will be void.Under Section 55(c) of the Local GovernmentCode, the local chief executive may veto anordinance only once.

Police Power; LLDA (1995)No. 9: The Municipality of Binangonan, Rizal,passed a resolution authorizing the operation of anopen garbage dumpsite in a 9- hectare land in theReyes Estate within the Municipality's territoriallimits. Some concerned residents of Binangonanfiled a complaint with the Laguna LakeDevelopment Authority (LLDA) to stop theoperation of the dumpsite due to its harmful effectson the health of the residents. The LLDA conductedan on-site investigation, monitoring, testing and

water sampling and found that the dumpsite wouldcontaminate Laguna de Bay and the surroundingareas of the Municipality. The LLDA alsodiscovered that no environmental clearance wassecured by the Municipality from the Department ofEnvironment and Natural Resources (DENR) andthe LLDA as required by law. The LLDA thereforeissued to the Binangonan municipal government acease and desist order to stop the operation of thedumpsite. The Municipality of Binangonan filed acase to annul the order issued by the LLDA.

(1) Can the Municipality of Binangonan invokepolice power to prevent its residents and theLLDA from interfering with the operation of thedumpsite by the Municipality? Explain.

(2) Can the LLDA justify its order by assertingthat the health of the residents will be adverselyaffected. Explain.SUGGESTED ANSWER:1. No, the Municipality of Binangonan cannotinvoke its police power. According to Laguna

Lake Development Authority vs. Court of Appeals,231 SCRA 292, under Republic Act No, 4850, theLaguna Lake Development Authority is mandatedto promote the development of the Laguna Lakearea, including the surrounding Province of Rizal,with due regard to the prevention of pollution. TheLaguna Lake Development Authority is mandatedto pass upon and approve or disapprove allprojects proposed by local government offices

within the region.

2. Yes, the Laguna Lake Development Authoritycan justify its order. Since it has been authorizedby Executive Order No. 927 to make ordersrequiring the discontinuance of pollution, its powerto issue the order can be inferred from this.Otherwise, it will be a toothless agency.Moreover, the Laguna Lake Development

Authority is specifically authorized under itsCharter to issue cease and desist orders.

Power to Issue Subpoena & Cite For Contempt(1993)No 6: Mayor Alfredo Lim closed the funhouses inthe Ermita district suspected of being fronts forprostitution. To determine the feasibility of puttingup a legalized red light district, the city councilconducted an inquiry and invited operators of theclosed funhouses to get their views. No onehonored the Invitation. The city council issuedsubpoenas to compel the attendance of theoperators but which were completely disregarded.The council declared the operators guilty of

contempt and issued warrants for their arrest.

The operators come to you for legal advice,asking the following questions:

(1) Is the council empowered to issuesubpoenas to compel their attendance?(2) Does the council have the power to cite forcontempt?SUGGESTED ANSWER:(1) The city council is not empowered to issuesubpoenas to compel the attendance of theoperators of the fun-houses In the Ermita district.

There is no provision in the Constitution, the LocalGovernment Code, or any law expressly grantinglocal legislative bodies the power to subpoenawitnesses. As held in Negros Oriental II ElectricCooperative, Inc. vs. Sangguniang Panlungsod ofDumaguete, 155 SCRA 421, such power cannotbe implied from the grant of delegated legislatedpower. Such power is Judicial. To allow locallegislative bodies to exercise such power without



express statutory basis would violate thedoctrine of separation of powers.

(2) The city council does not have the power tocite for contempt. There is likewise no provision inthe Constitution, the Local Government Code, orany other laws granting local legislative bodies thepower to cite for contempt. Such power cannot bedeemed implied in the delegation of legislative

power to local legislative bodies, for the existenceof such power poses a potential derogation ofindividual rights.

Power; Eminent Domain; LGU; Right toExercise (Q10-2005)The Sangguniang Bayan of the Municipality ofSanta, Ilocos Sur passed Resolution No. 1authorizing its Mayor to initiate a petition for theexpropriation of a lot owned by Christina as sitefor its municipal sports center. This was approvedby the Mayor. However, the Sangguniang

Panlalawigan of Ilocos Sur disapproved theResolution as there might still be other availablelots in Santa for a sports center.

Nonetheless, the Municipality of Santa, through itsMayor, filed a complaint for eminent domain.Christina opposed this on the following grounds: (a)the Municipality of Santa has no power toexpropriate; (b) Resolution No. 1 has been voidedsince the Sangguniang Panlalawigan disapprovedit for being arbitrary; and (c) the Municipality ofSanta has other and better lots for that purpose.Resolve the case with reasons. (5%)

SUGGESTED ANSWER:Under Section 19 of R.A. No. 7160, the power ofeminent domain is explicitly granted to themunicipality, but must be exercised through anordinance rather than through a resolution.(Municipality ofParanaque v. V.M. Realty Corp.,G.R. No. 127820, July 20, 1998)

The Sangguniang Panlalawigan of Ilocos Sur was

without the authority to disapprove Resolution No.1 as the municipality clearly has the power toexercise the right of eminent domain and itsSangguniang Bayan the capacity to promulgatesaid resolution. The only ground upon which aprovincial board may declare any municipalresolution, ordinance or order invalid is when suchresolution, ordinance or order is beyond thepowers conferred upon the council or presidentmaking the same. Such is not the situation in thiscase. (Moday v. Court

of Appeals, G.R. No. 107916, February 20, 1997)

The question of whether there is genuinenecessity for the expropriation of Christina's lot orwhether the municipality has other and better lotsfor the purpose is a matter that will have to beresolved by the Court upon presentation ofevidence by the parties to the case.

Powers of Barangay Assembly (2003)Can a Barangay Assembly exercise any policepower?SUGGESTED ANSWER:No, the Barangay Assembly cannot exercise anypolice power. Under Section 398 of the LocalGovernment Code, it can only recommend to theSangguniang Barangay the adoption of measuresfor the welfare of the barangay and decide on theadoption of an initiative.

Powers; Liga ng mga Barangay (2003)Can the Liga ng mga Barangay exerciselegislative powers?SUGGESTED ANSWER:The Liga ng Mga Barangay cannot exerciselegislative powers. As stated in Bito-Onon v.Fernandez. 350 SCRA 732 [2001], it is not a localgovernment unit and its primary purpose is todetermine representation of the mga in thesanggunians; to ventilate, articulate, and crystallizeissues affecting barangay governmentadministration; and to secure solutions for them

through proper and legal means.

Requisites; Contracts Involving LGU (1991)The Municipality of Sibonga, Cebu, wishes toenter into a contract involving expenditure ofpublic funds. What are the legal requisitestherefor?SUGGESTED ANSWER:The following are the legal requisites for thevalidity of a contract to be entered into by theMunicipality of Sibonga, which involves theexpenditure of public funds:

(1) The contract must be within the power of themunicipality;(2) The contract must be entered into by theproper officer, i.e., the mayor, upon resolution ofthe Sangguniang Bayan pursuant to Section 142of the Local Government Code;

(3) In accordance with Sec. 606 of the Revised Administrative Code, there must be anappropriation of the public funds; and inaccordance with Sec. 607, there must be a



certificate of availability of funds issued bythe municipal treasurer; and

(4) The contract must conform with the formalrequisites of written contracts prescribed by law.

Requisites; Contracts involving LGU (1995)No. 4: 1. What are the conditions under which alocal executive may enter into a contract in

behalf of his government unit? SUGGESTED ANSWER:1. The following are the conditions under which alocal executive may enter into a contract inbehalf of the government until:(1) The local government unit must have thepower to enter into the particular contract;(2) Pursuant to Section 22(c) of the LocalGovernment Code, there must be a priorauthorization by the sangguniang concerned, and alegible copy of the contract shall be posted at aconspicuous place in the provincial capitol or thecity, municipal or barangay hall.

(3) In accordance with Sections 46 and 47,Chapter 8, Subtitle B. Book V of the 1987

Administrative Code, if the contract Involves theexpenditure of public funds, there must be anappropriation therefore and a certificate ofavailability of funds by the treasurer of the localgovernment unit.(4) The contract must conform with the formalrequisites of written contracts prescribed by law.

(5) Pursuant to Section 2068 of the Revised Administrative Code, if a province is a party to acontract conveying title to real property, thecontract must be approved by the President. UnderSection 2196 of the Revised Administrative Code,if a municipality is a party to a contract conveyingreal property or any Interest in it or creating a lienupon it, the contract must be approved by theprovincial governor.

Taxation; GOCC Liability For Real Estate Tax(1999)No VI - C. The Province of X required the

National Development Company to pay realestate taxes on the land being occupied by NDCand the latter argued that since it is agovernment-owned corporation, its properties areexempt from real estate taxes. If you were theJudge, how would you decide the case? Reasonout. (2%)SUGGESTED ANSWER:In National Development Company v. Cebu City,215 SCRA 382, the Supreme Court held that theNational Development Company was

not liable for real estate tax on the propertybelonging to the government which it occupy.However, Section 234 of the Local GovernmentCode subsequently withdrew the exemption fromreal property taxes of government-owned orcontrolled corporations. If I were the Judge, Iwould hold the National Development Companyliable for real estate taxes.

Taxation; Sources of Revenue (1999)No V -Under the Constitution, what are the threemain sources of revenues of local governmentunits? (2%)SUGGESTED ANSWER:The following are the main sources of revenues oflocal government units under the Constitution:

1 Taxes, fees, and charges. (Section 5, Article X)2 Share in the national taxes. (Section 6,

Article X)3 Share in the proceeds of the utilizations

and development of the national wealth withintheir areas. (Section 7, Article X}

Withdrawal of Public Property from PublicUse (1990)No. 8: XYZ, a corporation organized under thelaws of Hongkong, with 100% foreign equity,obtained from the Securities and ExchangeCommission a license to operate a prawnhatchery project on a piece of land leased fromthe City of Dagupan. The land was formerly apark and plaza belonging to the City and was

converted by the City to derive much neededfunds.(1) May the City of Dagupan lawfully convert thepark to prawn ponds and lease the same?Explain your answer.(2) May the City of Dagupan and XYZ corporationvalidly enter into the lease contract for the prawnponds? Answer with reasons.SUGGESTED ANSWER:(1) Yes, the City of Dagupan may lawfully convertthe park into prawn ponds and lease them. A citymay close a park and plaza and once theproperty has been withdrawn from public use, it

falls within the commerce of man and may beleased. Section 10 of the Local GovernmentCode provides:



"A local government unit may likewise,through its head acting pursuant to aresolution of its sanggunian and inaccordance with existing law and theprovisions of this Code, close anybarangay, municipal, city or provincialroad, street, alley park or square. No suchway or place or any part thereof



before the Regional Trial Court (RTC) whichdecided that it was Santos who had the pluralityof 30 votes and proclaimed him the winner. Onmotion made, the RTC granted executionpending the appeal of Cruz to the COMELEC(Comelec) and on this basis. Santos assumedoffice and served as Municipal Mayor. In time, theComelec reversed the ruling of the RTC andinstead ruled that Cruz won by a margin of 40

votes and proclaimed him the duly electedMunicipal Mayor.

a) It is now beyond June 30, 1995. Can Cruzstill hold office for the portion of the term he hasfailed to serve? Why? (3%)

b) Was Santos a usurper and should he payback what he has received while holding theoffice as Municipal Mayor? Why? (2%)

SUGGESTED ANSWER;

a) Cruz can no longer hold office for the portionof the term he failed to serve since his term has

expired.

b) Santos was not a usurper. He was a de factoofficer, since he had a color of election to theoffice of Municipal Mayor by virtue of thedecision in the election protest. Hence, he isentitled to the emoluments of the office.

Elective Public Officers; De Facto Officer;effects (2004)

X-B. AVE ran for Congressman of QU province.However, his opponent, BART, was the oneproclaimed and seated as the winner of theelection by the COMELEC. AVE filed seasonablya protest before HRET (House of RepresentativesElectoral Tribunal). After two years, HRETreversed the COMELEC’s decision and AVE wasproclaimed finally as the duly electedCongressman. Thus, he had only one year toserve in Congress.

Can AVE collect salaries and allowances from thegovernment for the first two years of his term asCongressman?

Should BART refund to the government thesalaries and allowances he had received asCongressman?

What will happen to the bills that BART aloneauthored and were approved by the House ofRepresentatives while he was seated asCongressman? Reason and explain briefly.(5%)

SUGGESTED ANSWER:

B. AVE cannot collect salaries and allowancesfrom the government for the first two years of histerm, because in the meanwhile BART collectedthe salaries and allowances. BART was a defacto officer while he was in possession of theoffice. To allow AVE to collect the salaries andallowances will result in making the governmentpay a second time. (Mechem, A Treatise on theLaw of Public Offices and Public Officers, [1890]

pp. 222-223.)

BART is not required to refund to the governmentthe salaries and allowances he received. As a defacto officer, he is entitled to the salaries andallowances because he rendered services duringhis incumbency. (Rodriguez v. Tan, 91 Phil. 724119520.

The bills which BART alone authored and wereapproved by the House of Representatives arevalid because he was a de facto officer duringhis incumbency. The acts of a de facto officer are

valid insofar as the public is concerned. (Peoplev. Garcia, 313 SCRA 279 [19990.

Graft and Corruption; Prescription of Crime(2002)

No XII. Suppose a public officer has committed aviolation of Section 3 (b) and (c) of the Anti-Graftand Corrupt Practices Act {RA No, 3019), asamended, by receiving monetary and othermaterial considerations for contracts entered intoby him in behalf of the government and in

connection with other transactions, as a result ofwhich he has amassed illegally acquired wealth.

(a) Does the criminal offense committedprescribe? (2%)

(b) Does the right of the government to recoverthe illegally acquired wealth prescribe? (3%)

SUGGESTED ANSWER:

(a) A violation of Section 3(b) and (c) of the Anti-Graft and Corrupt Practices Act prescribes. As held in Presidential Ad-Hoc Fact-FindingCommittee on Behest Loans v. Desierto, 317SCRA 272 (1999), Article XI, Section 15 of theConstitution does not apply to criminal cases forviolation of the Anti-Graft and Corrupt Practices

Act

(b) Article XI, Section 15 of the Constitutionprovides that the right of the State to recoverproperties unlawfully acquired by public officialsor employees, or from them or from their



requirements prescribed by law for the position,the appointment extended to him is valid.Consequently, he has a better right than VicenteEstrada.

The claim of Estrada that being the officer next inrank he should have been appointed as CityEngineer is not meritorious. It is a settled rule thatthe appointing authority is not limited to promotionin filling up vacancies but may choose to fill them

by the appointment of persons with civil serviceeligibility appropriate to the position. Even if avacancy were to be filled by promotion, the conceptof "next in rank" does not import any mandatoryrequirement that the person next in rank must beappointed to the vacancy. What the civil service lawprovides is that if a vacancy is filled by promotion,the person holding the position next in rank thereto"shall be considered for promotion." Espanol v.Civil Service Commission 206 SCRA 715,

ALTERNATIVE ANSWER;

Neither Jose Reyes nor Vicente Estrada has abetter right to be appointed City Engineer. Asheld in Barrozo vs. Civil Service Commission,198 SCRA 487, the appointing authority is notrequired to appoint the one next-in-rank to fill avacancy. He is allowed to fill it also by thetransfer of an employee who possesses civilservice eligibility.

Liability For Damages in Performance ofOfficial Functions (1990)

No. 10: The Secretary of Public Works, after aninvestigation, ordered the demolition of thefishpond of X as a nuisance per se on the groundthat it encroached on navigable rivers andimpeded the use of the rivers. The Secretarysubmitted to the President of the Philippines areport of said investigation, which report containedclearly libelous matters adversely affecting thereputation of X, a well-known civic and religiousleader in the community.

The Supreme Court later found that the rivers

were man-made and were constructed on privateproperty owned by X.

(1) May X recover damages from the Secretary ofPublic Works for the cost involved in rebuildingthe fishponds and for lost profits? State yourreason.

(2) Suppose X files a libel suit against theSecretary of Public Works. Will the said libel suitprosper? Explain your answer.

SUGGESTED ANSWER:

(1) No, X cannot recover damages from theSecretary of Public Works. The Secretary ofPublic Works ordered the demolition of thefishpond in the performance of his official duties.He did not act in bad faith or with gross negligence.He issued the order only after due investigation. InMabutol v. Pascual, 124 SCRA 876, it was heldthat the members of the Ad Hoc Committee

created to implement Presidential Decree No. 296and Letter of Instruction No, 19, which ordered thedemolition of structures obstructing publicwaterways, could' not be sued for damagesalthough they ordered the demolition of a buildingthat encroached upon a creek, because the publicofficers concerned did not act in bad faith.

(2) No, the libel suit will not prosper. The reportsubmitted by the Secretary of Public Works to thePresident constitutes privileged communication,as it was sent in the performance of official duty.

Article 354 of the Revised Penal Code provides;

"Every defamatory imputation is presumed to bemalicious, even if it be true, if no good intentionand justifiable motive for making it is shown, exceptin the following cases:

1. A private communication made by any personto another in the performance of any legal, moralor social duty;"

In Deano v. Godinez, 12 SCRA 483, it was held

that a report sent by a public official to his superioris privileged communication, because itssubmission is pursuant to the performance of alegal duty.

Besides, in sending his report, the Secretary ofPublic Works acted in the discharge of his officialduties. Hence, he was acting in behalf of theRepublic of the Philippines and within the scopeof his authority According to the ruling in Sandersv. Veridiano, 162 SCRA 88, a suit brought againsta public official for writing a letter which is allegedto be libelous but which was written while he was

acting as agent of the government and within thescope of his authority is actually a suit against theState without its consent.

ALTERNATIVE ANSWER:

The question does not specify how the libel wascommitted. If the libelous statement was notrelevant to the report on the alleged illegalencroachment of the river, the fact that it wasmade in the course of an official report does not



immunize the Secretary of Public Works fromliability for libel.

Local Elective Officials; Limitations OnAdditional Duties (1995)

No. 10: A City Mayor in Metro Manila was designatedas Member of the Local Amnesty Board (LAB) asallowed under the Rules and Regulations

Implementing Amnesty Proclamation Nos. 347 and348. as amended by Proclamation No. 377. The LABis entrusted with the functions of receiving andprocessing applications for amnesty andrecommending to the National Amnesty Commissionapproval or denial of the applications. The term of theCommission and, necessarily, the Local AmnestyBoards under it expires upon the completion of itsassigned tasks as may be determined by thePresident.

May the City Mayor accept his designation without

forfeiting his elective position in the light of theprovision of Sec. 7, 1st par. Art. IX-B of the 1987Constitution which pertinently states that "[N]oelective official shall be eligible for appointment ordesignation in any capacity to any public office orposition during his tenure?" Discuss fully,

SUGGESTED ANSWER:

No, the City Mayor may not accept his designationwithout forfeiting his elective positions. As statedin Flores vs. Drilon 223 SCRA 568, it is theintention of Section 7, Article X-B of the 1987Constitution that local elective officials shoulddevote their full time to their constituents. Whilesecond paragraph of Section 7, Article IX-B of the1987 Constitution allows appointive officials tohold other offices when allowed by law or by theprimary functions of their positions, no suchexception is made in the first paragraph, whichdeals with elective officials. It is the Intention ofthe 1987 Constitution to be more stringent withelective local officials.

ALTERNATIVE ANSWER:

Yes, he may accept such designation withoutforfeiting his mayorship. The Constitutional provisionbeing cited contemplates a "public office or position".It is believed that the Local Amnesty Board is notsuch an office since it is merely an ad hoc body.Besides, it is believed that its functions are not"sovereign" in character which is one of the elementsof a public office.

Ombudsman: Power to Suspend; PreventiveSuspension (2004)

(6) Director WOW failed the lifestyle checkconducted by the Ombudsman's Office becauseWOWs assets were grossly disproportionate to hissalary and allowances. Moreover, some assetswere not included in his Statement of Assets andLiabilities. He was charged of graft and corrupt

practices and pending the completion ofinvestigations, he was suspended from office forsix months.

A. Aggrieved, WOW petitioned the Court of Appeals to annul the preventive suspension orderon the ground that the Ombudsman could onlyrecommend but not impose the suspension.Moreover, according to WOW, the suspensionwas imposed without any notice or hearing, inviolation of due process. Is the petitioner'scontention meritorious? Discuss briefly. (5%)

SUGGESTED ANSWER: The contention ofDirector WOW is not meritorious. The suspensionmeted out to him is preventive and not punitive.Section 24 of Republic Act No. 6770 grants theOmbudsman the power to impose preventivesuspension up to six months. Preventivesuspension maybe imposed without any notice orhearing. It is merely a preliminary step in anadministrative investigation and is not the finaldetermination of the guilt of the officer concerned.(Garcia v. Mojica, 314 SCRA 207 [1999]).

B. For his part, the Ombudsman moved todismiss WOWs petition. According to theOmbudsman the evidence of guilt of WOW isstrong, and petitioner failed to exhaustadministrative remedies. WOW admitted he filedno motion for reconsideration, but only becausethe order suspending him was immediatelyexecutory. Should the motion to dismiss begranted or not? Discuss briefly. (5%)

SUGGESTED ANSWER:

B. The motion to dismiss should be denied. Sincethe suspension of Director WOW wasimmediately executory, he would have sufferedirreparable injury had he tried to exhaustadministrative remedies before filing a petition incourt (University of the Philippines Board ofRegents v. Rasul, 200 SCRA 685 [19910Besides,the question involved is purely legal. (Azarcon v.Bunagan, 399 SCRA 365 [2003]).

Ombudsman; Power to Investigate (2003)



No II A group of losing litigants in a case decidedby the Supreme Court filed a complaint beforethe Ombudsman charging the Justices withknowingly and deliberately rendering an unjustdecision in utter violation of the penal laws of theland. Can the Ombudsman validly takecognizance of the case? Explain.

SUGGESTED ANSWER:

No, the Ombudsman cannot entertain thecomplaint. As stated in the case of In re: Laureta.148 SCRA 382 [1987], pursuant to the principle ofseparation of powers, the correctness of thedecisions of the Supreme Court as final arbiter ofall justiciable disputes is conclusive upon all otherdepartments of the government; the Ombudsmanhas no power to review the decisions of theSupreme Court by entertaining a complaint againstthe Justices of the Supreme Court for knowinglyrendering an unjust decision.

SECOND ALTERNATIVE ANSWER: Article XI, Section 1 of the 1987 Constitutionprovides that public officers must at all times beaccountable to the people. Section 22 of theOmbudsman Act provides that the Office of theOmbudsman has the power to investigate anyserious misconduct allegedly committed byofficials removable by impeachment for thepurpose of filing a verified complaint forimpeachment if warranted. The Ombudsman canentertain the complaint for this purpose.

Ombudsman; Power to Suspend; PreventiveSuspension (1996)

No. 10: 2) An administrative complaint forviolation of the Anti-Graft and Corrupt Practices Actagainst X was filed with the Ombudsman.Immediately after taking cognizance of the case andthe affidavits submitted to him, the Ombudsmanordered the preventive suspension of X pendingpreliminary investigation. X questioned thesuspension order, contending that the Ombudsmancan only suspend preventively subordinateemployees in his own office.

Is X correct? Explain.

SUGGESTED ANSWER:

No, X is not correct. As held in Buenaseda vs.Flavier, 226 SCRA 645. under Section 24 ofRepublic Act No. 6770, the Ombudsman canplace under preventive suspension any officerunder his disciplinary authority pending aninvestigation. The moment a complaint is filedwith the Ombudsman, the respondent is under

his authority. Congress intended to empower theOmbudsman to suspend all officers, even if theyare employed in other offices in the Government.The words "subordinate" and "in his bureau" donot appear in the grant of such power to theOmbudsman.

Power to Issue Subpoena; validity ofdelegation (1989)

No. 17: Assume that under the charter of the Cityof Manila, the City Mayor has the power toinvestigate city officials and employees appointedby him and in connection therewith, administeroath, take testimony and issue subpoenas. Themayor issued an executive order creating acommittee, chaired by "X", to investigateanomalies involving licensed inspectors of theLicense Inspection Division of the Office of the CityTreasurer, In the course of its investigation, "X"subpoenaed "Y", a private citizen working asbookkeeper of Asia Hardware. "Y" refused to

appear contending that the Committee of "X" hasno power to issue subpoenas. Decide.

SUGGESTED ANSWER:

Yes, the committee has no power to issuesubpoenas according to Carmelo vs, Ramos, 6SCRA 836. In creating the committee, the mayordid not grant it the power to issue subpoenas.Besides, the mayor cannot delegate his power toissue subpoenas.

Prohibition On Elective Officer to Hold Public

Office (2002)No VII. X was elected provincial governor for aterm of three years. He was subsequentlyappointed by the President of the Philippinesserving at her pleasure, as concurrent Presidential

Assistant for Political Affairs in the Office of thePresident, without additional compensation.

Is X's appointment valid? (5%)

SUGGESTED ANSWER:

The appointment of X is not valid, because the

position of Presidential Assistant for Political Affairs is a public office. Article IX-B Section 7 ofthe Constitution provides that no elective officialshall be eligible for appointment or designation inany capacity to any public office or positionduring his tenure. As held in Floresv. Drilon, 223 SCRA 568 (1993), since anelective official is ineligible for an appointiveposition, his appointment is not valid.

Public Office; Public Trust (1998)



No V. - Suppose Congress passed a law toImplement the Constitutional principle that apublic office is a public trust, by providing asfollows:

"No employee of the Civil Service shall be excusedfrom attending and testifying or from producing books,records, correspondence, documents or otherevidence in any administrative investigationconcerning the office in which he is employed on the

ground that his testimony or the evidence required ofhim may tend to incriminate him or subject him to apenalty or forfeiture; but his testimony or any evidenceproduced by him shall not be used against him incriminal prosecution based on the transaction, matteror thing concerning which is compelled, after invokinghis privilege against self-incrimination, to testify orproduce evidence. Provided, however, that suchindividual so testifying shall not be exempt fromprosecution and punishment for perjury committed inso testifying nor shall he be exempt from demotion orremoval from office. Any employee who refuses to

testify or produce any documents under this Act shallbe dismissed from the service,"

Suppose further, that Ong, a member of theProfessional Regulatory Board, is required toanswer questions in an investigation regarding aLEAKAGE in a medical examination.

1. Can Ong refuse to answer questions on the

ground that he would incriminate himself? [4%]2. Suppose he refuses to answer, and for thatreason, is dismissed from the service, can hepausibly argue that the Civil Service Commissionhas inferred his guilt from his refusal to answer inviolation of the Constitution? |3%]

3. Suppose, on the other hand, he answers thequestion and on the basis of his answers, he isfound guilty and is dismissed. Can he plausiblyassert that his dismissal is based on coercedconfession? I3%]

SUGGESTED ANSWER:

1. No, Ong cannot refuse to answer the questionon the ground that he would incriminate himself,since the law grants him immunity and prohibitsthe use against him in a criminal prosecution ofthe testimony or evidence produced by him. Asstated by the United States Supreme Court inBrown vs. Walker. 161 U.S. 591, 597, what theconstitutional prohibition against self-

incrimination seeks to prevent is the conviction ofthe witness on the basis of testimony elicitedfrom him. The rule is satisfied when he is grantedimmunity.

ALTERNATIVE ANSWER:

1. In accordance with Evangelista vs. Jarencio,68 SCRA 99, 107-108, If Ong is being citedmerely as a witness, he may not refuse to

answer. However, if the question tends to violatehis right against self-incrimination, he may objectto it. On the other hand, under the ruling inChavez vs. Court of Appeals, 24 SCRA 663, 680,If he is a respondent, Ong may refuse to answerany question because of his right againstself-incrimination.

SUGGESTED ANSWER:

2. No Ong cannot argue that the Civil ServiceCommission inferred his guilt from his refusalto answer. He was not dismissed because ofhis involvement in the leakage in the medical

examination but for his refusal to answer.This is a violation of the law. He could becompelled to answer the question on pain ofbeing dismissed in case of his refusal,because he was granted Immunity.

In Lefkowitz vs. Turley. 414 U.S. 70, 84, theUnited States Supreme Court held:

"Furthermore, the accomodation between theinterest of the State and the Fifth Amendmentrequires that the State have means at its disposal tosecure testimony if immunity is supplied andtestimony is still refused. This is recognized by thepower of courts to compel testimony, after a grant ofimmunity, by use of civil contempt and coercedimprisonment. Shilitani v. United States, 384 US364. 16 L Ed 2d 622. 86 5 Ct 1531 (1966). Also,given adequate immunity the State may plainly insistthat employees either answer questions under oathabout the performance of their job or suffer the lossof employment."

SUGGESTED ANSWER:

3. Jes Ong can argue that his dismissal was based

on coerced confession. In Garrity vs. New Jersey,385 U.S. 493, 500, the United States SupremeCourt held: "We now hold the protection of theindividual under the Fourteenth Amendmentagainst coerced statements prohibits use insubsequent criminal proceedings of statementsobtained under threat of removal from office, andthat it extends to all, whether they are policemen orother members of the body politic."

Retirement Benefits (1996)



No. 9: 2) A, an employee of the NationalTreasurer, retired on January 10, 1996. Beforeshe could collect her retirement benefits, theNational Treasurer discovered that A had beennegligent in the encashment of falsified treasurywarrants. It appears, however, that A had receivedall money and property clearances from theNational Treasurer before her retirement.

Can the National Treasurer withhold theretirement of A pending determination of hernegligence in the encashment of the falsifiedtreasury warrants? Explain.

SUGGESTED ANSWER:

2) In accordance with Tantuico vs. Domingo, 230SCRA 391 and Cruz us. Tantuico, 166 SCRA 670,the National Treasurer cannot withhold thepayment of the retirement benefits of A pendingdetermination of her liability for negligence in theencashment of the falsified treasury warrants,

because her retirement benefits are exempt fromexecution.

ARTICLE XII National Economyand Patrimony

Acquisition and Lease of Public Lands(1998)

Express your agreement or disagreement with

any of the following statements. Begin youranswer with the statement: "I AGREE" or"DISAGREE" as the case may be.

1. Anyone, whether Individual, corporation orassociation, qualified to acquire private lands isalso qualified to acquire public lands in thePhilippines. [2%]

2. A religious corporation is qualified to have lands in the Philippines on which it maybuild Its church and make other improvementsprovided these are actually, directly andexclusively used for religious purposes. [2%]

3. A religious corporation cannot lease privatelands In the Philippines. [2%]

4. A religious corporation can acquire privatelands in the Philippines provided all its membersare citizens of the Philippines. [2%]

5. A foreign corporation can only lease privatelands in the Philippines. [2%]

SUGGESTED ANSWER:

1. I disagree. Under Section 7, Article XII of theConstitution, a corporation or association which issixty percent owned by Filipino citizens canacquire private land, because it can lease publicland and can therefore hold public land. However,it cannot acquire public land. Under Section 3,

Article XII of the Constitution, private corporationsand associations can only lease and cannotacquire public land.

Under Section 8, Article XII of the Constitution, anatural-born Filipino citizen who lost his Philippinecitizenship may acquire private land only andcannot acquire public land.

2. I disagree. The mere fact that a corporation isreligious does not entitle it to own public land. Asheld In Register of Deeds vs. Ung Siu Si Temple,97 Phil. 58, 61, land tenure is not indispensableto the free exercise and enjoyment of religiousprofession of worship. The religious corporation

can own private land only if it is at least sixty percent owned by Filipino citizens.

3. I disagree. Under Section 1 of PresidentialDecree No. 471, corporations and associationsowned by aliens are allowed to lease privatelands up to twenty-five years, renewable foranother period of twenty-five years uponagreement of the lessor and the lessee. Hence,even if the religious corporation is owned byaliens, it can lease private lands.

4. I disagree. For a corporation' to qualify toacquire private lands in the Philippines, underSection 7, Article Xn of the Constitution in relationto Section 2, Article XII of the Constitution, onlysixty per cent (60%) of the corporation is requiredto be owned by Filipino citizens for it to qualify toacquire private lands.

5. I agree. A foreign corporation can lease privatelands only and cannot lease public land. UnderSection 2, Article XII of the Constitution, theexploration, development and utilization of publiclands may be undertaken through co-production.Joint venture or production-sharing agreementsonly with Filipino citizen or corporations orassociations which are at least sixty per centowned by Filipino citizen.

Acquisition of Lands (1987)

No. XV: On March 1, 1987, "ABC" Corporation,a company engaged in the export trade, applied



for judicial confirmation of its title over tenhectares of timber lands. The company boughtthe land from "X" who in turn inherited it from hisfather "Y". The latter had been in open,notorious, public and continued possession of theland since 1925. On what valid grounds can

application for confirmation of title on the

ground that under Art. XII, Sec. 3 timber landscannot be alienated. The ruling in Director of

Lands v. IAC, 146 SCRA 509 (1986), and Directorof Lands v, Bengzon, No. 54045, July 28, 1987,

reiterated in Director of Lands v. Manila ElectricCo., G.R, No. 57461, Sept. 11, 1987, to the effect

that a corporation is entitled to the confirmation

of imperfect title to lands acquired by it fromprivate individuals who have possessed the samefor 30 years, under bona fide claim of ownership,

for the reason that such persons are presumed tohave performed all conditions essential to agovernment grant and, therefore, are entitled to

the issuance of a certificate of title, applies only

to agricultural lands.

Acquisition of Lands (2000)

No XVIII. - a) Andy Lim, an ethnic Chinese,became a naturalized Filipino in 1935. But laterhe lost his Filipino citizenship when he became a

citizen of Canada in 1971. Wanting the best ofboth worlds, he bought, in 1987, a residential lotin Forbes Park and a commercial lot in Binondo.

Are these sales valid? Why? (3%)

SUGGESTED ANSWER:

No, the sales are not valid. Under Section 8, Article XII of the Constitution, only a natural-borncitizen of the Philippines who lost his Philippinecitizenship may acquire private land. Since AndyLim was a former naturalized Filipino citizen, heis not qualified to acquire private lands.

Acquisition of Lands by Hereditary Succession(2002)

No XI. - A, a Filipino citizen, and his wife B, aJapanese national, bought a five-hectareagricultural land from X, a Filipino citizen. Thecouple later executed a deed of donation over thesame land in favor of their only child C. A yearlater, however, C died in vehicular

accident without leaving a last will and testament.

Now, X brought suit to recover the land on theground that B, being an alien, was not qualifiedto buy the land when B and A jointly bought theland from him and that, upon the death of C, theland was inherited by his parents but B cannotlegally acquire and/or inherit it.

How should the case be decided? If X filed thesuit against C when the latter was still alive,would your answer be the same? Why? (5%)

SUGGESTED ANSWER:

X cannot recover the land whether from C or Aand B. Under Article IV, Section 1 (2) of theConstitution, C is a Filipino citizen since his fatheris a Filipino. When A and B donated the land toC, it became property of a Filipino citizen. As heldin Halili v. Court of Appeals, 287 SCRA 465(1998), the sale of land to an alien can no longerbe annulled if it has been conveyed to a Filipino

citizen. Since C left no will and his parents are hisheirs, in accordance with Article XII, Section 7 ofthe Constitution, B can acquire the land byhereditary succession.

Acquisition of Lands; Citizenship issue (1989)

No. 1: Maria, a natural-born Filipino citizen, wentto the United States in 1965 to work as a nurse.With her savings, she bought a parcel of landconsisting of 1,000 square meters in a residential

subdivision in Metro Manila. She had the saidproperty titled in her name in 1970. In July, 1972,Maria acquired American citizenship bynaturalization. Two months later, she married herCanadian boyfriend.

(1) Can Maria validly sell this parcel of land tothe younger sister of her husband who is also aCanadian citizen?

(2) Supposing Maria's husband dies and shedecides to reside in the Philippines permanently,can Maria buy the parcel of land consisting of 400square meters neighboring her own?

ANSWER:

(1) No, Maria cannot validly sell the parcel of landto the younger sister of her husband who is aCanadian citizen. Under Section 7, Article XII ofthe 1987 Constitution, as a general rule, alienscannot acquire private land since pursuant toSection 2, in relation to Section 3, Article XII, ofthe 1987 Constitution they are not qualified toacquire or hold lands of the public

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domain. Under Section 7, Article XII of the 1987Constitution, an alien can acquire public land byhereditary succession. Under Section 8, Article XIIof the 1987 Constitution, a natural-born Philippinecitizen who lost his Philippine citizenship may bea transferee of private land. The younger sister ofthe husband of Maria is not acquiring the privateland by hereditary succession but by sale. Neitheris she a former natural-born Philippine citizen who

lost her Philippine citizenship. Consequently,neither of the exceptions found in theabove-mentioned provisions is applicable to her.

(2) No, Maria cannot buy the adjoining parcel ofland. Under Section 2 of Batas Pambansa Blg.185, a natural-born Philippine citizen who lost hisPhilippine citizenship, may acquire only up to1,000 square meters of private urban land. SinceMaria has previously acquired a parcel of landwith an area of 1,000 square meters, she can no

longer purchase any additional parcel of urbanland.

Alternative Answer:

Yes, she can acquire the adjacent land which hasan area of 400 square meters since the law limitsacquisition of lands to 1,000 square meters afterthe loss of Philippine citizenship.


No. 17: A and B leased their residential landconsisting of one thousand (1,000) square metersto Peter Co, a Chinese citizen, for a period of fifty(50) years. In 1992, before the term of the leaseexpired. Co asked A and B to convey the land tohim as the contract gave him the option topurchase said land if he became a naturalizedFilipino citizen. Co took his oath as a Filipinocitizen in 1991.

1) Was the contract of lease for a period of fifty(50) years valid considering that the lessee wasan alien?

2) What is the effect of the naturalization of PeterCo as a Filipino citizen on the validity of theoption to purchase given him?

ANSWER:

1) As held in Philippine Banking Corporation vs.Lui She. 21 SCRA 52, the lease of a parcel ofland with an option to buy to an alien is a virtualtransfer of ownership to the alien and falls withinthe scope of the prohibition in

Section 7, Article XII of the Constitution againstthe acquisition of private lands by aliens.

2) Because of the naturalization of Peter Co as aFilipino citizen, he can exercise the option topurchase the land. In accordance with the rulingin Yap vs. Grageda, 121 SCRA 244. since he isqualified to own land, the policy to preserve landsfor Filipinos will be achieved.


No 11; In June 1978 spouses Joel and Michellepurchased a parcel of land. Lot No. 143,Cadastral Survey No. 38-D, with an area of 600square meters for their residence in Cainta, Rizal,from Cecille who by herself and herpredecessor-in-interest had been in open, public,peaceful, continuous and exclusive possession ofthe property under a bona fide claim of ownershiplong before 12 June 1945. At the time of

purchase, the spouses Joel and Michelle werethen natural born Filipino citizens.

In February 1987 the spouses filed an applicationfor registration of their title before the proper court.This time however Joel and Michelle were nolonger Filipino citizens. The government opposedtheir application for registration alleging that theyhave not acquired proprietary rights over thesubject lot because of their subsequentacquisition of Canadian citizenship, and thatunregistered lands are presumed to be public

lands under the principle that lands of whateverclassification belong to the State under theRegalian doctrine, hence, they still pertain to theState.

How will you resolve the issues raised by theapplicants and the oppositor? Discuss fully.

ANSWER:

The argument of the government that unregisteredlands are presumed to be public lands is utterlyunmeritorious. As held in Republic vs. Court of

Appeals. 235 SCRA 562, in accordance withSection 48 of the Public Land Act, since thepredecessors-in- interest of Joel and Michelle hadbeen in open, public, peaceful, continuous andexclusive possession of the land under a bona fideclaim of ownership long before June 12. 1945,their predecessors- in-interest had acquired theland, because they were conclusively presumed tohave performed all conditions essential to agovernment grant. The land ceased to be a part



of the public domain. It is alienable anddisposable land. Joel and Michelle acquired therights of their predecessors-in-interest by virtue ofthe sale to them.

Joel and Michelle can have the land registered intheir names. They were natural-born Filipinocitizens at the time of their acquisition of the land.In any event they were Filipino citizens at thetime of their acquisition of the land. Their

becoming Canadian citizens subsequently isimmaterial. Article XII, Sec. 8 of the 1987Constitution presupposes that they purchasedthe land after they lost Filipino citizenship. It doesnot apply in this case at all.

Acquisition of Lands; Prohibition; acquisition ofprivate lands by aliens (1994)

No.18; John Smith, a US national, was married toPetra de Jesus, a Filipino citizen, on June 5,1980. Two (2) years later, Petra purchased a

parcel of residential land from Jose Cruz using herown funds. The Deed of Sale states that the landwas sold to "Petra married to John Smith" andwas registered as such. With the knowledge ofJohn Smith, Petra administered the land, leasingparts thereof to several individuals. Three (3)years later, Petra, without the knowledge of JohnSmith, sold the land to David Perez. Uponlearning of the transaction, John Smith filed acase to annul the Deed of Sale. Citing Art. 160 ofthe Civil Code, he argued that said sale waswithout his consent, the property being conjugal

as it was purchased at the time he was married toPetra. He presented the Deed of Sale executedby Petra stating that she is married to John Smith.He wants to recover at least his conjugal share.

1) Is John Smith entitled to his conjugal share?

2) May the Deed of Sale executed by Petra Infavor of David Perez be annulled?

ANSWER:

1) No, John Smith is not entitled to his conjugal

share in the land. Firstly, since it was acquiredwith the personal funds of Petra de Jesus, inaccordance with the ruling in Mirasol vs. Lim, 59Phil. 701, the presumption that the property isconjugal has been rebutted. Secondly, adeclaration that John Smith is entitled to aconjugal share in the land will violate theprohibition against the conveyance of privatelands to aliens embodied in Section 7, Article XIIof the Constitution.

2) The Deed of Sale cannot be annulled. As heldin Cheesman vs. Intermediate Appellate Court,193 SCRA 93. to accord to John Smith, an alien,the right to have a decisive vote as to thedisposition of the land would permit an indirectcontroversion of the constitutional prohibitionagainst the acquisition of private lands by aliens.

Citizenship Requirement in Management ofAdvertising Industry (1989)

No. 11: (2) May a foreigner who owns substantialstockholdings in a corporation engaged in theadvertising industry sit as a treasurer of saidcorporation? Cite the constitutional provision inpoint.

SUGGESTED ANSWER:

Section 11(1), Article XVI of the 1987 Constitutionprovides;

(2) No, a foreigner who owns shares of stock in acorporation engaged in the advertising industrycannot serve as treasurer in the corporation, for atreasurer is an executive or managing officer.

Section 11(2), Article XVI of the 1987Constitution provides:

"The participation of foreign investors inthe governing body of entities in suchindustry shall be limited to theirproportionate share in the capital thereof,and all the executive and managingofficers of such entities must be citizens ofthe Philippines."

Engagement in Business & Exercise ofProfession (1987)

No. IX: The Philippine entered into a Treaty ofFriendship, Comity and Commerce with Indonesiawith the following provisions:

(1 ) The nationals of each contracting Stateadmitted to the practice of law in said State, topractice law without taking the bar examinations

in the other contracting State.(2) The nationals of each contracting State toengage in retail trade business in the territory ofthe other contracting State.

Is the treaty valid?

SUGGESTED ANSWER:

The treaty is valid.

(1) Art. XII, Sec. 14 provides that the practice ofall professions in the Philippines shall be



limited to Filipino citizens, save in casesprescribed by law. Here the treaty has the force oflaw.

(2) Art. XII. Sec. 10 provides that Congress shallreserve to citizens of the Philippines or tocorporations or associations at least 60% of thecapital of which is owned by such citizens certainareas of investment. There can be no questionthen as to the validity of the Nationalization ofRetail Trade Law, the constitutionality of whichwas sustained in Ichong v. Hernandez, 101 Phil.1155 (1957) even in the absence of a similarexpress grant of power to Congress under the1935 Constitution. Although Congress can repealor amend such law, it may not be amended by atreaty in view of Art. XII, Sec. 22 which declaresacts of circumvent or negate any provisions of this

Art. XII to be inimical to national interest andsubject the offenders to criminal and civilsanctions. For then the Retail TradeNationalization Law becomes part of Art. XII,

having been passed pursuant to the mandate inSec. 10.

However, it may also be plausibly argued that atreaty may amend a prior law and treaty offriendship, comity and commerce with Indonesiamay be deemed to have created an exception inthe Nationalization of Retail Trade Law in favor ofIndonesian citizen.

Exploration and Development of Minerals(1994)

No. 11: In the desire to improve the fishingmethods of the fishermen, the Bureau ofFisheries, with the approval of the President,entered into a memorandum of agreement toallow Thai fishermen to fish within 200 miles fromthe Philippine sea coasts on the condition thatFilipino fishermen be allowed to use Thai fishingequipment and vessels, and to learn moderntechnology in fishing and canning.

1) Is the agreement valid?

2) Suppose the agreement is for a joint ventureon the same area with a Thai oil corporation forthe exploration and exploitation of minerals withthe Thai corporation providing technical andfinancial assistance. Is the agreement valid?

ANSWER;

1) No. Only Filipinos may fish in exclusiveeconomic zone...

2) The President can enter into a memorandum ofagreement with a Thai oil

corporation involving technical and financialassistance for the exploration and exploitation ofminerals, but there should be no Joint venture.Section 2, Article XII of the Constitution authorizesthe President to enter into agreements withforeign-owned corporations involving technical orfinancial assistance for the exploration,development, and utilization of minerals. However,the same provision states the joint venture for the

exploration, development and utilization of naturalresources may be undertaken only with Filipinocitizens, or corporations or associations at leastsixty per cent of whose capital is owned by Filipinocitizen.

Expropriation of Public Utilities (1992)

No. 11 - The Philippine Commodities Office(PCO), a government agency, wishes to establisha direct computer and fax linkup with trading

centers in the United States. The advancedtechnology of a private company, Philippine PacificTelecommunications, is necessary for thatpurpose but negotiations between the parties havefailed. The Republic, in behalf of the PCO, filessuit to compel the telecommunications company toexecute a contract with PCO for PCO's accessand use of the company's facilities.

Decide. If the case will not prosper, whatalternative will you propose to the Republic?

SUGGESTED ANSWER:

The action will not prosper. As held in Republic ofthe Philippines vs. Philippine Long DistanceTelephone Company , 26 SCRA 620, parties cannotbe compelled to enter into a contract. However,since under Section 18, Article XII of theConstitution, the State may expropriate publicutilities, the Republic of the Philippines may compelthe Philippine Pacific Telecommunications to allowaccess to its facilities. If the Republic of thePhilippines can take title to the facilities of PhilippinePacific Telecommunications by its power ofexpropriation, there is no reason why it cannot use

such power to impose only a burden uponPhilippine Pacific Telecommunication without lossof title.

Lease of Private Agricultural Lands (2001)

No IV - A is an alien. State whether, in thePhilippines, he:

a) Can be a lessee of a private agriculturalland, (3%)



SUGGESTED ANSWER;

Yes, an alien can be a lessee of privateagricultural land. As stated in Krivenko vs.Register of Deeds of Manila, 79 Phil. 461 (1947),aliens can lease private agricultural land,because they are granted temporary rights onlyand this is not prohibited by the Constitution.

National Economy & Patrimony; ConstitutionalProhibition (2004) (8-b) B. EAP is a governmentcorporation created for the purpose of reclaiminglands including foreshore and submerged areas, aswell as to develop, improve, acquire, lease and sellany and all kinds of lands. A law was passedtransferring title to EAP of lands already reclaimed inthe foreshore and offshore areas of MM Bay,particularly the so-called Liberty Islands, as alienableand disposable lands of the public domain. Titleswere duly issued in EAP's name.

Subsequently, EAP entered into a joint ventureagreement (JVA) with ARI, a private foreigncorporation, to develop Liberty Islands.

Additionally, the JVA provided for the reclamationof 250 hectares of submerged land in the areasurrounding Liberty Islands. EAP agreed to selland transfer to ARI a portion of Liberty Islands anda portion of the area to be reclaimed as theconsideration for ARI's role and participation in theoint venture, upon approval by the Office of the

President. Is there any constitutional obstacle tothe sale and transfer by EAP to ARI of bothportions as provided for in the JVA? (5%)

SUGGESTED ANSWER:B. ARI cannot acquire a portion of Liberty Islandsbecause, although EAP has title to Liberty Islandsand thus such lands are alienable and disposableland, they cannot be sold, only leased, to privatecorporations. The portion of the area to bereclaimed cannot be sold and transferred to ARIbecause the seabed is inalienable land of thepublic domain. (Section 3, Article XII of the 1987Constitution; Chavez v. Public Estates Authority,384 SCRA 152 [2002]).

National Patrimony; definition (1999)

No XII - What is meant by National Patrimony?Explain the concept of National Patrimony? (2%)

SUGGESTED ANSWER:

According to Manila Prince Hotel v.Government Service Insurance System, 267SCRA 408, the national patrimony refers notonly to our natural resources but also to ourcultural heritage.Nationalized Activities (1994)

1) Give a business activity the equity of whichmust be owned by Filipino citizens:

a) at least 60%b) at least 70%

c) 100%

2) Give two cases in which aliens may be allowedto acquire equity in a business activity but cannotparticipate in the management thereof?

SUGGESTED ANSWER:

1) a) At least sixty per cent (60%) of the equityof the entities engaged in the following business

must be owned by Filipino citizens under theConstitution.

1 Co-production, Joint venture, orproduction-sharing agreement with theState for the exploration, development,and utilization of natural resources(Section 2, Article XII)2 Operation of a public utility(Section 11, Article XII)3 Education (Section 4(2), ArticleXIV)

b) At least seventy percent (70%) of the equity ofbusiness entities engaged in advertising must beowned by Filipino citizens under the Constitution.(Section 11(2), Article XVI)

c) Mass media must be wholly owned by Filipinocitizens under the Constitution (Section 11(1),

Article XVI).

2) Under the Constitution, aliens may acquireequity but cannot participate in the management ofbusiness entities engaged in the followingactivities:

1) Public utilities (Section 11, ArticleXII)

2) Education (Section 4(2) .Article XIV)

3) Advertising (Section 11(2), ArticleXVI)



SUGGESTED ANSWER;

The position of the Department of Public Worksand Highways and of the local government unit iscorrect. As held in Export Processing Zone

Authority v. Commission on Human Rights, 208SCRA125 (1992), no provision in the Constitutionor any law confers on the Commission on HumanRights jurisdiction to issue temporary restrainingorders or writs of preliminary injunction. TheCommission on Human Rights has no judicialpower. Its powers are merely investigatory.

Commission on Human Rights; Power;Limitations (Q4-2005)(2) Squatters and vendors have put upstructures in an area intended for a People's Park,which are impeding the flow of traffic in theadjoining highway. Mayor Cruz gave notice for thestructures to be removed, and the area vacated

within a month, or else, face demolition andejectment. The occupants filed a case with theCommission on Human Rights (CHR) to stop theMayor's move.

The CHR then issued an "order to desist"against Mayor Cruz with warning that hewould be held in contempt should he fail tocomply with the desistance order. When theallotted time lapsed, Mayor Cruz caused thedemolition and removal of the structures.

Accordingly, the CHR cited him for contempt.

(5%)

(a) What is your concept of Human Rights?Does this case involve violations of humanrights within the scope of the CHR'surisdiction? SUGGESTED ANSWER: Underthe Universal Declaration of Human Rights, theInternational Covenant on Economic, Socialand Cultural Rights and International Covenanton Civil and Political Rights, the scope ofhuman rights includes "those that relate to anindividual's social, economic, cultural, politicaland civil relations... along with what is generallyconsidered to be his inherent and inalienablerights, encompassing almost all aspects of life."

In the case at bar, the land adjoins a busynational highway and the construction ofthe squatter shanties impedes the flow oftraffic. The

consequent danger to life and limb cannotbe ignored. It is paradoxical that a rightwhich is claimed to have been violated isone that cannot, in the first place, even beinvoked, if it is, in fact, extant. Based onthe circumstances obtaining in thisinstance, the CHR order for demolition donot fall within the compartment of humanrights violations involving civil and political

rights intended by the Constitution. (Simonv. Commission on Human Rights, G.R. No.100150, January 5, 1994)

(b) Can the CHR issue an "order to desist" orrestraining order? SUGGESTED ANSWER: TheCHR may not issue an "order to desist" orrestraining order. The constitutional provisiondirecting the CHR to provide for preventivemeasures to those whose human rights havebeen violated or need protection may not be

construed to confer jurisdiction on theCommission to issue a restraining order or writof injunction for, it that were the intention, theConstitution would have expressly said so.Jurisdiction is conferred only by the Constitutionor by law. It is never derived by implication.(Export Processing Zone Authority v.Commission on Human Rights, G.R. No.101476, April 14, 1992)

(c) Is the CHR empowered to declare MayorCruz in contempt? Does it have contemptpowers at all? SUGGESTED ANSWER: TheCHR does not possess adjudicative functionsand therefore, on its own, is not empowered todeclare Mayor Cruz in contempt for issuingthe "order to desist." However, under the 1987Constitution, the CHR is constitutionallyauthorized, in the exercise of its investigativefunctions, to "adopt its operational guidelinesand rules of procedure, and cite for contemptfor violations thereof in accordance with the

Rules of Court." Accordingly, the CHR, in thecourse of an investigation, may only cite orhold any person in contempt and impose theappropriate penalties in accordance with theprocedure and sanctions provided for in theRules of Court. (Carino v. Commission on



Human Rights, G.R. No. 96681, December2, 1991)

Labor; Right to Self-Organization (1988)

No. 2: Because of the marked increase in theincidence of labor strikes and of work stoppages inindustrial establishments, Congress intending tohelp promote industrial peace, passed, over the

objections of militant labor unions, an amendmentto the Labor Code, providing that no person who isor has been a member of the Communist Partymay serve as an officer of any labor organization inthe country. An association of former NPAs (NewPeoples Army) who had surrendered, availed ofamnesty, and are presently leading quiet andpeaceful lives, comes to you asking what could bedone against the amendment. What would youadvise the association to do? Explain.

SUGGESTED ANSWER:

In PAFLU v. Secretary of Labor , 27 SCRA 40(1969) the Supreme Court upheld the validity ofsec. 23 of the Industrial Peace Act requiring laborunions to submit, within 60 days of the election ofits officers, affidavits of the latter that they are notmembers of the Communist Party, against theclaim that the requirement unduly curtailedfreedom of assembly and association. The Courtpointed out that the filing of the affidavits wasmerely a condition for the acquisition by a labororganization of legal personality and theenjoyment of certain rights and privileges which

the Constitution does not guarantee. On the otherhand, the requirement constitutes a valid exerciseof the State's police power to protect the publicagainst abuse, fraud and impostors.

But the disqualification of members of the CPPand its military arm, the NPA, from being officersof a labor union would (1) nullify the amnestygranted by the President with the concurrence, itmay be assumed, of the majority of the membersof Congress and (2) permit the condemnation ofthe former NPA members without judicial trial in a

way that makes it contrary to the prohibitionagainst the enactment of bill of attainder and expost facto law. The amnesty granted to the formerNPAs obliterated their offense and relieved themof the punishment imposed by law. (Barrioquintov, Fernandez, 82 Phil. 642 (1949)). Theamendment would make them guilty of an act,that of having been former members of the NPA,for which they have already been forgiven byPresidential amnesty.

For these reasons, I would advise theassociation to work for the veto of the bill and, ifit is not vetoed but becomes a law, to challengeit in court.

Labor; Right to Strike (1988)

No. 1: Hearings before a congressional committeehave established that many firms at the Bataan

Export Processing Zone had closed down orpulled out because of unstable labor conditionsresulting in so many strikes. To remedy thesituation and inject vitality to the export expansionprogram, some congressional leaders andbusiness executives propose that strike-freeexport zones be established.

Do you believe that under the presentConstitution, it is legally possible to put up such astrike-free export processing zone in the country?Why or why not?

SUGGESTED ANSWER:No. The fact that many firms at the Bataan EPZAhave been forced to close down by unstable laborcondition brought about by strike does not justifythe ban on strike. The Constitution guarantees therights of workers to engage in "peaceful concertedactivities, including the right to strike inaccordance with law." (Art. XIII, sec. 3). It is illegalstrikes which can be prohibited but not all strikes.For strike is labor's legitimate weapon. In theabsence of a compelling interest of the state (suchas health and safety, e.g., the prohibition of strike

in hospitals and industries indispensable to thenational interest) it cannot be prohibited.

Labor; Right to Strike (1993)

No. 15: Congressman Cheng says he is one ofthe co-authors of the Subic Bay Metropolitan

Authority Charter. He declares that the SBMA isthe answer to rapid economic growth and theattainment of the President's Philippine 2000"dream. However, Cheng is worried that foreigncapital might be slow in coming in due to unstableworking conditions resulting from too manystrikes. To remedy this situation. Cheng proposesan amendment to SBMA law declaring it as astrike-free zone or total ban on strikes. Is thisproposal legally defensible? Explain briefly.

SUGGESTED ANSWER:

Art. XIII. sec. 3 of the Constitution guaranteesthe right of all workers to engage in peacefulconcerted activities, including the right to strike



in accordance with law. Thus, a law cannot totallyprohibit the right to strike but can only regulate theexercise thereof. His proposal to ban strikestotally in the Subic Special Economic andFreeport Zone is, therefore unconstitutional.

ALTERNATIVE ANSWER:

While the Constitution guarantees to workers the

right to engage in peaceful concerted activities,Including the right to strike, such right can only beexercised in accordance with law. The phrase "inaccordance with law" was Inserted precisely toIndicate that in some exceptional cases workerswould not have the right to strike if it is prohibited bylaw. Hence, the proposal to ban strikes totally in theSubic Special Economic and Freeport Zone isconstitutional. (Social Security System Employees

Association vs. Court of Appeals, 175 SCRA 686,July 28. 1989; Manila Public School Teachers

Association v. Laguio, 200 SCRA 323 (1991)).

Social Justice under the Present Constitution(1995)

No. 1- 1. Discuss the concept of social justiceunder the 1987 Constitution,

2. How does it compare with the old concept ofsocial Justice under the 1973 Constitution? Underthe 1935 Constitution?

SUGGESTED ANSWER

1. Section 10, Article II of the 1987 Constitutionprovides. "The State shall promote social justicein all phases of national development". As statedin Marquez vs. Secretary of Labor, 171 SCRA337, social justice means that the State shouldassist the underprivileged. Without such help,they might not be able to secure justice forthemselves. Since the provision on social justicein the 1987 Constitution covers all phases ofnational development, it is not limited to theremoval of socio-economic inequities but alsoincludes political and cultural inequities. The 1987

Constitution elaborated on the concept of socialustice by devoting an entire article, Article XIII, toit.

Alternative Answers:

a) Section 5, Article II of the 1935 Constitutionprovided, "The promotion of social justice toInsure the well-being and economic security of allthe people should be the concern of the State."While this provision embodied the concept ofsocial justice as an obligation of the

State to alleviate the plight of the underprivilegedby removing Inequities, it simply made a generalpolicy declaration and focused on social andeconomic inequities,

b) In the 1987 Constitution, social Justice isconceptualized as a set of specific economic,social and cultural rights.

c) The 1987 Constitutional provision on social

ustice includes all phases of nationaldevelopment. It includes economic, political, socialand cultural rights.

SUGGESTED ANSWER

2. In Calalang v. Williams, et. al.. 70 Phil. 726,social justice was defined as "neither communismnor despotism, nor atomism, nor anarchy, but thehumanization of laws and the equalization of socialand economic forces by the State so that justice inits rational and objectively secular conception mayat least be approximated. Social justice means thepromotion of the welfare of all the people, the

adoption by the government of measurescalculated to insure economic stability of all thecompetent elements of society, through themaintenance of a proper economic and socialequilibrium in the interrelations of the members ofthe community,"

On the other hand, Section 6, Article II of the 1973Constitution provided. The State shall promotesocial justice to ensure the dignity, welfare, andsecurity of all the people. Toward this end. theState shall regulate the acquisition, ownership,

use, enjoyment, and disposition of private property,and equitably diffuse property ownership andprofits." This provision expounded on the conceptof social justice by expressly mentioning theregulation of property and the equitable diffusion ofownership.

Note: It is suggested that the examiner shouldcorrelate the answers to both questions and givecredit to answers which state that there is anexpansion of the range of social Justice in the1987 Constitution compared to the 1935 and the1973 Constitution.

Women (2000)

No IX. b) What are the provisions of theConstitution on women? (2%)

SUGGESTED ANSWER:

b) The following are the provisions of theConstitution on women:



1) "It (the State) shall equally protectthe life of the mother and the life of theunborn from conception." (Section 12, ArticleII)

2) The State recognizes the role ofwomen in nation-building, and shall ensurethe fundamental equality before the law ofwomen and men." (Section 14, Article II)

3) "The State shall protect workingwomen by providing safe and healthfulworking conditions, taking into account theirmaternal functions, and such faculties andopportunities that will enhance their welfareand enable them to realize their full potentialin the service of the nation." (Section 14,

Article XIII)

ARTICLE XIV Education,

Science and Technology, ArtsEducation; Academic Freedom (1987)

No. X: "X", a son of a rich family, applied forenrolment with the San Carlos Seminary inMandaluyong, Metro Manila. Because he hadbeen previously expelled from another seminaryfor scholastic deficiency, the Rector of San CarlosSeminary denied the application without giving anygrounds for the denial. After "X" was refusedadmission, the Rector admitted another applicant,who is the son of a poor farmer who was alsoacademically deficient.

xxx

(b) Prepare a brief argument citing rules, laws, orConstitutional provisions in support of theRector's denial of the motion for reconsideration.

(c) Give your decision on the appeal of "X" fromthe Rector's denial of "X's" application,

SUGGESTED ANSWER:

(b) The seminary has institutional autonomywhich gives it the right, all things being equal, tochoose whom it will admit as student. (Garcia v.Faculty of Admission, Loyola School of Theology,68 SCRA 277 (1975); Villar v. TechnologicalInstitute of the Philippines, 135 SCRA 706(1985); Tangonanv. Cruz Pano, 137 SCRA 245 (1985) ) Thisautonomy is sufficiently large to permit in thiscase the seminary to choose between the richman's son and the poor man's son.

(c) The preference given to the poor man's son isustified. Not only is the seminary entitled tochoose whom it will admit because it enjoysinstitutional autonomy (Art. XIV, Sec. 5(2) ) butthe choice made in this case is a wise andudicious one. The rich man's son had beenexpelled from another school because ofacademic delinquency. Despite the economicadvantage and opportunity he had, he still failed

in his school work, warranting a finding that hecannot really do school work. On the other hand,the poor man's son may be academically deficientprecisely as a result of poverty so that if relievedof its effects it is probable he will do better inschool. The democratization of wealth and power,implicit in Art. XIII, Sec. 1, and justifies thedecision of the Rector in this case.

Education; Academic Freedom (1989)

No. 9: What do you understand by academic

freedom?SUGGESTED ANSWER:

According to Sidney Hook, academic freedom isthe freedom of professionally qualified persons toinquire, discover, publish and teach the truth asthey see it in the field of their competence withoutbeing subject to any control or authority exceptthe control or authority of the rational methods bywhich truths or conclusions are sought andestablished in these disciplines.

In Garcia vs. Faculty Admission Committee, 68SCRA 277, it was held that the academic freedomof institutions of higher learning involves a widesphere of autonomy in deciding their objectivesand the best means of attaining them withoutoutside interference except when overriding publicwelfare calls for some restraint. Thus, a schoolcan determine for itself who may teach, who maybe taught, how it shall be taught, and who may beadmitted to study. In Tangonon vs. Pano, 137SCRA 245, it was held that the academic freedomof an institution of higher learning includes theright to prescribe academic standards and to

refuse re-enrollment to students for academicdeficiencies and violation of disciplinaryregulations. According to University of San Carlosvs. Court of Appeals,

G.R. No. 79237, October 18, 1988, academicfreedom includes the right to prescriberequirements for the conferment of honors.

Education; Academic Freedom (1993)



No. 18: Ting, a student of Bangkerohan University,was given a failing grade by Professor Mahigpit.Ting confronted Professor Mahigpit at the corridorafter class and a heated argument ensued. Coolerheads prevented the verbal war ending in physicalconfrontation. Mahigpit left the campus and wentshopping In a department store. Ting saw Mahigpitand without any warning mauled the latter.Mahigpit filed an administrative complaint against

Ting before the Dean of Students for breach ofuniversity rules and regulations. The Dean set thecomplaint for hearing. However, Ting filed apetition before the RTC to prohibit the Dean andthe school from investigating him contending thatthe mauling incident happened outside the schoolpremises and therefore, outside the school'surisdiction. The school and the Dean answeredthat the school can investigate Ting since hisconduct outside school hours and even outside ofschool premises affect the welfare of the school;and furthermore, the case involves a student andfaculty member. If you were the judge, how would

you decide the case?

SUGGESTED ANSWER:

If I were the Judge, I would dismiss the petition.In Angeles v Sison, 112 SCRA 26, it was heldthat a school can subject to disciplinary action astudent who assaulted a professor outside theschool premises, because the misconduct of thestudent involves his status as, a student oraffects the good name or reputation of theschool. The misconduct of Ting directly affectshis suitability as a student.

enjoyed by institutions of higher learning. (2%)

SUGGESTED ANSWER:

A. According to Reyes v. Court of Appeals, 194SCRA 402, academic freedom is the freedom of afaculty member to pursue his studies in hisparticular specialty and thereafter to make knownor publish the result of his endeavors without fearthat retribution would be visited on him in theevent that his conclusions are found distasteful orobjectionable by the powers that be, whether inthe political, economic, or academicestablishments.

In Garcia v. Faculty Admission Committee, 68SCRA 277, it was held that the

academic freedom of an institution of higherlearning includes the freedom to determine whomay teach, what may be taught, how it shall betaught, and who may be admitted to study.Because of academic freedom, an institution ofhigher learning can refuse to re-enroll a studentwho is academically deficient or who has violatedthe rules of discipline. Academic freedom grantsinstitutions of higher learning the discretion to

formulate rules for the granting of honors.Likewise, because of academic freedom, aninstitution of higher learning can close a school.

Education; Alien Enrollees & Donors (1999)

No II - C. What is the rule on the number of alienswho may enroll in educational institutions in thePhilippines. Give the exception to the rule. Maysuch institutions accept donations from foreignstudents under the pretext that such donations are

to be used to buy equipment and improve schoolfacilities? Explain. (2%)

SUGGESTED ANSWER:

C. Under Section 4(2), Article XIV of theConstitution, no group of aliens shall comprisemore than one-third of the enrollment in anyschool. The exception refers to schoolsestablished for foreign diplomatic personnel andtheir dependents and, unless otherwise providedby law, for other foreign temporary residents.

Educational institutions may accept donationsfrom foreign students. No provision in theConstitution or any law prohibits it.

Education; Duties of State in Re Education(1999)

No II - B. Give two duties of the state mandated bythe Constitution regarding education. (2%)

SUGGESTED ANSWER:

B. Article XIV of the Constitution imposes thefollowing duties regarding education upon theState:

1. The State shall protect and promotethe right of all citizens to quality education atall levels and shall take appropriate steps tomake such education accessible to all.(Section 1)

1 The State shall establish, maintain and support acomplete, adequate, and integrated system of educationrelevant to the needs of the people and society. [Section2(1)]2 The State shall establish and maintain a system offree public education in the elementary and high schoollevels. [Section 2(2)]3 The State shall establish and maintain a system ofscholarship grants, student loan programs, subsidies, and

other incentives which shall be available to deservingstudents in both public and private schools, especially tothe underprivileged. [Section 2(3)]4 The State shall encourage non-formal, informaland indigenous learning systems, as well as self-learning,independent and out-ofschool study program particularlythose that respond to community needs, [Section 2|4|]5 The State shall provide adult citizens, thedisabled, and out-of-school youth with training in civics,vocational efficiency and other skills. [Section 2(5)]6 The State shall take into account regional andsectoral needs and conditions and shall encourage localplanning in the development of educational policies and

programs. [Section 5(1|]7 The State shall enhance the rights of teachers toprofessional advancement. Non-teaching academic andnon-academic personnel shall enjoy the protection of theState. [Section 5(4)]8 The State shall assign the highest budgetarypriority to education and ensure that teaching will attractand retain its rightful share of the best available talentsthrough adequate remuneration and other means of jobsatisfaction and fulfillment. [Section 5(5)]

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(a) The ordinance, which prescribes the use of thelocal dialect as medium of instruction in theprimary grades, is invalid. The Constitutionprovides in Art XIV, Sec. 7 for the use of regionaldialect as auxiliary medium of instruction. If theordinance prescribes the use of local dialect notas auxiliary, but as exclusive language ofinstruction, then it is violative of the Constitutionfor this additional reason. The ordinance would

thus allow more dialects to be used than it isdesirable and make the quest for national unitymore difficult.

AFP; limitation on accepting additional duties(1996)No. 7: Can the Judge-Advocate General of the

Armed Forces of the Philippines be appointed aTrustee of the Government Service InsuranceSystem? Explain.SUGGESTED ANSWER:No, the Judge Advocate General of the ArmedForces of the Philippines cannot be appointed as

trustee of the Government Service InsuranceSystem. Under Section 5(4). Article XVI of theConstitution, no member of the Armed Forces ofthe Philippines in the active service shall at anytime be appointed or designated in any capacity toa civilian position in the Government, includinggovernment-owned or controlled corporations.

ARTICLE XVII Amendments or

Revisions People’s Initiative (2004) (4-b) An amendment to or a revision of the presentConstitution may be proposed by a ConstitutionalConvention or by the Congress upon a vote ofthree-fourths of all its members. Is there a thirdway of proposing revisions of or amendments tothe Constitution? If so, how? (5%)

SUGGESTED ANSWER: There is no third way ofproposing revisions to the Constitution; however,the people through initiative upon petition of at

least twelve per cent of the total number ofregistered, voters, of which every legislative districtmust be represented by at least three per cent ofthe registered voters in it, may directly proposeamendments to the Constitution. This right is notoperative without an implementing law. (Section 2,

Article XVII of the 1987 Constitution.)

Amendments and Revisions; Modes (1997)

No. 20: State the various modes of, and steps in,revising or amending the Philippine Constitution.

SUGGESTED ANSWER:

There are three modes of amending theConstitution.

1. Under Section 1, Article XVIII of the

Constitution. Congress may by three-fourths voteof all its Members propose any amendment to orrevision of the Constitution.2. Under the same provision, a constitutionalconvention may propose any amendment to orrevision of the Constitution. According to Section3, Article XVII of the Constitution. Congress mayby a two-thirds vote of all its Members call aconstitutional convention or by a majority vote ofall its Members submit the question of calling sucha convention to the electorate.

3. Under Section 2. Article XVII of theConstitution, the people may directly proposeamendments to the Constitution through initiativeupon a petition of at least twelve per cent of thetotal number of registered voters, of which everylegislative district must be represented by at leastthree per cent of the registered voters therein.

According to Section 4, Article XVII of theConstitution, to be valid any amendment to orrevision of the Constitution must be ratified bya majority of the votes cast In a plebiscite.

REFERENDUM vs. INITIATIVE (Q1-2005)(a) The present Constitution introduced theconcepts and processes of Initiative andReferendum. Compare and differentiate one fromthe other. (3%) SUGGESTED ANSWER:INITIATIVE is the power of the people to proposeamendments to the Constitution or to proposeand enact legislations through an election calledfor the purpose. Under the 1987 Constitution, thepeople through initiative can proposeamendments to the Constitution upon a petition ofat least twelve per centum of the total number ofregistered voters, of which every legislativedistrict must be represented by at least three percentum of the registered voters therein.REFERENDUM is the power of the electorate toapprove or reject a legislation through an electioncalled for the purpose. (Sec. 3, R.A. No. 6735[1989]).



On the other hand, the Local Government Code(R.A. No. 7160) defines LOCAL INITIATIVE asthe legal process whereby the registered votersof a local government unit may directly propose,enact, or amend any ordinance (Sec. 120) andLOCAL REFERENDUM as the legal processwhereby the registered voters of the localgovernment units may approve, amend or rejectany ordinance enacted by the Sanggunian. (Sec.

126)

ARTICLE XVIII TransitoryProvisions Transitory Provisions; Foreign

Military Bases (1996)

No. 4 - 1) Under the executive agreement enteredinto between the Philippines and the othermembers of the ASEAN, the other members willeach send a battalion-size unit of their respective

armed forces to conduct a combined militaryexercise in the Subic Bay Area. A group ofconcerned citizens sought to enjoin the entry offoreign troops as violative of the 1987 Constitutionthat prohibited the stationing of foreign troops andthe use by them, of local facilities.

As the Judge, decide the case. Explain.

SUGGESTED ANSWER:

1) As a judge, I shall dismiss the case. WhatSection 25, Article XVII of the Constitutionprohibits in the absence of a treaty is thestationing of troops and facilities of foreigncountries in the Philippines. It does not includethe temporary presence in the Philippines offoreign troops for the purpose of a combinedmilitary exercise. Besides, the holding of thecombined military exercise is connected withdefense, which is a sovereign function. Inaccordance with the ruling in Baer vs. Tizon, 57SCRA 1, the filing of an action interfering with thedefense of the State amounts to a suit against theState without its consent.

Transitory Provisions; Foreign Military Bases(1988)

No. 22: The Secretary of Justice had recently ruledthat the President may negotiate for a modificationor extension of military bases agreement with theUnited States regardless of the "no nukes"provisions in the 1987 Constitution. The Presidentforthwith announced that she finds the same opinion"acceptable" and will adopt it. The Senators on

the other hand, led by the Senate President, areskeptical, and had even warned that no treaty orinternational agreement may go into effectwithout the concurrence of two-thirds of allmembers of the Senate.

A former senator had said, "it is completely wrong, ifnot erroneous," and "is an amendment of theConstitution by misinterpretation." Some membersof the Lower House agree with Secretary Ordonez,

while others lament the latter's opinion as"questionable, unfortunate, and without any basis atall."

Do you or do you not agree with theaforementioned ruling of the Department ofJustice? Why?

SUGGESTED ANSWER:

No. The Constitution provides that if foreignmilitary bases, troops or facilities are to beallowed after the expiration of the present

Philippine-American Military Bases Agreement in1991, it must be "under a treaty duly concurred inby the Senate and, when the Congress sorequires, ratified by a majority of the votes cast bythe people in a national referendum." (Art. XVIII,sec. 25) A mere agreement, therefore, not atreaty, without the concurrence of at least 2/3 ofall the members of the Senate will not be valid(Art. VII, sec. 21, Art. XVIII, sec. 4). With respectto the provision allowing nuclear weapons withinthe bases, the Constitution appears to ban suchweapons from the Philippine territory. It declares

as a state policy that "the Philippines, consistentwith the national interest, adopts and pursues apolicy of freedom from nuclear weapons in itsterritory." (Art, II, sec. 8) However, thedeliberations of the Constitutional Commissionwould seem to indicate that this provision of theConstitution is "not something absolute nor 100percent without exception." It may therefore bethat circumstances may justify a provision onnuclear weapons.

PUBLIC INTERNATIONAL LAW

Basic Principles in Public Int’l Law (1991)

Select any five (5) of the following and explaineach, using examples:

(a) Reprisal

(b) Retorsion



(c) Declaratory Theory of Recognition Principle

SUGGESTED ANSWER:

(a) REPRISAL is a coercive measure short of war,directed by a state against another, inretaliation for acts of the latter and as means ofobtaining reparation or satisfaction for such acts.Reprisal involves retaliatory acts which bythemselves would be illegal. For example, forviolation of a treaty by a state, the aggrievedstate seizes on the high seas the ships of theoffending state.

(b) RETORSION is a legal but deliberatelyunfriendly act directed by a state againstanother in retaliation for an unfriendly thoughlegal act to compel that state to alter itsunfriendly conduct. An example of retorsion isbanning exports to the offending state.

(c) The DECLARATORY THEORY OFRECOGNITION is a theory according to whichrecognition of a state is merely an

acknowledgment of the fact of its existence. Inother words, the recognized state already existsand can exist even without such recognition. Forexample, when other countries recognizedBangladesh, Bangladesh already existed as a stateeven without such recognition.

(d) RECOGNITION OF BELLIGERENCY is theformal acknowledgment by a third party of theexistence of a state of war between the centralgovernment and a portion of that state.Belligerency exists when a sizeable portion of theterritory of a state is under the effective control of

an insurgent community which is seeking toestablish a separate government and theinsurgents are in de facto control of a portion ofthe territory and population, have a politicalorganization, are able to maintain such control,and conduct themselves according to the laws ofwar. For example, Great Britain recognized astate of belligerency in the United States duringthe Civil War,

(e) CONTINENTAL SHELF of a coastal statecomprises the sea-bed and subsoil of the submarineareas that extend beyond its territorial seathroughout the natural prolongation of its landterritory to the outer edge of the continentalmargin, or to a distance of 200 nautical miles fromthe "baselines from which the breadth of theterritorial sea is measured where the outer edge of

the continental shelf does not extend up to thatdistance.

(f) EXEQUATUR is an authorization from thereceiving state admitting the head of a consularpost to the exercise of his functions. For example,if the Philippines appoints a consul general forNew York, he cannot start performing hisfunctions unless the President of the United Statesissues an exequatur to him,

(g) The principle of DOUBLE CRIMINALITY is therule in extradition which states that for a request

to be honored the crime for which extradition isrequested must be a crime in both the requestingstate and the state to which the fugitive has fled.For example, since murder is a crime both in thePhilippines and in Canada, under the Treaty onExtradition between the Philippines andCanada, the Philippines can request Canada toextradite a Filipino who has fled to Canada.

(h) PROTECTIVE PERSONALITY principle is theprinciple by which the state exercise jurisdictionover the acts of an alien even if committedoutside its territory, if such acts are adverse to theinterest of the national state.

(i) INNOCENT PASSAGE means the right ofcontinuous and expeditious navigation of aforeign ship through the territorial sea of a statefor the purpose of traversing that sea withoutentering the internal waters or calling at aroadstead or port facility outside internal waters,or proceeding to or from internal waters or a callat such roadstead or port facility. The passage isinnocent so long as it is not prejudicial to the

peace, good order or security of the coastal state.

(j) JUS COGENS is a peremptory norm of generalinternational law accepted and recognized by theinternational community as a whole as a normfrom which no derogation is permitted and whichcan be modified only by a subsequent norm ofgeneral international law having the samecharacter, An example is the prohibition againstthe use of force.

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Constitutive Theory vs. Declaratory Theory(2004)(2-a-4) Distinguish: The constitutive theory andthe declaratory theory concerning recognition ofstates.

SUGGESTED ANSWER: According to theCONSTITUTIVE THEORY, recognition is the lastindispensable element that converts the state

being recognized into an international person.

According to the DECLARATORY THEORY,recognition is merely an acknowledgment of thepre-existing fact that the state being recognizedis an international person.(Cruz, InternationalLaw, 2003 ed.)

Contiguous Zone vs. Exclusive EconomicZone (2004)

II- A. Distinguish briefly but clearly between:

2) The contiguous zone and the exclusiveeconomic zone.

SUGGESTED ANSWER:

(2) CONTIGUOUS ZONE is a zone contiguous tothe territorial sea and extends up to twelvenautical miles from the territorial sea and overwhich the coastal state may exercise controlnecessary to prevent infringement of its customs,fiscal, immigration or sanitary laws andregulations within its territory or territorial sea.(Article 33 of the Convention on the Law of the

Sea.)The EXCLUSIVE ECONOMIC ZONE is a zoneextending up to 200 nautical miles from thebaselines of a state over which the coastal statehas sovereign rights for the purpose of exploringand exploiting, conserving and managing thenatural resources, whether living or nonliving, ofthe waters superjacent to the seabed and of theseabed and subsoil, and with regard to otheractivities for the economic exploitation andexploration of the zone. (Articles 56 and 57 of theConvention on the Law of the Sea.)

Diplomatic Immunity (2000)

No XX -A foreign ambassador to the Philippinesleased a vacation house in Tagaytay for hispersonal use. For some reason, he failed to payrentals for more than one year. The lessor filed anaction for the recovery of his property in court.

a) Can the foreign ambassador invoke hisdiplomatic immunity to resist the lessor's action?(3%)

b) The lessor gets hold of evidence that theambassador is about to return to his homecountry. Can the lessor ask the court to stop theambassador's departure from the Philippines?(2%)

SUGGESTED ANSWER:a) No, the foreign ambassador cannot invokehis diplomatic immunity to resist the action, sincehe is not using the house in Tagaytay City for thepurposes of his mission but merely for vacation.Under Article 3(l)(a) of the Vienna Convention onDiplomatic Relations, a diplomatic agent has noimmunity in case of a real action relating to privateimmovable property situated in the territory of thereceiving State unless he holds it on behalf of thesending State for purposes of the mission.

b) No, the lessor cannot ask the court tostop the departure of the ambassador from thePhilippines. Under Article 29 of the ViennaConvention, a diplomatic agent shall not beliable to any form of arrest or detention.

(per Dondee) The grounds cited by YZ istenable on the basis that the precept that aState cannot be sued in the courts of a foreignstate is a long-standing rule of customaryinternational law then closely identified with thepersonal immunity of a foreign sovereign from

suit and, with the emergence of democraticstates, made to attach not just to the person ofthe head of state, or his representative, but alsodistinctly to the state itself in its sovereigncapacity. If the acts giving rise to a suit arethose of a foreign government done by itsforeign agent, although not necessarily adiplomatic personage, but acting in his officialcapacity, the complaint could be barred by theimmunity of the foreign sovereign from suitwithout its consent. Suing a representative of astate is believed to be, in effect, suing the stateitself. (KHOSROW MINUCHER vs. COURT OF

APPEALS, G.R. No. 142396. February 11,2003)


No XX - Dr. Velen, an official of the World HealthOrganization (WHO) assigned in the Philippines,arrived at the Ninoy Aquino International Airportwith his personal effects contained in twelvecrates as unaccompanied baggage. As such, hispersonal effects were allowed free entry fromduties and taxes, and were directly stored at

Arshaine Corporation's



warehouse at Makati, pending Dr. Velen'srelocation to his permanent quarters.

At the instance of police authorities, the RegionalTrial Court (RTC) of Makati issued a warrant forthe search and seizure of Dr. Velen's personaleffects in view of an alleged violation of the Tariffand Custom's Code. According to the police, thecrates contained contraband items. Upon protestof WHO officials, the Secretary of Foreign Affairsformally advised the RTC as to Dr. Velen'simmunity. The Solicitor General likewise joinedDr. Velen's plea of immunity and motion to quashthe search warrant. The RTC denied the motion.

Is the denial of the motion to quash proper? (5%)

SUGGESTED ANSWER:

The denial of the motion is improper. As held inWorld Health Organization vs. Aquino, 48 SCRA

242 (1972). as an official of the World HealthOrganization, Dr. Velen enjoyed diplomaticimmunity and this included exemption from dutiesand taxes. Since diplomatic immunity involves apolitical question, where a plea of diplomaticimmunity is recognized and affirmed by theExecutive Department, it is the duty of the court toaccept the claim of immunity.


No XVIII - A group of high-ranking officials andrank-and-file employees stationed in a foreignembassy in Manila were arrested outsideembassy grounds and detained at Camp Crameon suspicion that they were actively collaboratingwith "terrorists" out to overthrow or destabilize thePhilippine Government. The Foreign Ambassadorsought their immediate release, claiming that thedetained embassy officials and employeesenjoyed diplomatic immunity. If invited to expressyour legal opinion on the matter, what advicewould you give?

SUGGESTED ANSWER:

I shall advice that the high-ranking officials andrank-and-file employees be released because oftheir diplomatic immunity. Article 29 of the ViennaConvention on Diplomatic Relations provides:

"The person of a diplomatic agent shallbe inviolable. He shall not be liable toany form of arrest or detention."

Under Article 37 of the Vienna Convention onDiplomatic Relations, members of theadministrative and technical staff of the diplomaticmission, shall, if they are not nationals of orpermanent residents in the receiving State, enjoythe privileges and immunities specified in Article29.

Under Article 9 of the Vienna Convention onDiplomatic Relations, the remedy is to declare the

high-ranking officials and rank-and-file employeespersonae non gratae and ask them to leave.

ALTERNATIVE ANSWER:

Under the Vienna Convention on DiplomaticRelations, a diplomatic agent "shall not be liable toany form of arrest or detention (Article 29) and heenjoys immunity from criminal jurisdiction (Article31).

This immunity may cover the "high-rankingofficials" in question, who are assumed to be

diplomatic officers or agents. With respect to the"rank-and-file employees" they are covered bythe immunity referred to above, provided they arenot nationals or permanent residents of thePhilippines, pursuant to Article 37(2) of the saidConvention.

If the said rank-and-file employees belong to theservice staff of the diplomatic mission (such asdrivers) they may be covered by the immunity(even if they are not Philippine nationals orresidents) as set out in Article 37(3), if at the timeof the arrest they were in "acts performed in the

course of their duties." If a driver was among thesaid rank-and-file employees and he was arrestedwhile driving a diplomatic vehicle or engaged inrelated acts, still he would be covered byimmunity.

Diplomatic Immunity (2004) (8-a) A. MBC, analien businessman dealing in carpets and caviar,filed a suit against policemen and YZ, an attacheof XX Embassy, for damages because ofmalicious prosecution. MBC alleged that YZconcocted false and malicious charges that hewas engaged in drug trafficking, whereupon

narcotics policemen conducted a "buy-bust"operation and without warrant arrested him,searched his house, and seized his money andewelry, then detained and tortured him in violationof his civil and human rights as well as causinghim, his family and business serious damagesamounting to two million pesos. MBC added thatthe trial court acquitted him of the drug charges.



Assailing the court's jurisdiction: YZ now moves todismiss the complaint, on the ground that (1) he isan embassy officer entitled to diplomatic immunity;and that (2) the suit is really a suit against his homestate without its consent. He presents diplomaticnotes from XX Embassy certifying that he is anaccredited embassy officer recognized by thePhilippine government. He performs official duties,he says, on a mission to conduct surveillance on

drug exporters and then inform local police officerswho make the actual arrest of suspects. Are the twogrounds cited by YZ to dismiss the suit tenable?(5%)

SUGGESTED ANSWER: A. The claim of diplomatic immunity of YZ is nottenable, because he does not possess anacknowledged diplomatic title and is notperforming duties of a diplomatic nature.However, the suit against him is a suit against XXwithout its consent. YZ was acting as an agent of

XX and was performing his official functions whenhe conducted surveillance on drug exporters andinformed the local police officers who arrestedMBC. He was performing such duties with theconsent of the Philippine government, therefore,the suit against YZ is a suit against XX without itsconsent. (Minucher v. Court of Appeals, 397SCRA 244 [1992]).

ALTERNATIVE SUGGESTED ANSWER:

Diplomatic Immunity; Ambassador (Q32005)

(1) Italy, through its Ambassador, entered into acontract with Abad for the maintenance andrepair of specified equipment at its Embassy and

Ambassador's Residence, such as airconditioning units, generator sets, electricalfacilities, water heaters, and water motor pumps.It was stipulated that the agreement shall beeffective for a period of four years andautomatically renewed unless cancelled. Further,it provided that any suit arising from the contractshall be filed with the proper courts in the City ofManila.

Claiming that the Maintenance Contract wasunilaterally, baselessly and arbitrarilyterminated, Abad sued the State of Italy andits Ambassador before a court in the City ofManila. Among the defenses, they raisedwere "sovereign immunity" and "diplomaticimmunity." (5%)

(a) As counsel of Abad, refute thedefenses of "sovereign immunity" and"diplomatic immunity" raised by the State ofItaly and its Ambassador. SUGGESTED

ANSWER: As counsel for Abad, I will arguethat sovereign immunity will not lie as it is anestablished rule that when a State enters into acontract, it waives its immunity and allows itselfto be sued. Moreover, there is a provision in

the contract that any suit arising therefrom shallbe filed with the proper courts of the City ofManila. On the issue of diplomatic immunity, Iwill assert that the act of the Ambassadorunilaterally terminating the agreement istortuous and done with malice and bad faithand not a sovereign or diplomatic function.

(b) At any rate, what should be the court'sruling on the said defenses? SUGGESTED

ANSWER: The court should rule against saiddefenses. The maintenance contract and repairof the Embassy and Ambassador's Residenceis a contract in jus imperii, because such repairof said buildings is indispensable to theperformance of the official functions of theGovernment of Italy. Hence, the contract is inpursuit of a sovereign activity in which case, itcannot be deemed to have waived its immunityfrom suit.

On the matter of whether or not the Ambassador may be sued, Article 31 ofthe Vienna Convention on DiplomaticRelations provides that a diplomaticagent enjoys immunity from the criminal,civil and administrative jurisdiction of thereceiving state except if the actperformed is outside his official

functions, in accordance with theprinciple of functional necessity. In thiscase, the act of entering into thecontract by the Ambassador was part ofhis official functions and thus, he isentitled to diplomatic immunity.(Republic of Indonesia v. Vinzons,

G.R. No. 154705, June 26, 2003)

Diplomatic Immunity; Ambassadors (1990)



No. 5: D, the Ambassador of the Kingdom ofNepal to the Philippines, leased a house inBaguio City as his personal vacation home. Onaccount of military disturbance in Nepal, D didnot receive his salary and allowances from hisgovernment and so he failed to pay his rentals formore than one year. E, the lessor, filed an actionfor recovery of his property with the RegionalTrial Court of Baguio City.

(1) Can the action against D prosper?

(2) Can E ask for the attachment of thefurniture and other personal properties of D aftergetting hold of evidence that D is about to leavethe country?

(3} Can E ask for the court to stop D's departurefrom the Philippines?

SUGGESTED ANSWER:

(1) Yes, the action can prosper. Article 31 of theVienna Convention on Diplomatic Relations

provides:"1. A diplomatic agent shall enjoy immunityfrom the criminal jurisdiction of the receivingState. He shall also enjoy immunity from itscivil and administrative jurisdiction, except inthe case of:

(a) A real action relating to privateimmovable property situated in theterritory of the receiving State, unless heholds it on behalf of the sending State forthe purposes of the mission;"

The action against the Ambassador is a real actioninvolving private immovable property situated withinthe territory of the Philippines as the receivingstate. The action falls within the exception to thegrant of immunity from the civil and administrativeurisdiction of the Philippines.

ALTERNATIVE ANSWER;

No, the action will not prosper. Although theaction is a real action relating to privateimmovable property within the territory of the

Philippines, nonetheless, the vacation house maybe considered property held by the AmbassadorIn behalf of his state (the Kingdom of Nepal) forthe purposes of the mission and, therefore, suchis beyond the civil and administrative jurisdictionof the Philippines, including its courts,

SUGGESTED ANSWER:

(2) No, E cannot ask for the attachment of thepersonal properties of the Ambassador. Arts. 30

and 31 of the Vienna Convention on DiplomaticRelations provides that the papers, correspondenceand the property of diplomat agents shall beinviolable. Therefore, a writ of attachment cannotbe issued against his furniture and any personalproperties. Moreover, on the assumption that theKingdom of Nepal grants similar protection toPhilippine 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 ofthe goods or chattels of the ambassador of aforeign State to the Philippines shall be void.

SUGGESTED ANSWER:

(3) No, E cannot ask the court to stop thedeparture of the Ambassador of the Kingdom ofNepal from the Philippines. Article 29 of theVienna Convention on Diplomatic Relationsprovides: "The person of a diplomatic agent shallbe inviolable. He shall not be liable to any form of

arrest or detention."

Diplomatic Immunity; Coverage (Q3-2005)(2) Adams and Baker are American citizensresiding in the Philippines. Adams befriendedBaker and became a frequent visitor at his house.One day, Adams arrived with 30 members of thePhilippine National Police, armed with a SearchWarrant authorizing the search of Baker's houseand its premises for dangerous drugs beingtrafficked to the United States of America.

The search purportedly yielded positiveresults, and Baker was charged with Violationof the Dangerous Drugs Act. Adams was theprosecution's principal witness. However, forfailure to prove his guilt beyond reasonabledoubt, Baker was acquitted.

Baker then sued Adams for damages for filingtrumped-up charges against him. Among thedefenses raised by Adams is that he hasdiplomatic immunity, conformably with theVienna Convention on Diplomatic Relations. Hepresented Diplomatic Notes from the AmericanEmbassy stating that he is an agent of theUnited States Drug Enforcement Agencytasked with "conducting surveillanceoperations" on suspected drug dealers in thePhilippines believed to be the source ofprohibited drugs being shipped to the U.S. Itwas also stated that after having ascertainedthe target, Adams would then



inform the Philippine narcotic agents to makethe actual arrest. (5%)

a) As counsel of plaintiff Baker, arguewhy his complaint should not be dismissed onthe ground of defendant Adams' diplomaticimmunity from suit. SUGGESTED ANSWER.

As counsel for Baker, I would argue that Adams is not a diplomatic agent considering

that he is not a head of mission nor is he partof the diplomatic staff that is accordeddiplomatic rank. Thus, the suit should not bedismissed as Adams has no diplomaticimmunity under the 1961 Vienna Conventionon Diplomatic Relations.

b) As counsel of defendant Adams, arguefor the dismissal of the complaint.SUGGESTED ANSWER As counsel for

Adams, I would argue that he worked for the

United States Drug Enforcement Agency andwas tasked to conduct surveillance ofsuspected drug activities within the countrywith the approval of the Philippine government.Under the doctrine of State Immunity fromSuit, if the acts giving rise to a suit are those ofa foreign government done by its foreignagent, although not necessarily a diplomaticpersonage, but acting in his official capacity,the complaint could be barred by the immunityof the foreign sovereign from suit without itsconsent. Adams may not be a diplomatic agent

but the Philippine government has given itsimprimatur, if not consent, to the activitieswithin Philippine territory of Adams and thushe is entitled to the defense of state immunityfrom suit. (Minucher v. CA, G.R. No. 142396,February 11, 2003)

Diplomatic Immunity; Diplomatic Envoy andConsular Officers (1995)

No. 3:

1. Discuss the differences, if any, in theprivileges or immunities of diplomatic envoys andconsular officers from the civil or criminalurisdiction of the receiving state.

2. A consul of a South American countrystationed in Manila was charged with seriousphysical injuries. May he claim Immunity fromurisdiction of the local court? Explain.

3. Suppose after he was charged, he wasappointed as his country's ambassador to thePhilippines. Can his newly-gained diplomaticstatus be a ground for dismissal of his criminalcase? Explain.

SUGGESTED ANSWER:

1. Under Article 32 of the Vienna Convention onDiplomatic Relations, a diplomatic agent shall

enjoy immunity from the criminal jurisdiction of thereceiving State. He shall also enjoy immunity fromits civil and administrative jurisdiction except inthe case of:

(a) A real action relating to private immovableproperty situated in the territory of the receivingState, unless he holds it on behalf of the sendingState for the purposes of the mission;

(b) An action relating to succession in which thediplomatic 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 orcommercial activity exercised by the diplomaticagent in the receiving State outside his officialfunctions.

On the other hand, under Article 41 of the ViennaConvention on Consular Relations, a consularofficer does not enjoy Immunity from the Criminalurisdiction of the receiving State. Under Article43 of the Vienna Convention on ConsularRelations, consular officers are not amenable tothe Jurisdiction of the Judicial or administrativeauthorities of the receiving State in respect ofacts performed in the exercise of consularfunctions. However, this does not apply in respectof a civil action either:

(a) arising out of a contract concluded by aconsular officer in which he did not contractexpressly or impliedly as an agent of the sendingState; or

(b) by a third party for damage arising from anaccident in the receiving State caused by a

vehicle, vessel, or aircraft.

SUGGESTED ANSWER:

2. No, he may not claim immunity from theurisdiction of the local court. Under Article 41 ofthe Vienna Convention of Consular Relations,consuls do not enjoy immunity from the criminalJurisdiction of the receiving State. He is notliable to arrest or detention pending trial unlessthe offense was committed against his father,



mother, child, ascendant, descendant or spouse.Consuls are not liable to arrest and detentionpending trial except in the case of a grave crimeand pursuant to a decision by the competentudicial authority. The crime of physical Injuries isnot a grave crime unless it be committed againstany of the above-mentioned persons.(Schneckenburger v. Moran 63 Phil. 249).

SUGGESTED ANSWER:

3. Yes, the case should be dismissed. Under Article 40 of the Vienna Convention on DiplomaticRelations, if a diplomatic agent is in the territory ofa third State, which has granted him a passportvisa if such visa was necessary, while proceedingto take up his post, the third State shall accordhim inviolability and such other immunities as maybe required to ensure his transit.

Diplomatic Immunity; Diplomatic Envoy andConsular Officers (1997)

No 19: X, a Secretary and Consul in the AmericanEmbassy in Manila, bought from B a diamond ringin the amount of P50,000.00 which he later gaveas a birthday present to his Filipino girlfriend. Thepurchase price was paid in check drawn upon theCitibank. Upon presentment for payment, thecheck was dishonored for insufficiency of funds.Because of X's failure to make good thedishonored check, B filed a complaint against X inthe Office of the City Prosecutor of Manila forviolation of Batas Pambansa Big. 22. Afterpreliminary investigation, the information was filedagainst X in the City Court of Manila. X filed amotion to dismiss the case against him on theground that he is a Secretary and Consul in the

American Embassy enjoying diplomatic immunityfrom criminal prosecution in the Philippines.

If you were the Judge, how would you resolvethe motion to dismiss?

SUGGESTED ANSWER:

If I were the Judge, I would grant the motion todismiss.

As consul, X is not immune from criminalprosecution. Under Paragraph 3 of Article 41 ofthe Vienna Convention on Consular Relations, aconsular officer is not immune from the criminalurisdiction of the receiving state. InSchneckenburger vs. Moron, 63 Phil. 249, it

was held that a consul is not exempt from criminalprosecution in the country where he is assigned.However, as secretary in the American Embassy,X enjoys diplomatic immunity from criminalprosecution As secretary, he is a diplomatic agent.Under Paragraph 1 of Article 31 of the ViennaConvention on Diplomatic Relations, a diplomaticagent enjoys immunity from the criminal jurisdictionof the receiving State.

Exclusive Economic Zone (2000)

No XIX. b) What is the concept of the exclusiveeconomic zone under the UN Convention on theLaw of the Sea? (2%)

SUGGESTED ANSWER:

b) The exclusive economic zone under theConvention on the Law of the Sea is an areabeyond and adjacent to the territorial sea, whichshall not extend beyond 200 nautical miles fromthe baselines from which the territorial sea is

measured. The coastal State has in the exclusiveeconomic zone:

(a) Sovereign rights for the purpose of exploringand exploiting, conserving and managing thenatural resources, whether living or non-living, ifthe waters superjacent to the sea-bed and of theseabed and subsoil, and with regard to otheractivities for the economic exploitation andexploration of the zone, such as the production ofenergy from the water, currents and winds;

(b) Jurisdiction as provided in the relevantprovisions of the Convention with regard to:

(i) the establishment and use of artificialislands, installations and structures;

(ii) marine scientific research; and

(iii) the protection and preservation of themarine environment;

(c) Other rights and duties provided form theConvention. [Article 56 of the Convention of theLaw of the Sea.)

Executive Agreements; Binding Effect(2003)

No XX An Executive Agreement was executedbetween the Philippines and a neighboring State.The Senate of the Philippines took it



upon itself to procure a certified true copy of theExecutive Agreement and, after deliberating on it,declared, by a unanimous vote, that theagreement was both unwise and against the bestinterest of the country. Is the Executive

Agreement binding (a) from the standpoint ofPhilippine law and (b) from the standpoint ofinternational law? Explain

SUGGESTED ANSWER:

(a) As to Philippine law, the Executive Agreement is binding....

(b) The Executive Agreement is also bindingfrom the standpoint of international law. As heldin Bavan v. Zamora. 342 SCRA 449 [2000], ininternational law executive agreements areequally binding as treaties upon the States whoare parties to them. Additionally, under Article2{1)(a) of the Vienna Convention on the Law ofTreaties, whatever may be the designation of awritten agreement between States, whether it is

indicated as a Treaty, Convention or Executive Agreement, is not legally significant. Still it isconsidered a treaty and governed by theinternational law of treaties.

Extradition vs. Deportation (1993)

No. 10: 1) What is the difference if any betweenextradition and deportation?

SUGGESTED ANSWER:

1) The following are the differences betweenextradition and deportation:

EXTRADITION is effected for the benefit of thestate to which the person being extradited will besurrendered because he is a fugitive criminal in thatstate, while DEPORTATION is effected for the protectionof the State expelling an alien because his presence isnot conducive to the public good.

EXTRADITION is effected on the basis of anextradition treaty or upon the request of another state,while DEPORTATION is the unilateral act of the stateexpelling an alien.

In EXTRADITION, the alien will be surrenderedto the state asking for his extradition, while in

DEPORTATION the undesirable alien may be sent toany state willing to accept him.

Extradition; Doctrine of Specialty (1993)

No. 10: 2) Patrick is charged with illegalrecruitment and estafa before the RTC of Manila.He jumped bail and managed to escape to

America. Assume that there is an extraditiontreaty between the Philippines and America and itdoes not include illegal recruitment as one of theextraditable offenses. Upon surrender of Patrickby the U.S. Government to the Philippines, Patrickprotested that he could not be tried for illegal

recruitment. Decide.SUGGESTED ANSWER:

2) Under the principle of specialty in extradition,Patrick cannot be tried for illegal recruitment,since this is not included in the list of extraditableoffenses in the extradition treaty between thePhilippines and the United States, unless theUnited States does not object to the trial ofPatrick for Illegal recruitment.

Extradition; Effectivity of treaty (1996)

No. 6; 1) The Extradition Treaty betweenFrance and the Philippines is silent as to itsapplicability with respect to crimes committedprior to its effectivity.

a) Can France demand the extradition of A, aFrench national residing in the Philippines, for anoffense committed in France prior to the effectivityof the treaty? Explain.

b) Can A contest his extradition on the ground thatit violates the ex post facto provision of the

Philippine Constitution? Explain.

SUGGESTED ANSWER:

1. a) Yes, France can ask for the extradition of Afor an offense committed in France before theeffectivity of the Extradition Treaty betweenFrance and the Philippines. In Cleugh vs.Strakosh. 109 F2d 330, it was held that anextradition treaty applies to crimes committedbefore its effectivity unless the extradition treatyexpressly exempts them. As Whiteman points out,extradition does not define crimes but merelyprovides a means by which a State may obtain thereturn and punishment of persons charged with orconvicted of having committed a crime who fledthe jurisdiction of the State whose law has beenviolated. It is therefore immaterial whether at thetime of the commission of the crime for whichextradition is sought no treaty was in existence. Ifat the time extradition is requested there is inforce between the requesting and "the requestedStates a treaty covering the offense on which



the request is based, the treaty is applicable.(Whiteman, Digest of International Law, Vol. 6,pp. 753-754.)

b) No, A cannot contest his extradition on theground that it violates the ex post facto provisionof the Constitution. As held in Wright vs. Court of

Appeals, 235 SCRA 341, the prohibition againstex post facto laws in Section 22, Article III of theConstitution applies to penal laws only and doesnot apply to extradition treaties.

Extradition; Grounds (2002)

No XVIII. John is a former President of theRepublic X, bent on regaining power which helost to President Harry in an election. Fullyconvinced that he was cheated, he set out todestabilize the government of President Harry bymeans of a series of protest actions. His planwas to weaken the government and, when the

situation became ripe for a take-over, toassassinate President Harry.

William, on the other hand, is a believer in humanrights and a former follower of President Harry.Noting the systematic acts of harassmentcommitted by government agents against farmersprotesting the seizure of their lands, laborerscomplaining of low wages, and students seekingfree tuition, William organized groups which heldpeaceful rallies in front of the Presidential Palaceto express their grievances.

On the eve of the assassination attempt, John'smen were caught by members of the PresidentialSecurity Group. President Harry went on airthreatening to prosecute plotters and dissidents ofhis administration. The next day, the governmentcharged John with assassination attempt andWilliam with inciting to sedition.

John fled to Republic A. William, who was inRepublic B attending a lecture on democracy,was advised by his friends to stay in Republic B.

Both Republic A and Republic B haveconventional extradition treaties with RepublicX.

If Republic X requests the extradition of Johnand William, can Republic A deny the request?Why? State your reason fully. (5%)

SUGGESTED ANSWER:

Republic A can refuse to extradite John, becausehis offense is a political offense. John wasplotting to take over the government and

the plan of John to assassinate President Harrywas part of such plan. However, if the extraditiontreaty contains an attentat clause, Republic A canextradite John, because under the attentat clause,the taking of the life or attempt against the life of ahead of state or that of the members of his familydoes not constitute a political offense and istherefore extraditable.

FIRST ALTERNATIVE ANSWER:

Republic A may or can refuse the request ofextradition of William because he is not in itsterritory and thus it is not in the position to deliverhim to Republic X.

Even if William were in the territorial jurisdiction ofRepublic A, he may not be extradited becauseinciting to sedition, of which he is charged,constitutes a political offense. It is a standardprovision of extradition treaties, such as the onebetween Republic A and Republic X, that politicaloffenses are not extraditable.


Republic B can deny the request of Republic X toextradite William, because his offense was not apolitical offense. On the basis of thepredominance or proportionality test his actswere not directly connected to any purely politicaloffense.

Extradition; Retroactive Application (Q2-2005)(1) The Philippines and Australia entered into a

Treaty of Extradition concurred in by the Senateof the Philippines on September 10, 1990. Bothgovernments have notified each other that therequirements for the entry into force of the Treatyhave been complied with. It took effect in 1990.The Australian government is requesting thePhilippine government to extradite its citizen,Gibson, who has committed in his country theindictable offense of Obtaining Property byDeception in 1985. The said offense is amongthose enumerated as extraditable in the Treaty.

For his defense, Gibson asserts that theretroactive application of the extradition treatyamounts to an ex post facto law. Rule onGibson's contention. (5%)

SUGGESTED ANSWER: Gibson isincorrect. In Wright v. Court of Appeals, G.R.No.113213, August 15,1994, it was held thatthe retroactive application of the Treaty ofExtradition does not violate



the prohibition against ex post facto laws,because the Treaty is neither a piece ofcriminal legislation nor a criminal proceduralstatute. It merely provided for the extradition ofpersons wanted for offenses alreadycommitted at the time the treaty was ratified.

Flag State vs. Flag of Convenience (2004)


(3) The flag state and the flag of convenience.

SUGGESTED ANSWER:

FLAG STATE means a ship has the nationalityof the flag of the state it flies, but there must be agenuine link between the state and the ship.(Article 91 of the Convention on the Law of theSea.)

FLAG OF CONVENIENCE refers to a state withwhich a vessel is registered for various reasons

such as low or non-existent taxation or lowoperating costs although the ship has no genuinelink with that state. (Harris, Cases and Materialson International Law, 5th ed., 1998, p. 425.)

Genocide (1988)

What is "Genocide," and what is the foremostexample thereof in recent history?

SUGGESTED ANSWER:

"Genocide" refers to any of the following acts,whether committed in time of war or peace, withintent to destroy in whole or in part national,ethnic, racial or religious group:

(a) Killing members of a group;

(b) Causing bodily or mental harm to itsmembers;

(c) Deliberately inflicting on the groupconditions of life calculated to bring about itsphysical destruction in whole or in part;

(d) Imposing measures to prevent birthswithin the group; and

(e) Forcibly transforming children of thegroup to another group. (J. SALONGA & P.YAP, PUBLIC INTERNATIONAL LAW399-400 (1966)).

The foremost example of genocide is theHolocaust (1933-1945) where about 6 millionJews (two thirds of the Jewish population of

Europe before World War II) were exterminatedby the Nazis. Along with the Jews, another 9 to10 million people (Gypsies and Slavs) weremassacred. (WORLD ALMANAC 120 (40th ed.,1987)).

Human Rights (1999)

1999 No X - A. Give three multilateral

conventions on Human Rights adopted under thedirect auspices of the United Nations? (2%)

SUGGESTED ANSWER:

A. The following are multilateral conventions onHuman Rights adopted under the direct auspicesof the United Nations:

1. International Covenant on Civil and PoliticalRights;

2. Convention on the Elimination of All Forms ofDiscrimination against Women;

3. Convention on the Rights of theChild;4. Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment;

5. International Convention on the Elimination of All Forms of Racial Discrimination;

6. Convention on the Prevention and Punishmentof the Crime of Genocide; and

7. International Convention on Economic, Social,and Cultural Rights

Human Rights; Civil and Political Rights(1992)

No. 15: Walang Sugat, a vigilante groupcomposed of private businessmen and civicleaders previously victimized by the NationalistPatriotic Army (NPA) rebel group, was implicatedin the torture and kidnapping of Dr. Mengele, aknown NPA sympathizer.

a) Under public international law, what rulesproperly apply? What liabilities, if any, arise

thereunder if Walang Sugat's involvement isconfirmed.

b) Does the Commission on Human Rights havethe power to investigate and adjudicate thematter?

SUGGESTED ANSWER:

a) On the assumption that Dr. Mengele is aforeigner, his torture violates the InternationalCovenant on Civil and Political Rights, to whichthe Philippine has acceded. Article 7 of the



Covenant on Civil and Political Rights provides: "Noone shall be subjected to torture or to cruel,inhuman or degrading treatment or punishment."

In accordance with Article 2 of the Covenant onCivil and Political Rights, it is the obligation of thePhilippines to ensure that Dr. Mengele has aneffective remedy, that he shall have his right to

such a remedy determined by competentauthority, and to ensure the enforcement of suchremedy when granted.

ALTERNATIVE ANSWER: On the assumptionthat Dr. Mengele is a foreigner, his claim will haveto be directed against the members of WalangSugat on the basis of the Philippine law and beaddressed to the jurisdiction of Philippine courts.His claim may be based on the generallyaccepted principles of international law, whichform part of Philippine law under Section 2,

Article II of the Constitution. His claim may be

premised on relevant norms of international lawof human rights.

Under international law, Dr. Mengele must firstexhaust the remedies under Philippine law beforehis individual claim can be taken up by the Stateof which he is a national unless the said State cansatisfactorily show it is its own interests that aredirectly injured. If this condition is fulfilled, the saidState's claim will be directed against thePhilippines as a subject of international law. Thusit would cease to be an individual claim of Dr.Mengele.

Dr. Mengele's case may concern internationallaw norms on State responsibility. But theapplication of these norms require that the basisof responsibility is the relevant acts that can beattributed to the Philippines as a State.

Hence, under the principle of attribution it isnecessary to show that the acts of the vigilantegroup Walang Sugat can be legally attributed tothe Philippines by the State of which Dr. Mengele

is a national.

The application of treaty norms of internationallaw on human rights, such as the provisionagainst torture in the International Covenants inCivil and Political Rights pertain to States. Theacts of private citizens composing Walang Sugatcannot themselves constitute a violation by thePhilippines as a State.

SUGGESTED ANSWER:

b) Can only investigate, no power of adjudication

Human Rights; Civil and Political Rights(1996)

1996 No. 1: 1) Distinguish civil rights frompolitical rights and give an example of each right.

2) What are the relations of civil and politicalrights to human rights? Explain.

SUGGESTED ANSWER:

1) The term "CIVIL RIGHTS" refers to the rightssecured by the constitution of any state or countryto all its Inhabitants and not connected with theorganization or administration of government,[Black, Handbook of American ConstitutionalLaw, 4th ed., 526.) POLITICAL RIGHTS consist inthe power to participate, directly or indirectly, inthe management of the government. Thus, civil

rights have no relation to the establishment,management or support of the government.(Anthony vs. Burrow, 129 F 783).

CIVIL RIGHTS defines the relations of individualamongst themselves while POLITICAL RIGHTSdefines the relations of Individuals vis-a-vis thestate. CIVIL RIGHTS extend protection to allinhabitants of a state, while POLITICAL RIGHTSprotect merely its citizens.

Examples of civil rights are the rights againstinvoluntary servitude, religious freedom, theguarantee against unreasonable searches andseizures, liberty of abode, the prohibition againstimprisonment for debt, the right to travel, equalprotection, due process, the right to marry, right toreturn to this country and right to education.

Examples of political rights are the right ofsuffrage, the right of assembly, and the right topetition for redress of grievances.

2) Human rights are broader in scope than civiland political rights. They also include social,economic, and cultural rights. Human rights areinherent in persons from the fact of their humanity.Every man possesses them everywhere and at alltimes simply because he is a human being. On theother hand, some civil and political rights are notnatural rights. They exist because they areprotected by a



constitution or granted by law. For example, theliberty to enter into contracts is not a human rightbut is a civil right.

Int’l Court of Justice; Jurisdiction Over States

1994 No. 20: The sovereignty over certainislands is disputed between State A and State

B. These two states agreed to submit theirdisputes to the International Court of Justice[ICJ].

1) Does the ICJ have jurisdiction to takecognizance of the case?

2) Who shall represent the parties before theCourt?

SUGGESTED ANSWER:

1) The International Court of Justice hasurisdiction over the case, because the parties

have jointly submitted the case to it and havethus indicated their consent to its jurisdiction.

2) Parties to a case may appoint agents toappear before the International Court of Justicein their behalf, and these agents need not betheir own nationals. However, under Article 16of the Statutes of the International Court ofJustice, no member of the court may appear asagent in any case.

Int’l Court of Justice; Jurisdiction Over States(1994)

No. 19; The State of Nova, controlled by anauthoritarian government, had unfriendly relationswith its neighboring state, America. Bresla, anotherneighboring state, had been shipping arms andammunitions to Nova for use in attacking Ameria.

To forestall an attack, Ameria placed floatingmines on the territorial waters surrounding Nova.

Ameria supported a group of rebels organized tooverthrow the government of Nova and to replaceit with a friendly government.

Nova decided to file a case against Ameria in theInternational Court of Justice

1) On what grounds may Nova's causes of actionagainst Ameria be based?

2) On what grounds may Ameria move todismiss the case with the ICJ?

Decide the case.

SUGGESTED ANSWER:

1) If Nova and Ameria are members of the UnitedNations, Nova can premise its cause of action ona violation of Article 2(4) of the United NationsCharter, which requires members to refrain fromthe threat or use of force ...

2) By virtue of the principle of sovereignimmunity, no sovereign state can be made aparty to a proceeding before the InternationalCourt of Justice unless it has given its consent. If

Ameria has not accepted the Jurisdiction of theInternational Court of Justice. Ameria can invokethe defense of lack of jurisdiction. Even if Ameriahas accepted the jurisdiction of the court but theacceptance is limited and the limitation applies tothe case, it may invoke such limitation its consentas a bar to the assumption of jurisdiction.

If jurisdiction has been accepted, Ameria caninvoke the principle of anticipatory self-defense,recognized under customary international law,because Nova is planning to launch an attack

against Ameria by using the arms it bought fromBresia.

3) If jurisdiction over Ameria is established, thecase should be decided in favor of Nova, .... ifurisdiction over Ameria is not established, thecase should be decided in favor of Ameriabecause of the principle of sovereign immunity.

Int’l Court of Justice; Limitations OnJurisdiction (1999)

No X - B. Under its Statute, give two limitationson the jurisdiction of the International Court ofJustice? (2%)

SUGGESTED ANSWER:

B. The following are the limitations on theurisdiction of the International Court of Justiceunder its Statute:

1. Only states may be parties in cases before it.(Article 34)

2. The consent of the parties is needed for the

court to acquire jurisdiction over a case. (Article36)

Int’l Court of Justice; Parties; Pleadings andOral Argument (1994)

No. 20: The sovereignty over certain islands isdisputed between State A and State B. Thesetwo states agreed to submit their disputes to theInternational Court of Justice [ICJ].



3) What language shall be used in the pleadingsand oral argument?

4) In case State A, the petitioner, falls to appearat the oral argument, can State B, therespondent, move for the dismissal of thepetition?

SUGGESTED ANSWER:

3) Under Article 39 of the Statutes of the

International Court of Justice, the officiallanguages of the court are English and French. Inthe absence of an agreement, each party mayuse the language it prefers. At the request of anyparty, the court may authorize a party to use alanguage other than English or French.

4) Under Article 53 of the Statutes of theInternational Court of Justice, whenever one ofthe parties does not appear before the court orfails to defend its case, the other party may askthe court to decide in favor of its claim.However, the court must, before doing so,

satisfy itself it has Jurisdiction and that theclaim is well founded in fact and law.

International Convention; Law of the Sea(2004)(2-b) En route to the tuna fishing grounds in thePacific Ocean, a vessel registered in Country TWentered the Balintang Channel north of BabuyanIsland and with special hooks and nets draggedup red corals found near Batanes. Byinternational convention certain corals areprotected species, just before the vessel reachedthe high seas, the Coast Guard patrol interceptedthe vessel and seized its cargo including tuna.The master of the vessel and the owner of thecargo protested, claiming the rights of transitpassage and innocent passage, and soughtrecovery of the cargo and the release of the ship.Is the claim meritorious or not? Reason briefly.(5%)

SUGGESTED ANSWER; The claim of innocentpassage is not meritorious. While the vessel hasthe right of innocent passage, it should not commit

a violation of any international convention. Thevessel did not merely navigate through theterritorial sea, it also dragged red corals inviolation of the international convention whichprotected the red corals. This is prejudicial to thegood order of the Philippines. (Article 19(2) of theConvention on the Law of the Sea)

International Court of Justice (Q9-2006)

1 Where is the seat of the International Courtof Justice? 11%) The seat of the International Courtof Justice is at the Hague or elsewhere, as it maydecide, except during the judicial vacations thedates and duration of which it shall fix (I.C.J.Statute, Art. 22).2 How many are its members? (1%) TheCourt is composed of fifteen members who must beof high moral character and possess the

qualifications required in their respective countriesfor appointment to the highest judicial office or areurisconsults of recognized competence ininternational law (I.C.J. Statute, Art. 2).3 What is the term of their office? (1%) Theyare elected for a term of nine years, staggered atthree-year intervals by dividing the judges firstelected into three equal groups and assigning themby lottery terms of three, six and nine yearsrespectively. Immediate re-election is allowed(I.C.J. Statute, Art. 13).4 Who is its incumbent president? (1%) Theincumbent President is Rosalyn Higgins.

5 What is his/her nationality? (1 %) She is anational of the United Kingdom or a British subject.(NOTE: Since questions IX(4) and IX(5) do not testthe examinees' knowledge of the law, it issuggested that they be disregarded)6 In 1980, the United States filed with theInternational Court of Justice a complaint againstIran alleging that the latter is detaining Americandiplomats in violation of International Law. Explainhow the International Court of Justice can acquireurisdiction over these contending countries. (5%)Under Article 36 of the I.C.J. Statutes, both partiesmust agree to submit themselves to the jurisdictionof the International Court of Justice.

International Law vs. Municipal Law; TerritorialPrinciple; International Crimes (Q2-2005)

(2) Police Officer Henry Magiting of theNarcotics Section of the Western Police Districtapplied for a search warrant in the Regional TrialCourt of Manila for violation



mandated territories which did not attainindependence status by the end of the SecondWorld War. Trust territories and the TrusteeshipCouncil are created by the UN Charter.

The trusteeship system under Chapters XII andXIII of the UN Charter is established under thesupervision of the UN Trusteeship Council underthe authority of the General Assembly for thepromotion of political and socio-economic

development of peoples in trust territoriestowards independent status. A new feature of theUN trusteeship system is the creation of a newcategory of territories, the strategic trustterritories, which is under the supervision of theSecurity Council instead of the TrusteeshipCouncil.

Under the foregoing conditions, the United Nationsmay not be said to exercise sovereignty over trustterritories, the functions and powers of theTrusteeship Council and the General Assemblybeing limited to administration and supervision

under the principle of self-determination as set forthin

Trusteeship Council under the authority of the

General Assembly, except with respect to

strategic areas or territories which are placedunder the jurisdiction of the Security Council.

Municipal Law vs. International Law (2003)

No XVI- An organization of law studentssponsored an inter-school debate among threeteams with the following assignments andpropositions for each team to defend:

Team "A" - International law prevails overmunicipal law. Team "B" - Municipal law prevailsover international law. Team "C" - A country'sConstitution prevails over international law butinternational law prevails over municipal statutes.

If you were given a chance to choose the correctproposition, which would you take and why?

SUGGESTED ANSWER:

I shall take the proposition for Team C.International Law and municipal law are supremein their own respective fields. Neither hashegemony over the other. (Brownlie, Principles ofPublic International Law, 4th ed. p. 157.) Under

Article II, Section 2 of the 1987 Constitution, thegenerally accepted principles of international lawform part of the law of the land. Since they merelyhave the force of law, if

it is Philippine courts that will decide the case, theywill uphold the Constitution over international law.If it is an international tribunal that will decide thecase, it will uphold international law over municipallaw. As held by the Permanent International Courtof Justice in the case of the Polish Nationals inDanzig, a State cannot invoke its own Constitutionto evade obligations incumbent upon it underinternational law.

ALTERNATIVE ANSWER

I would take the proposition assigned to Team "C"as being nearer to the legal reality in thePhilippines, namely, "A country's Constitutionprevails over international law but international lawprevails over municipal statutes".

This is, however, subject to the place ofinternational law in the Philippine Constitutionalsetting in which treaties or customary norms in

international law stand in parity with statutes andin case of irreconcilable conflict, this may beresolved by /ex posteriori derogat lex priori as theSupreme Court obiter dictum in Abbas v.COMELEC holds. Hence, a statute enacted laterthan the conclusion or effectivity of a treaty mayprevail.

In the Philippine legal system, there are no normshigher than constitutional norms. The fact that theConstitution makes generally accepted principlesof international law or conventional internationallaw as part of Philippine law does not make themsuperior to statutory law, as clarified in Secretaryof Justicev. Lantion and Philip Morris decisions.

Neutrality of States (1988)

No. 20: Switzerland and Australia are outstandingexamples of neutralized states,

1. What are the characteristics of a neutralizedstate?

2. Is neutrality synonymous with neutralization? Ifnot, distinguish one from the other.

SUGGESTED ANSWER:

1. Whether simple or composite, a State is said tobe neutralized where its independence andintegrity are guaranteed by an internationalconvention on the condition that such Stateobligates itself never to take up arms against anyother State, except for self-defense, or enter intosuch international obligations as would indirectlyinvolve it in war. A State seeks neutralizationwhere it is weak and does not

packages,


laborator

examination,

turned out to be



wish to take an active part in international politics.The power that guarantee its neutralization may bemotivated either by balance of power considerationsor by the desire to make the weak state a bufferbetween the territories of the great powers. (J.SALONGA & P. YAP, PUBLIC INTERNATIONALLAW 76 (1966)).

2. Firstly, neutrality obtains only during war,

whereas neutralization is a condition that appliesin peace or in war. Secondly, neutralization is astatus created by means of treaty, whereasneutrality is a status created under internationallaw, by means of a stand on the part of a state notto side with any of the parties at war. Thirdly,neutrality is brought about by a unilateraldeclaration by the neutral State, whileneutralization cannot be effected by unilateral act,but must be recognized by other States. (Id.)

Outer Space; Jurisdiction (2003)

No XIX - What is outer-space? Who or whichcan exercise jurisdiction over astronauts while inouter space?

ALTERNATIVE ANSWER:

There are several schools of thought regarding thedetermination of outer space, such as the limit ofair flight, the height of atmospheric space, infinity,the lowest altitude of an artificial satellite, and analtitude approximating aerodynamic lift. Anotherschool of thought proceeds by analogy to the lawof the sea. It proposes that a State should exercise

full sovereignty up to the height to which an aircraftcan ascend. Non-militant flight instrumentalitiesshould be allowed over a second area, acontiguous zone of 300 miles. Over that should beouter space. The boundary between airspace andouter space has not yet been defined. (Harris,Cases and Materials on International Law, 5th ed..pp. 251-253.) Under Article 8 of the Treaty on thePrinciples Governing the Activities of States in theExploration and Use of Outer Space, Including theMoon and Other Celestial Bodies, a State onwhose registry an object launched into outer spaceretains jurisdiction over the astronauts while theyare in outer space.

ALTERNATIVE ANSWER:

Outer space is the space beyond the airspacesurrounding the Earth or beyond the nationalairspace. In law, the boundary between outer spaceand airspace has remained undetermined. But intheory, this has been estimated to be between 80 to90 kilometers.

Outer space in this estimate begins from thelowest altitude an artificial satellite can remain inorbit. Under the Moon Treaty of 1979 the moonand the other celestial bodies form part of outerspace.

In outer space, the space satellites or objects areunder the jurisdiction of States of registry whichcovers astronauts and cosmonauts. This matter iscovered by the Registration of Objects in SpaceConvention of 1974 and the Liability for DamageCaused by Spaced Objects Convention of 1972.

Principle of Auto-Limitation (Q10-2006)1. What is the principle of auto-limitation?(2.5%) ALTERNATIVE ANSWER: Under theprinciple of auto-limitation, any state may by itsconsent, express or implied, submit to arestriction of its sovereign rights. There may thusbe a curtailment of what otherwise is a plenarypower (Reagan v. CIR, G.R. L-26379, December27, 1969).

Reciprocity v. Principle of Auto-Limitation(Q10-2006)2. What is the relationship between reciprocityand the principle of auto-limitation? (2.5%)

ALTERNATIVE ANSWER: When the Philippinesenters into treaties, necessarily, these internationalagreements may contain limitations on Philippinesovereignty. The consideration in this partial surrenderof sovereignty is the reciprocal commitment of othercontracting states in granting the same privilege andimmunities to the Philippines. For example, this kind ofreciprocity in relation to the principle of auto-limitationcharacterizes the Philippine commitments underWTO-GATT. This is based on the constitutionalprovision that the Philippines "adopts the generallyaccepted principles of international law as part of thelaw of the land and adheres to the policy of ...cooperation and amity with all nations" (Tanada v.

Angara, G.R. No. 118295, May 2, 1997).

Recognition of States; De Facto vs. De JureRecognition (1998)

No XII. Distinguish between de facto recognitionand de jure recognition of states. [5%)



passage of warships through Mantranas Straitwithout giving any reason therefor. Subsequently,another warship of Beta passed through the saidstrait, and was fired upon by Epsilon's coastalbattery. Beta protested the aforesaid act of Epsilondrawing attention to the existing customaryinternational law that the regime of innocentpassage (even of transit passage) isnon-suspendable. Epsilon countered that

Mantranas Strait is not a necessary route, therebeing another suitable alternative route. Resolvethe above-mentioned controversy, Explain youranswer. (4%)

SUGGESTED ANSWER:

Assuming that Epsilon and Beta are parties tothe UNCLOS, the controversy maybe resolvedas follows:

Under the UNCLOS, warships enjoy a right ofinnocent passage. It appearing that the portion ofEpsilon's territorial sea in question is a strait used

for international navigation, Epsilon has no rightunder international law to suspend the right ofinnocent passage. Article 45(2) of the UNCLOS isclear in providing that there shall be nosuspension of innocent passage through straitsused for international navigation.

On the assumption that the straits in question is notused for international navigation, still thesuspension of innocent passage by Epsilon cannotbe effective because suspension is required underinternational law to be duly published before it cantake effect. There being no publication prior to thesuspension of innocent passage by Beta's warship,Epsilon's act acquires no validity.

Moreover, Epsilon's suspension of innocentpassage may not be valid for the reason that thereis no showing that it is essential for the protectionof its security. The actuation of Beta's warship inresorting to delayed passage is for causerecognized by the UNCLOS as excusable, i.e., forthe purpose of rendering assistance to persons orship in distress, as provided in Article 18(2) of theUNCLOS. Hence, Beta's warship complied withthe international law norms on right of innocentpassage.

Right to Transit and Innocent Passage (2004)II-B. En route to the tuna fishing grounds in thePacific Ocean, a vessel registered in Country TWentered the Balintang Channel north of BabuyanIsland and with special hooks and nets draggedup red corals found near

Batanes. By international convention certaincorals are protected species. Just before thevessel reached the high seas, the Coast Guardpatrol intercepted the vessel and seized its cargoincluding tuna. The master of the vessel and theowner of the cargo protested, claiming the rightsof transit passage and innocent passage, andsought recovery of the cargo and the release ofthe ship. Is the claim meritorious or not? Reason

briefly. (5%) SUGGESTED ANSWER; The claimof innocent passage is not meritorious. While thevessel has the right of innocent passage, it shouldnot commit a violation of any internationalconvention. The vessel did not merely navigatethrough the territorial sea, it also dragged redcorals in violation of the international conventionwhich protected the red corals. This is prejudicialto the good order of the Philippines. (Article 19(2)of the Convention on the Law of the Sea)

Rights and Obligation under UN Charter(1991)

No. 14: State X invades and conquers State Y.The United Nations Security Council declares theinvasion and conquest illegal and orders aninternational embargo against State X.Subsequently, the same U.N. body adopts aresolution calling for an enforcement action againstState X under Chapter VII of the U.N. Charter.State Z, a U.N. member, religiously complies withthe embargo but refuses to take part in the

enforcement action, sending a medical missioninstead of fighting troops to the troubled area.

(a) Did State Z violate its obligations under theU.N. Charter?

(b) If so, what sanctions may be taken againstit?(c) If not, why not?



ANSWER:

(a) No, State Z did not violate its obligations underthe United Nations Charter. It complied with theresolution calling for enforcement action againstState X, because it sent a medical team.

(b) No sanctions may be taken against State Z.because it did not violate its obligation under theUnited Nations Charter.

(c) Compliance with the resolution calling forenforcement action against Slate X does notnecessarily call for the sending of



fighting troops. Under Art 43 of the UnitedNations Charter, compliance with the call forenforcement action against State X has to bemade in accordance with a special agreementwith the Security Council and such agreementshall govern the numbers and types of forces,their degree of readiness and general locations,and the nature of the facilities and assistance tobe supplied by members of the United Nations.

Sources of International Law; Primary &Subsidiary Sources (2003)

No XV - State your general understanding of theprimary sources and subsidiary sources ofinternational law, giving an illustration of each.

SUGGESTED ANSWER:

Under Article 38 of the Statute of the InternationalCourt of Justice, the PRIMARY SOURCES ofinternational law are the following:

1 International conventions, e.g., ViennaConvention on the Law of Treaties.2 International customs, e.g., sabotage, theprohibition against slavery, and the prohibition againsttorture.3 General principles of law recognized by civilizednations, e.g., prescription, res judicata, and dueprocess.

The SUBSIDIARY SOURCES of international law

are judicial decisions, subject to the provisions of Article 59, e.g., the decision in the Anglo-NorwegianFisheries Case and Nicaragua v. United States, andTEACHINGS of the most highly qualified publicistsof various nations, e.g., Human Rights inInternational Law by Lauterpacht and InternationalLaw by Oppenhe im -Lauterpacht.

ALTERNATIVE ANSWER:

Reflecting general international law, Article 38(1)of the Statute of the International Court of Justiceis understood as providing for international

convention, international custom, and generalprinciples of law as primary sources ofinternational law, while indicating that judicialdecisions and teachings of the most highlyqualified publicists as "subsidiary means for thedetermination of the rules of law."

The primary sources may be considered asformal sources in that they are the methods bywhich norms of international law are created andrecognized. A conventional or treaty norm comesinto being by established treaty-making

procedures and a customary norm is the productof the formation of general practice accepted aslaw.

By way of illustrating International Convention as asource of law, we may refer to the principleembodied in Article 6 of the Vienna Convention onthe Law of Treaties which reads: "Every Statepossesses capacity to conclude treaties". It tellsus what the law is and the process or method bywhich it came into being. International Custommay be concretely illustrated by pacta suntservanda, a customary or general norm whichcame about through extensive and consistentpractice by a great number of states recognizing itas obligatory.

The subsidiary means serves as evidence of law. A decision of the International Court of Justice, forexample, may serve as material evidenceconfirming or showing that the prohibition againstthe use of force is a customary norm, as thedecision of the Court has demonstrated in the

Nicaragua Case. The status of a principle as anorm of international law may find evidence in theworks of highly qualified publicists in internationallaw, such as McNair, Kelsen or Oppenheim.

Sovereign Immunity of States; Absolute vs.Restrictive (1998)

No XIII. What is the doctrine of Sovereignimmunity in international Law? [5%]

SUGGESTED ANSWER:

By the doctrine of sovereign immunity, a State,its agents and property are immune from theudicial process of another State, except with itsconsent. Thus, immunity may be waived and aState may permit itself to be sued in the courts ofanother State,

Sovereign immunity has developed into twoschools of thought, namely, absolute immunity andrestrictive immunity. By absolute immunity, all actsof a State are covered or protected by immunity.On the other hand, restrictive immunity makes adistinction between governmental or sovereign

acts (acta jure imperii) and nongovernmental,propriety or commercial acts (acta jure gestiones).Only the first category of acts is covered bysovereign immunity.

The Philippine adheres to the restrictive immunityschool of thought.

ALTERNATIVE ANSWER;



In United States vs. Ruiz, 136 SCRA 487. 490491. the Supreme Court explained the doctrineof sovereign immunity in international law;

"The traditional rule of State immunity exempts aState from being sued in the courts of anotherState without its consent or waiver, this rule is anecessary consequence of the principles ofindependence and equality of states. However,the rules of International Law are not petrified,they are constantly developing and evolving. Andbecause the activities of states have multiplied. Ithas been necessary to distinguish them — between sovereign and government acts [ jureimperii ] and private, commercial and proprietaryacts ( jure gestionis), The result is that Stateimmunity now extends only to acts jure imperii ."

Sovereignty of States; Natural Use of Territory(1989)

No. 19: The Republic of China (Taiwan), in its bid

to develop a hydrogen bomb and defend itselfagainst threats of invasion coming from thePeople's Republic of China, conducted a series ofsecret nuclear weapons tests in its ownatmosphere. The tests resulted in radioactivefallouts which contaminated the rivers in andaround Aparri and other bodies of water within theterritorial jurisdiction of the Philippines, Can thePhilippines complain against the Republic ofChina for violation of its sovereignty?

ANSWER:

In the Trial Smelter Arbitration between the UnitedStates and Canada, the Arbitral Tribunal held thatair pollution from Canada should be enjoined,because sovereignty includes the right againstany encroachment which might prejudice thenatural use of the territory and the free movementof its inhabitants.

Since the nuclear tests conducted by theRepublic China resulted in radioactive falloutswhich contaminated the rivers and other bodies ofwater within the Philippines, the Republic ofChina violated the sovereignty of the Philippines.

YES, the Philippines can complain against theRepublic of China for violation of its sovereignty.

Article 194 of the Convention on the Law of theSea requires States to take all measuresnecessary to ensure that activities under theirurisdiction or control are so conducted as not tocause damage by pollution to other States andtheir environment. Principle

21 of the United Nations Conference on theHuman Environment imposes upon states theresponsibility to ensure that activities within theirurisdiction or control do not cause damage to theenvironment of other States.

Sovereignty; Definition; Nature (Q10-2006)1 How is state sovereignty defined inInternational Law? (2.5%) ALTERNATIVE

ANSWER: State sovereignty signifiesindependence in regard to a portion of the globe,and the right to exercise and enforce jurisdictiontherein, to the exclusion of any other state thefunctions of the state [See Island of Las PalmasCase (US v. The Netherlands) 2 R.IAA. 829].Sovereignty means independence from outsidecontrol. The 1933 Montevideo Conventionexpresses this in positive terms as including "thecapacity to enter into relations with other states."

ALTERNATIVE ANSWER: Under the principle ofstate sovereignty in International Law, all statesare sovereign equals and cannot assert jurisdiction

over one another. A contrary disposition would"unduly vex the peace of nations" (Da Haber v.Queen of Portugal, 17 Q. B. 171).2 Is state sovereignty absolute? (2.5%)

ALTERNATIVE ANSWER: State sovereignty is notabsolute. On the contrary, the rule says that thestate may not be sued without its consent, whichclearly imports that it may be sued if it consents.Moreover, certain restrictions enter into the picture:(1) limitations imposed by the very nature ofmembership in the family of nations; and (2)limitations imposed by treaty stipulations. Thesovereignty of a state therefore cannot in fact andin reality be considered absolute (Tanada v.

Angara, G.R. No. 118295, May 2,1997). ALTERNATIVE ANSWER: Sovereignty is absolutewith respect to exclusive competence over internalmatters [See Island of Las Palmas Case (US v.The Netherlands) 2 R.IAA. 829], subject only tosuch limitations as may be imposed or recognizedby the state itself as part of its obligations underinternational law. In the international plain, statesovereignty is realized as the coexistence withother sovereignties under conditions ofindependence and equality.



citizenship like securing for himself apassport or visa and personaldocuments.

3. No. Under the Convention in Relation to theStatus of Stateless Person, the Contracting Statesagreed to accord to stateless persons within theirterritories treatment at least as favorable as that

accorded to their nationals with respect tofreedom of religion, access to the courts, rationingof products in short supply, elementary education,public relief and assistance, labor legislation andsocial security. They also agreed to accord to themtreatment not less favorable than that accorded toaliens generally in the same circumstances. TheConvention also provides for the issuance ofidentity papers and travel documents to statelessperson.

4. In the Convention on the Conflict ofNationality Laws of 1930, the Contracting Statesagreed to accord nationality to persons born intheir territory who would otherwise be stateless.The Convention on the Reduction of Statelessnessof 1961 provides that if the law of the contractingStates results in the loss of nationality as aconsequence of marriage or termination ofmarriage, such loss must be conditional uponpossession or acquisition of another nationality.

ALTERNATIVE ANSWER;

Under the Convention on the Reduction ofStateless-ness of 1961, a contracting state shallgrant its nationality to a person born in its territorywho would otherwise be stateless and acontracting state may not deprive a person or agroup of persons of their nationality for racial,ethnic, religious or political grounds.

Territorial Sea vs. Internal Waters (2004)


(1) The territorial sea and the internal waters of

the Philippines.SUGGESTED ANSWER:

A. (1) TERRITORIAL SEA is an adjacent belt ofsea with a breadth of twelve nautical milesmeasured from the baselines of a state and overwhich the state has sovereignty. (Articles 2 and 3of the Convention on the Law of the Sea.) Shipof all states enjoy the right of innocent passagethrough the territorial sea. (Article 14 of theConvention on the Law of the Sea.)

Under Section 1, Article I of the 1987 Constitution,the INTERNAL WATERS of the Philippinesconsist of the waters around, between andconnecting the islands of the Philippine

Archipelago, regardless of their breadth anddimensions, including the waters in bays, riversand lakes. No right of innocent passage forforeign vessels exists in the case of internalwaters. (Harris, Cases and Materials on

International Law, 5th ed., 1998, p. 407.)Internal waters are the waters on the landwardside of baselines from which the breadth of theterritorial sea is calculated. (Brownlie, Principlesof Public International Law, 4th ed., 1990, p. 120.)

Use of Force; Exceptions (2003)

No XIV- Not too long ago, "allied forces", led by American and British armed forces, invaded Iraqto "liberate the Iraqis and destroy suspected

weapons of mass destruction." The SecurityCouncil of the United Nations failed to reach aconsensus on whether to support or oppose the"war of liberation".

Can the action taken by the allied forces findustification in International Law? Explain.

SUGGESTED ANSWER:

The United States and its allied forces cannotustify their invasion of Iraq on the basis ofself-defense under Article 51 attack by Iraq, andthere was no necessity for anticipatory

self-defense which may be justified undercustomary international law. Neither can theyustify their invasion on the ground that Article 42of the Charter of the United Nations permits theuse force against a State if it is sanctioned by theSecurity Council. Resolution 1441, which gaveIraq a final opportunity to disarm or face seriousconsequences, did not authorize the use of armedforce.

ALTERNATIVE ANSWER:

In International Law, the action taken by theallied forces cannot find justification. It is covered

by the prohibition against the use of forceprescribed by the United Nations Charter and itdoes not fall under any of the exceptions to thatprohibition.

The UN Charter in Article 2(4) prohibits the useof force in the relations of states by providing thatall members of the UN "shall refrain in theirinternational relations from the threat or use offorce against the territorial integrity or politicalindependence of any state,



or in any other manner inconsistent with thepurposes of the United Nations." This mandatedoes not only outlaw war; it encompasses allthreats of and acts of force or violence short ofwar.

As thus provided, the prohibition is addressed toall UN members. However, it is now recognizedas a fundamental principle in customaryinternational law and, as such, is binding on all

members of the international community.

The action taken by the allied forces cannot beustified under any of the three exceptions to theprohibition against the use of force which the UNCharter allows. These are:

(1) inherent right of individual orcollective self-defense under Article 51;

(2) enforcement measure involving theuse of armed forces by the UN Security

Council under Article 42; and

(3) enforcement measure byregional arrangement under Article 53, asauthorized by the UN Security Council.The allied forces did not launch militaryoperations and did not occupy Iraq on theclaim that their action was in response toan armed attack by Iraq, of which therewas none.

Moreover, the action of the allied forces wastaken in defiance or disregard of the SecurityCouncil Resolution No. 1441 which set up "anenhanced inspection regime with the aim ofbringing to full and verified completion thedisarmament process", giving Iraq "a finalopportunity to comply with its disarmamentobligations". This resolution was in the process ofimplementation; so was Iraq's compliance withsuch disarmament obligations.

Use of Force; Principle of Non-Intervention(1994)

No. 19; The State of Nova, controlled by anauthoritarian government, had unfriendly relationswith its neighboring state, Ameria. Bresla, anotherneighboring state, had been shipping arms andammunitions to Nova for use in attacking Arneria.

To forestall an attack, Ameria placed floatingmines on the territorial waters surrounding Nova.

Ameria supported a group of rebels organized tooverthrow the government

of Nova and to replace it with a friendlygovernment.

Nova decided to file a case against Ameria in theInternational Court of Justice

1) On what grounds may Nova's causes of actionagainst Ameria be based?

2) On what grounds may Ameria move todismiss the case with the ICJ?

3) Decide the case.

ANSWER:

1) If Nova and Ameria are members of the UnitedNations, Nova can premise its cause of action ona violation of Article 2(4) of the United NationsCharter, which requires members to refrain fromthe threat or use of force against the territorialintegrity or political independence of any state. Ifeither or both Nova or Ameria are not membersof the United Nations, Nova may premise itscause of action on a violation of the non-use of

force principle in customary international lawwhich exists parallel to Article 2(4) of the UnitedNations Charter.

In the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (1986 ICJRep. 14), the International Court of Justiceconsidered the planting of mines by one statewithin the territorial waters of another as aviolation of Article 2(4) of the United NationsCharter. If the support provided by Ameria to therebels of Nova goes beyond the mere giving ofmonetary or psychological support but consists in

the provision of arms and training, the acts of Ameria can be considered as indirect aggressionamounting to another violation of Article 2(4).

In addition, even if the provision of support is notenough to consider the act a violation of thenon-use of force principle, this is a violation of theprinciple of non-intervention in customaryInternational law.

Aggression is the use of armed force by a stateagainst the sovereignty, territorial integrity orpolitical independence of another state or in anyother manner inconsistent with the United NationsCharter.

2) By virtue of the principle of sovereignimmunity, no sovereign state can be made aparty to a proceeding before the InternationalCourt of Justice unless it has given its consent....



3) If jurisdiction over Ameria is established, thecase should be decided in favor of Nova,because Ameria violated the principle against theuse of force and the principle of non-Intervention.The defense of anticipatory self-defense cannotbe sustained, because there is no showing thatNova had mobilized to such an extent that if

Ameria were to wait for Nova to strike first itwould not be able to retaliate.

However, if jurisdiction over Ameria is notestablished, the case should be decided in favorof Ameria because of the principle of sovereignimmunity.

Use of Force; Right of Self-defense (2002)

No XIX. On October 13, 2001, members of AliBaba, a political extremist organization based inand under the protection of Country X andespousing violence worldwide as a means ofachieving its objectives, planted high-poweredexplosives and bombs at the International Trade

Tower (ITT) in Jewel City in Country Y, a memberof the United Nations. As a result of the bombingand the collapse of the 100-story twin towers,about 2,000 people, including women andchildren, were killed or injured, and billions ofdollars in property were lost.

Immediately after the incident, Ali Baba, speakingthrough its leader Bin Derdandat, admitted andowned responsibility for the bombing of ITT,saying that it was done to pressure Country Y torelease captured members of the terrorist group.

Ali Baba threatened to repeat its terrorist acts

against Country Y if the latter and its allies failedto accede to Ali Baba's demands. In response,Country Y demanded that Country X surrenderand deliver Bin Derdandat to the governmentauthorities of Country Y for the purpose of trialand "in the name of justice." Country X refused toaccede to the demand of Country Y.

What action or actions can Country Y legally takeagainst Ali Baba and Country X to stop theterrorist activities of Ali Baba and dissuadeCountry X from harboring and giving protection to

the terrorist organization? Support your answerwith reasons. (5%)

FIRST ALTERNATIVE ANSWER:

(1) Country Y may exercise the right ofself-defense, as provided under Article 51 of theUN Charter "until the Security Council has takenmeasure necessary to maintain international peaceand security". Self-defense enables Country Y touse force against Country X as well as against the

Ali Baba organization.

(2) It may bring the matter to the Security Councilwhich may authorize sanctions against CountryX, including measure invoking the use of force.Under Article 4 of the UN Charter, Country Y mayuse force against Country X as well as againstthe Ali Baba organization by authority of the UNSecurity Council.


Under the Security Council Resolution No. 1368,the terrorist attack of Ali Baba may be defined asa threat to peace, as it did in defining theSeptember 11, 2001 attacks against the UnitedStates. The resolution authorizes military andother actions to respond to terrorist attacks.However, the use of military force must beproportionate and intended for the purpose ofdetaining the persons allegedly responsible forthe crimes and to destroy military objectives usedby the terrorists.

The fundamental principles of internationalhumanitarian law should also be respected.Country Y cannot be granted sweepingdiscretionary powers that include the power todecide what states are behind the terroristorganizations. It is for the Security Council todecide whether force may be used againstspecific states and under what conditions theforce may be used.

Use of Force; Self-Defense; Waging War(1998)

No XIV. At the Nuremberg trial of the Nazi warcriminals at the end of the World War II. thedefense argued on behalf of the Germandefendants that although a nation could not wageaggressive war without transgressingInternational law, it could use war as anInstrument of self-defense, and that the nationitself must be the sole judge of whether itsactions were in self-defense. How would youmeet the argument if you were a member of theTribunal trying the case? [5%]

SUGGESTED ANSWER:

No rule of International law gives a state resortingto war allegedly in self-defense the right todetermine with a legally conclusive effect thelegality of such action.

The Judgment of the Nuremberg InternationalMilitary Tribunal rejected the defense of the Naziwar criminals:

"But whether action taken under the claim ofself-defense was in fact aggressive or defensivemust ultimately be subject to



investigation and adjudication if international lawis ever to be enforced."

ALTERNATIVE ANSWER:

International law on self-defense cannot assumethe nature of war. War requires "a declaration ofwar giving reasons" under the Hague Convention IIof 1907. Precisely, the Nazi war criminalwereindicted before the Nuremberg Tribunal for violating

this Convention and were found guilty.

Since the Nazi war criminal argued that war asself-defense is understood by them as meaning"that the nation itself must be the sole Judge ofwhether its action were in self-defense", it is clearthat what they had in mind in fact is "war as aninstrument of national policy", not self-defense asan objective right under International law.

Waging was as an instrument of national law isprohibited by the Pact of Paris of 1928 (Kellog -

Braid Part) of which Germany was already a stateparty before the Second World War. Precisely, theGerman Reich was indicted before theNuremberg Tribunal for violation of the Pact ofParis and the Nazi war criminals were found guiltyof this as a war crime.

Hence, the argument is itself an admission ofviolation of international law.

Use of Force; When allowed (1988)

1. The Charter of the United Nations prohibits notonly recourse to war but also resort to the use offorce or threat. In the ardent desire to maintainpeace, the Charter obliges members to settle theirinternational disputes by peaceful means and torefrain in their international relations from thethreat or use of force. The same Charter,however, recognizing perhaps the realities ofinternational relations, allows the use of force inexceptional occasions.

Please state two occasions when the use ofarmed forces is allowed by the U.N. Charter.

SUGGESTED ANSWER:

1. Under art. 42 of the UN Charter, should theSecurity Council consider that pacific methods ofsettling disputes are inadequate, it may take suchaction by air, sea, or land forces as may benecessary to maintain or restore internationalpeace and security. Such action may includedemonstrations, blockade, and other

operations by air, sea, or land forces ofmembers of the UN.

2. Under art. 51 member states also have theinherent right of collective self defense if an armedattack occurs against a member state, until theSecurity Council has taken measures necessary tomaintain international peace and security.

War; Combatants/ Prisoners of War vs.Mercenaries (1993)

No. 3: Reden, Jolan and Andy. Filipino tourists,were in Bosnia-Herzegovina when hostilitieserupted between the Serbs and the Moslems.Penniless and caught in the crossfire, Reden,Jolan, and Andy, being retired generals, offeredtheir services to the Moslems for a handsome,salary, which offer was accepted. When theSerbian National Guard approached Sarajevo,the Moslem civilian population spontaneously

took up arms to resist the invading troops. Notfinding time to organize, the Moslems worearmbands to identify themselves, vowing toobserve the laws and customs of war. The threeFilipinos fought side by side with the Moslems.The Serbs prevailed resulting in the capture ofReden, Jolan and Andy, and part of the civilianfighting force.

1) Are Reden, Jolan and Andy consideredcombatants thus entitled to treatment as prisonersof war?

2) Are the captured civilians likewise prisonersof war?

ANSWER:

1) Reden, Jolan and Andy are not combatantsand are not entitled to treatment as prisoners ofwar, because they are mercenaries. Article 47 ofthe Protocol I to the Geneva Conventions of1949 provides:

"A Mercenary shall not have the right to becombatant or a prisoner of war."

Pursuant to Article 47 of Protocol I of the Geneva

Conventions of 1949, Reden, Jolan, and Andy aremercenaries, because they were recruited to fightin an armed conflict, they in fact took direct part inthe hostilities, they were motivated to take part inthe hostilities essentially by the desire for privategain and in fact was promised a handsome salaryby the Moslems, they were neither nationals of aparty to the conflict nor residents of territorycontrolled by a party to the conflict, they are notmembers of the armed forces of a party to the



conflict, and they were not sent by a state whichis not a party to the conflict on official duty asmembers of its armed forces.

2) The captured civilians are prisoners of war.Under Article 4 of the Geneva Conventionrelative to the Treatment of Prisoners of War,inhabitants of a non-occupied territory, who onthe approach of the enemy spontaneously takeup arms to resist the invading forces, withouthaving had time to form themselves into regulararmed forces, provided they carry arms openlyand respect the laws and customs of war, areconsidered prisoners of war if they fall into thepower of the enemy.

Wilson doctrine vs. Estrada doctrine (2004)(2-a-5) Distinguish: The Wilson doctrine and theEstrada doctrine regarding recognition ofgovernments.

SUGGESTED ANSWER: Under the WILSON

DOCTRINE, recognition shall not be extended toany government established by revolution orinternal violence until the freely electedrepresentatives of the people have organized aconstitutional government.

Under the ESTRADA DOCTRINE, the Mexicangovernment declared that it would, as it saw fit,continue or terminate its diplomatic relations withany country in which a political upheaval hadtaken place and in so doing it would notpronounce judgment on the right of the foreign

state to accept, maintain or replace itsgovernment. (Cruz, International Law, 2003 ed.)(In view of recent developments, the Wilsondoctrine and the Estrada doctrine are no longer inthe mainstream of public international law.)

ADMINISTRATIVE LAW Admin Law;

Exhaustion of Administrative Remedies(1991)

No. 9: B, For being notoriously undesirable and arecidivist, Jose Tapulan, an employee in the firstlevel of the career service in the Office of the

Provincial Governor of Masbate, was dismissedby the Governor without formal investigationpursuant to Section 40 of the Civil Service Decree(P.D. No. 807} which authorizes summaryproceedings in such cases.

As a lawyer of Jose what steps, if any, wouldyou take to protect his rights?

SUGGESTED ANSWER;

B. Section 40 of the Civil Service Decree hasbeen repealed by Republic Act No. 6654. Aslawyer of Jose Tapulan, I will file a petition formandamus to compel his reinstatement. Inaccordance with the ruling in Mangubat us.Osmena, G.R No. L-12837, April 30, 1959, 105Phil. 1308, there is no need to exhaust alladministrative remedies by appealing to the CivilService Commission, since the act of the

governor is patently Illegal.

Admin Law; Exhaustion of AdministrativeRemedies (2000)

No XIII.

a) Explain the doctrine of exhaustion ofadministrative remedies. (2%)

b) Give at least three (3) exceptions to itsapplication. (3%)

SUGGESTED ANSWER:

A.) The doctrine of exhaustion of administrativeremedies means that when an adequate remedyis available within the Executive Department, alitigant must first exhaust this remedy before hecan resort to the courts. The purpose of thedoctrine is to enable the administrative agenciesto correct themselves if they have committed anerror. (Rosales v. Court of Appeals, 165 SCRA344 [19881)

B.) The following are the exceptions to the

application of the doctrine of exhaustion ofadministrative remedies:

1. The question involved is purelylegal;2. The administrative body is inestoppel;3. The act complained of is patentlyillegal;4. There is an urgent need for Judicialintervention;

5. The claim involved issmall;6. Grave and irreparable injury will besuffered;

7. There is no other plain, speedy andadequate remedy;

8. Strong public interest isinvolved;9. The subject of the controversy isprivate law;

10. The case involves a quo warrantoproceeding (Sunville Timber Products, Inc. v.

Abad. 206 SCRA 482 {1992);



No. 17: Apex Logging Co. and Batibot Logging Co.are adjacent timber concession holders in Isabela.Because of boundary conflicts, and mutual chargesof incursions into their respective concessionareas, the Bureau of Forestry ordered a survey toestablish on the ground their common boundary.The Bureau of Forestry's decision in effect favoredBatibot. Apex appealed to the Department ofNatural Resources and Environment and thisdepartment reversed the decision of the Bureau of

Forestry and sustained Apex. It was the turn ofBatibot to appeal to the Office of the President. TheOffice of the President through an Asst. ExecutiveSecretary sustained the Department of NaturalResources arid Environment. On a motion forreconsideration by Batibot, however, an Asst.Executive Secretary other than the one who signedthe decision affirming the decision of theDepartment of Natural Resources and Environmentdecided for Batibot, Dissatisfied with the

Administrative action on the controversy. Apex filedan action with the Regional Trial Court againstBatibot, the Director of Forestry, and the Asst.Executive Secretaries insisting that a judicialreview of such divergent administrative decisions isnecessary to determine the correct boundary lineof the licensed areas in question.

Batibot moved to dismiss the action, but theRegional Trial Court denied the same and evenenjoined enforcement of the decision of



the Office of the President. Batibot's motion forreconsideration was likewise denied.

Batibot then filed a petition for certiorari andprohibition to review and annul the orders of theRegional Trial Court. Do you believe the petitionfor certiorari and prohibition is meritorious? Why orwhy not?

SUGGESTED ANSWER:

The petition for certiorari and prohibition ismeritorious, The order of the trial court mustaccordingly be set aside. As held in a similar case,Lianga Bay Logging Co. v. Enage, 152 SCRA 80(1987), decisions of administrative officers shouldnot be disturbed by the courts except when theformer have acted without or in excess of theirurisdiction or with grave abuse of discretion. Themere suspicion of Apex that there were anomaliesin the nonrelease of the first "decision" and itssubstitution of a new one by another AssistantExecutive Secretary does not justify judicial review.

Mere beliefs, suspicions and conjectures cannotovercome the presumption of regularity of officialaction.

Admin Law; Meaning of “Government of thePhilippines” (1997)

No. 3: Are government-owned or controlledcorporations within the scope and meaning of the"Government of the Philippines"?

SUGGESTED ANSWER:

Section 2 of the Introductory Provision of the Administrative Code of 1987 defines thegovernment of the Philippines as the corporategovernmental entity through which the functionsof government are exercised throughout thePhilippines, including, same as the contraryappears from the context, the various armsthrough which political authority is made effectivein the Philippines, whether pertaining to theautonomous regions, the provincial, city,municipal or barangay subdivisions or other formsof local government.

Government owned or controlled corporation arewithin the scope and meaning of the Governmentof the Philippines if they are performinggovernmental or political functions.

Admin Law; Power of the President toReorganize Administrative Structure (2003)

No VI - The President abolished the Office of thePresidential Spokesman in Malacanang

Palace and a long-standing Bureau under theDepartment of Interior and Local Governments.The employees of both offices assailed the actionof the President for being an encroachment oflegislative powers and thereby void. Was thecontention of the employees correct? Explain.

SUGGESTED ANSWER:

The contention of the employees is not correct. Asheld in Buklod ng Kawaning EHB v. Zamora. 360SCRA 718 [2001], Section 31, Book III of the

Administrative Code of 1987 has delegated to thePresident continuing authority to reorganize theadministrative structure of the Office of thePresident to achieve simplicity, economy andefficiency. Since this includes the power to abolishoffices, the President can abolish the Office of thePresidential Spokesman, provided it is done ingood faith. The President can also abolish theBureau in the Department of Interior and LocalGovernments, provided it is done in good faith

because the President has been grantedcontinuing authority to reorganize theadministrative structure of the NationalGovernment to effect economy and promoteefficiency, and the powers include the abolition ofgovernment offices. (Presidential Decree No. 1416,as amended by Presidential Decree No. 1772;Larin v. The Executive Secretary. 280 SCRA 713[1997]).

Admin Law; Rules and Regulations; DueProcess (2000)

No III. -The Maritime Industry Authority (MARINA)issued new rules and regulations governingpilotage services and fees, and the conduct ofpilots in Philippine ports. This it did without notice,hearing nor consultation with harbor pilots or theirassociations whose rights and activities are to besubstantially affected. The harbor pilots then filedsuit to have the new MARINA rules andregulations declared unconstitutional for havingbeen issued without due process. Decide thecase. (5%)

SUGGESTED ANSWER:

The issuance of the new rules and regulationsviolated due process. Under Section 9, ChapterII, Book VII of the Administrative Code of 1987,as far as practicable, before adopting proposedrules, an administrative agency should publish orcirculate notices of the proposed rules and affordinterested parties the opportunity to submit theirviews; and in the fixing of rates, no rule shall bevalid unless the proposed rates



shall have been published in a newspaper ofgeneral circulation at least two weeks before thefirst hearing on them. In accordance with thisprovision, in Commissioner of Internal Revenue vCA, 261 SCRA 236 (1996), it was held that whenan administrative rule substantially increases theburden of those directly affected, they should beaccorded the chance to be heard before itsissuance.

ALTERNATIVE ANSWER:

Submission of the rule to the University of thePhilippines Law Center for publication ismandatory. Unless this requirement is compliedwith, the rule cannot be enforced.

Government Agency vs. GovernmentInstrumentality (Q7-2005)(3) State with reason(s) which of the following isa government agency or a governmentinstrumentality:

Department of Public Works and

intents and purposes. A distinction,however, may be made with respect tothose entities possessing a separatecharter created by statute.

DPWH is an agency. It does notpossess a separate charter.

BSP is an instrumentality because itwas incorporated under the new CentralBank Law (R.A. No. 7653)

PPA can be defined as both aninstrumentality and an agency because itwas incorporated by special law and it hasits own charter, yet it is integrated with theDOTC.

LTO is an agency. It is an office ofthe DOTC.

LBP is an instrumentality having acharter under a special law and is agovernment financial institution (GFI)independent of any department ofgovernment.

174619184 suggested political answers

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