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BAR Q&A (as arranged by Topics) – POLITICAL LAW (1987-2006) 1

SUGGESTED ANSWERS

TO BAR EXAMINATION

IN

POLITIC L L W

RR NGED BY TOPIC

(1987 – 2006)

Edited and Arranged by:

Atty. Janette Laggui-Icao and

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

July 26, 2005

Updated by:

Romualdo L. Señeris II LLB.

April 19, 2007

From the ANSWERS TO BAR EXAMINATION QUESTIONS

in POLITICAL LAW by the

UP LAW COMPLEX and

PHILIPPINE ASSOCIATION OF LAW SCHOOLS




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

of typographical errors in this work.

The Authors




TABLE OF CONTENTS

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

Phil Con 87; New Features (1991)..................................................................................... 14 Phil Con 87; People Power (1987)..................................................................................... 14 Phil Con 87; People Power (2000)..................................................................................... 15 Phil Con 87; People Power (2003)..................................................................................... 15

Nature of the Constitution: Constitutional Supremacy (2004)....................................... 15

Government Presidential Form vs. Parliamentary Form (Q6-2006) ............................. 15 ARTICLE I National Terri tory ........................................................................................... 16

Archipelagic Doctrine (1989)............................................................................................... 16 Contiguous Zone vs. Exclusive Economic Zone (2004) ................................................. 16 Exclusive Economic Zone; Rights of the Coastal State (1994) ..................................... 16 Exclusive Economic Zone; Rights of the Coastal State (Q1-2005) .............................. 17 Flag State vs. Flag of Convenience (2004) ...................................................................... 17 Territory & Government (1996)........................................................................................... 17 Territorial Sea vs. Internal Waters (2004) ......................................................................... 17

ARTICLE II Declarat ion of Principles and State Policies .......................................... 18

Armed Forces; Servant of the People (2003)................................................................... 18

Doctrine of Incorporation; Constitutional Law (1997) ...................................................... 18 Doctrine of Incorporation; Pacta Sunt Servanda (2000)................................................. 18 Freedom from Nuclear Weapons; Foreign Military Bases (1988)................................. 18 Philippine Flag (Q4-2006).................................................................................................... 19 Principle of Civilian Supremacy (Q6-2006)....................................................................... 19 State Immunity from Suit (1991)......................................................................................... 19 State Immunity from Suit (1996)......................................................................................... 20 State Immunity from Suit (1989)........................................................................................ 20 State Immunity from Suit (1994)......................................................................................... 21 State Immunity from Suit (1992)......................................................................................... 21

State Immunity from Suit (1999)......................................................................................... 22

State Immunity from Suit (1999)......................................................................................... 22 State Immunity from Suit (1987)......................................................................................... 22 State Immunity vs. Waiver of Immunity (1997) ................................................................ 22 State Immunity from Suit (1993)......................................................................................... 23 State Principles & Policies (1994) ...................................................................................... 23 Transparency; Matters of Public Interest (1989).............................................................. 24 Transparency; Matters of Public Interest (2000).............................................................. 25

ARTICLE III Bi ll of Rights ................................................................................................... 25 Bill of Attainder (1987).......................................................................................................... 25 Bill of Attainder (1990).......................................................................................................... 26 Custodial Investigation; Extrajudicial Confession (2001) ............................................... 26 Custodial Investigation; Extrajudicial Confession; Police Line-Up (1994) ................... 26 Custodial Investigation; Police Line-Up (1997) ................................................................ 27 Custodial Investigation; Right to Counsel (1988) ............................................................ 27 Custodial Investigation; Right to Counsel (1993) ............................................................ 27 Custodial Investigation; Right to Counsel (2000) ............................................................ 28 Custodial Investigation; Right to Counsel; Receipt of Property Seized (2002) ........... 28 Custodial Investigation; Rights (1990)............................................................................... 29 Custodial Investigation; Rights (1993)............................................................................... 29 Custodial Investigation; Rights (1996)............................................................................... 30




Double Jeopardy (1988) ...................................................................................................... 30 Double Jeopardy (1993) ...................................................................................................... 31 Double Jeopardy (1997) ...................................................................................................... 31 Double Jeopardy (1999) ...................................................................................................... 32 Double Jeopardy (1999) ...................................................................................................... 32 Double Jeopardy (2000) ...................................................................................................... 32 Double Jeopardy (2001) ...................................................................................................... 32 Double Jeopardy (2002) ...................................................................................................... 33

Double Jeopardy; Requisites (1999) ................................................................................. 33 Due Process; Absence of Denial (1999) ........................................................................... 33 Due Process; Deportation (1994)....................................................................................... 34 Due Process; Forfeiture Proceedings (1993) ................................................................... 35 Due Process; Media Coverage during Hearing (1996)................................................... 35 Due Process; Meeting vs. Hearing (1999)........................................................................ 35 Due Process; Notice by Publication (1988) ...................................................................... 35 Due Process; Permit to Carry Firearm Outside Residence (Q6-2006) ........................ 36 Due Process; PPA-Pilots (2001) ........................................................................................ 36 Due Process; Procedural vs. Substantive (1999)............................................................ 37 Due Process; Provisional Order (1991) ............................................................................ 37

Due Process; Public School Teachers (2002) ................................................................. 37 Due Process; Radio Station (1987) ................................................................................... 38 Due Process; Represented by a Non-Lawyer (1988) ..................................................... 38 Due Process; Substantive (2003) ...................................................................................... 38 Due Process; Suspension of Driver's License (1992)..................................................... 38 Due Process; Urgent Public Need (1987)......................................................................... 39 Eminent Domain; Garnishment (1994) .............................................................................. 39 Eminent Domain; Garnishment (1998) .............................................................................. 40 Eminent Domain; immunity from suit (2001) .................................................................... 40 Eminent Domain; Indirect Public Benefit (1990) .............................................................. 40 Eminent Domain; Just Compensation (1988) .................................................................. 40

Eminent Domain; Just Compensation (1989) .................................................................. 41 Eminent Domain; Just Compensation (1998) .................................................................. 41 Eminent Domain; Legal Interest (1993) ............................................................................ 41 Eminent Domain; Non-observance of the policy of "all or none" (2000)...................... 42 Eminent Domain; Power to Exercise (2005) .................................................................... 42 Eminent Domain; Public Use (1987).................................................................................. 42 Eminent Domain; Socialized Housing (1996)................................................................... 43 Eminent Domain; Writ of Possession (1993).................................................................... 43 Equal Protection; Alien Employment (1989)..................................................................... 44 Equal Protection; Invidious Discrimination (1987) ........................................................... 44 Equal Protection; Invidious Discrimination (1987) ........................................................... 45

Equal Protection; Police Power (2000).............................................................................. 45 Equal Protection; Right to Education (1994) .................................................................... 45 Equal Protection; Subsidiary Imprisonment (1989) ......................................................... 45 Freedom of Expression; Censorship (2003)..................................................................... 46 Freedom of Expression; Prior Restraint (1988) ............................................................... 46 Freedom of Religion; Convicted Prisoners (1989) .......................................................... 46 Freedom of Religion; Flag Salute (1997) .......................................................................... 47 Freedom of Religion; Flag Salute (2003) .......................................................................... 48 Freedom of Religion; Non-Establishment Clause (1988) ............................................... 48 Freedom of Religion; Non-Establishment Clause (1992) ............................................... 48




Freedom of Religion; Non-Establishment Clause (1997) ............................................... 49 Freedom of Speech; Ban on Tobacco AD (1992) ........................................................... 49 Freedom of the Press; Actual Malice (2004) .................................................................... 50 Freedom of the Press; Wartime Censorship (1987)........................................................ 50 Impairment Clause; Basic Human Rights (1992) ............................................................ 51 Involuntary Servitude (1993) ............................................................................................... 51 Liberty of Abode; Limitations (1998) .................................................................................. 51 Liberty of Abode; Temporary (1996).................................................................................. 52

Non-Imprisonment for Non-Payment of Debt (1993) ...................................................... 52 Police Power; Abatement of Nuisance (2004) ................................................................. 52 Police Power; Ban on Tobacco AD (1992) ....................................................................... 52 Police Power; Zoning Ordinance vs. Non-Impairment of Contracts (1989) ................ 53 Police Power; Zoning Ordinance vs. Non-Impairment of Contracts (2001) ................ 53 Privacy of Communication (2001) ...................................................................................... 53 Privacy of Correspondence (1998) .................................................................................... 54 Privacy of Correspondence; Jail (1989) ............................................................................ 54 Right to Assembly; Permit Application; Freedom Parks (Q2-2006).............................. 54 Right to Assembly; Permit Requirements (1992) ........................................................... 55 Right to Assembly; Public Teachers (2000) ..................................................................... 55

Right to Assembly; Public Teachers (2002) ..................................................................... 56 Right to Travel; Order of Arrest (1991).............................................................................. 56 Rights of the Accused; Counsel of his Choice (Q8-2005).............................................. 56 Rights of the Accused; Presumption of Innocence vs. Presumption of Theft (2004) 57Rights of the Accused; Right to Bail (1993) ...................................................................... 57Rights of the Accused; Right to Bail; Capital Offense (Q4-2006) .................................58Rights of the Accused; Right to Bail; Deportation Case (1989) .................................... 58Rights of the Accused; Right to Bail; Matter of Right or a Matter of Discretion (Q7-2005) ....................................................................................................................................... 58Rights of the Accused; Right to Speedy Trial (2000) ...................................................... 59Rights of the Accused; Self-Incrimination (1988) ............................................................ 59

Rights of the Accused; Self-Incrimination (1990) ............................................................ 59Rights of the Accused; Self-Incrimination (1992) ............................................................ 60Rights of the Accused; Self-Incrimination (2000) ............................................................ 60Rights of the Accused; Self-Incrimination (Q7-2006) ...................................................... 61Searches and Seizure; Private Individuals (Q8-2005)................................................... 61Searches and Seizures; Aliens (2001) .............................................................................. 61Searches and Seizures; Breathalyzer Test (1992).......................................................... 62Searches and Seizures; Immediate Control (1987) ........................................................ 62Searches and Seizures; Incidental to Valid Search (1990) ........................................... 62Searches and Seizures; Place of Search (2001)............................................................. 63Searches and Seizures; search made by a private citizen (1993)................................ 63

Searches and Seizures; search made by a private citizen (2002)................................ 64Searches and Seizures; Valid Warrantless Search (2000) ............................................ 64Searches and Seizures; Visual Search (1992) ................................................................ 65Searches and Seizures; Waiver of Consent (1989) ........................................................ 65Searches and Seizures; Warrantless Arrests (1993) ...................................................... 66Searches and Seizures; Warrants of Arrest (1991) ........................................................ 66

ARTICLE IV Cit izenship ..................................................................................................... 66

Action for Cancellation; Prescription & Effect of Death (1994)...................................... 66Citizenship; Elected Official (1993) .................................................................................... 67Dual Allegiance vs. Dual Citizenship (1987) .................................................................... 67




Dual Allegiance vs. Dual Citizenship (1988) .................................................................... 68Dual Citizenship (1994)........................................................................................................ 68Effect of Marriage; Filipino (1989) ..................................................................................... 69Effect of Oath of Allegiance (2004) .................................................................................... 69Effect of Repatriation (1999) ............................................................................................... 70Effect of Repatriation (2002) ............................................................................................... 70Effect of Repatriation (2003) ............................................................................................... 70Effects of Marriages (1999) ................................................................................................. 70

Effects of Philippine Bill of 1902 (2001) ............................................................................ 71Elected Official (1992).......................................................................................................... 71Electing Philippine Citizenship (Q8-2006) ........................................................................ 71Electing Philippine Citizenship; When Proper (Q8-2006)............................................... 72Natural Born Filipino (1989) ................................................................................................ 72Natural Born Filipino (1998) ................................................................................................ 72Natural-Born Filipino(1993) ................................................................................................. 73Naturalization; Cancellation of Citizenship (1998)........................................................... 73Residency Requirements; Elective Official (Q9-2005).................................................... 73Status; Illegitimate Child (1990).......................................................................................... 74Status; Illegitimate Child; Dual Citizenship (1996) .......................................................... 74

Status; Legitimate Child (2003) .......................................................................................... 74Ways of Reacquiring Citizenship (2000) ........................................................................... 75

ARTICLE VI Legis lat ive Department .............................................................................. 75 Appropriation of Public Funds (1988) ................................................................................ 75 Appropriation of Public Funds; Debt Servicing (1992).................................................... 75 Appropriation of Public Funds; Public Purposes (1988) ................................................. 75Commission on Appointments (2002) ............................................................................... 76Delegation of Powers (2002) .............................................................................................. 76Delegation of Powers; (Q6-2005)....................................................................................... 76Delegation of Powers; Completeness Test; Sufficient Standard Test (Q6-2005) ...... 77Discipline; Modes of Removal (1993)............................................................................... 77

Discipline; Suspension of a Member of the Congress (2002) ....................................... 77Elected Official; De Facto Officer (2004) .......................................................................... 78Electoral Tribunal; HRET Members’ Right & Responsibilities (2002) ..........................78Electoral Tribunal; Senate; Jurisdiction (1990) ................................................................ 79Foreign Affairs; Role of House of Rep (1996) .................................................................. 79Foreign Affairs; Role of Senate (1994) .............................................................................. 79Investigations in Aid of Legislation (1992) ........................................................................ 79Law Making; Process & Publication (1993) ...................................................................... 80Law-Making; Appropriation Bill (1996) .............................................................................. 80Law-Making; Appropriation Law; Automatic Renewal & Power of Augmentation(1998)...................................................................................................................................... 80

Law-Making; Appropriation Law; Rider Provision (2001) ............................................... 81Law-Making; Foreign Affairs; Treaties (1996) .................................................................. 81Law-Making; Overriding the Presidential Veto (1991) .................................................... 81Law-Making; Passage of a Law (1988) ............................................................................. 82Legislative Power; Pres. Aquino’s Time (1990) ............................................................... 82Legislative Powers (1989) ................................................................................................... 82Loans Extended to Members of Congress (1991)........................................................... 82Multi-Party System (1999) ................................................................................................... 83Non-Legislative Powers (1988) .......................................................................................... 83Non-Legislative Powers; Emergency Powers; Requisites (1997).................................83




Prohibitions and Inhibitions of Public Office (2004)......................................................... 83Qualifications; Congressmen (1988) ................................................................................. 84Qualifications; Congressmen; (1993) ................................................................................ 84Qualifications; Congressmen; (1999) ................................................................................ 85Separation of Powers (1988) .............................................................................................. 85Separation of Powers (2003) .............................................................................................. 85Three-Term Limit: Congressmen (1996)........................................................................... 86Three-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) .............................................. 90Cabinet Members; limitation on accepting additional duties (1996) ............................. 90

Calling-out Power; President (Q1-2006) ........................................................................... 91Declaration; State of Calamity; Legal Effects (Q1-2005)................................................ 91Declaration; State of National Emergency (Q1-2006) .................................................... 91Enter into Contract or Guarantee Foreign Loans (1994)................................................ 91Enter into Contract or Guarantee Foreign Loans (1999)................................................ 92Enter into Executive Agreements (2003) .......................................................................... 92Impose Tariff Rates, Import and Export Quotas (1999).................................................. 92Martial Law & Suspension of Writ of Habeas Corpus (1987) ........................................ 92Martial Law; Limitations (2000).......................................................................................... 93Martial Law; Sufficiency of the Factual Basis (Q3-2006)................................................ 94Pardoning Power; Amnesty (1993) .................................................................................... 95

Pardoning Power; Amnesty (1995) .................................................................................... 95Pardoning Power; Breach of Condition; Revocation (Q5-2005).................................... 95Pardoning Power; Exec Clemency; Pardon (1995)......................................................... 95Pardoning Power; Executive Clemency (1997) ............................................................... 96Pardoning Power; Executive Clemency (1999) ............................................................... 96Pardoning Power; Kinds (1988).......................................................................................... 96Pardoning Power; Pardon, Conditional (1997) ................................................................ 97President; Participation; Legislative Process (1996)....................................................... 97Presidential Immunity from Suit (1997) ............................................................................. 97Prohibition Against Multiple Positions & Additional Compensation (2002) .................97Prohibition against Multiple Positions by Gov’t Officials (1987) .................................... 98

Suspension of Writ of Habeas Corpus (1997).................................................................. 99 ARTICLE VIII Judicial Department .................................................................................... 99

Cases to be Heard En Banc; Supreme Court (1999)...................................................... 99Contempt Powers (1996)..................................................................................................... 99Finality of Void Judgments (1993)...................................................................................... 99Fiscal Autonomy (1999) ..................................................................................................... 100Function; Continuing Constitutional Convention (2000) ............................................... 100Issuance of Restraining Orders and Injunctions (1992) ............................................... 100Judicial & Bar Council (1988)............................................................................................ 101Judicial & Bar Council (1999)............................................................................................ 101




Judicial Department; Writ of Amparo (1991) .................................................................. 101Judicial Independence; Safeguard (2000) ...................................................................... 101Judicial Power (1989)......................................................................................................... 102Judicial Power (1992)......................................................................................................... 102Judicial Power (1998)......................................................................................................... 103Judicial Power; Scope (1994) ........................................................................................... 103Judicial Review; Locus Standi (1992).............................................................................. 104Judicial Review; Requisites (1994) .................................................................................. 104

Jurisdiction of HLURB (1993) ........................................................................................... 104Mandatory Period For Deciding Cases (1989)............................................................... 105Political Question (1995).................................................................................................... 105Political Question Doctrine (1997).................................................................................... 105Political Question: Separation of Powers (2004) ........................................................... 106Political Question; To Settle Actual Controversies (2004) ........................................... 106Political Questions (1988).................................................................................................. 106Pro Hac Vice Cases (1999)............................................................................................... 107Removal of Lower Court Judges (1993) ......................................................................... 107Review Executive Acts (1996) .......................................................................................... 107Supervision; Courts & its Personnel (Q5-2005) ............................................................. 108

Taxpayer's Suit; Locus Standi (1995).............................................................................. 108Term of Office; Justices (1996) ........................................................................................ 108Votes required for declaring a law unconstitutional (1996) .......................................... 109

ARTICLE IX Const itut ional Commissions .................................................................. 109

Rotational Scheme (1999)................................................................................................. 109Constitutional Commissions & Council (Q7-2006) ........................................................ 109

ARTICLE IX Civil Service Commission........................................................................ 109Career Service; Characteristics (1999) ........................................................................... 109Civil Service Commission vs. COA (2004) ..................................................................... 109Function of CSC (1994) ..................................................................................................... 110GOCCs Without Original Charter vs. GOCCs With Original Charter (1998).............110

Jurisdiction over the GOCCs (1999)................................................................................ 111Jurisdiction over the GOCCs (2003)................................................................................ 111Modes of Removal from Office (1993) ............................................................................ 111Receiving of Indirect Compensation (1997) ................................................................... 111Security of Tenure (1988).................................................................................................. 112Security of Tenure (Q5-2005) ........................................................................................... 112Security of Tenure; Meaning (1999) ................................................................................ 113

ARTICLE IX COMELEC .................................................................................................... 113

Electoral Tribunal; Functions & Composition (Q5-2006) .............................................. 113Fair Election; Equal Space & Time in Media (1989) ..................................................... 113Grant of Pardon in Election Offenses (1991) ................................................................. 114

Judicial Review of Decisions (2001) ................................................................................ 114Removal from Office; Commissioners (1998) ................................................................ 114Right to Vote; Jurisdiction (2001) ..................................................................................... 114

Election Laws ........................................................................................................................ 1142nd Placer Rule (2003) ..................................................................................................... 1142nd Placer Rule (1990) ...................................................................................................... 1152nd Placer Rule; in Quo Warranto Cases (1992) .......................................................... 1152nd Placer Rule; Rule of Succession (1996) ................................................................ 115

Appreciation of Ballots (1994)........................................................................................... 116Disqualification; Grounds (1991) ...................................................................................... 116




Requisites; Contracts Involving LGU (1991) .................................................................. 131Requisites; Contracts involving LGU (1995) .................................................................. 132Taxation; GOCC Liability For Real Estate Tax (1999) .................................................. 132Taxation; Sources of Revenue (1999)............................................................................. 132Withdrawal of Public Property from Public Use (1990) ................................................. 132

ARTICLE XI Accountabil ity of Publ ic Off icers ........................................................... 133 Abandonment of Office (2000).......................................................................................... 133Discipline; Clemency; Doctrine of Condonation (2000) ................................................ 133

Discipline; Effect of Pardon Granted in Favor of Public Officers (1999) ....................134Discipline; Preventive Suspension & Appeal; entitlement to salary pendente (2001)............................................................................................................................................... 134

Discipline; Preventive Suspension (1990) ...................................................................... 134Discipline; Preventive Suspension (2002) ...................................................................... 135Elective and Appointive Officials: disciplinary authority (2004) ................................... 135Elective Public Officer; De Facto Officer (2000) ............................................................ 135Elective Public Officers; De Facto Officer; effects (2004) ............................................ 136Graft and Corruption; Prescription of Crime (2002) ...................................................... 136Impeachment; Cronyism (2000) ....................................................................................... 137Impeachment; Grounds (1999)......................................................................................... 137

Impeachment; Nature; Grounds; PD 1606 (1988)......................................................... 137Law of Public Officers; Next-in-Rank Rule (1994) ......................................................... 137Liability For Damages in Performance of Official Functions (1990) ...........................138Local Elective Officials; Limitations On Additional Duties (1995) ............................... 139Ombudsman: Power to Suspend; Preventive Suspension (2004) ............................. 139Ombudsman; Power to Investigate (2003) ..................................................................... 139Ombudsman; Power to Suspend; Preventive Suspension (1996) ............................. 140Power to Issue Subpoena; validity of delegation (1989) .............................................. 140Prohibition On Elective Officer to Hold Public Office (2002) ........................................ 140Public Office; Public Trust (1998)..................................................................................... 140Retirement Benefits (1996) ............................................................................................... 141

ARTICLE XII National Economy and Patrimony ......................................................... 142 Acquisition and Lease of Public Lands (1998) ............................................................... 142 Acquisition of Lands (1987)............................................................................................... 142 Acquisition of Lands (2000)............................................................................................... 143 Acquisition of Lands by Hereditary Succession (2002) ................................................ 143 Acquisition of Lands; Citizenship issue (1989) .............................................................. 143 Acquisition of Lands; Citizenship issue (1994) .............................................................. 144 Acquisition of Lands; Citizenship issue (1995) .............................................................. 144 Acquisition of Lands; Prohibition; acquisition of private lands by aliens (1994) .......145Citizenship Requirement in Management of Advertising Industry (1989) .................145Engagement in Business & Exercise of Profession (1987).......................................... 145

Exploration and Development of Minerals (1994) ......................................................... 146Expropriation of Public Utilities (1992) ............................................................................ 146Lease of Private Agricultural Lands (2001) .................................................................... 146National Economy & Patrimony; Constitutional Prohibition (2004)............................. 147National Patrimony; definition (1999) .............................................................................. 147Nationalized Activities (1994)............................................................................................ 147Ownership Requirement of Mass Media (1989) ............................................................ 148Chinese citizens; engaging in retail trade (Q4-2006).................................................... 148Exploration, development, and utilization of natural resources (Q4-2006) ...............148

ARTICLE XIII Social Just ice and Human Rights ......................................................... 148




Agrarian Reform Law; Coverage (1992) ......................................................................... 148Commission on Human Rights; Power to investigate (1992) ...................................... 149Commission on Human Rights; Power to issue TRO (1997) ...................................... 149Commission on Human Rights; Power to issue TRO (2001) ...................................... 149Commission on Human Rights; Power; Limitations (Q4-2005) ................................... 150Labor; Right to Self-Organization (1988) ........................................................................ 151Labor; Right to Strike (1988) ............................................................................................. 151Labor; Right to Strike (1993) ............................................................................................. 151

Social Justice under the Present Constitution (1995)................................................... 152Women (2000)..................................................................................................................... 152

ARTICLE XIV Education, Science and Technology, Arts ......................................... 153Education; Academic Freedom (1987)............................................................................ 153Education; Academic Freedom (1989)............................................................................ 153Education; Academic Freedom (1993)............................................................................ 153Education; Academic Freedom; Extent (1999) .............................................................. 154Education; Alien Enrollees & Donors (1999) .................................................................. 154Education; Duties of State in Re Education (1999) ....................................................... 154Education; Flag Salute (1987) .......................................................................................... 155Education; Right to Choose Profession (2000) .............................................................. 155

Education; Right to Quality Education (2003) ................................................................ 156Education; Teaching of Religion (1999) .......................................................................... 156Education; Validity of Academic Requirements (1994) ................................................ 156

ARTICLE XVI General Provisions .................................................................................. 156General Provisions; Local Dialect (1987)........................................................................ 156

AFP; limitation on accepting additional duties (1996)................................................... 157 ARTICLE XVII Amendments or Revisions .................................................................... 157

People’s Initiative (2004) ................................................................................................... 157 Amendments and Revisions; Modes (1997) .................................................................. 157REFERENDUM vs. INITIATIVE (Q1-2005) .................................................................... 157

ARTICLE XVIII Transi tory Provisions .............................................................................. 158

Transitory Provisions; Foreign Military Bases (1996) ................................................... 158Transitory Provisions; Foreign Military Bases (1988) ................................................... 158

PUBLIC INTERNATIONAL LAW ........................................................................................ 158

Basic Principles in Public Int’l Law (1991) ...................................................................... 158Constitutive Theory vs. Declaratory Theory (2004)....................................................... 160Contiguous Zone vs. Exclusive Economic Zone (2004).............................................. 160Diplomatic Immunity (2000) .............................................................................................. 160Diplomatic Immunity (2001) .............................................................................................. 160Diplomatic Immunity (2003) .............................................................................................. 161Diplomatic Immunity (2004) .............................................................................................. 161Diplomatic Immunity; Ambassador (Q3-2005) ............................................................... 162

Diplomatic Immunity; Ambassadors (1990).................................................................... 162Diplomatic Immunity; Coverage (Q3-2005) .................................................................... 163Diplomatic Immunity; Diplomatic Envoy and Consular Officers (1995)...................... 164Diplomatic Immunity; Diplomatic Envoy and Consular Officers (1997)...................... 165Exclusive Economic Zone (2000)..................................................................................... 165Executive Agreements; Binding Effect (2003)................................................................ 165Extradition vs. Deportation (1993).................................................................................... 166Extradition; Doctrine of Specialty (1993)......................................................................... 166Extradition; Effectivity of treaty (1996)............................................................................. 166Extradition; Grounds (2002) .............................................................................................. 167




Extradition; Retroactive Application (Q2-2005) .............................................................. 167Flag State vs. Flag of Convenience (2004) .................................................................. 168Genocide (1988) ................................................................................................................. 168Human Rights (1999) ......................................................................................................... 168Human Rights; Civil and Political Rights (1992) ............................................................ 168Human Rights; Civil and Political Rights (1996) ............................................................ 169Int’l Court of Justice; Jurisdiction Over States................................................................ 170Int’l Court of Justice; Jurisdiction Over States (1994) ................................................... 170

Int’l Court of Justice; Limitations On Jurisdiction (1999) .............................................. 170Int’l Court of Justice; Parties; Pleadings and Oral Argument (1994) ..........................170International Convention; Law of the Sea (2004) .......................................................... 171International Court of Justice (Q9-2006) ......................................................................... 171International Law vs. Municipal Law; Territorial Principle; International Crimes (Q2-2005) ..................................................................................................................................... 171Mandates and Trust Territories (2003) ............................................................................ 172Municipal Law vs. International Law (2003) ................................................................... 173Neutrality of States (1988)................................................................................................. 173Outer Space; Jurisdiction (2003)...................................................................................... 174Principle of Auto-Limitation (Q10-2006) .......................................................................... 174

Reciprocity v. Principle of Auto-Limitation (Q10-2006) ................................................. 174Recognition of States; De Facto vs. De Jure Recognition (1998) .............................. 174Reparations Agreement; Validity (1992) ......................................................................... 175Right to Innocent Passage (1999).................................................................................... 175Right to Transit and Innocent Passage (2004) .............................................................. 176Rights and Obligation under UN Charter (1991)............................................................ 176Sources of International Law; Primary & Subsidiary Sources (2003) ........................ 177Sovereign Immunity of States; Absolute vs. Restrictive (1998) .................................. 177Sovereignty of States; Natural Use of Territory (1989) ................................................. 178Sovereignty; Definition; Nature (Q10-2006) ................................................................... 178State Liabilities (1995)........................................................................................................ 179

State Sovereignty; Effective Occupation; Terra Nullius (2000) ................................... 179Stateless Persons; Effects; Status; Rights (1995)......................................................... 179Territorial Sea vs. Internal Waters (2004) ....................................................................... 180Use of Force; Exceptions (2003)...................................................................................... 180Use of Force; Principle of Non-Intervention (1994) ....................................................... 181Use of Force; Right of Self-defense (2002) .................................................................... 182Use of Force; Self-Defense; Waging War (1998) .......................................................... 182Use of Force; When allowed (1988) ................................................................................ 183War; Combatants/ Prisoners of War vs. Mercenaries (1993) ...................................... 183Wilson doctrine vs. Estrada doctrine (2004) ................................................................... 184

ADMINISTRATIVE LAW ....................................................................................................... 184

Admin Law; Exhaustion of Administrative Remedies (1991)....................................... 184 Admin Law; Exhaustion of Administrative Remedies (2000)....................................... 184 Admin Law; Exhaustion of Administrative Remedies vs Doctrine of PrimaryJurisdiction (1996) .............................................................................................................. 185

Admin Law; Exhaustion of Administrative Remedies; Exceptions (1991) ................. 185 Admin Law; Judicial Review of Administrative Action (2001)...................................... 186 Admin Law; Judicial Review of Administrative Decisions (1988)................................ 186 Admin Law; Meaning of “Government of the Philippines” (1997) ............................... 187 Admin Law; Power of the President to Reorganize Administrative Structure (2003)............................................................................................................................................... 187




1987 CONSTITUTION OF THEPHILIPPINESPhil 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 recognitionsuch as, the prohibition against detention byreason of political beliefs and aspirations.The waiver of Miranda rights is nowrequired to be made in writing with theassistance of counsel. The use of solitary,incommunicado and secret detention placesis prohibited, while the existence ofsubstandard and inadequate penal facilitiesis made the concern of legislation.

2. There is also recognition of the right ofexpression, an express prohibition againstthe use of torture, a mandate to the State toprovide compensation and rehabilitation forvictims of torture and their families.

3. Some rights have been expanded. Forinstance, free access to courts nowincludes access to quasi-judicial bodies andto adequate legal assistance.

4. The requirements for interfering with somerights have been made more strict. Forinstance, only judges can now issue search

warrants or warrants of arrest. There mustbe a law authorizing the ExecutiveDepartment to interfere with the privacy ofcommunication, the liberty of abode, andthe right to travel before these rights maybe impaired or curtailed.

5. The Constitution now provides that thesuspension of the privilege of the writ ofhabeas corpus does not suspend the rightto bail, thus resolving a doctrinal dispute oflong standing.

6. The suspension of the privilege of the writ

of habeas corpus and the proclamation ofmartial law have been limited to sixty (60)days and are now subject to the power ofCongress to revoke. In addition, theSupreme Court is given the jurisdiction,upon the petition of any citizen to determinethe sufficiency of the factual basis of thesuspension of the privilege of the writ ofhabeas corpus and the proclamation ofmartial law.

7. The Supreme Court is empowered to adoptrules for the protection and enforcement ofconstitutional rights.

8. Art. II. Sec. 11 commits the State to a policywhich places value on the dignity of everyhuman person and guarantees full respectfor human rights.

9. A Commission on Human Rights is created.

10. Under Article XVI. Sec. 5(2) the State ismandated to promote respect for thepeople's rights among the members of themilitary in the performance 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. Forthis purpose, 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 theCongress or the legislative bodies after the

registration of a petition therefor, signed by atleast 10% of the total number of registeredvoters, of which every legislative district mustbe represented by at least 3% of the registeredvoters. (Id., sec. 32) The Constitution alsoprovides that through initiative, upon a petitionof at least 12% of the total numbers ofregistered voters, of which every legislativedistrict must be represented by at least 3% ofthe registered voters therein, amendments tothe Constitution may be directly proposed bythe people.

Art, XIII, sec. 15 states that the state shallrespect the role of independent people'sorganization to enable them to pursue andprotect, within the democratic framework, theirlegitimate and collective interests andaspirations through peaceful lawful means. Forthis purpose, the Constitution guarantees tosuch organizations the right to participate at alllevels of social, political and economic decision-making and the state is required to validate the




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


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

SUGGESTED ANSWER:

Yes, the concept of People Power is recognizedin the Constitution.Under Section 32. Article VI of the Constitution,through initiative and referendum, the peoplecan directly propose and enact laws or approveor reject any act or law or part thereof passedby the Congress or local legislative body afterthe registration of a petition therefor signed byat least ten per centum of the total number ofregistered voters, of which every legislativedistrict must be represented by at least threeper centum of the registered voters thereof.

Under Section 16, Article XIII of theConstitution, the right of the people and theirorganizations to effective and reasonableparticipation at all levels of social, political andeconomic 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 throughinitiative upon a petition of at least twelve percentum of the total number of registered voters,

of which every legislative district must berepresented by at least three per centum of theregistered voters therein.


No I - Is "people power" recognized by the1987 Constitution? Explain fully.

SUGGESTED ANSWER:

"People power" is recognized in theConstitution.

Article III, Section 4 of the 1987 Constitution

guarantees the right of the people peaceable toassemble and petition the government forredress of 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 anyact or law or part of it passed by Congress or alocal legislative body.

Article XIII, Section 16 of the 1987 Constitutionprovides that the right of the people and theirorganizations to participate at all levels ofsocial, political, and economic decision-makingshall not be 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 animplementing law, the people may directlypropose amendments to the Constitutionthrough initiative.

Nature of the Constitution: ConstitutionalSupremacy (2004)(10-a) BNN Republic has a defense treaty with

EVA Federation. According to the Republic'sSecretary of Defense, the treaty allowstemporary basing of friendly foreign troops incase of training exercises for the war onterrorism. The Majority Leader of the Senate

contends that whether temporary or not, thebasing of foreign troops however friendly isprohibited by the Constitution of BNN whichprovides that, "No foreign military bases shallbe allowed in BNN territory."In case there is indeed an irreconcilable conflictbetween a provision of the treaty and aprovision of the Constitution, in a jurisdictionand legal system like ours, which shouldprevail: the provision of the treaty or of theConstitution? Why? Explain with reasons,briefly. (5%)SUGGESTED ANSWER:In case of conflict between a provision of atreaty and a provision of the Constitution, theprovision of the Constitution should prevail.Section 5(2)(a), Article VIII of the 1987Constitution authorizes the nullification of atreaty when it conflicts with the Constitution.(Gonzales v. Hechanova, 9 SCRA 230 [1963]).

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

(2.5%)SUGGESTED ANSWER:The principal identifying feature of a presidentialform of government is embodied in theseparation of powers doctrine. Eachdepartment of government exercises powersgranted to it by the Constitution and may notcontrol, interfere with or encroach upon the actsdone within the constitutional competence ofthe others. However, the Constitution also giveseach department certain powers by which it




may definitely restrain the others fromimprovident action, thereby maintaining asystem of checks and balances among them,thus, preserving the will of the sovereignexpressed 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 thelegislative and executive branches inparliament; the prime minister, who is the headof government, and the members of thecabinet, are chosen from among the membersof parliament and as such are accountable tothe latter; and the prime minister may beremoved from office by a vote of loss ofconfidence of parliament. There may be a headof state who may or may not be elected.

ARTICLE I National Territory Archipelag ic Doctr ine (1989)No. 20: What do you understand by thearchipelagic doctrine? Is this reflected in the1987 Constitution?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, itrequires that baselines be drawn by connectingthe appropriate points of the "outermost islands

to encircle the islands within the archipelago.The waters on the landward side of thebaselines regardless of breadth or dimensionsare merely internal 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

the exclusive economic zone.SUGGESTED ANSWER:CONTIGUOUS ZONE is a zone contiguous tothe territorial sea and extends up to 12 nauticalmiles from the territorial sea and over which thecoastal state may exercise control 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 andmanaging the natural resources, whether livingor nonliving, of the waters superjacent to theseabed and of the seabed and subsoil, and withregard to other activities for the economicexploitation and exploration of the zone.(Articles 56 and 57 of the Convention on theLaw 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 milesfrom the Philippine sea coasts on the conditionthat Filipino fishermen be allowed to use Thaifishing equipment and vessels, and to learnmodern technology in fishing and canning.

1) Is the agreement valid?

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

memorandum of agreement allowing Thaifishermen to fish within the exclusive economiczone of the Philippines, because theConstitution reserves to Filipino citizens the useand enjoyment of the exclusive economic zoneof the Philippines.

Section 2. Article XII of the Constitutionprovides: “The State shall protect the nation'smarine part in its archipelagic waters, territorialsea, and exclusive economic zone, and reserveits use and enjoyment to Filipino citizens."

Section 7, Article XIII of the Constitutionprovides: "The State shall protect the rights ofsubsistence fishermen, especially of localcommunities, to the preferential use of thecommunal marine and fishing resources, bothinland and offshore. It shall provide support tosuch fishermen through appropriate technologyand research, adequate financial, production,and marketing assistance, and other services.The State shall also protect, develop, andconserve such resources. The protection shallextend to offshore fishing grounds of




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 statein the exclusive economic zone. (3%)

ALTERNATIVE ANSWER:In the EXCLUSIVE ECONOMIC ZONE, thecoastal State has sovereign rights for thepurpose of exploring and exploiting, conservingand managing the natural resources, whetherliving or non-living, of the waters superjacent tothe seabed and of the seabed and its subsoil,and with regard to other activities for theeconomic exploitation and exploration of thezone, such as the production of energy from thewater, currents and winds in an area notextending more than 200 nautical miles beyondthe baseline from which the territorial sea is

measured. Other rights include the productionof energy from the water, currents and winds,the establishment and use of artificial islands,installations and structures, marine scientificresearch and the protection and preservation ofthe 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 livingor non-living, of the seabed and subsoil and the

superjacent 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 artificial

islands, installations and structures;(2) marine scientific research; and(3) the protection and preservation of the

marine environment.

Flag State vs. Flag of Convenience (2004)(2-a-3) Distinguish: The flag state and the flag

of convenience.SUGGESTED ANSWER:FLAG STATE means a ship has the nationalityof the flag of the state it flies, but there must bea genuine link between the state and the ship.(Article 91 of the Convention on the Law of the Sea.)

FLAG OF CONVENIENCE refers to a state withwhich a vessel is registered for various reasons

such as low or non-existent taxation or lowoperating costs although the ship has nogenuine link with that state. (Harris, Cases andMaterials on International Law, 5th ed., 1998, p. 425.)

Territory & Government (1996)No. 8: A law was passed dividing thePhilippines into three regions (Luzon, Visayas,and Mindanao), each constituting an

independent state except on matters of foreignrelations, national defense and nationaltaxation, 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 Philippinesinto three states.

Second, it violates Section 1, Article II of theConstitution, which provides for theestablishment of democratic and republicStates by replacing it with three Statesorganized 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 theCordilleras within the framework of nationalsovereignty as well as territorial integrity of theRepublic of the Philippines.

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.SUGGESTED ANSWER:TERRITORIAL SEA is an adjacent belt of seawith a breadth of 12 nautical miles measuredfrom the baselines of a state and over which thestate has sovereignty. (Articles 2 and 3 of theConvention on the Law of the Sea.) Ship of allstates 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 1987Constitution, the INTERNAL WATERS of thePhilippines consist of the waters around,between and connecting the islands of thePhilippine Archipelago, regardless of theirbreadth and dimensions, including the waters in

bays, rivers and lakes. No right of innocentpassage for foreign vessels exists in the case ofinternal waters. (Harris, Cases and Materials onInternational 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.)

ARTICLE II Declaration ofPrincip les 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 Presidentbut of the people and should not commit

abuses against the people. (Record of theConstitutional Commission, Vol. V, p. 133.) Thisprovision is specifically addressed to the ArmedForces of the Philippines and not to thePhilippine National Police, because the latter isseparate and distinct from the former. (Recordof the Constitutional Commission, Vol. V, p. 296;Manalo v. Sistoza. 312 SCR A 239 [1999].)SECOND ALTERNATIVE ANSWER:

Article II, Section 3 of the 1987 Constitution canbe interpreted to mean that the Armed Forcesof the Philippines can be a legitimate instrument

for the overthrow of the civilian government if ithas ceased to be the servant of the people.(Bernas, The 1987 Constitution of the Philippines:

A Commentary, 2003 ed., p. 66.) This provisiondoes not 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; ConstitutionalLaw (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 ofthe law 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 generallyaccepted principles of international law as partof the law of the 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 amongothers that Congress could not pass legislationthat will be good for our national interest andgeneral welfare if such legislation will notconform with the WTO Agreements. Refute thisargument. (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 of

treaty limitations. Section 2. Article II of theConstitution adopts the generally acceptedprinciples of international law as part of the lawof the land. One of such principles is pacta suntservanda. The Constitution did not envision ahermit-like isolation of the country from the restof the world.

Freedom from Nuclear Weapons; ForeignMilitary Bases (1988)No. 22: The Secretary of Justice had recentlyruled that the President may negotiate for amodification or extension of military bases

agreement with the United States regardless ofthe "no nukes" provisions in the 1987Constitution. The President forthwithannounced that she finds the same opinion"acceptable" and will adopt it. The Senators onthe other hand, led by the Senate President,are skeptical, and had even warned that notreaty or international agreement may go intoeffect without the concurrence of two-thirds ofall members of the Senate.




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,and without any basis at all."Do you or do you not agree with theaforementioned ruling of the Department 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 Agreementin 1991, it must be "under a treaty dulyconcurred in by the Senate and, when theCongress so requires, ratified by a majority ofthe votes cast by the people in a nationalreferendum." (Art. XVIII, sec. 25) A mereagreement, therefore, not a treaty, without theconcurrence of at least 2/3 of all the members

of the Senate will not be valid (Art. VII, sec. 21, Art. XVIII, sec. 4). With respect to the provisionallowing nuclear weapons within the bases, theConstitution appears to ban such weapons fromthe Philippine territory. It declares as a statepolicy that "the Philippines, consistent with thenational interest, adopts and pursues a policy offreedom from nuclear weapons in its territory."(Art, II, sec. 8) However, the deliberations of theConstitutional Commission would seem toindicate that this provision of the Constitution is"not something absolute nor 100 percent

without exception." It may therefore be thatcircumstances 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 the

Philippine 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 colorscheme of the flag as stated in the Constitution,and the flag is consecrated and honored by thepeople. 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 civiliansupremacy:a. Civilian authority is at all times supreme

over the military. [Article II, Section 3]b. The installation of the President, the

highest civilian authority, as theCommander-in-Chief of the military. [Ar-ticle VII, Section 18]

c. The requirement that members of the AFP swear to uphold and defend theConstitution, which is the fundamental lawof the civil government. [Article XVI,Section 5(1)]

d. The requirement that members of the AFP shall have respect for people's rightsin the performance of their duty. [ArticleXVI, Section 5(2)]

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

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

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

h. Compulsory retirement of officers without

extension of service. [Article XVI, Section5(5)]i. Requirement of proportional recruitment

from all provinces and cities, so as toavoid any regional clique from formingwithin the AFP. [Article XVI, Section 5(7)]

j. A 3-year limitation on the tour of duty ofthe Chief of Staff, which althoughextendible in case of emergency by thePresident, depends on Congressionaldeclaration of emergency. [Article XVI,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




seeking payment for a parcel of land which thenational government utilized for a road wideningproject.(1) Can the government invoke the doctrine of

non-suitability of the state?(2) In connection with the preceding question,

can the property owner garnish publicfunds to satisfy his claim for payment?Explain your answers.

SUGGESTED ANSWER:(1) No, the government cannot invoke thedoctrine of state of immunity from suit. As heldin Ministerio vs. Court of First Instance of Cebu,40 SCRA 464, when the governmentexpropriates property for public use withoutpaying just compensation, it cannot invoke itsimmunity from the suit. Otherwise, the rightguaranteed in Section 9, Article III of the 1987Constitution that private property shall not betaken for public use without just compensationwill be rendered nugatory.

(2) No, the owner cannot garnish public fundsto satisfy his claim for payment, Section 7 of ActNo. 3083 prohibits execution upon any

judgment against the government. As held inRepublic vs. Palacio, 23 SCRA 899, even if thegovernment may be sued, it does not follow thatits properties may be seized under execution.

ALTERNATIVE ANSWER:(2) No, funds of the government on deposit inthe bank cannot be garnished for two reasons:1. Under Art. II, Sec. 29 (1) public funds

cannot be spent except in pursuance of an

appropriation made by law, and2. essential public services will be impaired iffunds of the government were subject toexecution, (Commissioner of PublicHighways vs. San Diego, 31 SCRA 616(1970)). The remedy of the prevailing partyis to have the judgment credit in his favorincluded in the general appropriations lawfor the next year.

State Immunity from Suit (1994)No. 6; Johnny was employed as a driver by theMunicipality of Calumpit, Bulacan. While driving

recklessly a municipal dump truck with its loadof sand for the repair of municipal streets,Johnny hit a jeepney. Two passengers of the

jeepney were killed.

The Sangguniang Bayan passed an ordinanceappropriating P300,000 as compensation forthe heirs of the victims.1) Is the municipality liable for the negligence

of Johnny?2) Is the municipal ordinance valid?

SUGGESTED ANSWER:1) Yes, the Municipality of Calumpit is liable forthe negligence of its driver Johnny. UnderSection 24 of the Local Government Code, localgovernment units are not exempt from liabilityfor death or injury to persons or damage toproperty.

ALTERNATIVE ANSWER:No, the municipality is not liable for the

negligence of Johnny, the prevailing rule in thelaw of municipal corporations is that amunicipality is not liable for the torts committedby its regular employees in the discharge ofgovernmental functions. The municipality isanswerable only when it is acting in aproprietary capacity.

In the case at bar, Johnny was a regularemployee of the Municipality of Calumpit asdriver of its dump truck; he committed a tortiousact while discharging a governmental functionfor the municipality, ie., driving recklessly the

said truck loaded with sand for the repair ofmunicipal streets. Undoubtedly then, Johnny asdriver of the dump truck was performing a dutyor task pertaining to his office. The constructionor maintenance of public streets are admittedlygovernmental activities. At the time of theaccident, Johnny was engaged in the dischargeof governmental functions.

Hence, the death of the two passengers of the jeepney -tragic and deplorable though it may beimposed on the municipality no duty to pay

monetary compensation, as held in Municipalityof San. Fernando v. Firme, 195 SCRA 692.

State Immunity from Suit (1992)No. 9: The Northern Luzon Irrigation Authority(NLIA) was established by a legislative charterto strengthen the irrigation systems that supplywater to farms and commercial growers in thearea. While the NLIA is able to generaterevenues through its operations, it receives anannual appropriation from Congress. The NLIAis authorized to "exercise all the powers of acorporation under the Corporation Code."

Due to a miscalculation by some of itsemployees, there was a massive irrigationoverflow causing a flash flood in Barrio Zanjera.

A child drowned in the incident and his parentsnow file suit against The NLIA for damages.

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,179 SCRA 685 and 194 SCRA 486, irrigation isa proprietary function. Besides, the NorthernLuzon Irrigation Authority has a juridicalpersonality separate and distinct from thegovernment, a suit against it is not a suitagainst the State. Since the waiver of the

immunity from suit is without qualification, asheld in Rayo vs. Court of First Instance ofBulacan, 110 SCRA 456, the waiver includesan action based on a quasi-delict.

State Immunity from Suit (1999) A. 1.) What do you understand by stateimmunity from suit? Explain. (2%)

2.) How may consent of the state to besued be given? Explain. (2%)SUGGESTED ANSWER:1.) STATE IMMUNITY FROM SUIT meansthat the State cannot be sued without its

consent. A corollary of such principle is thatproperties used by the State in the performanceof its governmental functions cannot be subjectto judicial execution.

2.) Consent of the State to be sued may bemade expressly as in the case of a specific,express provision of law as waiver of Stateimmunity from suit is not inferred lightly (e.g. C.A.

327 as amended by PD 1445} or impliedly as whenthe State engages in proprietary functions (U.S.

v. Ruiz, U.S. v. Guinto) or when it files a suit in

which case the adverse party may file acounterclaim (Froilan v. Pan Oriental Shipping) orwhen the doctrine would in effect be used toperpetuate 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,65 SCRA 416, the Philippine Tobacco

Administration is not liable for overtime pay,since it is performing governmental functions.

Among its purposes are to promote theeffective merchandising of tobacco so thatthose engaged in the tobacco industry will haveeconomic 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 the

Philippines for damages caused his yacht,which was rammed by a navy vessel.

(b) "X" also sued in another case theSecretary of Public Works and the

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

The Solicitor General moved to dismiss the twocases invoking state immunity from suit Decide.SUGGESTED ANSWER:(a) The government cannot be sued fordamages considering that the agency whichcaused the damages was the Philippine Navy.Under Art. 2180 of the Civil Code, the state

consents to be sued for a quasi-delict onlywhen the damage is caused by its specialagents. Hence, the Solicitor General's motionshould be granted and the suit brought 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 privateproperty without the benefit of expropriationproceeding, "The doctrine of governmental

immunity from suit cannot serve as aninstrument for perpetrating an injustice on acitizen. . . . When the government takes anyproperty for public use, which is conditionalupon the payment of just compensation, to be

judicially ascertained, it makes manifest that itsubmits to the jurisdiction of the court." TheSolicitor General's motion to dismiss should,therefore, be denied.

State Immunity vs. Waiver of Immunity(1997)No, 6: It is said that "waiver of immunity by the

State does not mean a concession of itsliability". What are the implications of thisphrase?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 doesnot necessarily 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




prove that the State is liable but the Stateretains the right to raise all lawful defenses.

State Immunity from Suit (1993)No 19: Devi is the owner of a piece of land.Without prior expropriation or negotiated sale,the national government used a portion thereoffor the widening of the national highway. Devifiled a money claim with the Commission on

Audit which was denied. Left with no otherrecourse, Devi filed a complaint for recovery ofproperty and/or damages against the Secretaryof Public Works and Highways and theRepublic of the Philippines, The defendantmoved for dismissal of the complaintcontending that the government cannot be suedwithout its consent. The RTC dismissed thecomplaint. On appeal, how would you decidethe case.SUGGESTED ANSWER:The order dismissing the complaint should bereversed. In Ministerio v. Court of First Instance

of Cebu, 40 SCRA 464, it was held that whenthe government takes property from a privatelandowner without prior expropriation ornegotiated sale, the landowner may maintain asuit against the government without violatingthe doctrine of government Immunity from suit.The government should be deemed to havewaived impliedly its immunity from suit.Otherwise, the constitutional guarantee thatprivate property shall not be taken for publicuse without just compensation will be renderednugatory.

State Principles & Policies (1994)No. 1; What is the state policy on:a) working women?b) ecology?c) the symbols of statehood?d) cultural minorities?e) science and technology?

SUGGESTED ANSWER:a) Section 14, Article XIII of the Constitutionprovides: "The State shall protect WORKINGWOMEN by providing safe and healthful

working conditions, taking into account theirmaternal functions, and such facilities andopportunities that will enhance their welfare andenable them to realize their full potential in theservice of the nation."

b) Section 16, Article II of the Constitutionprovides: The State shall protect and advancethe right of the people and their posterity to abalanced and healthful ECOLOGY in accordwith the rhythm and harmony of nature."

c) Section 1, Article XVII of the Constitutionprovides: "The FLAG OF THE PHILIPPINES shall be red, white, and blue, with a sun andthree stars, as consecrated and honored by thepeople and recognized by law."

Section 2, Article XVI of the Constitution states:The Congress may by law, adopt a new name

for the country, a national anthem, or a nationalseal, which shall all be truly reflective andsymbolic of the ideals, history, and traditions ofthe people. Such law shall take effect only uponits ratification by the people in a nationalreferendum."

d) Section 22, Article II of the Constitutionprovides: The State recognizes and promotesthe rights of INDIGENOUS CULTURALCOMMUNITIES within the framework ofnational unity and development."

Section 5, Article XII of the Constitution reads:The State, subject to the provisions of thisConstitution and national development policiesand programs, shall protect the rights ofindigenous cultural communities to theirancestral lands to ensure their economic, socialand cultural well-being.

The Congress may provide for the applicabilityof customary laws governing property rights orrelations in determining the ownership andextent of the ancestral domains."

Section 6, Art. XIII of the Constitution provides:The State shall apply the principles of

AGRARIAN REFORM or stewardship,whenever applicable in accordance with law, inthe disposition or utilization of other naturalresources, including lands of the public domainunder lease or concession suitable toagriculture, subject to prior rights, homesteadrights of small settlers, and the rights ofindigenous communities to their ancestrallands.

The State may resettle landless farmers andfarm workers in its own agricultural estateswhich shall be distributed to them in the mannerprovided by law."

Section 17. Article XIV of the Constitutionstates: "The State shall recognize, respect andprotect the rights of indigenous culturalcommunities to preserve and develop theircultures, traditions, and institutions. It shall




consider these rights in the formulation ofnational plans and policies."

e) Section 17, Article II of the Constitutionprovides: "The State shall give priority toEDUCATION, SCIENCE and TECHNOLOGY,

ARTS, CULTURE, and SPORTS to fosterpatriotism and nationalism, accelerate socialprogress, and promote total human liberation

and development."

Section 14, Article XII of the Constitution readsin part: "The sustained development of areservoir of NATIONAL TALENTS consisting ofFilipino scientists, entrepreneurs, professionals,managers, high-level technical manpower andskilled workers and craftsmen shall bepromoted by the State, The State shallencourage appropriate technology and regulateIts transfer for the national benefit.

Sub-section 2, Section 3. Article XIV of the

Constitution states: "They (EDUCATIONALINSTITUTIONS) shall inculcate patriotism andnationalism, foster love of humanity, respect forhuman rights, appreciation of the role ofnational heroes in the historical development ofthe country, teach the rights and duties ofcitizenship, strengthen ethical and spiritualvalues, develop moral character and personaldiscipline, encourage critical and creativethinking, broaden scientific and technologicalknowledge, and promote vocational efficiency."

Section 10. Article XIV of the Constitutiondeclares: "SCIENCE and TECHNOLOGY areessential for national development andprogress. The State shall give priority toresearch and development, invention,innovation, and their utilization; and to scienceand technology education, training, services. Itshall support indigenous, appropriate, and self-reliant scientific and cultural capabilities, andtheir application to the country's productivesystems and national life."

Section 11, Article XIV of the Constitution

provides: "The Congress may provide forincentives, including TAX DEDUCTIONS, toencourage private participation in programs ofbasic and applied scientific research.Scholarships, grants-in-aid or other forms ofIncentives shall be provided to deservingscience students, researchers, scientists,investors, technologists, and specially giftedcitizens."

Section 12, Article XIV of the Constitutionreads: The State shall regulate the transfer andpromote the adaptation of technology from allsources for the national benefit. It shallencourage widest participation of privategroups, local governments, and community-based organizations in the generation andutilization of science and technology."

NOTE: It is suggested that if an examinee gave a substantiveanswer without giving the exact provisions of the Constitution,then he should be given full credit. Further, one provisionquoted/discussed by the examinee should be sufficient for himto be given full credit.

Transparency; Matters of Public Interest(1989) No. 3: Does the 1987 Constitution provide for apolicy of transparency in matters of publicinterest? Explain.SUGGESTED ANSWER:Yes, the 1987 Constitution provides for a policyof transparency in matters of public interest.

Section 28, Article II of the 1987 Constitutionprovides:1. "Subject to reasonable conditions

prescribed by law, the State adopts andimplements a policy of full disclosure of allits transactions involving public interest,"

2. Section 7, Article III of the 1987 Constitutionstates: "The right of the people toinformation on matters of public concernshall be recognized, Access to officialrecords, and to documents, and paperspertaining to official acts, transactions, ordecisions, as well as to governmentresearch data used as basis for policydevelopment, shall be afforded the citizen,subject to such limitations as may beprovided by law."

3. Section 20, Article VI of the 1987Constitution reads: "The records and booksof account of the Congress shall bepreserved and be open to the public inaccordance with law, and such books shallbe audited by the Commission on Audit

which shall publish annually an itemized listof amounts paid to and expenses incurredfor each member."

4. Under Section 17, Article XI of the 1987Constitution, the sworn statement of assets,liabilities and net worth of the President, theVice-President, the Members of theCabinet, the Congress, the Supreme Court,the Constitutional Commission and otherconstitutional offices, and officers of the




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

5. Section 21, Article XII of the Constitutiondeclares: "Information on foreign loansobtained or guaranteed by the governmentshall be made available to the public."

6. As held in Valmonte vs. Belmonte, G.R. No.74930, Feb. 13, 1989, these provisions onpublic disclosures are intended to enhancethe role of the citizenry in governmentaldecision-making as well as in checkingabuse in government.

Transparency; Matters of Public Interest(2000)No V. State at least three constitutionalprovisions reflecting the State policy ontransparency in matters 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 conditionsprescribed by law, the State adopts andImplements a policy of full public disclosure ofall its transactions involving public interest."(Section 28, Article II)

2. The right of the people to information on

matters of public concern shall be recognized. Access to official records, and to documents,and papers pertaining to official acts,transactions, or decisions, as well as togovernment research data used as basis forpolicy development, shall be afforded to citizen,subject to such limitations as may be providedby law." (Section 7, Article III)

3. The records and books of accounts of theCongress shall be preserved and be open tothe public in accordance with law, and suchbooks shall be audited by the Commission on

Audit which shall publish annually an itemizedlist of amounts paid to and expenses incurredfor each Member." (Section 20. Article VI)

4. The Office of the Ombudsman shall havethe following powers, functions, and duties:XXX XXX

(6) Publicize matters covered by itsinvestigation when circumstances sowarrant and with due prudence,"(Section 12, Article XI)

5. "A public officer or employee shall, uponassumption of office, and as often as thereaftermay be required by law, submit a declarationunder oath of his assets, liabilities, and networth. In the case of the President, the VicePresident, the Members of the Cabinet, theCongress, the Supreme Court, theConstitutional Commissions and other

constitutional offices, and officers of the armedforces with general or flag rank, the declarationshall be disclosed to the public in the mannerprovided 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 ofthe policy is to protect the people fromabuse of governmental power. If accessto information of public concern is

denied, the postulate "public office is apublic trust" would be mere emptywords.{Note: The examinee should be givenfull credit if he 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 all

officials from the rank of assistant head ofa department, bureau, office or agency"Unfit" for continued service in thegovernment and declared their respectivepositions vacant.

(b) Another provision required all the otherofficials and employees to take an oath ofloyalty to the flag and government as acondition for their continued employment.

Are the two provisions valid? Why?SUGGESTED ANSWER:(a) The law is a bill of attainder by whichCongress, by assuming judicial magistracy, ineffect declares all officials and employeesduring martial law (September 21, 1972-February 25, 1986) as disloyal and, on thisbasis, removes some while subjecting others toa 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 onlyby the President and only up to February 25,1987. Since the law under question waspresumably passed after February 25, 1987and 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 isnot a general requirement but singles out"martial law" employees and therefore isadministered in a discriminatory manner.Loyalty, therefore, while a relevantconsideration in other circumstances, is beingemployed 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-gottenwealth of the late President Marcos, hisrelatives and cronies. Executive Order No. 14vests on the Sandiganbayan jurisdiction to tryhidden wealth cases. On April 14, 1986, afteran investigation, the PCGG sequestered theassets of X Corporation, Inc.(1) X Corporation, Inc. claimed that President

Aquino, as President, could not lawfullyissue Executive Orders Nos. 1, 2 and 14,

which have the force of law, on the groundthat legislation is a 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 alegislative act which inflicts punishment without

judicial trial. Accordingly, it was held in BataanShipyards and Engineering company. Inc. v.Presidential Commission on Good Government,that Executive Orders Nos. 1, 2 and 14 are notbills of attainder, because they do not inflict anypunishment. On the contrary, they expresslyprovide that any judgment that the propertysequestered is ill-gotten wealth is to be madeby a court (the Sandiganbayan) only after trial.

Custodial Investigation; ExtrajudicialConfession (2001)No IX - Rafael, Carlos and Joseph wereaccused of murder before the Regional TrialCourt of Manila. Accused Joseph turned statewitness against his co-accused Rafael andCarlos, and was accordingly discharged fromthe information. Among the evidence presented

by the prosecution was an extrajudicialconfession made by Joseph during thecustodial Investigation, implicating Rafael andCarlos who, he said, together with him(Joseph), committed the crime. Theextrajudicial confession was executed withoutthe assistance of counsel.

Accused Rafael and Carlos vehementlyobjected on the ground that said extrajudicialconfession was inadmissible in evidenceagainst them.

Rule on whether the said extrajudicialconfession is 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,with more reason it should be inadmissibleagainst others.

Custodial Investigation; ExtrajudicialConfession; Police Line-Up (1994)No. 10: An information for parricide was filedagainst Danny. After the NBI found aneyewitness to the commission of the crime.Danny was placed in a police line-up where hewas identified as the one who shot the victim.

After the line-up, Danny made a confession to anewspaper reporter who interviewed him.1) Can Danny claim that his identification by

the eyewitness be excluded on the groundthat the line-up was made without benefitof his counsel?

2) Can Danny claim that his confession beexcluded 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 SCRA1, the accused is not entitled to be assisted bycounsel during a police line-up, because it isnot part of custodial investigation.

ALTERNATIVE ANSWER;

Yes, in United States v. Wade, 338 U.S. 218(1967) and Gilbert v. California, 338 U.S. 263(1967). it was held that on the basis of theSixth, rather than the Fifth Amendment(equivalent to Art. III, Sec. 14 (2) rather thanSec. 12(1)), the police line-up is such a criticalstage that it carries "potential substantialprejudice" for which reason the accused isentitled to the assistance of Counsel.

2) No. Danny cannot ask that his confession toa newspaper 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 threeteenagers who forcibly divested her of herwatch, necklace and wallet containing P100.00.That done, the trio jumped off the passenger

jeep and fled. B, the jeep driver, and A

complained to the police to whom they gavedescription of the culprits. According to the jeepdriver, he would be able to identify the culprits ifpresented to him. Next morning A and B weresummoned to the police station where fivepersons were lined up before them foridentification. A and B positively identified Cand 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, indefense, the illegality of their apprehension,arrest and confinement based on the

identification made of them by A and B at apolice line-up at which they were not assistedby counsel. How would you resolve the issuesraised by C and D?SUGGESTED ANSWER:The arguments of the accused are untenable.

As held in People vs. Acot, 232 SCRA 406, thewarrantless arrest of accused robbersImmediately after their commission of the crimeby police officers sent to look for them on thebasis of the information related by the victims is

valid under Section 5(b).Rule 113 of the Ruleson Criminal Procedure. According to People vs.Lamsing, 248 SCRA 471, the right to counseldoes not extend to police line-ups, becausethey are not part of custodial investigations.However, according to People vs. Macan 238SCRA 306, after the start of custodialinvestigation, if the accused was not assistedby counsel, any identification of the accused in

a police line-up is inadmissible.

Custodial Investigation; Right to Counsel(1988)No. 15: Armando Salamanca, a notorious policecharacter, came under custodial investigationfor a robbery in Caloocan City. From the outset,the police officers informed him of his right toremain silent, and also his right to have acounsel of his choice, if he could afford one or ifnot, the government would provide him withsuch counsel.

He thanked the police investigators, anddeclared that he fully understands the rightsenumerated to him, but that, he is voluntarilywaiving them. Claiming that he sincerelydesires to atone for his misdeeds, he gave awritten statement on his participation in thecrime 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

evidence of his guilt. If you were his counsel,what would you do? Explain your answer.SUGGESTED ANSWER:I would object to it on the ground that the 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,135 SCRA 465 (1980). The waiver must also bein writing, although this requirement mightpossibly have been complied with in this caseby embodying the waiver in the writtenconfession. It should also be noted that underRule 134, sec. 3, even if the extrajudicial

confession is valid, it is not a sufficient groundfor conviction if it is not corroborated byevidence 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 makatulongmo sa 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 madewithout the 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 rulingin People v. Duero, 104 SCRA 379, he shouldhave been warned also that he has the right toremain silent and that any statement he makesmay be used as evidence against him. Besides,under Art. III, Sec. 12(1) of the Constitution, thecounsel assisting a person being investigated

must be independent. Assistant Fiscal AnicetoMalaputo could not assist Jose Walangtakot. Asheld in People v. Viduya, 189 SCRA 403, hisfunction is to prosecute criminal cases. To allowhim to act as defense counsel during custodialinvestigations would render nugatory theconstitutional rights of the accused duringcustodial investigation. What the Constitutionrequires is a counsel who will effectivelyundertake the defense of his client without anyconflict of interest. The answer of JoseWalangtakot 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.The proceedings 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 Ramoswas placed in issue but the prosecution claimsthat the confession was taken on October 1,1985 and the 1987 Constitution providing forthe right to counsel of choice and opportunity toretain, took effect only on February 2, 1987 andcannot be given retroactive effect. Rule on this.(3%)

SUGGESTED ANSWER:The confession of Ramos is not admissible,since the counsel assigned to him did notadvise him of his rights. The fact that hisconfession was taken before the effectivity ofthe 1987 Constitution is of no moment. Evenprior to the effectivity of the 1987 Constitution,the Supreme Court already laid down strictrules on waiver of the rights during investigation

in the case of People v. Galit, 135 SCRA 465(1985).

Custodial Investigation; Right to Counsel;Receipt of Property Seized (2002)No VIII. One day a passenger bus conductorfound a man's handbag left in the bus. Whenthe conductor opened the bag, he found insidea catling card with the owner's name (DanteGalang) and address, a few hundred peso bills,and a small plastic bag containing a whitepowdery substance. He brought the powderysubstance to the National Bureau of

Investigation for laboratory examination and itwas determined to be methamphetaminehydrochloride or shabu, a prohibited drug.Dante Galang was subsequently traced andfound and brought to the NBI Office where headmitted ownership of the handbag and itscontents. In the course of the interrogation byNBI agents, and without the presence andassistance of counsel, Galang was made tosign a receipt for the plastic bag and its shabucontents. Galang was charged with illegalpossession of prohibited drugs and was

convicted.On appeal he contends that - A. The plastic bag and its contents are

inadmissible in evidence being the productof an illegal search and seizure; (3%) and

B. The receipt he signed is also inadmissibleas his rights under custodial investigationwere not observed. (2%)

Decide the case with reasons.SUGGESTED ANSWER:

A. It is admissible...B. The receipt which Galang signed withoutthe assistance of counsel is not admissible in

evidence. As held in People v. Castro, 274SCRA 115 {1997), since the receipt is adocument admitting the offense charged,Galang should have been assisted by counselas required by Article III, Section 11 of theConstitution.

Custodial Investigation; Police Line-up(1993)No. 9: Johann learned that the police werelooking for him in connection with the rape of an




2) Neither is the receipt he signed admissible,his rights under custodial investigation nothaving been observed. Decide.

SUGGESTED ANSWER:On the assumption that the issues were timelyraised 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 withSection 12(3), Article IV of the Constitution, it isinadmissible in evidence. [People v. Duhan,142 SCRA 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 hisstatements to the police investigator, the latterprovided A with a counsel, who happened to beat the police station. After conferring with A, thecounsel told the police investigator that A wasready to sign the statements.

Can the statements of A be presented in courtas his confession? Explain.SUGGESTED ANSWER:1) No, the statements of A cannot be presentedin court as his confession. He was not assisted

by counsel during the actual questioning. Thereis no showing that the lawyer who belatedlyconferred with him fully explained to him thenature and consequences of his confession. InPeople vs. Compil 244 SCRA 135, theSupreme Court held that the accused must beassisted by counsel during the actualquestioning and the belated assistance ofcounsel before he signed the confession doesnot 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 atnighttime through the shores of Cavite, theSouthern Luzon Command set up checkpointsat the end of the Cavite coastal road to search

passing motor vehicles. A 19-year old boy, whofinished fifth grade, while driving, was stoppedby the authorities at the checkpoint. Withoutany objection from him, his car was inspected,and the search yielded marijuana leaves hiddenin the trunk compartment of the car. Theprohibited drug was promptly seized, and theboy was brought to the police station forquestioning.

(1) Was the search without warrant legal?(2) Before interrogation, the policeman on dutyinformed the boy in English that he does "havea right 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. UnderSection 12(1), Article III of the 1987 Constitutionto be valid, the waiver must be made in writingand in the presence of counsel.

Double Jeopardy (1988)No. 21: The Filipino seamen detained at Kota

Kinabalu, allegedly fishing in Malaysianterritorial waters, had been acquitted, after trial,by the sessions court in the same city. Theycould not be released and returned to thePhilippines, because the prosecution hadappealed the judgment of acquittal to theSupreme 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 such judgment of acquittal to the Supreme Court, likewhat the Malaysians did in the case of theFilipino fishermen at Kota Kinabalu? Explainyour answer.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 toP100,000.00 and/or imprisonment of not lessthan 6 months nor more than 10 years. If aliensare arrested for fishing within this zone but forsome reason are acquitted, the decision againstthem cannot be appealed to the Court of

Appeals because that would place them indouble jeopardy. This is so well established that

the Supreme Court turned down many pleas forre-examination of the doctrine first announcedin Kepner v. United States. 11 Phil. 669 (1904).The doctrine is said to be part and parcel notonly of settled jurisprudence but also ofconstitutional law. Nor does it matter that theaccused are aliens. This guarantee has beenapplied even to aliens without thought of theircitizenship. (See e.g., People v. Ang Chio Kio, 95 Phil. 475(1954) (Chinese previously convicted of murder); People v.Pomeroy, 97 Phil 927 (1955) ( American previously convictedof rebellion with murder, arson and robbery).

Double Jeopardy (1993)No. 13: A Pajero driven by Joe sideswiped amotorcycle driven by Nelson resulting indamage to the motorcycle and injuries toNelson. Joe sped on without giving assistanceto Nelson. The Fiscal filed two informationsagainst Joe, to wit: (1) reckless imprudenceresulting in damage to property with physicalinjuries under Art. 365, RPC, before the RTC;and (2) abandonment of one'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 laterthat he was arraigned in the recklessimprudence charge before the RTC. Hepleaded not guilty.

Subsequently, the RTC affirmed the decision ofthe MTC relative to the abandonment of one'svictim charge. Joe filed a petition for reviewbefore the Court of Appeals, invoking his rightto double Jeopardy, contending that theprosecution for abandonment under Art. 275 ofthe Revised Penal Code is a bar to the

prosecution for negligence under Article 365 ofthe same Code. Decide.SUGGESTED ANSWER:Joe cannot claim that his conviction forabandoning his victim in violation of Article 275of the 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 offensesare not identical. Reckless imprudence is a

crime falling under the chapter on criminalnegligence, while abandonment of one's victimis a 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 isnot an offense by itself nor an element ofreckless imprudence. It merely Increases thepenalty by one degree.

Double Jeopardy (1997)No. 2: The Sangguniang Panlungsod of Manilaapproved an ordinance (No. 1000) prohibitingthe operation in the streets within the city limitsof taxicab units over eight years old (from yearof manufacture). The imposable penalty forviolation thereof is a fine of P4,000.00 orimprisonment for one year upon the erringoperator. Thereafter and while the cityordinance was already in effect. Congressenacted a law (Republic Act No. 500)prohibiting the operation in the streets of cities

throughout the country of taxicab units beyondten years old. The imposable penalty forviolation thereof is the same as in OrdinanceNo. 1000. A, an owner/operator of a taxicab unitoperating in the City of Manila, was chargedwith violation of the city ordinance. Uponarraignment, he pleaded not guilty; whereupon,trial was set five days thereafter. For failure ofthe witnesses to appear at the trial, the CityCourt dismissed the case against A. The CityProsecutor of Manila forthwith filed anotherinformation in the same court charging A with

violation of Republic Act No. 500 for operatingthe taxicab unit subject of the information in thefirst 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.The dismissal 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 ofa case for failure of the witnesses for theprosecution to appear constitutes an acquittal.The acquittal of A for violation of Ordinance No.1000 bars his prosecution for violation ofRepublic Act No. 500. Under Section 21, Articlein of the Constitution, if an act is punished by alaw and an ordinance, conviction or acquittalunder either bars another prosecution for thesame act.

ALTERNATIVE ANSWER:




If I were the judge, I would deny the motion.The dismissal of the first case is void and doesnot give rise to double jeopardy. The dismissalof the first case is arbitrary and denied theprosecution due process of law. The trial wasset five days after the arraignment. There wasno sufficient time to subpoena the witnessesand this was the first time the witnesses failedto appear. As held in People vs. Declaro 170

SCRA 142, the dismissal of a case for failure ofthe witnesses to appear at the initial hearing isarbitrary and void and does not give rise todouble 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 ofconviction was rendered against Geralde.When the case was appealed to it, the Court of

Appeals reversed the judgment of the TrialCourt, ratiocinating and ruling as follows: "Thisis not to say that the appellant did nothingwrong...she was seduced by the appellant withpromises (of marriage) just to accomplish hislewd designs." Years later, Virginia broughtanother complaint for Qualified Seduction.Geralde presented a Motion to Quash on theground of double jeopardy, which motion andhis subsequent motion for reconsideration weredenied: Question: May Geralde validly invokedouble jeopardy in questioning the institution ofthe case for Qualified Seduction? He placed

reliance principally on the "same evidence"test to support his stance. He asserted thatthe offenses with which he was charged arosefrom the same set of facts. Furthermore, heaverted that the complaint for QualifiedSeduction is barred by waiver and estoppel onthe part of the complainant, she having opted toconsider the case as consented abduction.Finally, he argued that her delay of more thaneight (8) years before filing the second caseagainst him constituted pardon on the part of

the offended party. How would you resolveGerald's contentions? Explain. (4%)SUGGESTED ANSWER: Geralde cannot invoke double jeopardy.

According to Perez v. Court of Appeals, 168SCRA 236, there is no identity betweenconsented abduction and qualified seduction.

CONSENTED ABDUCTION requires that the

taking away of the offended party must be withher consent, after solicitation or cajolery fromthe offender, and the taking away of theoffended party must be with lewd designs. Onthe other hand, QUALIFIED SEDUCTIONrequires that the crime be committed by abuseof authority, confidence or relationship and theoffender had sexual intercourse with thewoman.

The delay in filing the second case does notconstitute pardon, according to Article 344 ofthe Revised 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. The judge instead dismissed the case for failure toprosecute.b) Would the reversal of the trial court'sassailed dismissal of the case place theaccused in double jeopardy? (3%)SUGGESTED ANSWER:b) Since the postponement of the case wouldnot violate the right of the accused to speedytrial, the precipitate dismissal of the case isvoid. The reversal of the dismissal will notplace the accused in double Jeopardy.

ALTERNATIVE ANSWER:

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

jeopardy.

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 whocould not be found or located, the criminal casewas pending trial for a period of seven years.Upon motion of accused Erning who invokedhis right to speedy trial, the court dismissed thecase.

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 thecase on the ground of double jeopardy. Theprosecution objected, submitting the reasonthat it was not able to present the saidwitnesses earlier because the latter went intohiding 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 aspeedy trial 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, resultingin physical injuries to the latter. The publicprosecutor filed two separate informationsagainst Cascasero, the first for recklessimprudence resulting in physical injuries underthe Revised Penal Code, and the second for

violation of an ordinance of Makati Cityprohibiting and penalizing driving under theinfluence of liquor.Cascasero was arraigned, tried and convictedfor reckless imprudence resulting in physicalinjuries under the Revised Penal Code. Withregard to the second case (i.e., violation of thecity ordinance), upon being arraigned, he filed amotion to quash the information invoking hisright against double jeopardy. He contendedthat, under Art. III, Section 21 of theConstitution, if an act is punished by a law andan ordinance, conviction or acquittal under

either shall constitute a bar to anotherprosecution for the same act He argued that thetwo criminal charges against him stemmed fromthe same act of driving allegedly under theinfluence of liquor which caused the accident.Was there double jeopardy? Explain youranswer (5%)FIRST ALTERNATIVE ANSWER:Yes, there is double jeopardy. Under thesecond sentence of Article III, Section 21 of theConstitution, if an act is punished by a law and

an ordinance, conviction or acquittal undereither shall constitute a bar to anotherprosecution for the same act. In this case, thesame act is involved in the two cases. Thereckless imprudence which resulted in physicalinjuries arose from the same act of drivingunder the influence 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 heldthat when there is identity in the act punishedby a law and an ordinance, conviction oracquittal under either shall bar prosecutionunder the other.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 PenalCode penalizes reckless imprudence resultingin physical injuries, while the ordinance ofMakati City penalizes driving under theinfluence 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 to

prosper, the following requisites must concur:(1) a first jeopardy has attached;(2) the first jeopardy was validly terminated; and(3) the second is for the same offense.

A first jeopardy attaches:1. upon a valid complaint or information;2. before a competent court;3. after arraignment;4. a valid entry of plea; and5. the dismissal or termination of the case

without the express consent of the accused.

Due Process; Absence of Denial (1999)No VIII - B. On April 6, 1963, Police OfficerMario Gatdula was charged by the Mayor withGrave Misconduct and Violation of Law beforethe Municipal Board. The Board investigatedGatdula but before the case could be decided,the City charter was approved. The City Fiscal,citing Section 30 of the city charter, assertedthat he was authorized thereunder toinvestigate city officers and employees. Thecase against Gatdula was then 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 CityFiscal for the submission of an appropriateresolution but no resolution was submitted. OnMarch 3, 1968, the City Fiscal transmitted therecords to the City Mayor recommending thatfinal action thereon be made by the City Board

of Investigators (CBI). Although the CBI didnot conduct an investigation, the records showthat both the Municipal Board and the Fiscal'sOffice exhaustively heard the case with bothparties afforded ample opportunity to adducetheir evidence and argue their cause. ThePolice Commission found Gatdula guilty on thebasis of the records forwarded by the CBI.Gatdula challenged the adverse decision of thePolice Commission theorizing that he wasdeprived of due process. Questions: Is thePolice Commission bound by the findings of theCity Fiscal? Is Gatdula's protestation of lack or

non-observance of due process well-grounded?Explain your answers. (4%)SUGGESTED ANSWER:The Police Commission is not bound by thefindings of the City Fiscal. In Mangubat v. deCastro, 163 SCRA 608, it was held that thePolice Commission is not prohibited frommaking its own findings on the basis of its ownevaluation of the records. Likewise, theprotestation of lack of due process is not well-grounded, since the hearings before theMunicipal Board and the City Fiscal offered

Gatdula the chance to be heard. There is nodenial 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 Intelligenceagents of the Bureau of Immigration andDeportation (BID) against Stevie, a Germannational, for his deportation as an undesirablealien. The Immigration Commissioner directedthe Special Board of Inquiry to conduct anInvestigation. At the said Investigation, a lawyer

from the Legal Department of the BIDpresented as witnesses the three Intelligenceagents who filed the complaint. On the basis ofthe findings, report and recommendation of theBoard of Special Inquiry, the BIDCommissioners unanimously voted for Stevie'sdeportation. Stevie's lawyer questioned thedeportation order1) On the ground that Stevie was denied dueprocess because the BID Commissioners whorendered the decision were not the ones who

received the evidence, in violation of the "Hewho decides must hear" rule. Is he correct?2) On the ground that there was a violation ofdue process because the complainants, theprosecutor and the hearing officers were allsubordinates of the BID Commissioners whorendered the deportation decision. Is hecorrect?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 requirethat the actual taking of testimony or thepresentation of evidence before the sameofficer who will decide the case.

In American Tobacco Co. v. Director of Patents,67 SCRA 287, the Supreme Court has ruledthat so long as the actual decision on the meritsof the cases is made by the officer authorizedby law to decide, the power to hold a hearing onthe basis of which his decision will be made can

be delegated and is not offensive to dueprocess. The Court noted that: "As long as aparty is not deprived of his right to present hisown case and submit evidence in supportthereof, and the decision is supported by theevidence in the record, there is no question thatthe requirements of due process and fair trialare fully met. In short, there is no abrogation ofresponsibility on the part of the officerconcerned as the actual decision remains withand is made by said officer. It is, however,required that to give the substance of a hearing,

which is for the purpose of makingdeterminations upon evidence the officer whomakes the determinations must consider andappraise the evidence which justifies them.

2) No, Stevie was not denied due processsimply because the complainants, theprosecutor, and the hearing officers were allsubordinates of the Commissioner of theBureau of Immigration and Deportation. Inaccordance with the ruling in Erianger &Galinger, Inc. vs. Court of Industrial Relations,110 Phil. 470, the findings of the subordinates

are not conclusive upon the Commissioners,who have the discretion to accept or rejectthem. What is important is that Stevie was notdeprived of his right to present his own caseand submit evidence in support thereof, thedecision is supported by substantial evidence,and the commissioners acted on their ownindependent consideration of the law and factsof the case, and did not simply accept the viewsof their subordinates in arriving at a decision.




No. 9: Macabebe, Pampanga has severalbarrios along the Pampanga river. To servicethe needs of their residentst the municipalityhas been operating a ferry service at the sameriver, for a number of years already.

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

granting a certificate of public convenience toMr. Ricardo Macapinlac, a resident ofMacabebe, to operate ferry service across thesame river and between the same barrios beingserviced presently by the municipality's ferryboats. A check of the records of the applicationof Macapinlac shows that the application wasfiled some months before, set for hearing, andnotices of such hearing were published in twonewspapers of general circulation in the town ofMacabebe, and in the province of Pampanga.The municipality had never been directly serveda copy of that notice of hearing nor had the

Sangguniang Bayan been requested byMacapinlac for any operate. The municipalityimmediately filed a motion for reconsiderationwith the LTFRB which was denied. It went tothe Supreme Court on a petition for certiorari tonullify the order granting a certificate of publicconvenience to Macapinlac on two grounds:1. Denial of due process to the municipality;2. For failure of Macapinlac to secure approval

of the Sangguniang Bayan for him tooperate a ferry service in Macabebe,

Resolve the two points in the petition with

reasons.SUGGESTED ANSWER:The petition for certiorari should be granted,1. As a party directly affected by the operationof the ferry service, the Municipality ofMacabebe, Pampanga was entitled to bedirectly notified by the LTFRB of itsproceedings relative to Macapinlac'sapplication, even if the Municipality had notnotified the LTFRB of the existence of themunicipal ferry service. Notice by publicationwas not enough. (Municipality of Echague v.

Abellera, 146 SCRA 180 (1986)).

2. Where a ferry operation lies entirely withinthe municipality, the prior approval of theMunicipal government is necessary. ....

Due Process; Permit to Carry FirearmOutside Residence (Q6-2006)3. Does a Permit to Carry Firearm OutsideResidence (PTCFOR) constitute a propertyright protected 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, itmay be 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 administrativeorder to the effect that all existing regularappointments to harbor pilot positions shallremain valid only up to December 31 of thecurrent year and that henceforth allappointments to harbor pilot positions shall beonly for a term of one year from date ofeffectivity, subject to yearly renewal orcancellation by the PPA after conduct of a rigidevaluation of performance. Pilotage as aprofession may be practiced only by dulylicensed individuals, who have to pass fivegovernment professional examinations.

The Harbor Pilot Association challenged thevalidity of said administrative order arguing thatit violated the harbor pilots' right to exercisetheir profession and their right to due process oflaw and that the said administrative order wasissued without prior notice and hearing. The

PPA countered that the administrative orderwas valid as it was issued in the exercise of itsadministrative control and supervision overharbor pilots under PPA's legislative charter,and that in issuing the order as a rule orregulation, it was performing its executive orlegislative, and not a quasi-Judicial function.

Due process of law is classified into two kinds,namely, procedural due process andsubstantive due process of law. Was there, or,was there no violation of the harbor pilots' rightto exercise their profession and their right to

due process of law? (5%)SUGGESTED ANSWER:The right of the harbor pilots to due processwas violated. Am held in Corona vs. UnitedHarbor Pilots Association of the Philippines,283 SCRA 31 (1997) pilotage as a profession isa property right protected by the guarantee ofdue process. The pre-evaluation cancellation ofthe licenses of the harbor pilots every year isunreasonable and violated their right tosubstantive due process. The renewal is




dependent on the evaluation after the licenseshave been cancelled. The issuance of theadministrative order also violated proceduraldue process, since no prior public hearing wasconducted. As hold in Commissioner of InternalRevenue vs. Court of Appeals, 261 SCRA 237(1998), when a regulation is being issued underthe quasi-legislative authority of anadministrative agency, the requirements of

notice, hearing and publication must beobserved.

Due Process; Procedural vs. Substantive(1999)No VIII - A. Give examples of acts of the statewhich infringe the due process clause:1. in its substantive aspect and (1%)2. in its procedural aspect? (1%)SUGGESTED ANSWER:1.) A law violates substantive due processwhen it is unreasonable or unduly oppressive.For example, Presidential Decree No. 1717,

which cancelled all the mortgages and liens of adebtor, was considered unconstitutional forbeing oppressive. Likewise, as stated inErmita-Malate Hotel and Motel Operators

Association, Inc. v. City Mayor of Manila, 20SCRA 849, a law which is vague so that men ofcommon intelligence must guess at its meaningand differ as to its application violatessubstantive due process. As held in Tanada v.Tuvera, 146 SCRA 446, due process requiresthat the law be published.

2.) In State Prosecutors v. Muro, 236 SCRA505, it was held that the dismissal of a casewithout the benefit of a hearing and without anynotice to the prosecution violated due process.Likewise, as held in People v. Court of Appeals,262 SCRA 452, the lack of impartiality of the

judge who will decide a case violatesprocedural due process.

Due Process; Provisional Order (1991)No 7 - On 29 July 1991. the Energy RegulatoryBoard (ERB), in response to public clamor,issued a resolution approving and adopting a

schedule for bringing down the prices ofpetroleum products over a period of one (1)year starting 15 August 1991, over the objectionof the oil companies which claim that the periodcovered is too long to prejudge and foresee. Isthe resolution valid?SUGGESTED ANSWER:No, the resolution is invalid, since the EnergyRegulatory Board issued the resolution withouta hearing. The resolution here is not aprovisional order and therefore it can only be

issued after appropriate notice and hearing toaffected parties. The ruling in PhilippineCommunications Satellite Corporation vs.

Alcuaz, 180 SCRA 218, to the effect that anorder provisionally reducing the rates which apublic utility could charge, could be issuedwithout previous notice and hearing, cannotapply.

Due Process; Public School Teachers (2002)No X - Ten public school teachers of CaloocanCity left their classrooms to join a strike, whichlasted for one month, to ask for teachers'benefits.

The Department of Education, Culture andSports charged them administratively, for whichreason they were required to answer andformally investigated by a committee composedof the Division Superintendent of Schools asChairman, the Division Supervisor as memberand a teacher, as another member. On the

basis of the evidence adduced at the formalinvestigation which amply established theirguilt, the Director rendered a decision metingout to them the penalty of removal from office.The decision was affirmed by the DECSSecretary and the Civil Service Commission.

On appeal, they reiterated the arguments theyraised before the administrative bodies, namely:(b) They were deprived of due process of lawas the Investigating Committee was improperlyconstituted because it did not include a teacher

in representation of the teachers' organizationas required by the Magna Carta for PublicSchool Teachers (R.A. No. 4670, Sec. 9).SUGGESTED ANSWER:The teachers were deprived of due process oflaw. Under Section 9 of the Magna Carta forPublic School Teachers, one of the members ofthe committee must be a teacher who is arepresentative of the local, or in its absence,any existing provincial or national organizationof teachers. According to Fabella v. Court of

Appeals, 283 SCRA 256 (1997), to beconsidered the authorized representative of

such organization, the teacher must be chosenby the organization itself and not by theSecretary of Education, Culture and Sports.Since in administrative proceedings, dueprocess requires that the tribunal be vested with

jurisdiction and be so constituted as to afford aperson charged administratively a reasonableguarantee of impartiality, if the teacher who is amember of the committee was not appointed inaccordance with the law, any proceeding before




it is tainted with deprivation of procedural dueprocess.

Due Process; Radio Station (1987)No. XIV: In the morning of August 28, 1987,during the height of the fighting at Channel 4and Camelot Hotel, the military closed RadioStation XX, which was excitedly reporting thesuccesses of the rebels and movements

towards Manila and troops friendly to therebels. The reports were correct and factual. OnOctober 6, 1987, after normalcy had returnedand the Government had full control of thesituation, the National TelecommunicationsCommission, without notice and hearing, butmerely on the basis of the report of the military,cancelled the franchise of station XX.Discuss the legality of:(b) The cancellation of the franchise of thestation on October 6, 1987.SUGGESTED ANSWER:The cancellation of the franchise of the station

on October 6, 1987, without prior notice andhearing, is void. As held in EasternBroadcasting Corp. (DYRE) v. Dans, 137 SCRA647 (1985), the cardinal primary requirementsin administrative proceedings (one of which isthat the parties must first be heard) as laiddown in Ang Tibay v. CIR, 69 Phil. 635 (1940)must be observed in closing a radio stationbecause radio broadcasts are a form ofconstitutionally-protected expression.

Due Process; Represented by a Non-Lawyer

(1988)No. 5: Norberto Malasmas was accused ofestafa before the Regional Trial Court ofManila. After the trial, he was found guilty. Onappeal, his conviction was affirmed by the Courtof Appeals. After the records of his case hadbeen remanded to the Regional Trial Court forexecution, and after the latter Court had set thedate for the promulgation of judgment, theaccused filed a motion with the Court of

Appeals to set aside the entry of judgment, andto remand the case to the Regional Trial Courtfor new trial on the ground that he had just

discovered that "Atty. Leonilo Maporma" whomhe had chosen and who had acted as hiscounsel before the trial court and the Court of

Appeals, is not a lawyer. Resolved the motionof the accused with reasons.SUGGESTED ANSWER:The motion should be granted and the entry of

judgment should be set aside. An accused isentitled to be heard by himself or counsel. (Art.III, sec. 14(2)). Unless he is represented by anattorney, there is a great danger that any

defense presented in his behalf will beinadequate considering the legal requisite andskill needed in court proceedings. There wouldcertainly be a denial of due process. (Delgadov. Court of Appeals, 145 SCRA 357 (1986)).

Due Process; Substant ive (2003)2003 No XII - The municipal council of themunicipality of Guagua, Pampanga, passed an

ordinance penalizing any person or entityengaged in the business of selling tickets tomovies or other public exhibitions, games orperformances which would charge childrenbetween 7 and 12 years of age the full price ofadmission tickets instead of only one-half of theamount thereof. Would you hold the ordinancea valid exercise of legislative power by themunicipality? Why?SUGGESTED ANSWER:The ordinance is void. As held in Balacuit v.Court of First Instance of Agusan del Norte. 163SCRA 182 [1988], the ordinance is

unreasonable. It deprives the sellers of thetickets of their property without due process. Aticket is a property right and may be sold forsuch price as the owner of it can obtain. Thereis nothing pernicious in charging children thesame price as adults.

Due Process; Suspension of Driver'sLicense (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 determinewhether he has been driving under theinfluence of alcohol. The results of the test canbe used, in any legal proceeding against him.Furthermore, declaring that the issuance of adriver's license gives rise only to a privilege todrive motor vehicles on public roads, the lawprovides that a driver who refuses to take thetest shall be automatically subject to a 90-daysuspension of his driver's license,

Cite two [2] possible constitutional objections to

this law. Resolve the objections and explainwhether any such infirmities can be cured.SUGGESTED ANSWER:Possible objections to the law are that requiringa driver to take the breathalyzer test will violatehis right against self-incrimination, thatproviding for the suspension of his driver'slicense without any hearing violates dueprocess, and that the proposed law will violatethe right against unreasonable searches andseizures, because it allows police authorities to




require a drive to take the breathalyzer testeven if there is no probable cause

ALTERNATIVE ANSWER:Requiring a driver to take a breathalyzer testdoes not violate his right against self-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

guarantee against self-incrimination. Thus, inSouth Dakota vs. Neville, 459 U.S. 553, it washeld for this reason that requiring a driver totake a blood-alcohol test is valid.

As held in Mackey vs. Afontrya 443 U.S. 1,because of compelling government interest insafety along the streets, the license of a driverwho refuses to take the breathalyzer test maybe suspended immediately pending a post-suspension hearing, but there must be aprovision for a post-suspension hearing. Thus,to save the proposed law from

unconstitutionally on the ground of denial of dueprocess, it should provide for an immediatehearing upon suspension of the driver's license.The proposed law violates the right againstunreasonable searches and seizures. It willauthorize police authorities to stop any driverand ask him to take the breathalyzer test evenin the absence of a probable cause.

Due Process; Urgent Publ ic Need (1987)No. II: The Manila Transportation Companyapplied for upward adjustment of its rates

before the Transportation Regulatory Board.Pending the petition, the TRB, without previoushearing, granted a general nationwideprovisional increase of rates. In another Order,TRB required the company to pay the unpaidsupervisory fees collectible under the PublicService Law. After due notice and hearing, onthe basis of the evidence presented by ManilaTransportation Company and the Oppositors,TRB issued an Order reducing the rates appliedfor by one-fourth.

Characterize the powers exercised by the TRB

in this case and determine whether under thepresent constitutional system theTransportation Regulatory Board can be validlyconferred the powers exercised by it in issuingthe Orders given above. Explain.SUGGESTED ANSWER:The orders in this case involve the exercise of

judicial function by an administrative agency,and therefore, as a general rule, the cardinalprimary rights enumerated in Ang Tibay v. CIR,69 Phil. 635 (1940) must be observed. In Vigart

Electric Light Co, v. PSC, 10 SCRA 46 (1964) itwas held that a rate order, which appliesexclusively to a particular party and ispredicated on a finding of fact, partakes of thenature of a quasi 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 inthe cost of fuel. The power of the Public ServiceCommission to grant such increase was upheldin several 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 PublicService Act cannot be sustained. The companyhas a right to be heard, before it may beordered to pay. (Ang Tibay v. CIR, 69 Phil. 635(1940))The third order can be justified. The fact that

the TRB has allowed a provisional rate increasedoes not bind it to make the order permanent ifthe evidence later submitted does not justifyincrease but, on the contrary, warrants thereduction of rates.

Eminent Domain; Garnishment (1994)No. 14: The Municipality of Antipolo, Rizal,expropriated the property of Juan Reyes for useas a public market. The Municipal Councilappropriated Pl,000,000.00 for the purchase ofthe lot but the Regional Trial Court, on the basis

of the evidence, fixed the value atP2,000,000.00.1) What legal action can Juan Reyes take to

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

Court to garnish the Municipality's accountwith the Land Bank?

SUGGESTED ANSWER:1) To collect the balance of Judgment, asstated in Tan Toco vs. Municipal Counsel ofIloilo, 49 Phil. 52, Juan Reyes may levy onpatrimonial properties of the Municipality of

Antipolo. If it has no patrimonial properties, in

accordance with the Municipality of Makati vs.Court of Appeals, 190 SCRA 206, the remedyof Juan Reyes is to file a petition for mandamusto compel the Municipality of Antipolo toappropriate the necessary funds to satisfy the

judgment.

2) Pursuant to the ruling in Pasay CityGovernment vs. Court of First Instance ofManila, 132 SCRA 156, since the Municipalityof Antipolo has 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 inbank, can it be garnished? [2%]SUGGESTED ANSWER:2. No, the money of the City of Cebu in thebank cannot be garnished if it came from public

funds. As held in Municipality of Makati vs.Court of Appeals, 190 SCRA 206, 212, publicfunds are exempted from garnishment.

Eminent Domain; immuni ty 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 ownedby Mang Pandoy. The government neither filedany expropriation proceedings nor paid anycompensation to Mang Pandoy for the land thus

taken and used as a public road.

Mang Pandoy filed a suit against thegovernment to compel payment for the value ofhis land. The DPWH filed a motion to dismissthe case on the ground that the State isimmune from suit. Mang Pandoy filed anopposition.Resolve the motion. (5%)SUGGESTED ANSWER:The motion to dismiss should be denied. Asheld in Amigable v. Cuenca, 43 SCRA 300

(1972), when the Government expropriatesprivate property without paying compensation, itis deemed to have waived its immunity fromsuit. Otherwise, the constitutional guaranteethat private property shall not be taken forpublic 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 two

constitutional objections to the validity ofthe ordinance.

(2) As the judge, rule on the said objections.SUGGESTED ANSWER:(1) As counsel for C Company, I will argue thatthe taking of the property is not for a public useand that the ordinance cannot fix thecompensation to be paid C Company, becausethis is a judicial question that is for the courts todecide.

(2) As judge, I will sustain the contention thatthe taking of the property of C Company tooperate the commercial center establishedwithin it to finance a housing project for cityemployees is not for a public use but for aprivate purpose. As the Court indicated in adictum in Manotok. v. National Housing

Authority, 150 SCRA 89, that the expropriationof a commercial center so that the profitsderived from its operation can be used forhousing projects is a taking for a privatepurpose.

I will also sustain the contention that theordinance, even though it fixes thecompensation for the land on the basis of theprevailing land value cannot really displace

judicial determination of the price for the simplereason that many factors, some of themsupervening, cannot possibly be considered bythe legislature at the time of enacting theordinance. There is greater reason for nullifyingthe use of the cost of construction in theordinance as basis for compensation for theimprovements. The fair market value of the

improvements may not be equal to the cost ofconstruction. The original cost of constructionmay be lower than the fair market value, sincethe 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 fourlots sought to be expropriated by the ExportProcessing Zone Authority for the expansion ofthe export processing zone at Baguio City. Thesame parcels of land had been valued by the

Assessor at P120.00 per square meter, whileMr. Rivera had previously fixed the marketvalue of the same at P100 per square meter.The Regional Trial Court decided forexpropriation and ordered the payment to Mr.Rivera at the rate of P100 a square meter




declarations, which amount was lower than theassessed value as determined by the assessor.The landowners oppose the expropriation onthe grounds that:(a) the same is not for public use; and(b) assuming it is for public use, the

compensation must be based on theevidence presented in court and not, asprovided in presidential decrees prescribing

payment of the value stated in the owner'stax declarations or the value determined bythe assessor, whichever is lower.

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"is untenable- The idea that "PUBLIC USE"means exclusively use by the public has beendiscarded. As long as the purpose of the taking

is public, the exercise of power of eminentdomain is justifiable. Whatever may bebeneficially employed for the general welfaresatisfies the requirement of public use. (Heirs ofJuancho Ardona v. Reyes, 123 SCR A 220 (1983))

(b) But the contention that the PresidentialDecrees providing that in determining justcompensation the value stated by the owner inhis tax declaration or that determined by theassessor, whichever is lower, inunconstitutional 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 forfinal determination. For although under thedecrees the courts still have the power todetermine just compensation, their task isreduced to simply determining the lower valueof the property as declared either by the owneror by the assessor. "JUST COMPENSATION"means the value of the property at the time of

the taking. Its determination requires that allfacts as to the condition of the property and itssurroundings and its improvements andcapabilities must be considered, and this canonly be done in a judicial proceeding.

Eminent Domain; Socialized Housing (1996)No. 4 - The City of Pasig initiated expropriationproceedings on a one-hectare lot which is partof a 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 oppose the

expropriation on the ground that only 200out of the more than 10,000 squatterfamilies in Pasig City will benefit from theexpropriation? 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 fromagricultural to housing? Explain.

SUGGESTED ANSWER: a) No, the owner of the property cannot opposethe expropriation on the ground that only 200out of more than 10,000 squatter families inPasig City will benefit from the expropriation. Asheld in Philippine Columbian Association vs.Pants, 228 SCRA 668, the acquisition of privateproperty for socialized housing is for public useand the fact that only a few and not everyone

will benefit from the expropriation does notdetract from the nature of the public use.

b) No, the Department of Agrarian Reformcannot require Pasig City to first secureauthority from it before converting the use of theland from agricultural to residential. Accordingto Province of Camarines Sur vs. Court of

Appeals, 222 SCRA 173, there is no provisionin the Comprehensive Agrarian Reform Lawwhich subjects the expropriation of agriculturallands by local government units to the control of

the Department of Agrarian Reform and torequire approval from the Department of Agrarian Reform will mean that it is not the localgovernment unit but the Department of AgrarianReform who will determine whether or not theexpropriation is for a public use.

Eminent Domain; Writ of Possession (1993)No, 5: In expropriation proceedings: Can the

judge validly withhold issuance of the writ ofpossession until full payment of the final valueof the expropriated property?SUGGESTED ANSWER:

No, the judge cannot validly withhold theissuance of the writ of possession until fullpayment of the final value of the expropriatedproperty. As held in National Power Corporationvs. Jocson, 206 SCRA 520. it is the rninisterialduty of the Judge to issue the writ ofpossession upon deposit of the provisionalvalue of the expropriated property with theNational or Provincial Treasurer.

ALTERNATIVE ANSWER:




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 anotherseminary for scholastic deficiency, the Rector ofSan Carlos Seminary denied the applicationwithout giving any grounds for the denial. After

"X" was refused admission, the Rector admittedanother applicant, who is the son of a poorfarmer who was also academically deficient.(a) Prepare a short argument citing rules, laws,or constitutional provisions in support of "X's"motion for reconsideration of the denial of hisapplication.SUGGESTED ANSWER: The refusal of the seminary to admit "X"constitutes invidious discrimination, violative ofthe Equal Protection Clause (Art. III, Sec. 1) ofthe Constitution. The fact, that the otherapplicant is the son of a poor farmer does not

make the discrimination any less invidious sincethe other applicant is also academicallydeficient. The reverse discrimination practicedby the seminary cannot be justified becauseunlike the race problem in America, poverty isnot a condition of inferiority 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 of

Education, Culture and Sports (DECS)disallowing flunkers from taking the test a fourthtime. Cruz filed suit assailing this rule raisingthe constitutional 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, Cultureand Sports v. San Diego,180 SCRA 533 (1989),the rule is a valid exercise of police power to

ensure that those admitted to the medicalprofession are qualified. The arguments of Cruzare not meritorious. The right to qualityeducation and academic freedom are notabsolute. Under Section 5(3), Article XIV of theConstitution, the right to choose a profession issubject to fair, reasonable and equitableadmission and academic requirements. Therule does not violate equal protection. There isa substantial distinction between medicalstudents 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, Cultureand Sports Issued a circular disqualifyinganyone who fails for the fourth time in theNational Entrance Tests from admission to aCollege of Dentistry. X who was thus

disqualified, questions the constitutionality ofthe circular.1) Did the circular deprive her of her

constitutional right to education?2) Did the circular violate the equal protection

clause of the Constitution?SUGGESTED ANSWER:1) No, because it is a permissive limitation toright to education, as it is intended to ensurethat only those who are qualified to be dentistsare admitted for enrollment....

2) No, the circular did not violate the equal

protection clause of the Constitution. There is asubstantial distinction between dentistrystudents and other students. The dentalprofession directly affects the lives and healthof people. Other professions do not involve thesame delicate responsibility and need not besimilarly treated. This is in accordance with theruling in Department of Education, Culture andSports 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 paya fine of P8,000.00, with subsidiaryimprisonment in case of solvency. After servinghis prison term, "X" asked the Director ofPrisons whether he could already be released."X" was asked to pay the fine of P5,000.00 andhe said he could not afford it, being an indigent.The Director informed him he has to serve anadditional prison term at the rate of one day pereight pesos in accordance with Article 39 of theRevised Penal Code, The lawyer of "X" filed apetition for habeas corpus contending that the

further incarceration of his client for unpaidfines 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




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 bethe test. Accommodation to religious freedom

can be made if it will not involve sacrificing theinterests of security and it will have no impacton the allocation of the resources of thepenitentiary. In this case, providing "X" with ameatless diet will not create a security problemor unduly increase the cost of food beingserved to the prisoners. In fact, in the case of O'Lone vs. Estate of Shabazz, it was noted thatthe Moslem prisoners were being given adifferent meal whenever pork would be served.

ALTERNATIVE ANSWER:The suit should be dismissed. The FreeExercise Clause of the Constitution is

essentially a restraint on governmentalinterference with the right of individuals toworship as they please. It is not a mandate tothe state to take positive, affirmative action toenable the individual to enjoy his freedom. Itwould have been different had the Director ofPrisons prohibited meatless diets in the penalinstitution.

Freedom o f Religion; Limitations (1998)No XV. - A religious organization has a weeklytelevision program. The program presents and

propagates its religious, doctrines, andcompares their practices with those of otherreligions.

As the Movie and Television Review andClassification Board (MTRCB) found asoffensive several episodes of the programwhich attacked other religions, the MTRCBrequired the organization to submit its tapes forreview prior to airing.

The religious organization brought the case tocourt on the ground that the action of the

MTRCB suppresses its freedom of speech andinterferes with its right to free exercise ofreligion. Decide. [5%]SUGGESTED ANSWER:The religious organization cannot invokefreedom of speech and freedom of religion asgrounds for refusing to submit the tapes to theMovie and Television Review and ClassificationBoard for review prior to airing. When thereligious organization started presenting itsprogram over television, it went into the realm

of action. The right to act on one's religiousbelief is not absolute and is subject to policepower for the protection of the general welfare.Hence the tapes may be required to bereviewed prior to airing.

In Iglesia ni Cristo vs. Court of Appeals, 259SCRA 529, 544, the Supreme Court held:

"We thus reject petitioner's postulate that Its

religious program is per se beyond review bythe respondent Board. Its public broadcaston TV of its religious program brings it out ofthe bosom of internal belief. Television is amedium that reaches even the eyes and earsof children. The Court reiterates the rule thatthe exercise of religions freedom can beregulated by the State when it will bringabout the CLEAR AND PRESENT DANGERof some substantive evil which the State isduty bound to prevent, i.e., serious detrimentto the mere overriding Interest of publichealth, public morals, or public welfare."

However, the Movie and Television Review andClassification Board cannot ban the tapes onthe ground that they attacked other religions. InIglesia ni Cristo vs. Court of Appeals,. 259SCRA 529, 547, the Supreme Court held:

"Even a side glance at Section 3 of PD No.1986 will reveal that it is not among thegrounds to justify an order prohibiting thebroadcast of petitioner's television program."

Moreover, the broadcasts do not give rise to

a clear and present danger of a substantiveevil. In the case of Iglesia ni Cristo vs. Courtof Appeals, 259 SCRA 529, 549:

"Prior restraint on speech, including thereligious speech, cannot be justified byhypothetical fears but only by the showing ofa substantive and imminent evil which hastaken the reality already on the ground."

Freedom of Religion; Flag Salute (1997)No. 12: Section 28. Title VI, Chapter 9, of the

Administrative Code of 1987 requires all

educational institutions to observe a simple 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,The refusal of a teacher, student or pupil toattend or participate in the flag ceremony is aground for dismissal after due investigation.The Secretary of Education Culture and Sportsissued a memorandum implementing saidprovision 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 onthe ground that attendance thereto was againsttheir religious belief. The Secretary denied therequest. The teachers, students and pupilsconcerned went to Court to have thememorandum circular declared 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 ofSchools of Cebu, 251 SCRA 569. to compelthem to participate in the flag ceremony willviolate their freedom of religion. Freedom ofreligion cannot be impaired except upon theshowing of a clear and present danger of asubstantive evil which the State has a right toprevent. The refusal of the teachers and thestudents to participate in the flag ceremony

does not pose a clear and present danger.

Freedom of Religion; Flag Salute (2003)No III - Children who are members of a religioussect have been expelled from their respectivepublic schools for refusing, on account of theirreligious beliefs, to take part in the flagceremony which includes playing by a band orsinging the national anthem, saluting thePhilippine flag and reciting the patriotic pledge.The students and their parents assail theexpulsion on the ground that the school

authorities have acted in violation of their rightto free public education, freedom of speech,and religious freedom and worship. Decide thecase.SUGGESTED ANSWER:The students cannot be expelled from school.

As held in Ebralinag v. The DivisionSuperintendent of Schools of Cebu. 219 SCRA256 [1993], to compel students to take part inthe flag ceremony when it is against theirreligious beliefs will violate their religiousfreedom. Their expulsion also violates the dutyof the State under Article XIV, Section 1 of the

Constitution to protect and promote the right ofall citizens to quality education and make sucheducation accessible to all.

Freedom of Religion; Non-EstablishmentClause (1988)No. 7: - Tawi-Tawi is a predominantly Moslemprovince. The Governor, the Vice-Governor,and members of its Sang-guniang Panlalawiganare all Moslems. Its budget provides theGovernor with a certain amount as his

discretionary funds. Recently, however, theSangguniang Panlalawigan passed a resolutionappropriating P100,000 as a specialdiscretionary fund of the Governor to be spentby him in leading a pilgrimage of hisprovincemates to Mecca, Saudi Arabia, Islam'sholiest 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.How would you decide the case? Give yourreasons.SUGGESTED ANSWER: The resolution is unconstitutional First, itviolates art. VI, sec. 29(2) of the Constitutionwhich prohibits the appropriation of publicmoney or property, directly or indirectly, for theuse, benefit or support of any system ofreligion, and, second, it contravenes art. VI,sec, 25(6) which limits the appropriation of

discretionary funds only for public purposes.The use of discretionary funds for purelyreligious purpose is thus unconstitutional, andthe 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 the Non-establishment Clause (art. III, sec. 5) of theConstitution.

Freedom of Religion; Non-Establishment

Clause (1992)No. 10: Recognizing the value of education inmaking the Philippine labor market attractive toforeign investment, the Department ofEducation, Culture and Sports offers subsidiesto accredited colleges and universities in orderto promote quality tertiary education. The DECSgrants a subsidy to a Catholic school whichrequires its students to take at least 3 hours aweek of religious instruction.a) Is the subsidy permissible? Explain,b) Presuming that you answer in the negative,

would it make a difference if the subsidy

were given solely in the form of laboratoryequipment in chemistry and physics?

c) Presume, on the other hand, that thesubsidy 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. Willyour answer be different?

SUGGESTED ANSWER:




a) No, the subsidy is not permissible. It willfoster religion, since the school gives religiousinstructions to its students. Besides, it willviolate the prohibition in Section 29[2J, ArticleVI of the Constitution against the use of publicfunds to aid religion. In Lemon vs Kurtzman.403 U.S. 602, it was held that financialassistance to a sectarian school violates theprohibition against the establishment of religion

if it fosters an excessive governmententanglement with religion. Since the schoolrequires its students to take at least three hoursa week of religious instructions, to ensure thatthe 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,it will 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 canonly be used for a secular purpose, it isreligiously neutral. As held in Tilton vs.Richardson, 403 U.S. 672, it will not involveexcessive government entanglement withreligion, for the use of the equipment will notrequire surveillance.

c) In general, the giving of scholarshipvouchers to students is valid. Section2(3), Article XIV of the Constitution

requires the State to establish a system ofsubsidies to deserving students in both publicand private schools. However, the law is vagueand over-broad. Under it, a student who wantsto study for the priesthood can apply for thesubsidy 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 Philippinesto minister to their spiritual needs. The travelexpenses, per diems, clothing allowance andmonthly stipend of P5,000 were orderedcharged against the President's discretionaryfund. Upon post audit of the vouchers therefor,the Commission on Audit refused approvalthereof claiming that the expenditures were inviolation of the 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,or support of any priest. The only exception iswhen the priest is assigned to the armed forces,

or to any penal institution or governmentorphanage or leprosarium. The sending of apriest to minister to the spiritual needs ofoverseas contract workers does not fall withinthe scope of any of the exceptions.

Freedom of Speech; Ban on Tobacco AD(1992)No. 1: Congress passes a law prohibitingtelevision stations from airing any commercialadvertisement which promotes tobacco or inany way glamorizes the consumption oftobacco products.

This legislation was passed in response tofindings by the Department of Health about thealarming rise in lung diseases in the country.The World Health Organization has alsoreported that U.S. tobacco companies have-shifted marketing efforts to the Third World dueto dwindling sales in the health-conscious

American market.

Cowboy Levy's, a Jeans company, recentlyreleased an advertisement featuring model

Richard Burgos wearing Levy's jackets and jeans and holding a pack of Marlborocigarettes.

The Asian Broadcasting Network (ABN), aprivately owned television station, refuses to airthe advertisement in compliance with the law.a) Assume that such refusal abridges the

freedom of speech. Does the constitutionalprohibition against the abridgement of thefreedom of speech apply to acts done by

ABN, a private corporation? Explain.b) May Cowboy Levy's, a private corporation,

invoke the free speech guarantee in itsfavor? Explain.

c) Regardless of your answers above, decidethe constitutionality of the law in question.

SUGGESTED ANSWER: a) The constitutional prohibition against thefreedom of speech does not apply to ABN, aprivate corporation. As stated in Hudgens vs.National Labor Relations Board, 424 U.S. 507,the constitutional guarantee of freedom ofspeech 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 beconsidered an agent of the government bycomplying with the law and refusing to air theadvertisement, it aligned itself with thegovernment. Thus it rendered itself liable for alawsuit which is based on abridgement of the

freedom of speech. Under Article 32 of the CivilCode, even private parties may be liable fordamages for impairment of the freedom ofspeech.

b) Cowboy Levy's may invoke theconstitutional guarantee of freedom of speechin its favor. In First National Bank of Boston vs.

Bellotti, 435 U.S. 765, it was ruled that thisguarantee extends to corporations. In VirginiaState Board of Pharmacy vs. Virginia Citizens

Consumer Council Inc., 425 U.S. 748, it was heldthat this right extends to commercial

advertisements. In Ayer Productions Pty, Ltd. vs.Capulong, 160 SCRA 861, the Supreme Court heldthat even if the production of a film is acommercial activity that is expected to yieldprofits, it is covered by the guarantee offreedom of speech.

c) The law is constitutional. It is a validexercise of police power, ....

Freedom of the Press; Ac tual Malice (2004)(5-a) The STAR, a national daily newspaper,carried an exclusive report stating that SenatorXX received a house and lot located at YYStreet, Makati, in consideration for his votecutting cigarette taxes by 50%. The Senatorsued the STAR, its reporter, editor andpublisher for libel, claiming the report wascompletely false and malicious. According tothe Senator, there is no YY Street in Makati,and the tax cut was only 20%. He claimed onemillion pesos in damages. The defendantsdenied "actual malice," claiming privilegedcommunication and absolute freedom of thepress to report on public officials and matters of

public concern. If there was any error, theSTAR 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 withknowledge that it was false or with recklessdisregard of whether it was false or not (Borjalv. Court of Appeals, 301 SCRA 1 /1999]). Sinceit is a matter of public knowledge that there isno YY Street in Makati, the publication wasmade with reckless disregard of whether or notit is false. 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 4and Camelot Hotel, the military closed RadioStation XX, which was excitedly reporting thesuccesses of the rebels and movementstowards Manila and troops friendly to therebels. The reports were correct and factual. OnOctober 6, 1987, after normalcy had returnedand the Government had full control of thesituation, the National Telecommunications

Commission, without notice and hearing, butmerely on the basis of the report of the military,cancelled the franchise of station XX.Discuss the legality of:(a) The action taken against the station on

August 28, 1987;(b) The cancellation of the franchise of thestation on October 6, 1987.SUGGESTED ANSWER: (a) The closing down of Radio Station XX

during the fighting is permissible. With respectnews media, wartime censorship has beenupheld on the ground that "when a nation is at

war many things that might be said in time ofpeace are such a hindrance to its efforts thattheir utterance will not be endured so long asmen fight and that no Court could regard themas protected by any constitutional right." Thesecurity of community life may be protectedagainst incitements to acts of violence and theoverthrow by force of orderly government.(Near v. Minnesota, 283 U.S. 697 (1931),quoting Justice Holme's opinion in Schenck v.United States, 249 U.S. 47 (1919); New York




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 thetarget of attack by government forces toevacuate the area and offered the residentstemporary military hamlet.

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 abodewithout a court order. Under Section 6, ArticleIII of the Constitution, a lawful order of the courtis required 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 abodewithout a court order. If there is no reasonabletime to get a court order and the change of

abode is merely temporary, because of theexigency, this exercise of police power may be justified.

Non-Imprisonment for Non-Payment of Debt(1993)No 12: Sec. 13 of PD 115 (Trust Receipts Law)provides that when the entrustee in a trustreceipt agreement fails to deliver the proceedsof the sale or to return the goods if not sold tothe entrustee-bank, the entrustee is liable forestafa under the RPC. Does this provision notviolate the constitutional 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. Asheld in Lee vs. Rodil, 175 SCRA 100, thecriminal liability arises from the violation of thetrust receipt, which is separate and distinct fromthe loan 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

ordinance authorizing the City Mayor, assistedby the police, to remove all advertising signsdisplayed or exposed to public view in the maincity street, for being offensive to sight or

otherwise a nuisance. AM, whose advertisingagency owns and rents out many of thebillboards ordered removed by the City Mayor,claims that the City should pay for thedestroyed billboards at their current marketvalue since the City has appropriated them forthe public purpose of city beautification. TheMayor refuses to pay, so AM is suing the Cityand the Mayor for damages arising from thetaking of his property without due process nor

just compensation. Will AM prosper? Reasonbriefly. (5%)FIRST ALTERNATIVE ANSWER:

The suit of AM will not prosper. The removal ofthe billboards is not an exercise of the power ofeminent domain but of police power (Churchillv. Rafferty, 32 Phil. 580 [19150- The abatementof a nuisance in the exercise of police powerdoes not constitute taking of property and doesnot entitle the owner of the property involved tocompensation. (Association of SmallLandowners in the Philippines, Inc. v. Secretaryof Agrarian Reform, 175 SCRA 343 [1989]).


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 inany way glamorizes the consumption oftobacco products.

This legislation was passed in response tofindings by the Department of Health about thealarming rise in lung diseases in the country.The World Health Organization has alsoreported that U.S. tobacco companies have-shifted marketing efforts to the Third World dueto dwindling sales in the health-conscious

American market,




Cowboy Levy's, a Jeans company, recentlyreleased an advertisement featuring modelRichard Burgos wearing Levy's jackets and

jeans and holding a pack of Marlborocigarettes.

The Asian Broadcasting Network (ABN), aprivately owned television station, refuses to airthe advertisement in compliance with the law.

Decide the constitutionality of the law inquestion.SUGGESTED ANSWER: The law is constitutional. It is a valid exerciseof police power, because smoking is harmful tohealth. In Posadas de Puerto Rico Associatesvs. Tourism Company of Puerto Rico, 478 U.S.328, it was ruled that a law prohibiting certaintypes of advertisements is valid if it wasadopted in the interest of the health, safety,and welfare of the people. In CapitalBroadcasting Company us. Mitchell 333 F Supp582, a law making it unlawful to advertise

cigarettes on any medium of electroniccommunication was upheld. The UnitedStates Supreme Court summarily sustainedthis ruling in Capita! Broadcasting Company us,

Acting Attorney General 405 U.S. 1000. Thelaw in question was enacted on the basis of thelegislative finding that there is a need to protectpublic health, because smoking causes lungdiseases. Cowboy Levy's has not overthrownthis finding.

Police Power; Zoning Ordinance vs. Non-

Impairment of Contracts (1989)No. 12: Pedro bought a parcel of land fromSmart Corporation, a realty firm engaged indeveloping and selling lots to the public. One ofthe restrictions in the deed of sale which wasannotated in the title is that the lot shall be usedby the buyer exclusively for residentialpurposes. A main highway having beenconstructed across the subdivision, the areabecame commercial in nature. The municipalitylater passed a zoning ordinance declaring thearea as a commercial bank building on his lot.Smart Corporation went to court to stop the

construction as violative of the buildingrestrictions imposed by it. The corporationcontends that the zoning ordinance cannotnullify the contractual obligation assumed bythe buyer. Decide the case.SUGGESTED ANSWER: The case must be dismissed. As held in Ortigasand Company, Limited Partnership vs. FEATIiBank and Trust Company, 94 SCRA 533, sucha restriction in the contract cannot prevail overthe zoning ordinance, because the enactment

of the ordinance is a valid exercise of policepower. It is hazardous to health and comfort touse the lot for residential purposes, since ahighway crosses the subdivision and the areahas become commercial.

Police Power; Zoning Ordinance vs. Non-Impairment of Contracts (2001)No XVIII In the deeds of sale to, and in the land

titles of homeowners of a residential subdivisionin Pasig City, there are restrictions annotatedtherein to the effect that only residential housesor structures may be built or constructed on thelots. However, the City Council of Pasigenacted an ordinance amending the existingzoning ordinance by changing the zoneclassification in that place from purelyresidential to commercial.

"A", a lot owner, sold his lot to a banking firmand the latter started constructing a commercialbuilding on the lot to house a bank inside the

subdivision. The subdivision owner and thehomeowners' association filed a case in court tostop the construction of the building for bankingbusiness purposes and to respect therestrictions embodied in the deed of sale by thesubdivision developer to the lot owners, as wellas the annotation in the titles.

If you were the Judge, how would you resolvethe case? (5%)SUGGESTED ANSWER:If I were the judge, I would dismiss the case. As

held in Ortigas and Company LimitedPartnership vs. FEATI Bank and TrustCompany. 94 SCRA 633 (1979), the zoningordinance is a valid exercise of police powerand prevails over the contractual stipulationrestricting the use of the lot to residentialpurposes.

Privacy of Communication (2001)No XII - "A" has a telephone line with anextension. One day, "A" was talking to "B" overthe telephone. "A" conspired with his friend "C",who was at the end of the extension line

listening to "A's" telephone conversation with"B" in order to overhear and tape-record theconversation wherein "B" confidentiallyadmitted that with evident premeditation, he (B)killed "D" for having cheated him in theirbusiness partnership. "B" was not aware thatthe telephone conversation was being tape-recorded.




In the criminal case against "B" for murder, isthe tape-recorded conversation containing hisadmission admissible in evidence? Why? (5%)SUGGESTED ANSWER:The tape-recorded conversation is notadmissible in evidence. As held in Salcedo-Ortanez vs. Court of Appeals, 235 SCRA 111(1994). Republic Act No. 4200 makes the tape-recording of a telephone conversation done

without the authorization of all the parties to theconversation, inadmissible in evidence. Inaddition, the taping of the conversation violatedthe guarantee of privacy of communicationsenunciated in Section 3, Article III of theConstitution.

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 thetown to intercept and open all mail addressed toand coming from Juan Samson in the interest ofthe national security. Was the order of the Chiefof Police 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.

An official in the Executive Department cannotinterfere with the privacy of correspondence

and communication 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. Duringhis trial, the prosecution introduced as evidencea letter written in prison by "X" to his wifetending to establish that the crime of murderwas the result of premeditation. The letter waswritten voluntarily. In the course of inspection, itwas opened and read by a warden pursuant tothe rules of discipline of the Bureau of Prisonsand considering its contents, the letter wasturned over to the prosecutor. The lawyer of "X"objected to the presentation of the letter and

moved for its return on the ground that itviolates the right of "X" against unlawful searchand seizure. 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 thereis no court order, there must be a lawauthorizing it in the interest of public safety ororder.

The ruling of the United States Supreme Courtin the 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), ArticleIII of the 1987 Constitution, the letter isinadmissible in evidence.

ALTERNATIVE ANSWER:The objection of the lawyer must be overruled.In Hudson vs. Palmer, 468 U.S. 517, it was held

that the constitutional prohibition against illegalsearches and seizures does not extend to theconfines of the prison. In Stroud vs. UnitedStates, 251 U.S. 15, the United States SupremeCourt held that letters voluntarily written by aprisoner and examined by the warden whichcontained incriminatory statements wereadmissible in evidence. Their inspection by theprison authorities did not violate theconstitutional prohibition against illegalsearches and seizures. This is an establishedpractice reasonably designed to promote

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 of

journalists. However, the City Mayor deniedtheir application on the ground that a rally at the




time and place applied for will block the traffic inthe San Miguel and Quiapo Districts. Hesuggested the Liwasang Bonifacio, which hasbeen designated a Freedom Park, as venue forthe rally.

1. Does the SM have a remedy to contestthe denial of its application for a permit?(2.5%)

SUGGESTED ANSWER:Yes, SM has a remedy. Under B.P. Big. 880(The Public Assembly Act of 1985), in the eventof denial of the application for a permit, theapplicant may contest the decision in anappropriate court of law. The court must decidewithin twenty-four (24) hours from the date offiling of the case. Said decision may beappealed to the appropriate court within forty-eight (48) hours after receipt of the same. In allcases, any decision may be appealed to theSupreme Court (Bayan Muna v. Ermita, G.R.No. 169838, April 25, 2006).

2. Does the availability of a Freedom Park justify the denial of SM's application for apermit? (2.5%)

SUGGESTED ANSWER:No, the availability of a freedom park does not

justify the denial of the permit. It does imply thatno permits are required for activities in freedomparks. Under B.P. Big. 880, the denial may be

justified only if there is clear and convincingevidence that the public assembly will create aclear and present danger to public order, public

safety, public convenience, public morals orpublic health (Bayan Muna v. Ermita, G.R. No.169838, April 25, 2006).

3. Is the requirement to apply for a permit tohold a rally a prior restraint on freedom ofspeech and assembly? (2.5%)

SUGGESTED ANSWER:No, the requirement for a permit to hold a rallyis not a prior restraint on freedom of speechand assembly. The Supreme Court has heldthat the permit requirement is valid, referring toit as regulation of the time, place, and manner

of holding public assemblies, but not thecontent of the speech itself. Thus, there is noprior restraint, since the content of the speechis not relevant to the regulation (Bayan Muna v.Ermita, G.R. No. 169838, April 25, 2006).

4. Assuming that despite the denial of SM'sapplication for a permit, its members holda rally, prompting the police to arrestthem. Are the arrests without judicialwarrants lawful? (2.5%)

SUGGESTED ANSWER:The arrests are unlawful. What is prohibited andpenalized under Sec. 13 (a) and 14 (a) of B.P.Big 880 is "the holding of any public assemblyas defined in this Act by any leader or organizerwithout having first secured that written permitwhere a permit is required from the officeconcerned x x x Provided, however, that noperson can be punished or held criminally liable

for participating in or attending an otherwisepeaceful assembly."

Thus, only the leader or organizer of the rallywithout a permit may be arrested without awarrant while the members may not bearrested, as they can not be punished or heldcriminally liable for attending the rally. However,under Section 12 thereof, when the publicassembly is held without a permit where apermit is required, the said public assemblymay be peacefully dispersed.

Right to Assembly; Permit Requirements(1992)No. 4: Olympia Academy, a private university,issued a student regulation for maintainingorder in the school campus and to ensure thatacademic activities shall be conductedeffectively.

Henceforth, every student organizationintending to hold any symposium, convocation,rally or any assembly within school propertyand involving at least 20 people must file, for

the prior approval of the Dean of Students, an Application setting forth the time, place,expected size of the group, and the subject-matter and purpose of the assembly.

The League of Nationalist Students questionsthe validity of the new regulation. Resolve.SUGGESTED ANSWER:The regulation is valid. As held In Rarnento us.Mal-abanan, 129 SCRA 359, if an assembly willbe held by students in school premises, permitmust be sought from the school authorities, whoare devoid of the power to deny such request

arbitrarily or unreasonably. In granting suchpermit, there may be conditions as to the timeand place of the assembly to avoid disruption ofclasses or stoppage of work of the non-academic personnel.

Right to Assembly; Public Teachers (2000)No XII - Public school teachers staged for daysmass actions at the Department of Education,Culture and Sports to press for the immediategrant of their demand for additional pay. The




DECS Secretary issued to them a notice of theillegality of their unauthorized action, orderedthem to immediately return to work, and warnedthem of imposable sanctions. They ignored thisand continued with their mass action. TheDECS Secretary issued orders for theirpreventive suspension without pay and chargedthe teachers with gross misconduct and grossneglect of duty for unauthorized abandonment

of teaching posts and absences without leave.a) Are employees in the public sector allowed

to form unions? To strike? Why? (3%)b) The teachers claim that their right to

peaceably assemble and petition thegovernment for redress of grievances hasbeen curtailed. Are they correct? Why?(2%)

SUGGESTED ANSWER:a) Section 8, Article III of the Constitution allowsemployees in the public sector to form unions.However, they cannot go on strike. Asexplained in Social Security System Employees

Association v. Court of Appeals. 175 SCRA 686[1989], the terms and conditions of theiremployment are fixed by law. Employees inthe public sector cannot strike to secureconcessions from their employer.

b. The teachers cannot claim that their right topeaceably assemble and petition for theredress of grievances has been curtailed.

According to Bangalisan v. Court of Appeals.276 SCRA 619 (1997), they can exercise thisright without stoppage of classes.

Right to Assembly; Public Teachers (2002)No X - Ten public school teachers of CaloocanCity left their classrooms to join a strike, whichlasted for one month, to ask for teachers'benefits.

The Department of Education, Culture andSports charged them administratively, for whichreason they were required to answer andformally investigated by a committee composedof the Division Superintendent of Schools asChairman, the Division Supervisor as member

and a teacher, as another member. On thebasis of the evidence adduced at the formalinvestigation which amply established theirguilt, the Director rendered a decision metingout to them the penalty of removal from office.The decision was affirmed by the DECSSecretary and the Civil Service Commission.On appeal, they reiterated the arguments theyraised before the administrative bodies, namely:

(a) Their strike was an exercise of theirconstitutional right to peaceful assembly and topetition the government for redress ofgrievances.SUGGESTED ANSWER:(a) According to De la Cruz v. Court of

Appeals, 305 SCRA 303 (1999), the argumentof the teachers that they were merely exercisingtheir constitutional right to peaceful assembly

and to petition the government for redress ofgrievance cannot be sustained, because suchrights must be exercised within reasonablelimits. When such rights were exercised onregular school days instead of during the freetime of the teachers, the teachers committedacts prejudicial to the best interests of theservice.

Right to Travel; Order of Arrest (1991)No. 6: Mr. Esteban Krony, a Filipino citizen, isarrested for the crime of smuggling. He postsbail for his release. Subsequently, he jumps bail

and is about to leave the country when theDepartment of Foreign Affairs (DFA) cancelshis passport. He sues the DFA, claimingviolation of his freedom to travel, citing the newprovision in the Bill of Rights of the 1987Constitution, to wit: "Neither shall the right totravel be impaired except in the interest ofnational security, public safety, or public health,as may be provided by law. Decide the case.SUGGESTED ANSWER:The case should be dismissed. Any personunder an order of arrest is under restraint and

therefore he can not claim the right to travel. Ifhe is admitted to bail his freedom of movementis confined within the country. Therefore, if hesubsequently jumps bail, he cannot demandpassport which in effect will facilitate his escapefrom the country; he is in fact liable to bearrested anytime. Indeed, the right to travelunder the Constitution presupposes that theindividual is under no restraint such as thatwhich would follow from the fact that one has apending criminal case and has been placedunder arrest.

Rights of the Accused; Counsel of hisChoice (Q8-2005)(1) Mariano was arrested by the NBI as a

suspect in the shopping mall bombings. Advised of his rights, Mariano asked for theassistance of his relative, Atty. Santos. TheNBI noticed that Atty. Santos wasinexperienced, incompetent and inattentive.Deeming him unsuited to protect the rightsof Mariano, the NBI dismissed Atty. Santos.

Appointed in his place was Atty. Barroso, a




bar topnotcher who was in the premisesvisiting a relative. Atty. Barroso ablyassisted Mariano when the latter gave astatement. However, Mariano assailed theinvestigation claiming that he was deprivedof counsel of his choice.

Was the NBI correct in dismissing Atty.Santos and appointing Atty. Barroso in his

stead? Is Mariano's statement, made withthe assistance of Atty. Barroso, admissiblein evidence? (5%)

ALTERNATIVE ANSWER:The NBI was not correct in dismissing Atty.Santos and appointing Atty. Barroso in hisstead. Article III, Section 12(1) of the 1987Constitution requires that a person underinvestigation for the commission of an offenseshall have no less than "competent andindependent counsel preferably of his ownchoice " This is meant to stress the primacy

accorded to the voluntariness of the choiceunder the uniquely stressful conditions of acustodial investigation' Thus, the lawyer calledto be present during such investigation shouldbe as far as reasonably possible, the choice ofthe individual undergoing questioning. Theappointment of Atty. Barroso is questionablebecause he was visiting a relative working inthe NBI and thus his independence is doubtful.Lawyers engaged by the police, whatevertestimonials are given as proof of their probityand supposed independence, are generally

suspect, as in many areas, the relationshipbetween lawyers and law enforcementauthorities can be symbiotic. Considering thatMariano was deprived of counsel of his ownchoice, the statement is inadmissible inevidence. (People v. Januario, G.R. No. 98252,February 7, 1997)

ALTERNATIVE ANSWER:The NBI was correct in dismissing Atty. Santosas he was incompetent. The 1987 Constitutionrequires counsel to be competent andindependent. Atty. Barroso, being a bar

topnotcher ably assisted Mariano and there isno showing that his having a relative in the NBIaffected his independence. Moreover, theaccused has the final choice of counsel as hemay reject the one chosen for him and ask foranother. A lawyer provided by the investigatorsis deemed engaged by the accused where heraises no objection against the lawyer duringthe course of the investigation, and the accusedthereafter subscribes to the truth of hisstatement before the swearing officer. Thus,

once the prosecution shows there wascompliance with the constitutional requirementon pre-interrogation advisories, a confession ispresumed to be voluntary and the declarantbears the burden of proving that his confessionis involuntary and untrue. A confession isadmissible until the accused successfullyproves that it was given as a result of violence,intimidation, threat or promise of reward or

leniency which are not present in this case. Accordingly, the statement is admissible.(People v. Jerez, G.R. No. 114385, January 29, 1998)

Rights of the Accused; Presumption ofInnocence vs. Presumption of Theft (2004)(5-b) OZ lost five head of cattle which hereported to the police as stolen from his barn.He requested several neighbors, including RR,for help in looking for the missing animals. Afteran extensive search, the police found two headin RR's farm. RR could not explain to the policehow they got hidden in a remote area of his

farm. Insisting on his innocence, RR consulteda lawyer who told him he has a right to bepresumed innocent under the Bill of Rights. Butthere is another presumption of theft arisingfrom his unexplained possession of stolencattle— under the penal law.

Are the two presumptions capable ofreconciliation In this case? If so, how can theybe 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 hewas found in possession of the stolen cattle.RR can prove his innocence by presentingevidence to rebut the presumption. The burdenof evidence is shifted to RR, because how hecame into possession of the cattle is peculiarlywithin his knowledge. (Dizon-Pamintuan v.People, 234 SCRA 63 (1994)).

Rights o f 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 thepolice station a week later and presentedhimself to the desk sergeant. Coincidentally. therape victim was in the premises executing anextrajudicial statement. Johann, along with six(6) other suspects, were placed in a police line-up and the girl pointed to him as the rapist.Johann was arrested and locked up in a cell.




Johann was charged with rape in court but priorto arraignment invoked his right to preliminaryinvestigation. This was denied by the judge,and thus, trial proceeded. After the prosecutionpresented several witnesses, Johann throughcounsel, invoked the right to ball and filed amotion therefor, which was denied outright bythe Judge. Johann now files a petition forcertiorari before the Court of Appeals arguing

that:3) He is entitled to bail as a matter of right,thus the Judge should not have denied hismotion to fix ball outright. Decide.SUGGESTED ANSWER:3) In accordance with Art. III. sec. 13 of theConstitution, Johann may be denied bail if theevidence of his guilt is strong considering thatthe crime with which he is charged ispunishable by reclusion perpetua. It is thus nota matter of right for him to be released on bail insuch case. The court must first make adetermination of the strength of the evidence on

the basis of evidence already presented by theprosecution, unless it desires to present somemore, and give the accused the opportunity topresent countervailing evidence. If having donethis the court finds the evidence not to bestrong, then it becomes the right of Johann tobe admitted to bail. The error of the trial courtlies in outrightly denying the motion for bail ofJohann.

Rights of the Accused; Right to Bail; CapitalOffense (Q4-2006)

State whether or not the law is constitutional.Explain briefly.2. A law denying persons charged with

crimes punishable by reclusion perpetuaor death the right to bail. (2%)SUGGESTED ANSWER:The law is invalid as it contravenesSection 13, Article III of the 1987Constitution which provides that "allpersons, except those charged withoffenses punishable by reclusion perpetuawhen evidence of guilt is strong, shall,before conviction, be bailable by sufficient

sureties, or be released on recognizanceas may be provided by law." The accusedmay not be deprived of his constitutionalright to bail even if charged with a capitaloffense where the evidence of guilt is notstrong.

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

No. 15: May an alien invoke the constitutionalright to bail during the pendency of deportationproceedings?SUGGESTED ANSWER: No. an alien may not invoke the constitutionalright to bail during the pendency of deportationproceedings. In Harvey vs Santiago, 162 SCRA840, it was held that the constitutionalguarantee to bail may not be invoked in

deportation proceedings, because they do notpartake of the nature of a criminal action.

Rights of the Accused; Right to Bail; Matterof Right or a Matter of Discretion (Q7-2005)a) State with reason(s) whether bail is a matter

of right or a matter of discretion in thefollowing cases: (4%)

a) The imposable penalty for the crimecharged is reclusion perpetua and theaccused is a minor;

SUGGESTED ANSWER:

If the accused is a minor where the imposablepenalty for the crime charged is reclusionperpetua, bail would be a matter of right. Under

Article 68 of the Revised Penal Code, when theoffender is a minor under eighteen years ofage, he is entitled to a penalty, depending onhis age, lower by one or two degrees than thatprescribed by law for the crime committed. TheConstitution withholds the guaranty of bail fromone who is accused of a capital offense wherethe evidence of guilt is strong. The obviousreason is that one who faces a probable death

sentence has a particularly strong temptation toflee. This reason does not hold where theaccused has been established without objectionto be a minor who by law cannot be sentencedto death. (Bravo v. Borja, G.R. No. L-65228,February 18, 1985)

b) The imposable penalty for the crimecharged is life imprisonment and theaccused is a minor;

ALTERNATIVE ANSWER:If the accused is a minor and the imposable

penalty for the crime charged is lifeimprisonment, bail would not be a matter ofright. In the instant case, assuming thatevidence of guilt strong, bail shall be denied asthe privileged mitigating circumstance ofminority is not available for violation of speciallaws penalized by life imprisonment.

ALTERNATIVE ANSWER: Although the Constitution mentions onlyreclusion perpetua, Rule 114 of the Rules of




Court adds life imprisonment, and therefore,applying the PRO REO DOCTRINE, bail wouldstill be a matter of right, since it is favorable tothe accused.

c) The accused has been convicted ofhomicide on a charge of murder andsentenced to suffer an indeterminatepenalty of from eight (8) years and one (1)

day of prision mayor, as minimum, to twelve(12) years and four (4) months of reclusiontemporal, as maximum.

SUGGESTED ANSWER:If the accused has been convicted of homicideon a charge of murder and sentenced to sufferimprisonment of from 8 to 12 years, bail is amatter of discretion. Under Rule 114, Sec. 5,par. 1 of the Rules of Court, if the decision ofthe trial court convicting the accused changedthe nature of the offense from non-bailable tobailable, the application for bail may be filed

and acted upon by the appellate court. Admission to bail is discretionary.

Rights of the Accused; Right to Speedy Trial(2000)No XV. Charged by Francisco with libel, 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 goabroad to fulfill a professional commitment. The

judge instead dismissed the case for failure toprosecute.a) Would the grant of the motion forpostponement have violated the accused's rightto speedy trial? (2%)SUGGESTED ANSWER:The grant of the motion for postponementwould not have violated the right of the accusedto speedy trial. As held In People v. Leviste,255 SCRA 238 (1996). since the motion forpostponement was the first one requested, the

need for the offended party to attend to aprofessional commitment is a valid reason, nosubstantial right of the accused would beprejudiced, and the prosecution should beafforded a fair opportunity to prosecute its case,the motion should be granted.

ALTERNATIVE ANSWER:Since continuous trial of cases is required andsince the date of the initial hearing was setupon agreement of all parties, including the

private complainant, the judge properlydismissed the case for failure to prosecute.

Rights of the Accused; Self-Incrimination(1988)No. 3: Dr. Juan Sto. Tomas is a practicingdentist in Marikina, Metro Manila. He wascharged with immorality before the Board ofDentistry by a lady patient, who claims that Dr.

Sto. Tomas took liberties with her person andkissed her while she was under the treatment atthe latter's clinic.

At the initial hearing of the administrativecomplaint, the complainant's counsel called therespondent as his first witness. The respondentthrough counsel, objected vigorously, claiminghis constitutional right to be exempt from beinga witness against himself. The Board noted theobjection, but ruled that in the next scheduledhearing, a month and a half later, therespondent would be called to testify as a

witness, as the right he claims is not availablein administrative investigations, but only incriminal prosecutions.

Dr. Sto. Tomas is decided not to testify. As hislawyer, what would you do? Why?SUGGESTED ANSWER:I will file a petition for prohibition with prayer forpreliminary injunction with the Regional TrialCourt. The privilege against self incrimination isavailable not only in judicial proceedings butalso in administrative investigations. In Pascual

v. Board of Medical Examiners, 28 SCRA 344(1969), it was held that the revocation of alicense as a medical practitioner can be aneven greater deprivation than mere forfeiture ofproperty. In some aspects it is similar tocriminal proceedings and, therefore, therespondent can not be made to testify as awitness for the complainant.

Rights of the Accused; Self-Incrimination(1990)No. 4: The privilege of self-incrimination mustbe timely invoked, otherwise it is deemed

waived.1. In a CIVIL CASE, the plaintiff called the

defendant a hostile witness andannounced that the defendant would beasked incriminating questions in the directexamination. When should the defendantinvoke the privilege against self-incrimination?

2. In a CRIMINAL CASE, the prosecutioncalled the accused to the witness stand asthe first witness in view of certain facts




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 complainantcalled C to the witness stand. Whenshould C invoke the privilege against self-incrimination?

Explain your answers to the three questions.SUGGESTED ANSWER:(1) As held in Bagadiong v, De Guzman, 94SCRA 906, the defendant should take thewitness stand and object when a questioncalling for an incriminating question ispropounded. Unlike in proceedings which arecriminal in character in which the accused canrefuse to testify, the defendant must wait until aquestion calling for an incriminatory answer isactually 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 purposeof calling him as a witness for the prosecutionhas no other purpose but to incriminate him.

(3) As in a criminal case, C can refuse to takethe witness stand and refuse to answer anyquestion. In Pascual v. Board of MedicalExaminers, 28 SCRA 344, it was held that anadministrative case for malpractice andcancellation of the license to practice medicine

is penal in character, because an unfavorabledecision would result in the revocation of thelicense of the respondent to practice medicine.Consequently, he can refuse to take thewitness 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 theinfluence of alcohol. The results of the test canbe used, in any legal proceeding against him.Furthermore, declaring that the issuance of adriver's license gives rise only to a privilege todrive motor vehicles on public roads, the lawprovides that a driver who refuses to take thetest shall be automatically subject to a 90-daysuspension of his 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 requiringa driver to take the breathalyzer test will violatehis right against self-incrimination, thatproviding for the suspension of his driver'slicense without any hearing violates due

process, and that the proposed law will violatethe right against unreasonable searches andseizures, because it allows police authorities torequire a drive to take the breathalyzer testeven if there is no probable cause.

Requiring a driver to take a BREATHALYZERTEST does not violate his right against self-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 constitutionalguarantee against self-incrimination. Thus, in

South Dakota vs. Neville, 459 U.S. 553, it washeld for this reason that requiring a driver totake a blood-alcohol test is valid.

As held in Mackey vs. Afontrya 443 U.S. 1,because of compelling government interest insafety along the streets, the license of a driverwho refuses to take the breathalyzer test maybe suspended immediately pending a post-suspension hearing, but there must be aprovision for a post-suspension hearing. Thus,to save the proposed law from

unconstitutionally on the ground of denial of dueprocess, it should provide for an immediatehearing upon suspension of the driver's license.The proposed law violates the right againstunreasonable searches and seizures. It willauthorize police authorities to stop any driverand ask him to take the breathalyzer test evenin the absence of a probable cause.

Rights of the Accused; Self-Incrimination(2000)No XI. b) A man was shot and killed and hiskiller fled. Moments after the shooting, an

eyewitness described to the police that theslayer wore white pants, a shirt with floraldesign, had boots and was about 70 kilos and1.65 meters. Borja, who fit the descriptiongiven, was seen nearby. He was taken intocustody and brought to the police precinctwhere his pants, shirt and boots were forciblytaken and he was weighed, measured,photographed, fingerprinted and subjected toparaffin testing. At his trial, Borja objected tothe admission in evidence of the apparel, his




height and weight, his photographs, fingerprintscomparison and the results of the paraffin test,asserting that these were taken in violation ofhis right 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-incriminationis violated in the following cases: (5%)a. When he is ordered by the trial court to

undergo a paraffin test to prove he is guiltyof murder;

b. When he is compelled to produce hisbankbooks to be used as evidence againsthis father charged with plunder;

c. When he is ordered to produce a sample ofhis handwriting to be used as evidence thathe is the author of a letter wherein heagreed to kill the victim;

d. When the president of a corporation is sub-poenaed to produce certain documents asproofs he is guilty 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

Article HI, Section 17 of the 1987 Constitution,"no person 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, tofurnish the missing evidence necessary for hisconviction (Bermudez v. Castillo, Per Rec. No.714-A, July 26, 1937; Beltran v. Samson, G.R.No. 32025, September 23,1929).

Searches and Seizure; Private Individuals(Q8-2005)(2) Emilio had long suspected that Alvin, his

employee, had been passing trade secretsto his competitor, Randy, but he had no

proof. One day, Emilio broke open the deskof Alvin and discovered a letter whereinRandy thanked Alvin for having passed onto him vital trade secrets of Emilio.Enclosed in the letter was a check forP50,000.00 drawn against the account ofRandy and payable to Alvin. Emilio thendismissed Alvin from his employment.Emilio's proof of Alvin's perfidy are the said

letter and check which are objected to asinadmissible for having been obtainedthrough an illegal search. Alvin filed a suitassailing his dismissal.Rule on the admissibility of the letter andcheck. (5%)

ALTERNATIVE ANSWER: As held in People v. Marti (G.R. No. 81561,January 18, 1991), the constitution, in layingdown the principles of the government andfundamental liberties of the people, does notgovern relationships between individuals. Thus,

if the search is made at the behest or initiativeof the proprietor of a private establishment forits own and private purposes and without theintervention of police authorities, the rightagainst unreasonable search and seizurecannot be invoked for only the act of privateindividuals, not the law enforcers, is involved. Insum, the protection against unreasonablesearches and seizures cannot be extended toacts committed by PRIVATE INDIVIDUALS soas to bring it within the ambit of alleged unlawfulintrusion by the government. Accordingly, the

letter and check are admissible in evidence.(Waterous Drug Corp. v. NLRC, G.R. No.113271, October 16, 1997)

ALTERNATIVE ANSWER:The letter is inadmissible in evidence. Theconstitutional injunction declaring the privacy ofcommunication and correspondence to beinviolable is no less applicable simply becauseit is the employer who is the party againstwhom the constitutional provision is to beenforced. The only exception to the prohibitionin the Constitution is if there is a lawful order

from the court or when public safety or orderrequires otherwise, as prescribed by law. Anyviolation of this provision renders the evidenceobtained inadmissible for any purpose in anyproceeding. (Zulueta v. Court of Appeals, G.R.No. 107383, February 20, 1996)

Searches and Seizures; Al iens (2001)No IV - A is an alien. State whether, in thePhilippines, he: Is entitled to the right against




illegal searches and seizures and against illegalarrests. (2%)SUGGESTED ANSWER:

Aliens are entitled to the right against illegalsearches and seizures and illegal arrests. Asapplied in People v. Chua Ho San, 307 SCRA432 (1999), these rights are available to allpersons, including aliens.

Searches and Seizures; Breathalyzer Test(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 determinewhether he has been driving under theinfluence of alcohol. The results of the test canbe used, in any legal proceeding against him.Furthermore, declaring that the issuance of adriver's license gives rise only to a privilege todrive motor vehicles on public roads, the law

provides that a driver who refuses to take thetest shall be automatically subject to a 90-daysuspension of his 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 requiringa driver to take the breathalyzer test will violatehis right against self-incrimination, thatproviding for the suspension of his driver'slicense without any hearing violates due

process, and that the proposed law will violatethe right against unreasonable searches andseizures, because it allows police authorities torequire a drive to take the breathalyzer testeven if there is no probable cause

Requiring a driver to take a breathalyzer testdoes not violate his right against self-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 constitutionalguarantee against self-incrimination. Thus, in

South Dakota vs. Neville, 459 U.S. 553, it washeld for this reason that requiring a driver totake a blood-alcohol test is valid.

As held in Mackey vs. Afontrya 443 U.S. 1,because of compelling government interest insafety along the streets, the license of a driverwho refuses to take the breathalyzer test maybe suspended immediately pending a post-suspension hearing, but there must be aprovision for a post-suspension hearing. Thus,

to save the proposed law fromunconstitutionally on the ground of denial of dueprocess, it should provide for an immediatehearing upon suspension of the driver's license.The proposed law violates the right againstunreasonable searches and seizures. It willauthorize police authorities to stop any driverand ask him to take the breathalyzer test evenin the absence of a probable cause.

Searches and Seizures; Immediate Control(1987)No. III: "X" a Constabulary Officer, was arrestedpursuant to a lawful court order in Baguio Cityfor murder. He was brought to Manila where awarrantless search was conducted in his officialquarters at Camp Crame, The search teamfound and seized the murder weapon in adrawer of "X". Can "X" claim that the searchand seizure were illegal and move for exclusionfrom evidence of the weapon seized? Explain.SUGGESTED ANSWER:

Yes, "X" can do so. The warrantless searchcannot be justified as an incident of a validarrest, because considerable time had elapsedafter his arrest in Baguio before the search ofhis quarters in Camp Crame, Quezon City wasmade, and because the distance between theplace of arrest and the place of search negatesany claim that the place searched is within his"immediate control" so as to justify theapprehension that he might destroy or concealevidence of crime before a warrant can beobtained. (Chimel v. California, 395 U.S. 752

(1969) ) in Nolasco v. Cruz Pano, 147 SCRA509 (1987), the Supreme Court reconsidered itsprevious decision holding that a warrantlesssearch, made after 30 minutes from the time ofarrest, and, in a place several blocks away fromthe place of arrest, was valid. It held that awarrantless search is limited to the search ofthe person of the arrestee at the time andincident to his arrest and for dangerousweapons or anything which may be used asproof of the offense. A contrary rule would

justify the police in procuring a warrant of arrestand, by virtue thereof, not only arrest the

person but also search his dwelling. A warrantrequires 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

judicial proceeding.

Searches and Seizures; Incidental to ValidSearch (1990)No. 9; Some police operatives, acting under alawfully issued warrant for the purpose of




searching for firearms in the House of X locatedat No. 10 Shaw Boulevard, Pasig, MetroManila, found, instead of firearms, tenkilograms of cocaine.(1) May the said police operatives lawfully

seize the cocaine? Explain your answer.(2) May X successfully challenge the legality

of the search on the ground that thepeace officers did not inform him about

his right to remain silent and his right tocounsel? Explain your answer.

(3) Suppose the peace officers were able tofind unlicensed firearms in the house inan adjacent lot, that is. No, 12 ShawBoulevard, which is also owned by X.May they lawfully seize the saidunlicensed firearms? Explain youranswer.

SUGGESTED ANSWER: (1) Yes, the police operatives may lawfullyseize the cocaine, because it is an item whosepossession is prohibited by law, it was in plain

view and it was only inadvertently discovered inthe course of a lawful search. The possessionof cocaine is prohibited by Section 8 of theDangerous Drugs Act. As held in Magoncia v.Palacio, 80 Phil. 770, an article whosepossession is prohibited by law may be seizedwithout the need of any search warrant if it wasdiscovered during a lawful search. Theadditional requirement laid down in Roan v.Gonzales, 145 SCRA 687 that the discovery ofthe article must have been made inadvertentlywas also satisfied in this case.

(2) No, X cannot successfully challenge thelegality 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 Constitutionprovides: "Any person under investigation forthe commission of an offense shall have theright to be informed of his right to remain silentand to have competent and independentcounsel preferably of his own choice."

As held in People v. Dy, 158 SCRA 111. forthis provision to apply, a suspect must be

under investigation. There was noinvestigation involved in this case.

(3) The unlicensed firearms stored at 12 ShawBoulevard may lawfully be seized since theirpossession is illegal. As held in Magoncia aPalacio, 80 Phil. 770, when an individualpossesses contraband (unlicensed firearmsbelong to this category), he is committing acrime and he can be arrested without a warrantand the contraband can be seized.

ALTERNATIVE ANSWER:In accordance with the rulings in Uy Keytin v,Villareal, 42 Phil. 886 and People v. Sy Juco,64 Phil. 667, the unlicensed firearms found inthe house at 12 Shaw Boulevard may not belawfully seized, since they were not included inthe description of the articles to be seized byvirtue of the search warrant. The searchwarrant described the articles to be seized as

firearms in the house of X located at 10 ShawBoulevard.

Searches and Seizures; Place of Search(2001)No XI - Armed with a search and seizurewarrant, a team of policemen led by InspectorTrias entered a compound and searched thehouse described therein as No. 17 SpeakerPerez St., Sta. Mesa Heights, Quezon City,owned by Mr. Ernani Pelets, for a reportedcache of firearms and ammunition. However,upon thorough search of the house, the police

found nothing.

Then, acting on a hunch, the policemenproceeded to a smaller house inside the samecompound with address at No. 17-A SpeakerPerez St., entered it, and conducted a searchtherein over the objection of Mr. Pelets whohappened to be the same owner of the firsthouse. There, the police found the unlicensedfirearms and ammunition they were looking for.

As a result. Mr. Ernani Pelets was criminallycharged in court with Illegal possession of

firearms and ammunition as penalized underP.D. 1866, as amended by RA. 8294. At thetrial, he vehemently objected to thepresentation of the evidence against him forbeing inadmissible. Is Mr. Emani Pelet'scontention valid or not? Why? (5%)SUGGESTED ANSWER:The contention of Ernani Pelet is valid. As heldin People vs. Court of Appeals, 291SCRA 400(1993), if the place searched is different fromthat stated in the search warrant, the evidenceseized is inadmissible. The policeman cannotmodify the place to be searched as set out in

the search warrant.

Searches and Seizures; search made by aprivate citi zen (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 thename and address of the owner, opened theattache case and saw packages which had a




peculiar smell and upon squeezing felt likedried leaves. His curiosity aroused, themanager made an opening on one of thepackages and took several grams of thecontents thereof. He took the packages to theNBI, and in the presence of agents, opened thepackages, the contents of which uponlaboratory examination, turned out to bemarijuana flowering tops, Larry was

subsequently found, brought to the NBI Officewhere he admitted ownership of the attachecase and the packages. He was made to sign areceipt for the packages. Larry was charged incourt for possession of prohibited drugs. Hewas convicted. On appeal, he now poses thefollowing issues:1) The packages are inadmissible in evidence

being the product of an illegal search andseizure; .

2) Neither is the receipt he signed admissible,his rights under custodial investigation nothaving been observed. Decide.

SUGGESTED ANSWER:On the assumption that the issues were timelyraised the answers are as follows:1) The packages are admissible in evidence.The one who opened the packages was themanager of the motel without any interferenceof the agents of the National Bureau ofInvestigation. As held in People vs. Marti, 193SCRA 57, the constitutional right againstunreasonable searches and seizures refers tounwarranted intrusion by the government anddoes not operate as a restraint upon private

individuals.2) The receipt is not admissible in evidence. ...

Searches and Seizures; search made by aprivate citi zen (2002)No VIII. One day a passenger bus conductorfound a man's handbag left in the bus. Whenthe conductor opened the bag, he found insidea catling card with the owner's name (DanteGalang) and address, a few hundred peso bills,and a small plastic bag containing a whitepowdery substance. He brought the powderysubstance to the National Bureau of

Investigation for laboratory examination and itwas determined to be methamphetaminehydrochloride or shabu, a prohibited drug.Dante Galang was subsequently traced andfound and brought to the NBI Office where headmitted ownership of the handbag and itscontents. In the course of the interrogation byNBI agents, and without the presence andassistance of counsel, Galang was made tosign a receipt for the plastic bag and its shabucontents. Galang was charged with illegal

possession of prohibited drugs and wasconvicted.On appeal he contends that -(1) The plastic bag and its contents are

inadmissible in evidence being the productof an illegal search and seizure; (3%) and

(2) The receipt he signed is also inadmissibleas his rights under custodial investigationwere not observed. (2%)

Decide the case with reasons.SUGGESTED ANSWER:

A. The plastic bag and its contents areadmissible in evidence, since it was not theNational Bureau of Investigation but the busconductor who opened the bag and brought it tothe National Bureau of Investigation. As heldIn People v. Marti, 193 SCRA 57 (1991), theconstitutional right against unreasonable searchand seizure is a restraint upon the government.It does not apply so as to require exclusion ofevidence which 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 Unitwere assigned on surveillance of the environsof a cemetery where the sale and use ofdangerous drugs are rampant. A man withreddish and glassy eyes was walking unsteadilymoving towards them but veered away when hesensed the presence of policemen. They

approached him, introduced themselves aspolice officers and asked him what he hadclenched in his hand. As he kept mum, thepolicemen pried his hand open and found asachet of shabu, a dangerous drug. Accordinglycharged in court, the accused objected to theadmission in evidence of the dangerous drugbecause it was the result of an illegal searchand 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 hadred eyes and was walking unsteadily and theplace is a known hang-out of drug addicts, thepolice officers had sufficient reason to stop theaccused and to frisk him. Since shabu wasactually found during the investigation, it couldbe seized without the need for a searchwarrant.




b) A warrantless search may be effected inthe following cases:a) Searches incidental to a lawful arrest:b) Searches of moving vehicles;c) Searches of prohibited articles in plain view:d) Enforcement of customs law;e) Consented searches;f) Stop and frisk (People v. Monaco, 285

SCRA 703 [1998]);

g) Routine searches at borders and ports ofentry (United States v. Ramsey, 431 U.S.606 [1977]); and

h) Searches of businesses in the exercise ofvisitorial powers to enforce policeregulations (New York 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 aflashlight, the police saw firearms at thebackseat of a car partially covered by papersand 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,prohibited drugs were found inside thevarious compartments of Antonio's car,can the drugs be used in evidenceagainst Antonio if he is prosecuted forpossession of prohibited drugs? Explain.

SUGGESTED ANSWER:a) Yes, the firearms are admissible inevidence, because they were validly seized. InValmonte vs. De Villa, 178 SCRA 211 and 185SCRA 665, the Supreme Court held thatcheckpoints may be set up to maintain peaceand order for the benefit of the public andcheckpoints are a security measure againstunauthorized firearms. Since the search whichresulted in the discovery of the firearms was

limited to a visual search of the car, it wasreasonable. Because of the ban on firearms,the possession of the firearms was prohibited.Since they were found in plain view in thecourse 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 forpossession of 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 sucha search to be valid, there must be a probablecause. In this case, there was no probablecause, as there was nothing to indicate that

Antonio had prohibited drugs inside thecompartments of his car.

Searches and Seizures; Waiver of Consent(1989)No. 7: Pursuing reports that great quantities ofprohibited drugs are being smuggled atnighttime through the shores of Cavite, theSouthern Luzon Command set up checkpointsat the end of the Cavite coastal road to searchpassing motor vehicles. A 19-year old boy, whofinished fifth grade, while driving, was stoppedby the authorities at the checkpoint. Withoutany objection from him, his car was inspected,and the search yielded marijuana leaves hiddenin the trunk compartment of the car. The

prohibited drug was promptly seized, and theboy was brought to the police station forquestioning. Was the search without warrantlegal?SUGGESTED ANSWER: No, the search was not valid, because therewas no probable cause for conducting thesearch. As held in Almeda Sanchez vs. UnitedStates, 413 U.S. 266, while a moving vehiclecan be searched without a warrant, there muststill be probable cause. In the case in question,there was nothing to indicate that marijuana

leaves were hidden in the trunk of the car. Themere fact that the boy did not object to theinspection of the car does not constituteconsent to the search. As ruled in People vs.Burgos, 144 SCRA 1, the failure to object to awarrantless search does not constitute consent,especially in the light of the fact.

ALTERNATIVE ANSWER:Yes. The requirement of probable cause differsfrom case to case. In this one, since thepolice agents are confronted with large-scalesmuggling of prohibited drugs, existence ofwhich is of public knowledge, they can set up

checkpoints at strategic places, in the sameway that of in a neighborhood a child iskidnapped, it is lawful to search cars andvehicles leaving the neighborhood or village:This situation is also similar to warrantlesssearches of moving vehicles in customs area,which searches have been upheld. (Papa vs.Mago, 22 SCRA 857 (1968). The rule is basedon practical necessity.




Searches and Seizures; Warrantless Arrests(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 thepolice station a week later and presentedhimself to the desk sergeant. Coincidentally. therape victim was in the premises executing anextrajudicial statement. Johann, along with six

(6) other suspects, were placed in a police line-up and the girl pointed to him as the rapist.Johann was arrested and locked up in a cell.Johann was charged with rape in court but priorto arraignment invoked his right to preliminaryinvestigation. This was denied by the judge,and thus, trial proceeded. After the prosecutionpresented several witnesses, Johann throughcounsel, invoked the right to bail and filed amotion therefor, which was denied outright bythe Judge. Johann now files a petition forcertiorari before the Court of Appeals arguingthat: His arrest was not in accordance with law.

Decide.SUGGESTED ANSWER:Yes, the warrantless arrest of Johann was notin accordance with law. As held in Go v. Courtof Appeals, 206 SCRA 138, his case does notfall under the Instances in Rule 113, sec. 5 (a)of the 1985 Rules of Criminal Procedureauthorizing warrantless arrests. It cannot beconsidered a valid warrantless arrest becauseJohann did not commit a crime in the presenceof the police officers, since they were notpresent when Johann had allegedly raped his

neighbor. Neither can It be considered an arrestunder Rule 113 sec. 5 (b) which allows anarrest without a warrant to be made when acrime has in fact just been committed and theperson making the arrest has personalknowledge offsets indicating that the person tobe arrested committed it. Since Johann wasarrested a week after the alleged rape, it cannotbe deemed to be a crime which "has just beencommitted". Nor did the police officers whoarrested him have personal knowledge of factsindicating that Johann raped his neighbor.

Searches and Seizures; Warrants of Arrest(1991)No. 8: On the basis of a verified report andconfidential information that various electronicequipment, which were illegally imported intothe Philippines, were found in the bodega of theTikasan Corporation located at 1002 BinakayanSt., Cebu City, the Collector of Customs ofCebu issued, in the morning of 2 January 1988,a Warrant of Seizure and Detention against thecorporation for the seizure of the electronic

equipment. The warrant particularly describesthe electronic equipment and specifies theprovisions of the Tariff and Customs Codewhich were violated by the importation.

The warrant was served and implemented inthe afternoon of 2 January 1988 by Customspolicemen who then seized the describedequipment. The inventory of the seized articles

was signed by the Secretary of the TikasanCorporation. The following day, a hearingofficer in the Office of the Collector of Customsconducted a hearing on the confiscation of theequipment.

Two days thereafter, the corporation filed withthe Supreme Court a petition for certiorari,prohibition and mandamus to set aside thewarrant, enjoin the Collector and his agentsfrom further proceeding with the forfeiturehearing and to secure the return of theconfiscated equipment, alleging therein that the

warrant issued is null and void for the reasonthat, pursuant to Section 2 of Article III of the1987 Constitution, only a judge may issue asearch warrant. In his comment to the petition,the Collector of Customs, through the Office ofthe Solicitor General, contends that he isauthorized under the Tariff and Custom Code toorder the seizure of the equipment whoseduties and taxes were not paid and that thecorporation did not exhaust administrativeremedies. Should the petition be granted?Decide.

SUGGESTED ANSWER: The petition should not be granted. Under Secs.2205 and 2208 of the Tariff and Customs Code,customs officials are authorized to enter anywarehouse, not used as dwelling, for thepurpose of seizing any article which is subjectto forfeiture. For this purpose they need nowarrant issued by a court. As stated in Viduyavs. Berdiago, 73 SCRA 553. for centuries theseizure of goods by customs officials to enforcethe customs laws without need of a searchwarrant has been recognized.

ARTICLE IV Cit izenship Action for Cancellation; Prescr ip tion &Effect o f Death (1994)No. 7: - Enzo, a Chinese national, was grantedPhilippine citizenship in a decision rendered bythe Court of First Instance of Pampanga onJanuary 10, 1956. He took his oath of office onJune 5, 1959. In 1970, the Solicitor Generalfiled a petition to cancel his citizenship on theground that in July 1969 the Court of Tax

Appeals found that Enzo had cheated the




government of income taxes for the years 1956to 1959. Said decision of the Tax Court wasaffirmed by the Supreme Court in 1969.Between 1960 and 1970, Enzo had acquiredsubstantial real property In the Philippines,(1) Has the action for cancellation of Enzo's

citizenship prescribed?(2) Can Enzo ask for the denial of the petition

on the ground that he had availed of the

Tax Amnesty for his tax liabilities?(3) What is the effect on the petition for

cancellation of Enzo's citizenship if Enzodied during the pendency of the hearing onsaid petition?

SUGGESTED ANSWER:1) No, the action has not prescribed. As held inRepublic vs. Li Yao, 214 SCRA 748, acertificate of naturalizalion may be cancelled atany time if it was fraudulently obtained bymisleading the court regarding the moralcharacter of the petitioner.

2) No, Enzo cannot ask for the denial of thepetition for the cancellation of his certificate ofnaturalization on the ground that he had availedof the tax amnesty. In accordance with theruling in Republic vs. Li Yao, 224 SCRA 748,the tax amnesty merely removed all the civil,criminal and administrative liabilities of Enzo. Itdid not obliterate his lack of good moralcharacter and irreproachable conduct.3) On the assumption that he left a family, thedeath of Enzo does not render the petition forthe cancellation of his certificate of

naturalization moot. As held in Republic vs. LiYao, 224 SCRA 748, the outcome of the casewill affect his wife and children.

Citizenship; Elected Official (1993)No. 7: Ferdie immigrated to the United States inthe 1980s. Thereafter, he visited his hometown,Makahoy, every other year during town fiestas.In January 1993. Ferdie came home and filedhis certificate of candidacy for Mayor ofMakahoy. He won in the elections. Joe, thedefeated candidate, learned that Ferdie is agreencard holder which on its face identifies

Ferdie as a "resident alien" and on the backthereof is clearly printed:

"Person identified by this card is entitled toreside permanently and work in the UnitedStates." Joe filed a case to disqualify Ferdiefrom assuming the mayorship of Maka-hoy.

Questions:(1) Whether or not a green card is proof that

the holder is a permanent resident of theUnited States.

(2) Whether or not Ferdie's act of filing hiscertificate of candidacy constitutes waiver ofhis status as a permanent resident of theUnited States.

SUGGESTED ANSWER:1) According to the ruling in Coast vs. Court of

Appeals, 191 SCRA 229, a green card is proofthat the holder is a permanent resident of theUnited States, for it identifies the holder as a

resident of the United States and states that theholder is entitled to reside permanently andwork in the United States.

2) The filing of a certificate of candidacy doesnot constitute a waiver of the status of theholder of a green card as a permanent residentof the United States. As held in Coast vs. Courtof Appeals, 191 SCRA229, the waiver shouldbe manifested by an act independent of andprior to the filing of his certificate of candidacy.

Dual Allegiance vs. Dual Citizenship (1987)

No. VIII: "A" was born in 1951 in the UnitedStates of a Chinese father and a Filipinamother. Under Chinese laws, "A's" motherautomatically became a Chinese national byher marriage.

In 1973, upon reaching the age of majority, "A"elected to acquire Philippine citizenship.However, "A" continued to reside in Californiaand to carry an American passport. He alsopaid allegiance to the Taipei government. In the1987 Philippine National elections, he was

elected Senator. His opponent moved todisqualify him on the grounds:a) That he was not a natural born citizen; andb) That he had "dual allegiance" not only to

the United States but also to the Republic ofChina.

Decide.SUGGESTED ANSWER:The electoral contest must be dismissed.(a) "A" is a natural born citizen. Art. IV, Sec. 2of the 1987 Constitution provides that "thosewho elect Philippine citizenship in accordancewith paragraph (3), Sec. 1 hereof shall be

deemed natural born citizens." The purpose ofthis provision is to equalize the status of thosewho elected Philippine citizenship before andthose who did so after January 17, 1973 whenthe previous Constitution took effect.

(b) The "DUAL ALLEGIANCE" declaredinimical to national interest in Art. IV, Sec. 5refers to the dual allegiance of some such asnaturalized Filipino citizens (mostly Chinese)who maintain allegiance to Nationalist China as




shown in some cases by their membership inthe legislative 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 havedual allegiance 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, expressrenunciation is different from an act ofallegiance to a foreign power as a ground forloss of Philippine citizenship. Moreover, whatconstitutes "dual allegiance" inimical to nationalinterest is and what the sanctions for such dualallegiance will be, will still have to be defined bylaw pending adoption of such legislation,objection based on dual allegiance will bepremature.

Dual Allegiance vs. Dual Citizenship (1988)

No. 13: Robert Brown was born in Hawaii onMay 15, 1962, of an American father and aFilipina mother. On May 16, 1983 while holdingan American passport, he registered as aFilipino with the Philippine Consulate atHonolulu, Hawaii. In September, 1983 hereturned to the Philippines, and took upresidence at Boac, Marinduque, hometown ofhis mother. He registered as a voter, voted, andeven participated as a leader of one of thecandidates in that district in the 1984 Batasanelections. In the elections of 1987, he ran for

Congressman, and won. His sole opponent isnow questioning his qualifications and is tryingto oust him on two basic claims:(1) He is not a 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;(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,who thereafter upon reaching the age ofmajority elect Philippine citizenship, is a citizen

of the Philippines (Art. IV, sec. 1(3)). Under Art.IV, sec, 2 he is also deemed a natural-borncitizen.

2. The Constitution requires, among otherthings, that a candidate for member of theHouse of Representatives must be at least 25years of age "on the day of the election." (Art.VI, sec. 6). As Brown was born on May 15,

1962, he did not become 25 years old until May15, 1987. Hence on May 11, 1987, when theelection was held, he was 4 days short of therequired age.

3. The Constitution provides that those whoseek either to change their citizenship or toacquire the status of an immigrant of anothercountry "during their tenure" shall be dealt withby law (Art. XI, sec. 17). The provision cannotapply to Brown for the following reasons: First,Brown is in addition an American citizen andthus has a dual citizenship which is allowed by

the Constitution. (Cf. Art. IV, sec. 4), Second,Brown did not seek to acquire the status of animmigrant, but is an American by birth underthe principle of jus soli obtaining in the UnitedStates. Third, he did not seek to change hisstatus during his tenure as a public officer.Fourth, the provision of Art. XI, sec. 17 is notself-executing but requires an implementinglaw. Fifth, but above all, the House ElectoralTribunal 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,a national of the State of Kongo. Under the lawsof Kongo, an alien woman marrying a Kongonational automatically acquires Kongocitizenship. After her marriage, Zeny resided inKongo and acquired a Kongo passport. In 1991,Zeny returned to the Philippines to run forGovernor of Sorsogon.(1) Was Zeny qualified to run for Governor?(2) Suppose instead of entering politics. Zeny

just got herself elected as vice-president of

the Philippine Bulletin, a local newspaper.Was she qualified to hold that position?

SUGGESTED ANSWER: 1) Under Section 4, Article IV of theConstitution. Zeny retained her Filipinocitizenship. Since she also became a citizen ofKongo, she possesses dual citizenship.Pursuant to Section 40 (d) of the LocalGovernment Code, she is disqualified to run forgovernor. In addition, if Zeny returned to thePhilippines, less than a year immediately before




the day of the election, Zeny is not qualified torun for Governor of Sorsogon. Under Section39(a) of the Local Government Code, acandidate for governor must be a resident in theprovince where he intends to run at least one(1) year immediately preceding the day of theelection. By residing in Kongo upon hermarriage in 1989, Zeny abandoned herresidence in the Philippines.

This is in accordance with the decision in Caasivs. Court of Appeals, 191 SCRA 229.

ALTERNATIVE ANSWER:No. Zeny was not qualified to run for Governor.Under the Constitution, "citizens of thePhilippines who marry aliens shall retain theircitizenship, unless by their act or omission theyare deemed, under the law to have renouncedit." (Sec. 4, Art. IV, Constitution). Her residing inKongo and acquiring a Kongo passport areindicative of her renunciation of Philippinecitizenship, which is a ground for loss of hercitizenship which she was supposed to have

retained. When she ran for Governor ofSorsogon, Zeny was no longer a Philippinecitizen and, hence, was disqualified for saidposition.

2) Although under Section 11(1), Article XVI ofthe Constitution, mass media must be whollyowned by Filipino citizens and under Section 2of the Anti-Dummy Law aliens may notintervene in the management of anynationalized business activity. Zeny may beelected vice president of the Philippine Bulletin,

because she has remained a Filipino citizen.Under Section 4, Article IV of the Constitution,Filipino citizens who marry aliens retains theircitizenship unless by their act or omission theyare deemed, under the law, to have renouncedit. The acts or omission which will result in lossof citizenship are enumerated inCommonwealth Act No, 63. Zeny is not guilty ofany of them. As held in Kawakita vs. UnitedStates, 343 U.S. 717, a person who possessesdual citizenship like Zeny may exercise rights ofcitizenship in both countries and the use of apassport pertaining to one country does not

result in loss of citizenship in the other country. ALTERNATIVE ANSWER:Neither, was Zeny qualified to hold the positionof vice-president of Philippine Bulletin. Underthe Constitution, "the ownership andmanagement of mass media shall be limited tocitizens, of the Philippines, or to corporation,cooperatives or associations wholly owned andmanaged by such citizens" (Section XI [1], Art.XVI), Being a non-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 ofher regular tours to the Philippines from Taipeh.She met Peter Go, a naturalized Filipino citizen.

After a whirlwind courtship, Lily and Peter weremarried at the San Agustin Church. A week

after the wedding, Lily Teh petitioned inadministrative proceedings before immigrationauthorities to declare her a Filipino citizenstating that she had none of thedisqualifications provided in the RevisedNaturalization Law. The jilted Filipino girlfriendof Peter Go opposed the petition claiming thatLily Teh was still a minor who had not evencelebrated her 21st birthday, who never residedin the Philippines except during her one-weekvisit as tourist from Taipeh during the ChineseNew Year, who spoke only Chinese, and whohad radical ideas liked advocating unification of

Taiwan with mainland China. Lily Teh, however,swore that she was renouncing her Chineseallegiance and while she knew no Filipinocustoms and traditions as yet, she evinced asincere desire to learn and embrace them.Would Lily Teh succeed in becoming a Filipinocitizen 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

of the disqualifications laid down in Section 4 ofthe Revised Naturalization Law. According to tothe ruling in Moy Ya Lim Yao vs. Commissionerof Immigration, 41 SCRA 292, an alien womanwho marries a Filipino husband ipso factobecomes a Filipino citizen without having topossess any of the qualifications prescribed inSection 2 of the Revised Naturalization Lawprovided she possesses none of thedisqualifications set forth in Section 4 of thesame law. All of the grounds invoked by theformer girlfriend of Peter Go for opposing thepetition of Lily Teh, except for the last one, are

qualifications, which Lily Teh need not possess.The fact that Lily Teh is advocating theunification of Taiwan with mainland China is nota ground for disqualification under Section 4 ofthe Revised Naturalization Law.

Effect of Oath of Allegiance (2004)(4-a) TCA, a Filipina medical technologist, leftin 1975 to work in ZOZ State. In 1988 shemarried ODH, a citizen of ZOZ. Pursuant toZOZ's law, by taking an oath of allegiance, she




omission they are deemed, under the law, tohave renounced it.

2) According to Mo Ya Lim Yao v.Commissioner of Immigration, 41 SCRA 292,under Section 15 of the Revised NaturalizationLaw, a foreign woman who marries a Filipinocitizen becomes a Filipino citizen provided shepossesses none of the disqualifications for

naturalization. A foreign man who marries aFilipino citizen does not acquire Philippinecitizenship. However, under Section 3 of theRevised Naturalization Act, in such a case theresidence 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 inthis country until his death. During his lifetimeand when he was already in the Philippines, Mr.Nya Tsa Chan married Charing, a Filipina, withwhom he begot one son, Hap Chan, who wasborn on October 18. 1897. Hap Chan gotmarried also to Nimfa, a Filipina, and one oftheir children was Lacqui Chan who was bornon September 27, 1936. Lacqui Chan finishedthe course Bachelor of Science in Commerce

and eventually engaged in business.

In the May 1989 election, Lacqui Chan ran forand was elected Representative(Congressman). His rival candidate, RamonDeloria, filed a quo warranto or disqualificationcase against him on the ground that he was nota Filipino citizen. It was pointed out in particular,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, HapChan, was a Spanish subject, was residing inthe Philippines on April 11, 1899, and continuedto reside in the Philippines. In accordance withSection 4 of the Philippine Bill of 1902, he wasa Filipino 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 Philippinesof Filipino parents and raised in the province ofNueva Ecija, ran for Governor of his homeprovince. He won and he was sworn into office.It was recently revealed, however, that Nicasiois a naturalized American citizen.a) Does he still possess 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 sworninto office as governor?

c) If, instead, Nicasio had been born (of thesame set of parents) in the United Statesand he thereby acquired Americancitizenship by birth, would your answer bedifferent?

SUGGESTED ANSWER: a) No, Nicasio no longer possesses Philippinecitizenship. As held in Frivaldo vs. COMELEC,

174 SCRA 245, by becoming a naturalized American citizen, Nicasio lost his Philippinecitizenship. Under Section 1(1) ofCommonwealth Act No. 63, Philippinecitizenship is lost by naturalization in a foreigncountry,

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, sincehis parents are Filipinos. Under Section 1(2),

those whose fathers or mothers are citizens ofthe Philippines are citizens of the Philippines.Nicasio would possess dual citizenship, sinceunder American Law persons born in the UnitedStates are American citizens. As held in Aznorvs. COMELEC. 185 SCRA 703, a person whopossesses both Philippine and Americancitizenship is still a Filipino and does not losehis Philippine citizenship unless he renouncesit.

Electing Philippine Citizenship (Q8-2006)1. Atty. Emily Go, a legitimate daughter of a

Chinese father and a Filipino mother, wasborn in 1945. At 21, she electedPhilippine citizenship and studied law.She passed the bar examinations andengaged in private practice for manyyears. The Judicial and Bar Councilnominated her as a candidate for theposition of Associate Justice of theSupreme Court. But her nomination isbeing contested by Atty. Juris Castillo,also an aspirant to the position. She




claims that Atty. Emily Go is not a natural-born citizen, hence, not qualified to beappointed 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 17,1973 of Filipino mothers, who elect Philippine

Citizenship upon reaching the age of majorityare Filipino citizens. Atty. Emily Go was born ofa Filipino mother in 1945 and electedcitizenship upon reaching the age of 21. She isa natural born Filipino citizen as provided by

Article IV, Section 2 of the Constitution — "x x xthose who elect Philippine citizenship inaccordance with paragraph (3), Section 1hereof shall be deemed natural-born citizens."Hence she is qualified to be appointed to theSupreme Court.

Electing Philippine Citizenship; When

Proper (Q8-2006)2. Atty. Richard Chua was born in 1964. He

is a legitimate son of a Chinese fatherand a Filipino mother. His father becamea naturalized Filipino citizen when Atty.Chua was still a minor. Eventually, hestudied law and was allowed by theSupreme Court to take the barexaminations, subject to his submissionto the Supreme Court proof of hisPhilippine citizenship. Although he nevercomplied with such requirement, Atty.

Chua practiced law for many years untilone Noel Eugenio filed with the SupremeCourt a complaint for disbarment againsthim on the ground that he is not a Filipinocitizen. He then filed with the Bureau ofImmigration an affidavit electingPhilippine citizenship. Noel contested itclaiming it was filed many years after

Atty. Chua reached the age of majority.Will Atty. Chua be disbarred? Explain.(5%)

SUGGESTED ANSWER:No, Atty. Chua will not be disbarred. Atty. Chua

is already a Filipino citizen and there was noneed for him to file the affidavit electing Filipinocitizenship. An election of Philippine citizenshippresupposes that the person electing is analien. His father, however, already became aFilipino citizen when Atty. Chua was still aminor and thus, he was already a Filipino be-fore the age of majority (Co v. HRET, G.R. Nos.92191-92, July 30,1991).

Natural Born Filipino (1989)

No, 2: (2) A child was born to a Japanese fatherand a Filipina mother. Would he be eligible torun for the position of Member of the House ofRepresentatives upon reaching twenty-fiveyears of age?SUGGESTED ANSWER:The child can run for the House ofRepresentatives provided upon reaching theage of majority he elected Philippine

citizenship. Under Section 6, Article VI of the1987 Constitution, to qualify to be a member ofthe House of Representatives, one must be anatural-born Philippine citizen. According toSection 1 (3), Article IV of the 1987Constitution, children born before January 17,1973 of Filipino mothers, who elect Philippinecitizenship upon reaching the age of majorityare Philippine citizens.

Section 2, Article IV of the 1987 Constitutionprovides: "Those who elect Philippinecitizenship in accordance with paragraph (3),

Section 1 hereof shall be deemed natural-borncitizens." On the other hand, if the child wasborn after January 17, 1973, he would beconsidered a natural born citizen without needof election pursuant to Art. IV, Sec. 1(2).

Natural Born Filipino (1998)No IV - Andres Ang was born of a Chinesefather and a Filipino mother in Sorsogon,Sorsogon. On January 20, 1973, in 1988, hisfather was naturalized as a Filipino citizen. OnMay 11, 1998, Andres Ang was elected

Representative of the First District of Sorsogon.Juan Bonto who received the second highestnumber of votes, filed a petition for QuoWarranto against Ang. The petition was filedwith the House of Representative ElectoralTribunal (HRET). Bonto contends that Ang isnot a natural born citizen of the Philippines andtherefore is disqualified to be a member of theHouse.

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 consideringthat Article VI. Section 17 of theConstitution declares the HRET to be the"sole Judge" of all contests relating to theelection returns and disqualifications ofmembers of the House of Representatives.[5%]

(2) Whether Ang is a natural bom citizen of thePhilippines. |5%]

How should this case be decided?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. Thiswas after the effectivity of the 1973 Constitutionon January 17, 1973. Under Section (1), ArticleIII of the 1973 Constitution, those whose fathersor mothers are citizens of the Philippines are

citizens of the Philippines. Andres Angremained a citizen of the Philippines after theeffectivity of the 1987 Constitution. Section 1,

Article IV of the 1987 Constitution provides:"The following are citizens of the Philippines:"(l) Those who are citizens of the Philippines atthe time of the adoption of this Constitution;"

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, Ernestelected Philippine citizenship. After the EDSARevolution, Ernest decided to live permanentlyin the Philippines, where he prospered as abusinessman. During the May 11, 1993election, Ernest ran and won as acongressman. His opponent, noting Ernest'sChinese ancestry, filed a petition to disqualifythe latter on the following grounds; (1) Ernest

Cheng is not a natural born Filipino; and (2) heis under-aged. Decide.SUGGESTED ANSWER: 1) Ernest cannot be disqualified. Section 1,

Article IV of the Constitution provides: "Thefollowing are citizens of the Philippines;XXX XXX XXX"(3) Those born before January 17, 1973, ofFilipino mothers, who elect Philippinecitizenship upon reaching the age of majority;"Ernest could elect Philippine citizenship sincehe was born before January 17, 1973 and hismother is a Filipino. As stated in the cases of

Torres vs. Tan Chim, 69 Phil. 518 and Cu vs.Republic, 83 Phil. 473, for this provision toapply, the mother need not be a Filipino citizenat the time she gave birth to the child inquestion. It is sufficient that she was a Filipinocitizen at the time of her marriage. Otherwise,the number of persons who would be benefitedby the foregoing provision would be limited.

Having elected Philippine citizenship, Ernest isa natural-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 yrsold)....

Naturalization; Cancellation of Citizenship(1998)No X. - Lim Tong Biao, a Chinese citizenapplied for and was granted Philippinecitizenship by the court. He took his oath ascitizen of the Philippines to July 1963, in 1975,the Office of the Solicitor General filed a petitionto cancel his Philippine citizenship for thereason that in August 1963, the Court of Tax

Appeals found him guilty of tax evasion fordeliberately understating his income taxes forthe years 1959-1961.(1) Could Lim Tong Biao raise the defense of

prescription of the action for cancellation ofhis Filipino citizenship? [3%]

(2) Supposing Lim Tong Biao had availed ofthe Tax Amnesty of the government for histax liabilities, would this constitute a validdefense to the cancellation of his Filipinocitizenship? [2%]

SUGGESTED ANSWER:1. No, Lim Tong Biao cannot raise thedefense of prescription. As held in Republic us.Go Bon Lee, 1 SCRA 1166, 1170, a decisiongranting citizenship is not res judicata and the

right of the government to ask for thecancellation of a certificate cancellation is notbarred by the lapse of time.

2. The fact that Lim Tong Biao availed of thetax amnesty is not a valid defense to thecancellation of his Filipino citizenship. InRepublic vs. Li Yao, 214 SCRA 748, 754, theSupreme Court held:

"In other words, the tax amnesty does nothave the effect of obliterating his lack of goodmoral character and irreproachable conductwhich are grounds for denaturalization,"

Residency Requirements; Elective Official(Q9-2005)(1) In the May 8,1995 elections for local

officials whose terms were to commenceon June 30, 1995, Ricky filed on March20, 1995 his certificate of candidacy forthe Office of Governor of Laguna. Hewon, but his qualifications as an electedofficial was questioned. It is admitted that




he is a repatriated Filipino citizen and aresident of the Province of Laguna.To be qualified for the office to which alocal official has been elected, when atthe latest should he be: (5%)

(a) A Filipino Citizen? Explain.

SUGGESTED ANSWER:

The citizenship requirement is to be possessedby an elective official at the latest as of the timehe is proclaimed and at the start of the term ofoffice to which he has been elected. Section 39of the Local Government Code, whichenumerates the qualifications of elective localgovernment officials, does not specify anyparticular date or time when the candidate mustpossess citizenship. (Frivaldo v. COMELEC,G.R. No. 120295, June 28,1996)

(b) A resident of the locality? Explain.

SUGGESTED ANSWER:Under Section 39 of the Local GovernmentCode, an individual must possess the residencyrequirement in the locality where he intends torun at least one year immediately preceding theday of election.

Status; Illegitimate Child (1990)No. 3: Y was elected Senator in the May 1987national elections. He was born out of wedlockin 1949 of an American father and a naturalizedFilipina mother. Y never elected Philippine

citizenship upon reaching the age of majority.(1) Before what body should T, the losingcandidate, question the election of Y?State the reasons for your answer.

(2) Is Y a Filipino citizen? Explain youranswer.

SUGGESTED ANSWER: (1) T, the losing candidate, should question theelection of Y before the Senate ElectoralTribunal, ....

(2) Yes, Y is a Filipino citizen. More than that heis a natural born citizen of the Philippines

qualified to become a Senator. Since Y is anillegitimate child of a Filipino mother, he followsthe citizenship of his mother. He need not electPhilippine citizenship upon reaching the age ofmajority as held In re Mallare. 59 SCRA 45. InOsias v. Antonino, Electoral Case No. 11,

August 6, 1971, the Senate Electoral Tribunalheld that the illegitimate child of an alien fatherand a Filipino mother is a Filipino citizen and isqualified to be a Senator.

Status; Illegitimate Child; Dual Citizenship(1996)No. 8: 2) X was born in the United States of aFilipino father and a Mexican mother. Hereturned to the Philippines when he was twenty-six years of age, carrying an American passportand he was registered as an alien with theBureau of Immigration.

Was X qualified to run for membership in theHouse of Representatives in the 1995elections? Explain.SUGGESTED ANSWER: Whether or not X was qualified to run formembership in the House of Representatives inthe 1995 election depends on thecircumstances.

If X was an Illegitimate child, he is not qualifiedto run for the House of Representatives.

According to the case of in re Mallare, 59 SCRA45, an illegitimate child follows the citizenship of

the mother. Since the mother of X is a Mexican,he will be a Mexican citizen if he is anillegitimate child, even if his father is a Filipino.

If X is a legitimate child, he is a Filipino citizen.Under Section 2(2), Article IV of theConstitution, those whose fathers are citizens ofthe Philippines are Filipino citizens. Since Xwas born in the United States, which follows jussoli, X is also an American citizen. Inaccordance with Aznar vs. Commission, onElections, 185 SCRA 703, the mere fact a

person with dual citizenship registered as analien with the Commission on Immigration andDeportation does not necessarily mean that heis renouncing his Philippine citizenship.Likewise, the mere fact that X used an

American passport did not result in the loss ofhis Philippine citizenship. As held in Kawakitavs. Untied States, 343 U.S. 717, since a personwith dual citizenship has the rights of citizenshipin both countries, the use of a passport issuedby one country is not inconsistent with hiscitizenship in the other country.

ALTERNATIVE ANSWER:

If X has taken an oath of allegiance to the U.S.he will be deemed to have renounced hisPhilippine citizenship. Consequently, he isdisqualified to run for the House ofRepresentatives.

Status; Legitimate Child (2003)No IV - Miguel Sin was born a year ago inChina to a Chinese father and a Filipino motherHis parents met in Shanghai where they were




lawfully married just two years ago. Is MiguelSin a Filipino citizen?SUGGESTED ANSWER:Miguel Sin is a Filipino citizen because he is thelegitimate child of a Filipino mother. Under

Article IV, Section 4 of the 1987 Constitution,his mother retained her Philippine citizenshipdespite her marriage to an alien husband, andaccording to Article IV, Section 1(2) of the 1987

Constitution, children born of a Filipino motherare Filipino citizens.

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; and

3. By direct act of Congress (Section 2 ofCommonwealth Act No. 63).

ARTICLE VI LegislativeDepartment

Appropriation of Public Funds (1988)No. 6: - Metropolitan newspapers have reportedthat the Philippine Games and AmusementCorporation (PAGCOR) gives hefty

contributions to Malacanang, to fund "socio-economic and civic projects" of the President,The reports add that for 1988 alone, some sixhundred million (P600M) pesos have alreadybeen earmarked for remittance to the Office ofthe President. PAGCOR had also beenreported to have funded, as coordinated by aCongressman from Mindanao, special projectsof quite a number of members of the House ofRepresentatives.

Assuming that money earned by PAGCOR from

its operations are public funds, are suchcontributions to Malacañang and to certainCongressmen and their expenditure asreported, legal? Cite constitutional or decisionalrules in support of your answer.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 theTreasury except in pursuance of anappropriation made by law. The disbursement

of public funds by PAGCOR, not being madepursuant to an appropriation made by law,violates the Constitution.

Appropriation of Public Funds; DebtServicing (1992)No 13: Explain how the automatic appropriationof public funds for debt servicing can bereconciled with Article VI, Section 29(1) of the

Constitution. Said provision says that "nomoney shall be paid out of the Treasury exceptin pursuance of an appropriation 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 donot violate Section 29(1), Article VI of theConstitution. They provide for a continuingappropriation, there is no constitutionalprohibition against this. The presidentialdecrees appropriate as much money as isneeded to pay the principal, interest, taxes and

other normal banking charges on the loan. Although no specific amounts are mentioned,the amounts are certain because they can becomputed from the books of the NationalTreasury.

Appropriation of Publi c Funds; PublicPurposes (1988)No. 7: - Tawi-Tawi is a predominantly Moslemprovince. The Governor, the Vice-Governor,and members of its Sangguniang Panlalawiganare all Moslems. Its budget provides the

Governor with a certain amount as hisdiscretionary funds. Recently, however, theSangguniang Panlalawigan passed a resolutionappropriating P100,000 as a specialdiscretionary fund of the Governor, to. be spentby 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 yourreasons.SUGGESTED ANSWER: The resolution is unconstitutional First, itviolates art. VI, sec. 29(2) of the Constitutionwhich prohibits the appropriation of publicmoney or property, directly or indirectly, for theuse, benefit or support of any system ofreligion, and, second, it contravenes art. VI,sec, 25(6) which limits the appropriation ofdiscretionary funds only for public purposes.




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 durationthereof may range, in the words of respondent

judge, from one minute to the life span of theaccused. This cannot be allowed. It vests in thecourts a power and a duty essentially legislativein nature and which, as applied to this case,does violence to the rules on separation ofpowers as well as the non-delegability oflegislative powers. (People v. Judge Dacuycuy,G.R. No. L-45127, May 5, 1989)

Delegation of Powers; Completeness Test;Sufficient Standard Test (Q6-2005)(1) The two accepted tests to determine

whether or not there is a valid delegation of

legislative power are the CompletenessTest and the 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 the

judgment of the delegate. The legislature doesnot abdicate its functions when it describeswhat job must be done, who is to do it, andwhat is the scope of his authority. However, a

delegation of power to make the laws whichnecessarily involves a discretion as to what itshall be may not 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 limitsand boundaries, and specify the public agencyto exercise 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 thatthe legislature itself determines matters ofprinciple and lays down fundamental policy.(Free Telephone Workers Union v. Minister ofLabor, G.R. No. L-58184, October 30, 1981)

ALTERNATIVE ANSWER:COMPLETENESS TEST. The law must becomplete in all its essential terms andconditions when it leaves the legislature so thatthere will be nothing left for the delegate to do

when it reaches him except to enforce it. (SeeITS v. Ang Tang Ho, G.R. No. L-17122,February 27, 1922)

SUFFICIENT STANDARD TEST. A sufficientstandard is intended to map out the boundariesof the delegate's authority by defining thelegislative policy and indicating thecircumstances under which it is to be pursued

and effected; intended to prevent a totaltransference of legislative power from thelegislature to the delegate. The standard isusually indicated in the law delegatinglegislative power. (See Ynot u. Intermediate

Appellate Court, G.R. No. 74457, March 20,1987)

Discipline; Modes of Removal (1993)No. 11: - How may the following be removedfrom office:1) Senators & Congressmen2) Judges of lower courts

3) Officers and employees in the Civil ServiceSUGGESTED ANSWER: 1) In accordance with Art. III, section 16(3), ofthe Constitution, Senators and Congressmenmay be removed by their EXPULSION fordisorderly behavior, with the concurrence of atleast two-thirds of all the members of the Houseto which they belong. In addition, they may alsobe removed in consequence of an electioncontest filed with the Senate or House ofRepresentatives Electoral 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,allegedly committed when he was still aProvincial Governor, a criminal complaint wasfiled against him before the Office of theOmbudsman for which, upon a finding ofprobable cause, a criminal case was filed withthe Sandiganbayan. During the course of trial,the Sandiganbayan issued an order ofpreventive suspension for 90 days against him.




Representative Valera questioned the validity ofthe Sandiganbayan order on the ground that,under Article VI, Section 16(3) of theConstitution, he can be suspended only by theHouse of Representatives and that the criminalcase against him did not arise from hisactuations as a member of the House ofRepresentatives. Is Representative Valera'scontention correct? Why? (5%)

SUGGESTED ANSWER:The contention of Representative Valera is notcorrect As held in Santiago v. Sandiganbayan,356 SCRA 636, the suspension contemplatedin Article VI, Section 16(3) of the Constitution isa punishment 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 CorruptPractices Act, which is not a penalty but apreventive measure. Since Section 13 of the

Anti-Graft and Corruption Practices Act doesnot state that the public officer must be

suspended only in the office where he isalleged to have committed the acts which hehas been charged, it applies to any office whichhe may be holding.

Elected Official; De Facto Offi cer (2004)(10-b) AVE ran for Congressman of QUprovince. However, his opponent, BART, wasthe one proclaimed and seated as the winner ofthe election by the COMELEC. AVE filedseasonably a protest before HRET (House ofRepresentatives Electoral Tribunal). After two

years, HRET reversed the COMELEC'sdecision and AVE was proclaimed finally as theduly elected Congressman. Thus, he had onlyone year to serve in Congress.

Can AVE collect salaries and allowances fromthe government for the first two years of histerm as 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 collect salaries and allowancesfrom the government for the first two years ofhis term, because in the meanwhile BARTcollected the salaries and allowances. BART

was a de facto officer while he was inpossession of the office. To allow AVE to collectthe salaries and allowances will result in makingthe government pay a second time. (Mechem,

A Treatise on the Law of Public Offices andPublic Officers, [1890] pp. 222-223.)

BART is not required to refund to thegovernment the salaries and allowances he

received. As a de facto officer, he is entitled tothe salaries and allowances because herendered services during his 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 officerare valid insofar as the public is concerned.(People v. Garcia, 313 SCRA 279 [1999]).

Electoral Tribunal; HRET Members’ Right &

Responsibilities (2002)No IV. In an election case, the House 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 castby Representative X, a member of the FederalParty .

For having voted against his party mate,Representative X was removed by Resolution

of the House of Representatives, at theinstance of his party (the Federal Party), frommembership in the HRET. Representative Xprotested his removal on the ground that hevoted on the basis of the evidence presentedand contended that he had security of tenure asa HRET Member and that he cannot beremoved except for a valid cause.

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. As held In Bondoc v. Pineda, 201 SCRA 792(1991), the members of the House ofRepresentatives Electoral Tribunal are entitledto security of tenure like members of the

judiciary. Membership in it may not beterminated except for a just cause. Disloyalty toparty is not a valid ground for the expulsion of amember of the House of RepresentativesElectoral Tribunal. Its members must dischargetheir functions 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 wedlockin 1949 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 losing

candidate, question the election of Y?State the reasons for your answer.

Is Y a Filipino citizen? Explain your answer.SUGGESTED ANSWER:(1) T, the losing candidate, should question theelection of Y before the Senate ElectoralTribunal, because the issue involved is thequalification of Y to be a Senator. Section 17,

Article VI of the 1987 Constitution provides that.The Senate and the House of Representativesshall each-have an Electoral Tribunal which

shall be the sole judge of all contests relating tothe election, returns, and qualifications of theirrespective 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 Representativestake active part in the conduct of foreignrelations, particularly in entering into treatiesand international 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 UnitedStates vs. Curtiss-Wright Export Corporation,299 U.S. 304, the President alone is therepresentative of the nation in the conduct offoreign affairs. Although the Senate has thepower to concur in treaties, the President alonenegotiates treaties and Congress is powerlessto intrude into this. However, if the matterinvolves a treaty or an executive agreement,the House of Representatives may pass a

resolution expressing its views on the matter.

Foreign Affairs; Role of Senate (1994)No. 13: 1) Under the Constitution, what is therole of the Senate in the conduct of foreignaffairs?SUGGESTED ANSWER:The Senate plays a role in the conduct offoreign affairs, because of the requirement inSection 21, Article VII of the Constitution that tobe valid and effective 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 shallnot be renewed or extended without theconcurrence of at least two-thirds of all theMembers of the Senate.”

Investigations in Aid of Legislation (1992)No. 8: A case was filed before theSandiganbayan regarding a questionablegovernment transaction. In the course of theproceedings, newspapers linked the name ofSenator J. de Leon to the scandal.

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 referredto the Committee on Accountability of Public

Officers, which proceeded to conduct alegislative inquiry. The Committee asked Mr.Vince Ledesma, a businessman linked to thetransaction and now a respondent before theSandiganbayan, to appear and to testify beforethe Committee.

Mr Ledesma refuses to appear and file suitbefore the Supreme Court to challenge thelegality of the proceedings before theCommittee. He also asks whether theCommittee had the power to require him to

testify.

Identify the issues Involved and resolve them.SUGGESTED ANSWER:The issues involved in this case are thefollowing:1. Whether or not the Supreme Court has

jurisdiction to entertain the case;2. Whether or not the Committee on

Accountability of Public Officers has thepower to investigate a matter which isinvolved in a case pending in court; and

3. Whether or not the petitioner can invoke his

right against self-incrimination.

All these Issues were resolved in the case ofBengzon vs. Senate Blue Ribbon Committee,203 SCRA 767.

The Supreme Court has jurisdiction over thecase (determination of grave abuse ofdiscretion)....




The Committee on Accountability of PublicOfficers has no power to investigate thescandal. (no judicial functions)...

The petitioner can invoke his right against self-incrimination, because this right is available inall proceedings. Since the petitioner is arespondent in the case pending before theSandiganbayan, he may refuse to testify.

Law Making; Process & Publication (1993)No. 2; Ernest Cheng, a businessman, has noknowledge of legislative procedure. Chengretains you as his legal adviser and asksenlightenment on the following matters:(1) When does a bill become a law even

without the signature of the President?(2) When does the law take effect?SUGGESTED ANSWER:1) Under Section 27(1), Article VI of theConstitution, a bill becomes a law even withoutthe signature of the President if he vetoed it but

his veto was overriden by two-thirds vote of allthe members of both the Senate and the Houseof Representatives and If the President failed tocommunicate his veto to the House from whichthe bill originated, within thirty days after thedate of receipt of the bill by the President.

2) As held in Tanada vs. Tuvera, 146 SCRA446, a law must be published as a condition forits effectivity and in accordance with Article 2 ofthe Civil Code, it shall take effect fifteen daysfollowing the completion of its publication in the

Official Gazette or in a newspaper of generalcirculation unless it is otherwise provided.(Executive Order No. 292, Revised

Administrative Code of 1989)

Law-Making; Appropriation Bill (1996)No 5: Are the following bills filed in Congressconstitutional? A bill originating from the Senate whichprovides for the creation of the Public UtilityCommission to regulate public servicecompanies and appropriating the initial fundsneeded to establish the same. Explain.

SUGGESTED ANSWER: A bill providing for the creation of the PublicUtility Commission to regulate public servicecompanies and appropriating funds needed toestablish it may originate from the Senate. It isnot an appropriation bill, because theappropriation of public funds is not the principalpurpose of the bill. In Association of SmallLandowners of the Philippines, Inc. vs.Secretary of Agrarian Reform 175 SCRA 343, itwas held that a law is not an appropriate

measure if the appropriation of public funds isnot its principal purpose and the appropriationis only incidental to some other objective.

Law-Making; Appropriation Law; AutomaticRenewal & Power of Augmentation (1998)No XI. - Suppose the President submits abudget which does not contain provisions forCDF (Countrywide Development Funds),

popularly known as the pork barrel, andbecause of this Congress does not pass thebudget.1. Will that mean paralization of governmentoperations in the next fiscal year for lack of anappropriation law? (2%)

2. Suppose in the same budget, there is aspecial provision in the appropriations for the

Armed Forces authorizing the Chief of Staff, AFP, subject to the approval of the Secretary ofNational Defense, to use savings in theappropriations provided thereto to cover up

whatever financial losses suffered by the AFPRetirement and Separation Benefits System(RSBS) in the last five (5) years due to allegedbad business judgment. Would you questionthe constitutionality validity of the specialprovision? [3%]SUGGESTED ANSWER:1. No, the failure of Congress to pass thebudget will not paralyze the operations of theGovernment.

Section 25(7), Article VI of the Constitutionprovides: "If, by the end of any fiscal year, the

Congress shall have failed to pass thegeneral appropriations bill for the ensuingfiscal year, the general appropriations law forthe preceding fiscal year shall be deemedreenacted and shall remain in force and effectuntil the general appropriations bill is passedby the Congress.

SUGGESTED ANSWER:2. Yes, the provision authorizing the Chief ofStaff, with the approval of the Secretary ofNational Defense, to use savings to cover thelosses suffered by the AFP Retirement and

Separation Benefits System is unconstitutional.

Section 25(5], Article VI of the Constitutionprovides:

"No law shall be passed authorizing anytransfer of appropriations; however, thePresident, the President of the Senate, theSpeaker of the House of Representatives, theChief Justice of the Supreme Court, and theheads of Constitutional Commissions may, bylaw, be authorized to augment any item in the




general appropriation law for their respectiveoffices from savings in other Items of theirrespective appropriations."

In Philippine Constitution vs Enriquez, 235SCRA 506, 544, the Supreme Court held that aprovision in the General Appropriation Actauthorizing the Chief of Staff to use savings toaugment the funds of the AFP Retirement and

Separation Benefits Systems wasunconstitutional. "While Section 25(5) allows asan exception the realignment of savings toaugment items in the general appropriationslaw for the executive branch, such right mustand can be exercised only by the Presidentpursuant to a specific law."

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 tothe effect that the Reserve Officers TrainingCourse (ROTC) in all colleges and universitiesis hereby abolished, and in lieu thereof all malecollege students shall be required to plant ten(10) trees every year for two (2) years in areasto be designated by the Department ofEnvironment and Natural Resources incoordination with the Department of Education,Culture and Sports and the local governmentunit concerned. It further provides that the sameprovision shall be incorporated In future

General appropriations Acts. There is nospecific item of appropriation of funds for thepurpose.Comment on the constitutionality ofsaid provision. (5%)SUGGESTED ANSWER:The provision is unconstitutional, because it is arider. Section 25(2), Article VI of theConstitution provides, "No provision orenactment shall be embraced in the generalappropriations bill unless it relates specificallyto some particular appropriation therein." Theabolition of the Reserve Officers TrainingCourse involves a policy matter. As held in

Philippine Constitution Association vs.Enriquez, 235 SCRA 506 (1994), this cannot beincorporated in the General Appropriations Actbut must be embodied in a separate law.

Law-Making; Foreign Affairs; Treaties (1996)No 5: Are the following bills filed in Congressconstitutional?2) A bill creating a joint legislative-executivecommission to give, on behalf of the Senate, itsadvice, consent and concurrence 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 Senatecannot delegate this function to such a

commission, because under Section 21, ArticleVII of the Constitution, the concurrence of atleast two-thirds of the Senate itself is requiredfor the ratification of treaties.

Law-Making; Overriding the PresidentialVeto (1991)No. 2: The President signs into law the

Appropriations Act passed by Congress but shevetoes separate items therein, among which isa provision 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) tooverride the veto and (2) to challenge theconstitutionality of the veto before the SupremeCourt.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?

SUGGESTED ANSWER: (a) Option 1 is not viable in as much as theHouse of Representatives, from which the

Appropriations Act originated and to which thePresident must have returned the law, isunwilling to override the presidential veto. Thereis, therefore, no basis for the Senate to evenconsider the possibility of overriding thePresident's veto. Under the Constitution thevote of two-third of all the members of theHouse of Representatives and the Senate,voting separately, will be needed to override thepresidential veto.

(b) It is not feasible to question theconstitutionality of the veto before the SupremeCourt. In Gonzales vs. Macaraig, 191 SCRA152, the Supreme Court upheld theconstitutionality of a similar veto. Under ArticleVI, Sec. 27(2) of the Constitution, a distinct andseverable part of the General Appropriationsact may be the subject of a separate veto.Moreover, the vetoed provision does not relateto any particular appropriation and is more an




expression of a congressional policy in respectof augmentation 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 validityof the 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,please name the three methods by which saidbill may become a law.SUGGESTED ANSWER:

A bill passed by Congress may become a law inany of the following cases:If it is signed into law by the President. (Art. VI,

sec. 27(1)).

If it is re-passed over the President's veto bythe vote of two thirds of all the members ofthe House of Representatives and of theSenate. (Id.)

If the President fails to veto it within thirty daysafter receipt thereof and communicate theveto to the House from which it originated,(Id.)

Legislative Power; Pres. Aquino’s Time(1990)No. 1; - Executive Orders Nos. 1 and 2 issuedby President Corazon C. Aquino created thePresidential Commission on Good Government(PCGG) and empowered it to sequester anyproperty shown prima facie to be ill-gottenwealth of the late President Marcos, hisrelatives and cronies. Executive Order No. 14vests on the Sandiganbayan jurisdiction to tryhidden wealth cases. On April 14, 1986, afteran investigation, the PCGG sequestered theassets of X Corporation, Inc.

X Corporation, Inc. claimed that President Aquino, as President, could not lawfullyissue Executive Orders Nos. 1, 2 and 14,which have the force of law, on the groundthat legislation is a function of Congress.Decide.

Said corporation also questioned the validity ofthe three executive orders on the groundthat they are bills of attainder and,therefore, unconstitutional. Decide.

SUGGESTED ANSWER:

(1) The contention of X Corporation should berejected. Executive Orders Nos. 1, 2 and 14were issued in 1986. At that time PresidentCorazon Aquino exercised legislative powerSection 1, Article II of the ProvisionalConstitution established 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, 163SCRA 371. the Supreme Court ruled that theProvisional Constitution and the 1987Constitution, both recognized the power of the

president to exercise legislative powers until thefirst Congress created under the 1987Constitution was convened on July 27, 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 reachingthe age of 57 years and completion of at least30 years of total government service. As a fiscalretrenchment measure, the Office of the

President later issued a Memorandum Circularrequiring physical incapacity as an additionalcondition for optional retirement age of 65years. A government employee, whoseapplication for optional retirement was deniedbecause he was below 65 years of age andwas not physically incapacitated, filed an actionin court questioning the disapproval of hisapplication claiming that the MemorandumCircular is void. Is the contention of theemployee correct? Explain.SUGGESTED ANSWER:Yes, the contention of the employee is correct.

In Marasigan vs. Cruz, 150 SCR A 1, it washeld that such a memorandum circular is void.By introducing physical capacity as anadditional condition for optional retirement, thememorandum circular tried to amend the law.Such a power is lodged with the legislativebranch and not with the executive branch.

Loans Extended to Members of Congress(1991)




Revolution, Ernest decided to live permanentlyin the Philippines, where he prospered as abusinessman. During the May 11, 1993election, Ernest ran and won as acongressman. His opponent, noting Ernest'sChinese ancestry, filed a petition to disqualifythe latter on the following grounds; (1) ErnestCheng is not a natural bom Filipino; and (2) heis underaged. Decide.

SUGGESTED ANSWER: 1) Ernest cannot be disqualified.....

2) Ernest is not under-aged. Having been bornon May 9, 1965, he was over twenty-five yearsold on the date of the May 11, 1993 election.(Election was held on May 11, 1992). Section 6,

Article VI of the Constitution, requirescongressmen to be at least twenty-five years ofage on the day of the election.

Qualifications; Congressmen; (1999)No III - C. Victor Ahmad was born on December

16, 1972 of a Filipino mother and an alienfather. Under the law of his father's country, hismother did not acquire his father's citizenship.Victor consults you on December 21, 1993 andinforms you of his intention to run for Congressin the 1995 elections. Is he qualified to run?What advice would you give him? Would youranswer be the same if he had seen andconsulted you on December 16, 1991 andinformed you of his desire to run for Congressin the 1992 elections? Discuss your answer.(3%)

FIRST ALTERNATIVE ANSWER:C. No, Victor Ahmad is not qualified to runfor Congress in the 1995 elections. UnderSection 6, Article VI of the Constitution, amember of the House of Representatives mustbe at least twenty-five (25) years of age on theday of the election. Since he will be less thantwenty-five (25) years of age in 1995, Victor

Ahmad is not qualified to run.

Under Section 2, Article IV of the Constitution,to be deemed a natural-born citizen, Victor

Ahmad must elect Philippine citizenship upon

reaching the age of majority. I shall advise himto elect Philippine citizenship, if he has not yetdone 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 theConstitution, 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 runfor Congress.

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 o f 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 bythe other departments of government wouldupset the classic pattern of separation ofpowers and destroy the balance between the

judiciary and the other departments ofgovernment. As the Justices said in theiranswer to the complaint for impeachment in the

Committee on Justice of the House ofRepresentatives, "Just as it is completelyunacceptable to file charges against theindividual 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 o f 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 penallaws of the land. Can the Ombudsman validlytake cognizance 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 theprinciple of separation 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 Ombudsmancan entertain the complaint for this purpose.

Three-Term Limit: Congressmen (1996)No. 13: - X, a member of the House of

Representatives, was serving his thirdconsecutive term in the House. In June 1996he was appointed Secretary of NationalDefense.Can he run for election to the Senate in the1998 elections? Explain.SUGGESTED ANSWER: Yes, X can run for the Senate in the 1988election. Under Section 7, Article X of theConstitution, having served for threeconsecutive terms as Member of the House ofRepresentatives. X is only prohibited from

running for the same position.

Three-Term Limit; Congressmen (2001)No V - During his third term, "A", a Member ofthe House of Representatives, was suspendedfrom office for a period of 60 days by hiscolleagues upon a vote of two-thirds of all theMembers of the House. In the next succeedingelection, he filed his certificate of candidacy forthe same position. "B", the opposing candidate,filed an action for disqualification of "A" on theground that the latter's, candidacy violatedSection 7. Article VI of the Constitution which

provides that no Member of the House ofRepresentatives shall serve for more than threeconsecutive terms. "A" answered that he wasnot barred from running again for that positionbecause his service was interrupted by his 60-day suspension which was involuntary.Can 'A', legally continue with his candidacy or ishe 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 termshould be included in the computation of theterm limits, even if "A" did not serve for a fullterm. (Record of the ConstitutionalCommission, Vol. n, p. 592.) He remained aMember of the House of Representatives evenif he was suspended.

ARTICLE VII ExecutiveDepartment

Appoin ting Power; Acting vs. Permanent Appoin tment (2003)No V - What is the nature of an "actingappointment" to a government office? Doessuch an appointment give the appointee theright to claim that the appointment will, in time,ripen into a permanent one? Explain.SUGGESTED ANSWER:

According to Sevilla v. Court of Appeals. 209

SCRA 637 [1992], an acting appointment ismerely temporary. As held in Marohombsar v.

Alonto, 194 SCRA 390 [1991], a temporaryappointment cannot become a permanentappointment, unless a new appointment whichis permanent is made. This holds true unlessthe acting appointment was made because of atemporary vacancy. In such a case, thetemporary appointee holds office until theassumption of office by the permanentappointee.

Appoin ting Power; ad in ter im 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 alsodesignates him as Chief of Staff of the AFP. Heimmediately takes his oath and assumes thatoffice, with the rank 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 hasreceived from her office only the appointment ofDe Silva to the rank of 4-star General and thatunless his appointment to the Office of theChief of Staff of the AFP is also submitted, theCommission will not act 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 generalis conferred only upon the Chief of Staff.Hence, the appointment of Renato de Silva as a

four-star general must be deemed to carry withit his appointment as Chief of Staff of the AFP,

(b) Gen. Renato de Silva did not violate theConstitution when he immediately assumedoffice before the confirmation of hisappointment, since his appointment was an adinterim appointment. Under Article VI I, Sec. 16of the Constitution, such appointment isimmediately effective and is subject only todisapproval by the Commission on

Appointments or as a result of the nextadjournment of the Congress.

(c) The appointment and designation of Gen.de Silva are valid for reasons given above.However, from another point of view they arenot valid because they were made within theperiod of the ban for making appointments.Under Article VII, Sec. 15 the President isprohibited from making appointments within theperiod of two (2) months preceding the electionfor President and Vice President. Theappointment in this case will be made on May3, 1992 which is just 8 days away from the

election for President and Vice President onMay 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 holidaysand therefore decided to ignore this fact.]

Appoin ting Power; Ad Interim Appoin tments(1994)No. 16; In December 1988, while Congress wasin recess, A was extended an ad interimappointment as Brigadier General of thePhilippine 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 senior of the two, A or B?Suppose Congress adjourned without 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 theruling in Summers vs. Ozaeta. 81 Phil. 754, thead interim appointment extended to A ispermanent and is effective upon his acceptancealthough it is subject to confirmation by theCommission on Appointments.

2) If Congress adjourned without the

appointments of A and B having beenconfirmed by the Commission on Appointments,

A cannot return to his old position. As held inSummers vs. Qzaeta, 81 Phil. 754, byaccepting an ad interim appointment to a newposition, A waived his right to hold his oldposition. On the other hand, since B did notassume the new position, he retained his oldposition.

Appoin ting Power; Appoin tments Requir ingConfirmation; RA 6975-Unconstitutional(2002)

No V - On December 13, 1990, the Presidentsigned into law Republic Act No. 6975(subsequently amended by RA No. 8551)creating the Department of Interior and LocalGovernment. Sections 26 and 31 of the lawprovide that senior officers of the PhilippineNational Police (PNP), from SeniorSuperintendent, Chief Superintendent, DeputyDirector General to Director General or Chief ofPNP shall, among others, be appointed by thePresident subject to confirmation by theCommission on Appointments.

In 1991 the President promoted ChiefSuperintendent Roberto Matapang and SeniorSuperintendent Conrado Mahigpit to thepositions of Director and Chief Superintendentof the PNP, respectively. Their appointmentswere in a permanent capacity. Withoutundergoing confirmation by the Commission on

Appointments, Matapang and Mahigpit tooktheir oath of office and assumed theirrespective positions. Thereafter, theDepartment of Budget and Managementauthorized disbursements for their salaries and

other emoluments.

Juan Bantay filed a taxpayer's suit questioningthe legality of the appointments anddisbursements made. Bantay argues that theappointments are invalid inasmuch as the samehave not been confirmed by the Commission on

Appointments, as required under Sections 26and 31 of R.A. No. 6975.




Determine with reasons the legality of theappointments and the disbursements forsalaries by discussing the constitutional validityof Sections 26 and 31 of R.A. No. 6975. (5%)SUGGESTED ANSWER:The appointments of Matapang and Mahigpitare valid even if they were not confirmed by theCommission on Appointments, because theyare not among the public officials whose

appointments are required to be confirmed bythe first sentence of Article VII, Section 16 ofthe Constitution. According to Manalo v.Sistoza, 312 SCRA 239 (1999), Sections 26and 31 of Republic Act 6975 areunconstitutional, because Congress cannot bylaw expand the list of public officials required tobe confirmed by the Commission on

Appointments. Since the appointments ofMatapang and Mahigpit are valid, thedisbursements of their salaries and emolumentsare valid.

Appoin ting Power; Categor ies of Off ic ial s(1999)

A. 1.) What are the six categories ofofficials who are subject to the appointingpower of the President? (2%)

2.) Name the category or categories ofofficials whose appointments need confirmationby the Commission on Appointments? (2%)

SUGGESTED ANSWER:Under Section 16, Article VII of the Constitution,

the six categories of officials who are subject tothe appointing power of the President are thefollowing:1. Head of executive departments;2. Ambassadors, other public ministers and

consuls;3. Officers of the armed forces from the rank

of colonel or naval captain;4. Other officers whose appointments are

vested in him by the Constitution;5. All other officers of the government whose

appointments are not otherwise provided bylaw; and

6. Those whom he may be authorized by lawto appoint. (Cruz, Philippine Political Law,1998 ed., pp. 204-205)

(It is suggested that if the examinee followed theclassification in Sarmiento v. Mison, 156 SCRA 549and named only four categories, because hecombined the first three categories into one, he begiven full credit.)

2.) According to Sarmiento v. Mison, 156 SCRA549, the only officers whose appointments need

confirmation by the Commission on Appointments arethe head of executive departments,

ambassadors,other public ministers and consuls,officers of the armed forces from the rank of

colonel or naval captain,and other officials whose appointments are

vested in the President by the Constitution.

Appoin ting Power; Kinds of Appointments(1994)When is an appointment in the civil service

permanent?Distinguish between an "appointment in an

acting capacity" extended by a DepartmentSecretary from an ad interim appointmentextended by the President.

Distinguish between a provisional and atemporary appointment.

SUGGESTED ANSWER:1) Under Section 25(a) of the Civil Service

Decree, an appointment in the civil service isPERMANENT when issued to a person whomeets all the requirements for the position towhich he is being appointed, including theappropriate eligibility prescribed, in accordancewith the provisions of law, rules and standardspromulgated in pursuance thereof.

2) An appointment in an ACTING CAPACITYextended by a Department Secretary is notpermanent but temporary. Hence, theDepartment Secretary may terminate the

services of the appointee at any time. On theother hand, an AD INTERIM APPOINTMENTextended by the President is an appointmentwhich is subject to confirmation by theCommission on Appointments and was madeduring the recess of Congress. As held inSummers vs. Qzaeta, 81 Phil. 754, an adinterim appointment is permanent.

3) In Section 24 (d) of the Civil Service Act of1959, a TEMPORARY APPOINTMENT is oneissued to a person to a position needed only fora limited period not exceeding six months.

Under Section 25(b) of the Civil ServiceDecree, a temporary appointment is one issuedto a person who meets all the requirements forthe position to which he is being appointedexcept the appropriate civil service eligibilitybecause of the absence of appropriate eligiblesand it is necessary in the public Interest to fillthe vacancy.

On the other hand. Section 24(e) of the CivilService Act of 1959 defined a PROVISIONAL




APPOINTMENT as one Issued upon the priorauthorization of the Civil Service Commission inaccordance with its provisions and the rulesand standards promulgated in pursuancethereto to a person who has not qualified in anappropriate examination but who otherwisemeets the requirements for appointment to aregular position in the competitive service,whenever a vacancy occurs and the filling

thereof is necessary in the interest of theservice and there is no appropriate register ofeligibles at the time of appointment.

Provisional appointments in general havealready been abolished by Republic Act 6040.However, it still applies with regard to teachersunder the Magna Carta for Public SchoolTeachers.

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 extendedto a person who has not qualified in anappropriate examination but who otherwisemeets the requirements for appointment to aregular position in the competitive servicewhenever a vacancy occurs and the fillingthereof is necessary in the interest of theservice and there is no appropriate register ofeligible at the time of the appointment. On theother hand, a TEMPORARY APPOINTMENTgiven to a non-civil service eligible is without a

definite tenure and is dependent on thepleasure of the appointing power.

A provisional appointment is good only untilreplacement by a civil service eligible and in nocase beyond 30 days from date of receipt bythe appointing officer of the certificate ofeligibility. (Sec. 24 [c|. Republic Act 2260).

A provisional appointment contemplates adifferent situation from that of a temporaryappointment. Whereas a temporaryappointment is designed to fill a position

needed only for a limited period not exceedingsix (6) months, a provisional appointment, onthe other hand, is intended for the contingencythat "a vacancy occurs and the filling thereof isnecessary in the interest of the service andthere is no appropriate register of eligibles atthe time of the appointment."

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,only that no one with appropriate eligibility canbe appointed to it. Hence, any other eligiblemay be appointed to do such work in themeantime that a suitable eligible does notqualify 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 forappointment to a regular position in thecompetitive service, meaning one who mustany way be a civil service eligible.

In the case of a temporary appointment, all thatthe law enjoins is that "preference in filling suchposition be given to persons on appropriateeligible lists." Merely giving preferencepresupposes that even a non-eligible may be

appointed. Under the law, even if the appointeehas the required civil service eligibility, hisappointment is still temporary simply becausesuch is the nature of the work to be done.

NOTE: Since provisional appointments havealready been abolished examinees should begiven full credit for whatever answer they mayor may not give.

Appoin ting Power; Limi tat ions onPresidential Appointments (1997)No. 7: A month before a forthcoming election,"A" one of the incumbent Commissioners of the

COMELEC, died while in office and "B", anotherCommissioner, suffered a severe stroke. Inview of the proximity of the elections and toavoid paralyzation in the COMELEC, thePresident who was not running for any office,appointed Commissioner C of the Commissionon Audit, who was not a lawyer but a certifiedpublic accountant 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 Dacting Commissioner of the COMELEC?SUGGESTED ANSWER:No. The President was wrong in extending anad interim appointment in favor ofCommissioner C. In Summers vs. Ozaeta, 81Phil. 754, it was held that an ad interimappointment is a permanent appointment.




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-out

Power" 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,the President, as Commander-in-Chief, maycall out the armed forces to aid him inpreventing or suppressing lawless violence,invasion or rebellion (David v. Arroyo, G.R. No.171396, May 3, 2006).

Declaration; State of Calamity; Legal Effects(Q1-2005)(b) To give the much needed help to the

Province of Aurora which was devastated 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,inter alia, these legal effects within the Provinceof Aurora —1. Automatic Price Control — under R.A. No.

7581, The Price Act;2. Authorization for the importation of rice

under R.A. No. 8178, The Agricultural

Tarrification Act;3. Automatic appropriation under R.A. No.7160 is available for unforeseenexpenditures arising from the occurrence ofcalamities in areas declared to be in a stateof calamity;

4. Local government units may enact asupplemental budget for supplies andmaterials or payment of services to preventdanger to or loss of life or property, underR.A. No. 7160;

5. Entitlement to hazard allowance for PublicHealth Workers (under R.A. No. 7305,

Magna Carta for Public Health Workers),who shall be compensated hazardallowances equivalent to at least twenty-fivepercent (25%) of the monthly basic salary ofhealth workers receiving salary grade 19and below, and five percent (5%) for healthworkers with salary grade 20 and above;

6. Entitlement to hazard allowance for scienceand technological personnel of thegovernment under R.A. No. 8439; and

7. A crime committed during the state ofcalamity will be considered aggravatedunder Art. 14, par. 7 of the Revised PenalCode.

Declaration; State of National Emergency(Q1-2006)2. On February 24, 2006, President Gloria

Macapagal-Arroyo issued Proclamation

No. 1017 declaring a state of nationalemergency. Is this Proclamation constitu-tional? Explain. (2.5%)

SUGGESTED ANSWER:The proclamation is constitutional insofar as itconstitutes a call by the President for the AFPto prevent or suppress lawless violence as thisis sustained 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 decreespromulgated by the President; and (3) toimpose standards on media or any form of priorrestraint on the press, are ultra vires andunconstitutional. Likewise, under Section 17,

Article XII of the Constitution, the President, inthe absence of legislation, cannot take overprivately-owned public utilities and businessesaffected with the public interest (David v.

Arroyo, G.R. No. 171396, May 3, 2006).

3. During the effectivity of this Proclamation,Gener, Lito and Bong were arrested bythe police for acts of terrorism. Is thearrest legal? Explain. (2.5%)

SUGGESTED ANSWER:The arrest, apparently done without a validwarrant, is illegal. However, a warrantlessarrest would be valid if those accused arecaught committing crimes en flagrante delicto.On the other hand, if the arrest is madepursuant to a valid warrant, then it is lawful. Theterm "acts of terrorism" has not been legallydefined and made punishable by Congress. No

law has been enacted to guide the lawenforcement agents, and eventually the courts,to determine the limits in making arrests for thecommission of said acts of 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 loanagreement with the German Government for




the construction of a dam. The Senate, by aresolution, asked that the agreement besubmitted to it for ratification. The Secretary ofForeign Affairs advised the Secretary of PublicWorks and Highways not to comply with therequest of the Senate.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, onlythe prior concurrence of the Monetary Board isrequired for the President to contract foreignloans on behalf of the Republic of thePhilippines.

Enter into Contract or Guarantee ForeignLoans (1999)No I - What are the restrictions prescribed bythe Constitution on the power of the Presidentto contract or guarantee foreign loans on behalf

of the Republic of the Philippines? Explain.(2%)SUGGESTED ANSWER:Under Section 20, Article VII of the Constitution,the power of the President to contract orguarantee loans on behalf of the Republic ofthe Philippines is subject to the priorconcurrence of the Monetary Board and subjectto such limitations as may be prescribed by law.

Enter into Executive Agreements (2003)No XX - An Executive Agreement was executed

between the Philippines and a neighboringState. The Senate of the Philippines took itupon itself to procure a certified true copy of theExecutive Agreement and, after deliberating onit, declared, by a unanimous vote, that theagreement was both unwise and against thebest interest of the country. Is the Executive

Agreement binding (a) from the standpoint ofPhilippine law and (b) from the standpoint ofinternational law? ExplainSUGGESTED 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, authorizethe President to fix within specified limits, and

subject to such limitations and restrictions itmay impose, tariff rates, import and exportquotas, tonnage and wharfage dues and otherduties or imposts within the framework of thenational development program of theGovernment.

Martial Law & Suspension o f Writ o f 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 styledunder the past dispensation as the "calibratedresponse" to national emergencies,(a) Discuss fully the provisions of the 1987Constitution, giving the scope, limits and therole of the principle of checks and balances onthe President's exercise of the power: To suspend the privilege of the writ of

habeas corpus Proclamation of martial law.

(b) Considering the pressing problems ofinsurgency, rebel activities, liberationmovements and terrorist violence, which in yourconsidered opinion among the options availableto the President as Commander-in-Chief wouldbe the most effective in meeting theemergencies by the nation? Explain.SUGGESTED ANSWER:(a) The President's power to suspend theprivilege of the writ of habeas corpus and toproclaim martial law is subject to severalchecks by Congress and by the SupremeCourt. The President is required to report to

Congress within 48 hours his action in declaringmartial law or suspending the privilege of thewrit, and Congress is in turn required toconvene, if it is not in session, within 24 hoursfollowing the proclamation of martial law or thesuspension of the privilege without need of anycall, in accordance with its rules. Theproclamation of martial law or suspension of thewrit is effective for 60 days only, but Congresscan cut short its effectivity by revoking theproclamation by the vote 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 suchextension.

On the other hand, the Supreme Courtexercises a check on Executive action in theform of judicial review at the instance of any

citizen. The Constitution embodies in thisrespect the ruling in Garcia v. Lansang, 42SCRA 448 (1971) that the Court can determinethe sufficiency of the factual basis of theproclamation of martial law or the suspension ofthe privilege or the extension thereof not for thepurpose of supplanting the judgment of thePresident but to determine whether the latterdid not act arbitrarily. Indeed, Art. VIII, Sec. 1imposes upon the courts the duty ofdetermining whether or not there has beengrave abuse of discretion amounting to lack orexcess of jurisdiction on the part of the other

branches of the government, in this case, thePresident.

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 courtsare open and functioning, thus overruling thecase of Aquino v. Military Commission No. 2, 63SCRA 546 (1975). His proclamation of martiallaw does not carry with it the suspension of the

writ of habeas corpus, so that the decision on Aquino v. Ponce Enrile, 59 SCRA 183 (1973) isnow overruled. Nor does the suspension of thewrit deprive courts of their power to admitpersons to bail, where proper. The Constitutionthus overrules the cases of Garcia-Padilla v.Ponce Enrile, 121 SCRA 472 (1983) andMorales v. Ponce Enrile. 121 SCRA 538 (1983).

(b) The President has three options: (1) TOCALL OUT the armed forces to prevent orsuppress lawless violence, invasion orrebellion; (2) TO SUSPEND the privilege of the

writ of habeas corpus or (3) TO PROCLAIMmartial law. The last two options can beresorted to only in cases of invasion or rebellionwhen public safety requires either thesupension of the privilege or the proclamationof martial law.

It is submitted that the most effective means ofmeeting the current emergency which isbrought about 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 be fora limited period and then the period ofretention is limited to 3 days which may notreally be effective. On the other hand,

public criticism of the action may onlyerode the President's authority.

3) There is practically little difference, as faras the ability of the President to meet anemergency is concerned, between option1, on the other hand, the options 2 and 3.

The President may well take comfort in thefollowing thought: "Government of limited powerneed not be anemic government. Assurancethat rights are secure tends to diminish fear and

jealousy 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 conflictson the Islands of Sulu and Basilan.a) To quell this, can the President place under

martial law the islands of Sulu and Basilan?Give your reasons? (3%)

b) What are the constitutional safeguards onthe exercise of the President's power to

proclaim martial law? (2%)SUGGESTED ANSWER:a) If public safety requires it, the Presidentcan place Sulu and Basilan under martial lawsince there is an actual rebellion. Under Section18, Article VII of the Constitution, the Presidentcan place any part of the Philippines undermartial law in case of rebellion, when publicsafety requires it.

b) The following are the constitutionalsafeguards on the exercise of the power of thePresident to proclaim martial law:

a) There must be actual invasion or rebellion;b) The duration of the proclamation shall not

exceed sixty days:c) Within forty-eight hours, the President shall

report his action to Congress. If Congressis not in session, it must convene withintwenty-four hours;

d) Congress may by majority vote of all itsmembers voting Jointly revoke theproclamation, and the President cannot setaside the revocation;




e) By the same vote and in the same manner,upon Initiative of the President, Congressmay extend the proclamation If the invasionor rebellion continues and public safetyrequires the extension;

f) The Supreme Court may review the factualsufficiency of the proclamation, and theSupreme Court must decide the case withinthirty days from the time it was filed;

g) Martial law does not automatically suspendthe privilege of the writ of habeas corpus orthe operation of the Constitution.

h) It does not supplant the functioning of thecivil courts and of Congress. Military courtshave no Jurisdiction over civilians wherecivil courts are able to function. (Cruz,Philippine Political Law, 1995 ed., pp. 213-214.)

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 militarytribunals were set up to try them. Robert delaCruz, a citizen, filed with the Supreme Court apetition questioning the validity of ProclamationNo. 1018.1. Does Robert have a standing to challenge

Proclamation No. 1018? Explain. (2.5%)SUGGESTED ANSWER:

Yes, Robert has standing. Under Article VIII,Section 17 of the 1987 Constitution, theSupreme Court may review, in an appropriateproceeding filed by any citizen, the sufficiencyof the factual basis of the proclamation ofmartial law. As citizen therefore, Robert may filethe petition questioning Proclamation No. 1018.

2. In the same suit, the Solicitor Generalcontends that under the Constitution, thePresident as Commander-in-Chief,determines whether the exigency hasarisen requiring the exercise of his power

to declare Martial Law and that hisdetermination is conclusive upon thecourts. How should the Supreme Courtrule? (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 basisof said proclamation. Moreover, the power to

suspend the privilege of the writ of habeascorpus and the power to impose martial lawinvolve the curtailment and suppression ofcertain basic civil rights and individualfreedoms, and thus necessitate safeguards byCongress and review by 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 therebellion poses danger to public safetyinvolves a question of fact and theSupreme Court is not a trier of facts. Whatshould be the ruling of the Court? (2.5%)

SUGGESTED ANSWER:Judicial power includes the duty of the courts of

justice to settle actual controversies involvingrights 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 (Art. Vin, Sec. 1, par. 2,1987Constitution). When the grant of power isqualified, conditional or subject to limitations,the issue of whether the prescribedqualifications or conditions have been met orthe limitations respected, is justiciable — theproblem being one of legality or validity, not itswisdom.

Article VII, Section 18 of the 1987 Constitutionspecifically grants the Supreme Court the

power to review, in an appropriate proceedingfiled by any citizen, the sufficiency of the factualbasis of the proclamation of martial law. Thus,in the matter of such declaration, two conditionsmust concur: (1) there must be an actualinvasion or rebellion; and (2) public safety mustrequire it. The Supreme Court cannot renegeon its constitutional duty to determine whetheror not the 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, butCongress did not revoke the proclamation.What is the effect of the inaction ofCongress on the suit brought by Robert tothe 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 sixtydays but Congress has the power to revoke theproclamation or extend the period. On the otherhand, the Supreme Court has the power toreview the said proclamation and promulgate itsdecision thereon within thirty days from its filing(Article VIII, 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 followingthe doctrine laid down in Barrioquinto vs.Fernandez, 82 Phil. 642. In other words,admission of guilt is not a condition sine quanon for the availment of amnesty. Is thiscorrect? 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,was captured by policemen while about toboard a passenger bus bound for Sorsogon.Charged with rebellion he pleaded not guiltywhen arraigned. Before trial he was grantedabsolute pardon by the President to allow himto participate 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 accusedamnesty. According to Barrioquinto vs.Fernandez, 82 Phil. 642, Amnesty may begranted before or after the institution of thecriminal prosecution.

4. No, the accused cannot avail of the benefitsof amnesty if he continues to profess hisinnocence. In Vera vs. People, 7 SCRA 152.since amnesty presupposes the commission ofa crime. It is inconsistent for an accused toseek forgiveness for something which he claimshe has not committed.

Pardoning Power; Breach of Condition;Revocation (Q5-2005)(1) Bruno still had several years to serve on his

sentence when he was conditionallypardoned by the President. Among theconditions imposed was that he would "notagain violate any of the penal laws of thePhilippines." Bruno accepted all of theconditions and was released. Shortlythereafter, Bruno was charged with 2counts of estafa. He was then incarceratedto serve the i expired portion of hissentence following the revocation by the

President of the pardon.

Bruno's family filed a petition for habeascorpus, alleging that it was error to havehim recommitted as the charges were false,in fact, half of them were already dismissed.Resolve the petition with reasons. (4%)

SUGGESTED ANSWER:The petition should not be given due course.The grant of pardon and the determination ofthe terms and conditions of a conditionalpardon are PURELY EXECUTIVE ACTS which

are not subject to judicial scrutiny. Theacceptance thereof by the convict or prisonercarried with it the authority or power of theExecutive to determine whether a condition orconditions of the pardon has or have beenviolated. Where the President opts to revokethe conditional pardon given, no judicialpronouncement of guilt of a subsequent crimeis necessary, much less conviction therefor byfinal judgment of a court, in order that a convictmay be recommended for the violation of hisconditional pardon. The determination of theoccurrence of a breach of a condition of a

pardon, and the proper consequences of suchbreach, is a purely executive act, not subject to

judicial scrutiny. (Torres v. Gonzales, G.R. No.76872, July 23, 1987)

Pardoning Power; Exec Clemency; Pardon(1995)No. 5: Lucas, a ranking member of the NDF,was captured by policemen while about toboard a passenger bus bound for Sorsogon.Charged with rebellion he pleaded not guilty




when arraigned. Before trial he was grantedabsolute pardon by the President to allow himto participate 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

Lucas reject 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 andBurdick vs. United States, 274 U.S. 480.acceptance is essential to complete the pardonand the pardon may be rejected by the personto whom it is tendered, for it may inflictconsequences of greater disgrace than thosefrom which it purports to relieve.

ALTERNATIVE ANSWER:

No, Lucas cannot reject the pardon. Accordingto Biddle vs. Perovich, 274 U.S. 480,acceptance is not necessary, for the grant ofpardon involves a determination by thePresident that public welfare will be betterserved by inflicting less than what the judgmentfixed.

Pardoning Power; Executive Clemency(1997)No. 15; Governor A was chargedadministratively with oppression and was

placed under preventive suspension from officeduring the pendency of his case. Found guilty ofthe charge, the President suspended him fromoffice for ninety days. Later, the Presidentgranted him clemency by reducing the period ofhis suspension to the period he has alreadyserved. The Vice Governor questioned thevalidity of the exercise of executive clemencyon the ground that it could be granted only incriminal, not administrative, cases.How should the question be resolved?SUGGESTED ANSWER:The argument of the Vice Governor should be

rejected. As held in Llamas vs. Orbos, 202SCRA 844. the power of executive clemencyextends to administrative cases. In granting thepower of executive clemency upon thePresident, Section 19, Article VII of theConstitution does not distinguish betweencriminal and administrative cases. Section 19,

Article VII of the Constitution excludesimpeachment cases, which are not criminalcases, from the scope of the power of executiveclemency. If this power may be exercised only

in criminal cases, it would have beenunnecessary to exclude impeachment casesfrom this scope. If the President can grantpardons in criminal cases, with more reason hecan grant executive clemency in administrativecases, which are less serious.

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 be granted in cases of

impeachment;2) Reprieves, commutations, pardon, and

remission of fines and forfeitures can begranted only after conviction by final

judgment.3) The favorable recommendation of the

COMELEC is required for violation ofelection laws, 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 be

pleaded and proved by the personpardoned; while amnesty is a public act ofwhich courts take judicial notice;

2. Pardon does not require the concurrence ofCongress, 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 politicaloffenses;

5. Pardon is granted after final conviction,while amnesty may be granted at any time;and

6. Pardon looks forward and relieves the

offender from the consequences of hisoffense, while amnesty looks backward andthe person granted it stands before the lawas though he had committed no offense.

Pardoning Power; Kinds (1988)No. 24: The first paragraph of Section 19 of

Article VII of the Constitution providing for 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 the

execution of a sentence to a day certain,(2) COMMUTATION is a remission of a part of

the punishment, a substitution of lesspenalty for the one originally imposed.

(3) A PARDON, on the other hand, is an act ofgrace, proceeding from the power entrustedwith the execution of the laws whichexempts the individual on whom it isbestowed from the punishment the lawinflicts for a crime he has committed.

Pardoning Power; Pardon, Conditional(1997)No. 16; A while serving imprisonment for estafa.upon recommendation of the Board of Pardons

and Parole, was granted pardon by thePresident on condition that he should not againviolate any penal law of the land. Later, theBoard of Pardons and Parole recommended tothe President the cancellation of the pardongranted him because A had been charged withestafa on 20 counts and was convicted of theoffense charged although he took an appealtherefrom which was still pending. Asrecommended, the President canceled thepardon he had granted to A. A was thusarrested and imprisoned to serve the balance of

his sentence in the first case. A claimed in hispetition for habeas corpus filed in court that hisdetention was illegal because he had not yetbeen convicted by final judgment and was notgiven a chance to be heard before he wasrecommitted to prison.Is A's argument valid?SUGGESTED ANSWER: The argument of A is not valid. As held inTorres vs. Gonzales. 152 SCRA 272 a judicialpronouncement that a convict who was granteda pardon subject to the condition that he shouldnot again 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 thatthe Court had no jurisdiction over the offensecharged because the President, being immunefrom suit, should also be disqualified from filinga case 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 personalto the President. It may be invoked by thePresident only and not by any other person.

Prohibition Against Multiple Positions & Addi tional Compensation (2002)No VI. M is the Secretary of the Department ofFinance. He is also an ex-officio member of the

Monetary Board of the Bangko Sentral ngPilipinas from which he receives an additionalcompensation for every Board meetingattended.

N, a taxpayer, filed a suit in court to declareSecretary M's membership in the MonetaryBoard and his receipt of additionalcompensation illegal and in violation of theConstitution. N invoked Article VII, Section 13 ofthe Constitution which provides that thePresident, Vice-President, the Members of theCabinet, and their deputies or assistants shall

not, unless otherwise provided in theConstitution, hold any other office oremployment during their tenure. N also cited

Article IX-B, Section 8 of the Constitution, whichprovides that no elective or appointive publicofficer or employee shall receive additional,double, or indirect compensation, unlessspecifically authorized by law.If you were the judge, how would you decidethe following:




a) the issue regarding the holding of multiplepositions? (3%)

b) the issue on the payment of additional ordouble compensation?(2%)

Explain your answers fully.SUGGESTED ANSWER:(a) If I were the judge, I would uphold thevalidity of the designation of Secretary M as exofficio member of the Monetary Board, As

stated in Civil Liberties Union v. ExecutiveSecretary, 194 SCRA 317 (1991), theprohibition against the holding of multiplepositions by Cabinet Members in Article VII,Section 13 of the Constitution does not apply topositions 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 thatSecretary M cannot receive any additionalcompensation. As stated in Civil LibertiesUnion v. Executive Secretary, 194 SCRA 317

(1991), a Cabinet Member holding an ex-officioposition has no right to receive additionalcompensation, for his services in that positionare already paid for by the compensationattached 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:

a. The Secretary of Trade and Industry asChairman and as Members:

b. The Chairman of the Senate Committeeon Trade and Industryc. An Associate Justice of the Supreme

Court designated by the Chief Justiced. The Commissioner of Customs, ande. The 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 ifallowed by law (such as the law in this casecreating the Export Control Board) or justifiedby the primary functions of their offices. Thefunctions of the Board is related to his functions

as Secretary of Trade and Industry. Theprovision of Art, VII, Sec, 13, prohibitingCabinet members from holding any other officeor employment, is subject 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.Under this view, the membership of theChairman of the Senate Committee on Tradeand Industry in the Export Control Board cannotbe sustained. (Sinco, Philippine Political Law136 (llth Ed. 1962).

Moreover, since the apparent justification forthe membership 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 PhilippineIslands v. Springer 50 Phil. 259 (1927), invalidating the law designating the SenatePresident and Speaker as members of theBoard of Control of government corporations,no other decision has been rendered. On thecontrary, laws have been enacted, making

members of Congress members of variousboards.

Indeed, the membership of the Chairman of theSenate Committee on Trade and Industry maybe upheld as being in aid of his legislativefunctions since what is prohibited by Art. VI,Sec. 13 is the acceptance of an incompatibleoffice or employment in the government.(Cortes, Philippine Presidency, pp. 111-112(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 and

judicial power only which the Supreme Courtand its members may exercise. (Art VIII. Sec. 1;Manila Electric Co. v. Pasay Trans. Co., 57Phil. 600 (1932))

(d) The Commissioner of Customs may bemade member of the Board for the same




No. 8; The ABC Realty, Inc, filed a complaintagainst Rico for the collection of unpaidinstallments on a subdivision lot purchased bythe latter, Rico failed to file an answer, wasdeclared in default; and after reception ofplaintiffs evidence ex parte, judgment wasrendered against him. The decision becamefinal, and upon motion by ABC Realty, the

judge issued a writ of execution.

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 thedismissal of the complaint and for the nullity ofthe decision. The realty firm opposes themotion 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} The HLURB2) Yes, the decision of the Regional Trial Courtcan still be vacated, even if it has become finaland executory. Since the Regional Trial Courthad no jurisdiction over the case, the decision isvoid.

Fiscal Autonomy (1999)

No XI - What do you understand by themandate of the Constitution that the judiciaryshall enjoy fiscal autonomy? Cite theconstitutional provisions calculated to bringabout the realization of the said constitutionalmandate. (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 wisdomand dispatch that the needs require. Itrecognizes the power and authority to deny,assess and collect fees, fix rates ofcompensation not exceeding the highest ratesauthorized by law for compensation and pay

plans of the government and allocate anddisburse such sums as may be provided by lawor prescribed by it in the course of thedischarge of its functions.

Function; Continuing ConstitutionalConvention (2000)No I. -- One Senator remarked that theSupreme Court is a continuing Constitutional

Convention. Do you agree? Explain. (2%)SUGGESTED ANSWER:I do not agree that the Supreme Court is acontinuing Constitutional Convention. Thecriticism is based on the assumption that inexercising its power of judicial review theSupreme Court Is not merely interpreting theConstitution but is trying to remake theGovernment on the basis of the personalpredilections of the Members of the SupremeCourt, this is a power that properly belongs tothe people and their elected representatives.

The Supreme Court cannot decide casesmerely on the basis of the letter of theConstitution. It has to interpret the Constitutionto give effect to the intent of its framers and ofthe people adopting it. In Interpreting theConstitution, the Supreme Court has to adopt itto the ever-changing circumstances of society.When the Supreme Court strikes down an actof the Legislative or the Executive Department,it is merely discharging its duty under theConstitution to determine conflicting claims ofauthority.

ALTERNATIVE ANSWER:To a certain extent, the Supreme Court is acontinuing Constitutional Convention. When acase is brought in court involving aconstitutional issue. It becomes necessary tointerpret the Constitution, Since the SupremeCourt is supreme within its own sphere, itsinterpretation of the Constitution will form part ofthe law of the land.

Issuance of Restraining Orders andInjunctions (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 bythe uncertain investment climate in thePhilippines. One source of such uncertainty isthe heightened judicial intervention ininvestment matters.

One such measure provides that "no court oradministrative agency shall issue anyrestraining order 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 MantrusteSystems, Inc. vs. Court of Appeals, 179 SCRA136, the Supreme Court held that a law

prohibiting the issuance of an injunction is valid,because under Section 2, Article VIII of theConstitution, the jurisdiction of the courts maybe 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.

Judic ial & Bar Council (1988)

No. 11: A novel feature of the presentConstitution is 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 theprincipal function of recommending appointeesto the Judiciary. It may exercise such otherfunctions and duties as the Supreme Court may

assign to it. (Art. VIII, sec. 8(5)).

2. The JBC is composed of the Chief Justiceas ex officio Chairman, the Secretary of Justiceand a representative of the Congress as exofficio Members, a representative of theIntegrated Bar, a professor of law, a retiredMember of the Supreme Court, and arepresentative of the private 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)).

Judic ial & 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 ofthe following:1. The Chief Justice as ex officio chairman;

2. The Secretary of Justice as ex officiomember;

3. A representative of Congress as ex officiomember;

4. A representative of the Integrated Bar;5. A professor of law;6. A retired Justice of the Supreme Court; and7. A representative of the private sector.

(Section 8 (1), Article VIII of the

Constitution)The term of office of the regular members isfour (4) years. (Section 8(2), Article VIII of theConstitution)

Judic ial 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 interestedparty may seek the invalidation of any

executive, legislative or judicial act deemed inviolation of a fundamental right. The adoption ofsuch a remedy in the Philippines may be basedon Article VIII, Sec. 5(5) of the Constitution,which empowers the Supreme Court topromulgate rules concerning the protection andenforcement of constitutional rights.

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 byimpeachment.

(3) The Supreme Court cannot be deprivedof its minimum jurisdiction prescribed inSection 5, Article X of the Constitution.

(4) The appellate jurisdiction of theSupreme Court cannot be increased bylaw without its advice and concurrence.

(5) Appointees to the Judiciary arenominated by the Judicial and BarCouncil and are not subject toconfirmation by the Commission on

Appointments.




(6) The Supreme Court has administrativesupervision over all lower courts andtheir personnel.

(7) The Supreme Court has exclusivepower to discipline Judges of lowercourts.

(8) The Members of the Judiciary havesecurity of tenure, which cannot be

undermined by a law reorganizing theJudiciary.

(9) Members of the Judiciary cannot bedesignated to any agency performingquasi-Judicial or administrativefunctions.

(10) The salaries of Members of theJudiciary cannot be decreased duringtheir continuance in office.

(11) The Judiciary has fiscal autonomy.

(12) The Supreme Court has exclusive

power to promulgate rules of pleading,practice and procedure.

(13) Only the Supreme Court cantemporarily assign judges to otherstations.

(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 asmay be established by law. It includes the dutyof 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 of

jurisdiction on the part of any branch orinstrumentality of the Government.

Judicial Power (1992)No. 8: A case was filed before theSandiganbayan regarding a questionablegovernment transaction. In the course of theproceedings, newspapers linked the name ofSenator J. de Leon to the scandal.

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 referredto the Committee on Accountability of PublicOfficers, which proceeded to conduct alegislative inquiry. The Committee asked Mr.Vince Ledesma, a businessman linked to thetransaction and now a respondent before the

Sandiganbayan, to appear and to testify beforethe Committee.

Mr Ledesma refuses to appear and file suitbefore the Supreme Court to challenge thelegality of the proceedings before theCommittee. He also asks whether theCommittee had the power to require him totestify.Identify the issues Involved and resolve them.SUGGESTED ANSWER:The issues involved in this case are thefollowing:

1. Whether or not the Supreme Court has jurisdiction to entertain the case;

2. Whether or not the Committee on Accountability of Public Officers has thepower to investigate a matter which isinvolved in a case pending in court; and

3. 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 ofwhether or not the Committee on Accountabilityof Public Officers 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 anybranch of the government is acting with graveof abuse of discretion amounting to lack of

jurisdiction.The Committee on Accountability of PublicOfficers has no power to investigate the

scandal. Since the scandal is involved in a casepending in court, the investigation will encroachupon the exclusive domain of the court. Toallow the investigation will create the possibilityof conflicting judgments between the committeeand the court. If the decision of the committeewere reached before that of the court, it mightinfluence the judgment of the court.

The petitioner can invoke his right against self-incrimination, ...




Judicial Power (1998)IV. Andres Ang was born of a Chinese fatherand a Filipino mother in Sorsogon, Sorsogon.on January 20, 1973. In 1988. his father wasnaturalizedas a Filipino citizen. On May11,1998. Andres Ang was electedRepresentative of the First District of Sorsogon.Juan Bonto who received the second highest

number of votes, filed a petition for QuoWarranto against Ang. The petition was filedwith the House of Representative ElectoralTribunal (HRET). Bonto contends that Ang isnot a natural born citizen of the Philippines andtherefore is disqualified to be a member of theHouse.

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 ofmembers of the House ofRepresentatives. [5%]

2. Whether Ang is a natural bom citizen ofthe Philippines. |5%]

How should this case be decided?SUGGESTED ANSWER: 1. The case is justiciable. As stated InLazatin vs. House Electoral Tribunal 168 SCRA391, 404, since judicial power includes the duty

to determine whether or not there has been agrave abuse of discretion amounting to lack orexcess of jurisdiction on the part of any branchor instrumentality of the Government, theSupreme Court has the power to review thedecisions of the House of RepresentativesElectoral Tribunal in case of grave Abuse ofdiscretion 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 ofthe 1987 Constitution, which states that itincludes the duty to determine whether or notthere has been a grave abuse of discretion

amounting to lack or excess of jurisdiction onthe part 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 thescope of juridical inquiry into areas which thecourts under the 1935 and the 1973Constitutions would normally have left to thepolitical departments to decide.

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

judicial power "in one Supreme Court and insuch inferior courts as may be established bylaw," they were silent as to the scope of suchpower.

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 thecourts of justice to settle actual controversiesInvolving rights which are legally demandableand enforceable, and to determine whetheror not there has been a grave abuse ofdiscretion amounting to lack or excess ofJurisdiction on the part of any branch or

instrumentality of the Government." (Sec. 1. Art. VIII)

The second paragraph of the cited provisionwas not found in the 1935 and 1973Constitution, it contains a new definition of

judicial power particularly the scope thereof.The first portion thereof represents thetraditional concept of Judicial power, involvingthe settlement of conflicting rights as by law,which presumably was implicit in the 1935 and1973 Constitutions. The second (latter) portionof the definition represents a broadening of the

scope of judicial power or, in the language ofthe Supreme Court, conferment of "expandedJurisdiction" on the Judiciary (Daza v. Singson,180 SCRA 496) to enable the courts to reviewthe exercise of discretion by the politicaldepartments of government. This newprerogative of the judiciary as now recognizedunder the 1987 Constitution was notconstitutionally permissible under the 1935 and1973 Charters.




Judic ial 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 fromallocating funds to operate a power plant atMount Tuba In a southern island. They claimthat there was no consultation with theIndigenous cultural community which will be

displaced from ancestral lands essential to theirlivelihood and indispensable to their religiouspractices.a. The organization is based in Makati. All itsofficers live and work in Makati. Not one of itsofficers or members belong to the affectedindigenous cultural community. Do they havethe standing in this dispute? Explain.

b. Would your answer be different if thePhilippine Power Corporation, a privatecompany, were to operate the plant? Explain.SUGGESTED ANSWER:

a) Under Section 5, Article XII of theConstitution, the State should protect the rightsof cultural Indigenous communities to theirancestral lands to ensure their well-being.Under Section 17, Article XIV of theConstitution, the State should protect the rightsof indigenous cultural communities to preserveand develop this cultures, traditions, andinstitutions and should consider these rights inthe formulation of national plans and policies.The government violated these provisions,because it decided to operate the power plant

without consulting the indigenous culturalcommunity and the operation of the power plantwill result in its displacement.

If the projected lawsuit will be based onviolation of the rights of the indigenous culturalcommunities, the Philippine EnvironmentalistsOrganization will have no standing to file thecase. None of its officers and members belongto the indigenous cultural community. None oftheir rights 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 hasstanding to question the illegal expenditure ofpublic funds.

b) The Philippine EnvironmentalistsOrganization will have no standing to file thecase if it is a private 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 ofpublic funds is involved.

Since no member or officer of the PhilippineEnvironmentalists' Organization belongs to theaffected indigenous community, none of the

rights of the Philippine Environmentalists'Organization and of its officers and membersare affected. In accordance with the ruling inNational Economic Protectionism Associationvs. Ongpin, 171 SCRA 657, the organizationhas no standing to file the case.

Judicial Review; Requisites (1994)No. 2: 2) Assume that the constitutionalquestion raised in a petition before theSupreme Court is the Iis mota of the case, giveat least two other requirements before the Courtwill exercise its power of judicial review?

SUGGESTED ANSWER:2) According to Macasiano vs. NationalHousing Authority, 224 SCRA 236, in additionto the requirement that the constitutionalquestion raised be the lis mota of the case, thefollowing requisites must be present for theexercise of the power of judicial review:

1. There must be an actual case orcontroversy involving a conflict of legalrights susceptible of Judicial determination;

2. The constitutional question must be raised

by the proper party; and3. The constitutional question must be raised

at 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 bythe latter, Rico failed to file an answer, wasdeclared in default; and after reception ofplaintiffs evidence ex parte, judgment wasrendered against him. The decision became

final, and upon motion by ABC Realty, the judge issued a writ of execution.

Rico now files a motion to quash the writ and 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 thedismissal of the complaint and for the nullity ofthe 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 and

executory, can it still be vacated?SUGGESTED ANSWER:

1} As held in Estate Developers and InvestorsCorporation vs. Court of Appeals, 213 SCRA353, pursuant to Presidential Decree No. 1344,it is the Housing and Land Use RegulatoryBoard which has jurisdiction over the claim of adeveloper against a buyer for the payment ofthe balance of the purchase price of a lot. The

jurisdiction of the Regional Trial Court overcases in which the amount of controversyexceeds P20,000.00 exists only in all caseswhere the case does not otherwise fall withinthe exclusive jurisdiction of any other court,tribunal, person or body exercising Judicial or

quasi-judicial functions,

2) Yes, because it is void....

Mandatory Period For Deciding Cases (1989)No. 10: (2) Despite the lapse of 4 months 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 jurisdictionto decide the case. Should the motion be

granted?SUGGESTED ANSWER:No, the motion should not be granted. Section15 (4), Article VIII of the 1987 Constitutionprovides:

"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 of

jurisdiction to decide the case. ALTERNATIVE ANSWER:The 1973 Constitution provided for certainconsequences on the decisions of courts incase of the failure of the Supreme Court andother inferior collegiate courts to decide caseswithin prescribed periods. But it did not providefor consequences on the decisions of trialcourts as a result of their failure to decide cases

within three months (Art. X, Sec. 11). InMarcelino vs. Cruz, 121 SCRA 51 (1983) it washeld that the periods prescribed are onlydirectory, not mandatory.

Political Question (1995)No. 13: Judicial power as defined in Sec. 1, 2ndpar., Art. VIII, 1987 Constitution, now "includesthe duty 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 of

jurisdiction on the part of any branch orinstrumentality of the Government. "Thisdefinition is said to have expanded the power ofthe judiciary to include political questionsformerly beyond its jurisdiction.(1) Do you agree with such as interpretation of

the constitutional definition of judicial powerthat would authorize the courts to reviewand, if warranted, reverse the exercise of

discretion by the political departments(executive and legislative) of thegovernment, including the ConstitutionalCommissions? Discuss fully,

(2) In your opinion, how should such definitionbe construed so as not to erodeconsiderably or disregard entirely theexisting "political question" doctrine?Discuss fully.

SUGGESTED ANSWER:1. Yes, the second paragraph of Section 1,

Article VIII of the 1987 Constitution has

expanded the power of the Judiciary to includepolitical questions. This was not found in the1935 and the 1973 Constitution, Precisely, theframers of the 1987 constitution intended towiden 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 judicialreview when political questions are involvedshould be limited to a determination of whetheror not there has been a grave abuse ofdiscretion amounting to lack or excess of

jurisdiction on the part of the official whose actis being questioned. If grave abuse of discretionis not shown, the courts should not substitutetheir judgment for that of the official concernedand decide a matter which by its nature or bylaw is for the latter alone to decide.

Political Question Doctrine (1997)No. 5; To what extent, if at all, has the 1987Constitution affected the "political questiondoctrine"?




ten billion U.S. dollars in aids andconcessional loans; and

(3) An undertaking to help persuade Americanbanks to condone interests and othercharges on the country's out-standingloans.

In return, the President agreed to allow American nuclear vessels to stay for short visits

at Subic, and in case of vital military need, tostore nuclear weapons at Subic and at ClarkField. A vital military need comes, under theagreement, when the sealanes from thePersian Gulf to the Pacific, are threatened byhostile military forces.

The Nuclear Free Philippine Coalition comes toyou for advice on how they could legallyprevent the same agreement entered into bythe President with the US government fromgoing into effect. What would you advise themto do? Give your reasons.

SUGGESTED ANSWER:If the Agreement is not in the form of a treaty, itis not likely to be submitted to the Senate forratification as required in Art. VII, sec. 21. Itmay not, therefore, be opposed in that branchof the government. Nor is judicial reviewfeasible at this stage because there is no

justiciable controversy. While Art. VIII, sec. 1,par. 2 states that judicial power includes theduty of court of justice to "determine whether ornot there has been a grave abuse of discretionamounting to lack or excess of jurisdiction on

the part of any branch or instrumentality of thegovernment," it is clear that this provision doesnot do away with the political question doctrine.It was inserted in the Constitution to preventcourts from making use of the doctrine to avoidwhat otherwise are justiciable controversies,albeit involving the Executive Branch of thegovernment during the martial law period. Onthe other hand, at this stage, no justiciablecontroversy can be framed to justify judicialreview, I would, therefore, advice the NuclearFree Philippine Coalition to resort to the mediato launch a campaign against the Agreement.

Pro Hac Vice Cases (1999)No XI What does if mean when a SupremeCourt Justice concurs in a decision pro hacvice? (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 removedfrom office:1) Senators & Congressmen2) Judges of lower courts3) Officers and employees in the Civil ServiceSUGGESTED ANSWER:1) As to Sen & Cong, Art. III, section 16(3), ofthe Constitution, ...2) Under Art. VIII, sec. 11 of the Constitution,

Judges of lower courts may be removed bydismissal by the Supreme by a vote of amajority of the Members who actually took partin the deliberation on the issues in the case andvoted 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 RegionalTrial Court of Manila, was found guilty of beingabsent without official leave for 90 days andconsidered dismissed from service by the

Supreme Court. He appealed to the Presidentfor executive clemency. Acting on the appeal,the Executive Secretary, by order of thePresident commuted the penalty to asuspension of six months.a) Can the Supreme Court 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 reviewingthe wisdom of the commutation of the penalty.What it is deciding is whether or not thePresident has the power to commute thepenalty of X, As stated in Daza vs. Singson.180 SCRA 496, it is within the scope of Judicialpower to pass upon the validity of the actions ofthe other departments of the Government.

b) The commutation by the President of thepenalty imposed by the Supreme Court upon Xis unconstitutional. 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.




Supervision; Courts & its Personnel (Q5-2005)(2) Pedro Masipag filed with the Ombudsman a

complaint against RTC Judge JosePalacpac with violation of Article 204 of theRevised Penal Code for knowinglyrendering an unjust judgment in CriminalCase No. 617. Judge Palacpac filed amotion with the Ombudsman to refer the

complaint to the Supreme Court todetermine whether an administrative aspectwas involved in the said case. TheOmbudsman denied the motion on theground that no administrative case againstJudge Palacpac relative to the decision inCriminal Case No. 617 was filed andpending in his office.State with reasons whether theOmbudsman's ruling is correct. (4%)

SUGGESTED ANSWER:The Ombudsman's ruling is not correct. Under

Section 6, Article VIII of the Constitution, it isthe Supreme Court which is vested withexclusive administrative supervision over allcourts and its personnel. Prescinding from thispremise, the Ombudsman cannot determine foritself and by itself whether a criminal complaintagainst a judge, or court employee, involves anadministrative matter. The Ombudsman is dutybound to have all cases against judges andcourt personnel filed before it, referred to theSupreme Court for determination as to whetheran administrative aspect is involved therein.

(Judge Jose Caoibes v. Ombudsman, G.R. No.132177, July 19, 2001)Taxpayer's Suit; Locus Standi (1995)No. 12: When the Marcos administration wastoppled by the revolutionary government, theMarcoses left behind several Old Masters'paintings and antique silverware said to havebeen acquired by them as personal gifts.Negotiations were then made with Ellen Layneof London for their disposition and sale at publicauction. Later, the government entered into a"Consignment Agreement" allowing Ellen Layneof London to auction off the subject art pieces.

Upon learning of the intended sale, well-knownartists, patrons and guardians of the arts of thePhilippines filed a petition in court to enjoin thesale and disposition of the valued itemsasserting that their cultural significance must bepreserved for the benefit of the Filipino people.(1) Can the court take cognizance of the

case? Explain.(2) What are the requisites for a taxpayer's suit

to prosper?SUGGESTED ANSWER:

1. No, the court cannot take cognizance of thecase. As held in Joya vs. PresidentialCommission on Good Government, 225 SCRA569, since the petitioners were not the legalowners of paintings and antique silverware,they had no standing to question theirdisposition. Besides, the paintings and theantique silverware did not constitute importantcultural properties or national cultural treasures,

as they had no exceptional historical andcultural significance to the Philippines.

2. According to Joya us. PresidentialCommission on Good Government, 225 SCRA568. for a taxpayer's suit to prosper, fourrequisites must be considered:(1) the question must be raised by the proper

party;(2) there must be an actual controversy;(3) the question must be raised at the earliest

possible opportunity; and(4) the decision on the constitutional or legal

question must be necessary to thedetermination of the case.

In order that a taxpayer may have standing tochallenge the legality of an official act of thegovernment, the act being questioned mustinvolve a disbursement of public funds upon thetheory that the expenditure of public funds foran unconstitutional act is a misapplication ofsuch funds, which may be enjoined at theinstance of a taxpayer.

Term of Office; Justices (1996)No. 9: A, an associate justice of the SupremeCourt reached the age of seventy on July 1,1996. There was a case calendared fordeliberation on that day where the vote of Awas crucial. Can A hold over the position andparticipate in the deliberation of the case onJuly 1, 1996? Explain.SUGGESTED ANSWER:No. A cannot hold over his position as

Associate Justice of the Supreme Court andparticipate in the deliberations of the case onJuly 1, 1996. Under Section 11, Article VIII of

the Constitution, Members of the SupremeCourt hold office until they reach the age ofseventy years or become incapacitated todischarge their duties. Constitutional officerswhose terms are fixed by the Constitution haveno right to hold over their positions until theirsuccessors shall have been appointed andqualified unless otherwise provided in theConstitution. (Mechem, A Treaties on the Lawof Public Offices and Officers, p. 258.)




Votes required for declaring a lawunconstitut ional (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 canbe declared unconstitutional with theconcurrence of a majority of the Members of theSupreme Court who actually took part in thedeliberation on the issues in the case and votedthereon. If only eight Members of the SupremeCourt actually took part in deciding the case,there will still be a quorum. Five Members willconstitute a majority of those who actually tookpart in deciding the case.

ARTICLE IX Const itutionalCommissionsRotational Scheme (1999)No XIII - What are the requisites for theeffective operation of the so-called "RotationalScheme" for Constitutional Commissions?(2%)SUGGESTED ANSWER:

As held in Republic v. Imperial, 96 Phil. 770, forthe effective operation of the rotational schemeof the Constitutional Commission, the firstCommissioner should start on a common dateand any vacancy before the expiration of theterm should be filled only for the unexpiredbalance of the term.

Constitutional Commissions & Council (Q7-2006)2. The legislature may abolish this body: (5%)

a. Commission on Appointmentsb. Ombudsmanc. Judicial and Bar Councild. Court of Tax Appealse. 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 constitu-tional creations. Thus, the latter agencies mayonly be abolished by way of an amendment orrevision of the Constitution.

ARTICLE IX Civ il ServiceCommission

Career Service; Characteris tics (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, BookV of the Administrative Code of 1987, thecareer service is characterized by(1) Entrance based on merit and fitness to be

determined as far as practicable bycompetitive examination or based on highlytechnical qualifications;

(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 inan appropriate 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 thecareer executive service, who areappointed by the President;

(5) Commissioned officers and enlisted men ofthe Armed Forces;

(6) Personnel of government - owned orcontrolled corporations, whether performinggovernmental or proprietary functions, whodo not fall under the non-career service;and

(7) Permanent laborers, whether skilled,semiskilled, or unskilled.

Civil Service Commission vs. COA (2004)(9-a) Former Governor PP of ADS Province

had dismissed several employees to scaledown the operations of his Office. Theemployees complained to the Merit Systems

Protection Board, which ruled that the CivilService rules were violated when theemployees were dismissed. The Civil ServiceCommission (CSC) affirmed the MSPBdecision, 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 thematter to 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,

ADS refused to pay. The final CSC decision,however, did not find the former Governor inbad faith. The former Governor was likewise notheard on the question of his liability.

Is ADS' refusal justified? Can COA disallow the

payment of backwages by ADS to thedismissed employees due under a final CSCdecision? Decide and reason briefly. (5%)

SUGGESTED ANSWER: A. The refusal of ADS is not justified, and theCommission on Audit cannot disallow thepayment of backwages by ADS to thedismissed employee. The Commission on

Audit cannot make a ruling that it is the formergovernor who should be personally liable, sincethe former governor was not given theopportunity to be heard. In addition, the

Commission on Audit cannot set aside a finaldecision of the Civil Service Commission. Thepayment of backwages to illegally dismissedgovernment employee is not an irregular,unnecessary, excessive, extravagant orunconscionable expenditure. (Uy v.Commission on Audit, 328 SCRA 607 [2000]).

Funct ion 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 ServiceCommission cannot dictate to the appointingpower whom to appoint. Its function is limitedto determining whether or not the appointeemeets the minimum qualification requirementsprescribed for the position. Otherwise, it wouldbe encroaching upon the discretion of theappointing power.

GOCCs Without Original Charter vs. GOCCs

With Original Charter (1998)No II.-- The Constitution distinguishes betweentwo types of owned and/or controlledcorporations: those with original charters andthose which are subsidiaries of suchcorporations. In which of the following rule/rulesis such a distinction made? Consider each ofthe following items and explain briefly youranswer, citing pertinent provisions of theConstitution.

1. The rule prohibiting the appointment tocertain government positions, of the spouseand relatives of the President within thefourth degree of 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 theirtenure, to be financially interested in anycontract with or any franchise or privilegegranted by the government, [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 fromappointing his spouse and relatives withinthe fourth degree of consanguinity oraffinity does not distinguish betweengovernment corporations with originalcharters and their subsidiaries, becausethe prohibition applies to both.

2. Section 13, Article VII of the Constitution,which prohibits Members of Congress fromholding any other office during their termwithout forfeiting their seat, does not

distinguish between governmentcorporations with original charters and theirsubsidiaries, because the prohibition appliesto both.

3. Section 2, Article IX-A of the Constitution,which prohibits Members of theConstitutional Commissions from beingfinancially interested in any contract with orany franchise or privilege granted by theGovernment, does not distinguish betweengovernment corporations with originalcharters and their subsidiaries, because the

prohibition applies to both.4. Section 2(1), Article IX-D of the Constitution

which provides for post audit by theCommission on audit of governmentcorporations, does not distinguish betweengovernment corporations with originalcharters and their subsidiaries, because theprovision applies to both.

5. Section 5, Article IX-B of the Constitution,which provides for the standardization of the




compensation of government officials andemployees, distinguishes betweengovernment corporations and theirsubsidiaries, for the provision applies only togovernment corporations with originalcharters.

Jurisdiction over the GOCCs (1999)No IX - Luzviminda Marfel, joined by elevenother retrenched employees, filed a complaintwith the Department of Labor and Employment(DOLE) for unpaid retrenchment or separationpay, underpayment of wages and non-paymentof emergency 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 isa government-owned and controlled corporationand its employees are governed by the CivilService Law and not by the Labor Code.Marfel opposed the motion to dismiss,

contending that although Food Terminal, Inc. isa corporation owned and controlled by thegovernment earlier created and organizedunder the general corporation law as "TheGreater Manila Food Terminal, Inc.", it has stillthe marks of a private corporation: it directlyhires its employees without seeking approvalfrom the Civil Service Commission and itspersonnel are covered by the Social SecuritySystem and not the Government ServiceInsurance System, The question posed in thepetition for certiorari at bar is whether or not alabor law claim against a government-owned or

controlled corporation like the Food Terminal,Inc. falls within the jurisdiction of theDepartment of Labor and Employment or theCivil Service Commission? Decide andratiocinate. (4%)SUGGESTED ANSWER:The claim of the retrenched employees fallsunder the jurisdiction of the National LaborRelations Commission and not under the

jurisdiction of the Civil Service Commission. Asheld in Lumanta v. National Labor RelationsCommission, 170 SCRA 79, since FoodTerminal, Inc. was organized under theCorporation Law and was not created by aspecial law in accordance with Section 2(1),

Article IX-B of the Constitution, it is not coveredby the civil service.

Jurisdiction over the GOCCs (2003)No VII - A corporation, a holder of a certificateof registration issued by the Securities andExchange Commission, is owned andcontrolled by the Republic of the Philippines.The Civil Service Commission (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 assailedby the corporation, as well as by its officers andemployees, before the court. How should thecase be resolved?SUGGESTED ANSWER:The memorandum-order of the Civil Service

Commission should be declared void. As heldin Gamogamo v. PNOC Shipping and TransitCorporation. 381 SCRA 742 (2002). under

Article IX-B, Section 2(1) of the 1987Constitution government-owned or controlledcorporations organized under the CorporationCode are not covered by the Civil Service Lawbut by the Labor Code, because onlygovernment-owned or controlled corporationswith original charters are covered by the CivilService.

Modes of Removal from Office (1993)

No. 11: How may the following be removedfrom office:1) Senators & Congressmen2) Judges of lower courts3) Officers and employees in the Civil ServiceSUGGESTED 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 theappropriate disciplinary authority in accordancewith Ch. 7 secs. 47-48 of Book V of the

Administrative Code of 1987 and the CivilService Rules and Regulations.

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 ofwhich he 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.

Securit y 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 andemployees of the Bureau of Customs. Most ofthe ousted employees appealed to the CivilService Commission claiming their ousterillegal. The Civil Service Commission, afterhearing, later ordered the Commissioner ofCustoms to reinstate most of those dismissed.Instead of following the order of the CivilService 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 of customs officials andemployees?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? Stateyour reasons.SUGGESTED ANSWER:1. I would invoke the resolution in Jose v.

Arroyo, G.R. No. 78435, Aug. 11, 1987, inwhich the Supreme Court held that under Art.

XVIII, sec, 16 of the Constitution, career serviceemployees may be removed "not for cause butas a result of the reorganization pursuant toProclamation No. 3 dated March 25, 1986 andthe reorganization following the ratification ofthis Constitution." By virtue of this provision, itwas held that the reorganization of the Bureauof Customs under Executive Order No, 127may continue even after the ratification of theConstitution, and career service employeesmay be separated from the service withoutcause as a result of such reorganization.

2. I would argue that art. XVIII, sec. 16 doesnot really authorize the removal of careerservice employees but simply provides for thepayment of separation, retirement, and otherbenefits accruing to them under the applicablelaws. The reference to career serviceemployees separated "as a result of thereorganization following the ratification of thisConstitution" 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 isreferred to therein as "the reorganizationpursuant to Proclamation No. 3 dated March25, 1986." For the power of the government toterminate the employment of elective andappointive officials pursuant to Art. III, sec. 2 ofProclamation No. 3 (otherwise known as theProvisional Constitution), through the

appointment or designation of their successorshas been repeatedly held to have ended onFebruary 2, 1987, when the new Constitutiontook effect. (De Leon v. Esguerra, 153 SCRA602 (1987); Reyes v. Ferrer G.R. No. 77801,Dec. 11, 1987; Osias v. Ferrer, G.R, No. 77049,March 28, 1988), Moreover, such replacementof incumbents can only be for cause asprescribed by Executive Order No. 17, datedMay 28, 1986. Since the summary dismissals inquestion are not for cause, the removal of theBureau of Customs officials violates art. IX, B,sec, 2(3) of the Constitution.

Securit y of Tenure (Q5-2005)(3) Ricardo was elected Dean of the College of

Education in a State University for a term offive (5) years unless sooner terminated.Many were not pleased with hisperformance. To appease those critical ofhim, the President created a new position,that of Special Assistant to the Presidentwith the rank of Dean, without reduction insalary, and appointed Ricardo to saidposition in the interest of the service.

Contemporaneously, the UniversityPresident appointed Santos as Acting Deanin place of Ricardo. (5%)

(a) Does the phrase "unless soonerterminated" mean that the position ofRicardo is 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's contract of employment has a fixedterm of five years. It is not an appointment in anacting capacity or as officer-in-charge. Acollege dean appointed with a term cannot beseparated without cause. Ricardo, with adefinite term of employment, 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 ofEducation or merely transferred to theposition of Special Assistant to thePresident? Explain.

SUGGESTED ANSWER:

Ricardo was removed from his position asdean. Having an appointment with a fixed term,he cannot, without his consent, be transferredbefore the end of his term. He cannot be askedto give up his post nor appointed as dean ofanother college, much less transferred toanother position even if it be dignified with adean's rank. More than this, the transfer was ademotion because deanship in a university,being an academic position which requireslearning, ability and scholarship, is moreexalted than that of a special assistant whomerely assists the President, as the title

indicates. The special assistant does not makeauthoritative decisions unlike the dean whodoes so in his own name and responsibility.The position of dean is created by law, whilethe special assistant is not so provided by law;it was a creation of the university president.(Sta. Maria v. Lopez, G.R. No. L-30773,February 18, 1970)

Security of Tenure; Meaning (1999)No IX - -What is the meaning and guarantee ofsecurity of tenure? (2%)

SUGGESTED ANSWER: According to Palmera v. Civil ServiceCommission, 235 SCRA 87, SECURITY OFTENURE means that no officer or employee inthe Civil Service shall be suspended ordismissed except for cause as provided by lawand after due process.

ARTICLE IX COMELECElectoral Tribunal; Functions & Composition(Q5-2006)1. What is the function of the Senate Electoral

Tribunal and the House of RepresentativesElectoral 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 theelection, returns, and qualifications of theirrespective Members.

2. What is the composition of each? (2.5%)SUGGESTED ANSWER:

Each Electoral Tribunal shall be composed ofNINE Members, three of whom shall beJustices of the Supreme Court to be designatedby the Chief Justice, and the remaining six shallbe Members 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. Thesenior Justice in the Electoral Tribunal shall beits Chairman (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 thatnominated only one set of candidates. Theresolution is challenged as a violation of thefreedom of speech and of the press. Is theresolution constitutionally 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 themedia of communication or information toensure equal opportunity, time, and space

among candidates with the objective of holdingfree, orderly, honest, peaceful, and credibleelections. To allow candidates which aresupported by more than one political party topurchase more air time and advertising spacethan candidates supported by one political partyonly will deprive the latter of equal time andspace 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 quantityof political speech by restricting the number ofissues that can be discussed, the depth of theirdiscussion and the size of the audience thatcan be reached, through the broadcast media.Since the purpose of the Free Speech Clause isto promote the widest possible dissemination ofinformation, and the reality is that to do thisrequires the expenditure of money, a limitationon expenditure for this purpose cannot be

justified, not even for the purpose of equalizing




be disqualified as a candidate and so ineligiblefor the office to which he was elected. Wouldthis fact entitle a competing candidate whoobtained the second highest number of votes toask and to be proclaimed the winner of theelective 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 asMember of the House of Representatives in the1987 national elections on the ground that B isnot a resident of the district the latter isrepresenting. While the case was pending. B

accepted an ad-interim appointment asSecretary of the Department 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 Bwere not invalid votes. Hence, A garnered onlythe second highest number of votes. Only thecandidate who obtained the majority or pluralityof the votes is entitled to be proclaimed elected.On this ground, it was held in Labo v.COMELEC, 176 SCRA 1, that the fact that thecandidate who obtained the highest number ofvotes is not eligible does not entitle thecandidate who obtained the second highestnumber of votes to be proclaimed the winner.

2nd Placer Rule; in Quo Warranto Cases(1992)No. 16: Edwin Nicasio, born in the Philippinesof Filipino parents and raised in the province ofNueva Ecija, ran for Governor of his homeprovince. He won and he was sworn into office.It was recently revealed, however, that Nicasiois a naturalized American citizen.a) Does he still possess Philippine citizenship?

b) If the second-placer in the gubematorialelections files a quo warranto suit againstNicasio and he is found to be disqualifiedfrom office, can the second-placer be sworninto office as governor?

c) If, instead, Nicasio had been born (of thesame set of parents) in the United Statesand he thereby acquired Americancitizenship 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 candidatesfor mayor of Bigaa, Bulacan in the May 1995local elections. A obtained 10,000 votes asagainst 3,000 votes for B. In the sameelections, X got the highest number of votesamong the candidates for the SangguniangBayan of the same town. A died the day beforehis proclamation.a) Who should the Board of Canvassers

proclaim as elected mayor, A, B or X?

Explain,b) Who is entitled to discharge the functions ofthe office 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 whoobtained the highest number of votes does not

entitle the candidate who obtained the nexthighest number of votes to be proclaimed thewinner, since he was not the choice of theelectorate. X is not entitled to be proclaimedelected as mayor, because he ran for theSangguniang 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 44of the Local Government Code, it is the vicemayor who should succeed in case ofpermanent vacancy in the office of the mayor. Itis only when the position of the vice mayor isalso vacant that the member of theSangguniang Bayan who obtained the highestnumber of votes will succeed to the office ofmayor.

Appreciation of Bal lots (1994)No. 3; If a candidate for town mayor is anengineer by profession, should votes for himwith the prefix "Engineer" be invalidated as"marked ballots"?SUGGESTED ANSWER:3) No, a ballot in which the name of acandidate for town mayor who is an engineerwhich is prefixed with "engineer" should not beinvalidated as a marked ballot. Under Rule No.12 of the rules for the appreciation of ballots,ballots which contain such prefixes are valid.

Disqualification ; Grounds (1991)No. 11 - In connection with the May 1987Congressional elections, Luis Millanes wasprosecuted for and convicted of an electionoffense and was sentenced to sufferimprisonment for six years. The court did notimpose the additional penalty of disqualificationto hold public office and of deprivation of theright of suffrage as provided for in Section 164of the Omnibus Election Code of the Philippines(B.P. Blg. 881).

In April 1991, the President granted himabsolute pardon on the basis of a strongrecommendation of the Board of Pardons andParole.Then for the election in May 1992, Luis Millanesfiles his certificate of candidacy for the office ofMayor in his municipality.(c) Is a petition to disqualify Millanes viable?(d) What are the effects of a petition todisqualify?SUGGESTED ANSWER:(c) In accordance with Sec. 68 of the Omnibus

Election Code, Luis Millanes may bedisqualified from running for mayor as he wasconvicted of an election offense.

(d) Under Sec. 6 of the Electoral Reforms Law,any candidate who has been declared by final

judgment to be disqualified shall not be votedfor, and votes cast for him shall not be counted.

If before the election he is not declared by final judgment to be disqualified and he is voted for

and he receives the winning number of votes,the hearing on the question of disqualificationshould continue. Upon motion of thecomplainant or any intervenor, the court or theCOMELEC may order the suspension of theproclamation of the winning candidate if theevidence of his guilt is strong.

Disualifications (1999)

No V - A.2. Under the Local GovernmentCode, name four persons who are disqualifiedfrom running for any elective position. (2%)SUGGESTED ANSWER:

A2.) Under Section 40 of the Local GovernmentCode, the following are disqualified fromrunning for any local elective position:1) Those sentenced by final judgment for an

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 for

violating the oath of allegiance to theRepublic of the Philippines;

4) Those with dual citizenship;5) Fugitives from justice in criminal or non-

political cases here or abroad;6) Permanent residents in a foreign country or

those who have acquired the right to resideabroad and continue to avail of the sameright after the effectivity of the LocalGovernment Code; and

7) The insane or feeble-minded.

Effect of Filing of Certificate of Candidacy; Appoin tive Officer vs Elective Of ficer (2002)No XIII. A, a City Legal Officer, and B, a CityVice-Mayor, filed certificates of candidacy forthe position of City Mayor in the May 14, 2001elections.a) Was A ipso facto considered resigned and,

if so, effective on what date? (2%)b) Was B ipso facto considered resigned and,

if so, effective on what date? (3%)In both cases, state the reason or reasons for

your answer.SUGGESTED ANSWER:

A) A was considered ipso facto resigned uponthe filing of his certificate of candidacy, becausebeing a City Legal Officer, he is an appointiveofficial. Section 66 of the Omnibus ElectionCode provides 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 factoresigned from office upon his filing of acertificate of candidacy for any office other thanthe one he is holding except for President andVice-President, was repealed by the FairElection Act

Effect of Filing of Certificate of Candidacy;Fair Election Act (2003)No X - (a) Pedro Reyes is an incumbent Vice-Mayor of Quezon City. He intends to run in theregular elections for the position of City Mayorof Quezon City whose incumbent mayor wouldhave fully served three consecutive terms by2004. 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 elective

office; or(5) None of the above.

Choose the correct 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 thatany elected official, whether national or local,who runs for any office other than the one he isholding in a permanent capacity, except forPresident and Vice President, shall beconsidered ipso facto resigned from his officeupon the filing of his certificate of candidacy.Section 14 of the Fair Election Act likewiserendered ineffective the first proviso in the thirdparagraph 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 BribeVoters (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 ReformsLaw proof that at least one voter in differentprecincts representing at least twenty per centof the total precincts in any municipality, city orprovince was offered, promised or givenmoney, valuable consideration or otherexpenditure by the relatives, leader orsympathizer of a candidate for the purpose ofpromoting the candidacy of such candidate,

gives rise to a disputable presumption ofconspiracy to bribe voters.

(b) Under Sec. 28 if the proof affects at least20% of the precincts of the municipality, city orprovince to which the public office aspired forby the favored candidate relates, this shallconstitute a disputable presumption of theinvolvement of the candidate and of hisprincipal campaign managers in each of themunicipalities concerned, in the conspiracy.

Election Protest (1990)No. 7: A filed a protest with the House ElectoralTribunal questioning the election of B asMember of the House of Representatives in the1987 national elections on the ground that B isnot a resident of the district the latter isrepresenting. While the case was pending. Baccepted an ad-interim appointment asSecretary of the Department 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.There is no dispute as to who was the winner inthe election, as it is not disputed that it was Bwho obtained the majority. The purpose of theprotest is simply to seek the removal of B fromoffice on the ground that he is ineligible.However, B forfeited his claim to the position ofcongressman by accepting an ad interimappointment as Secretary of Justice, the protestagainst him has become moot. Nothing will begained by resolving it. In the case of Purisima v.




Solis, 43 SCRA 123, it was held that where aprotestant in an election case accepted hisappointment as judge, he abandoned his claimto the public office involved in the protest.Hence, the protest must be dismissed forhaving become moot. Similarly, in Perez vProvincial Board of Nueva Ecija, 113 SCRA187, it was held that the claim of a petitioner toan appointive office had become moot, because

the petitioner had forfeited his claim to the officeby filing a certificate of candidacy for mayor.

Election Protest vs. Quo Warranto (2001)No XVII - Under the Omnibus Election Code(B.P. 881, as amended), briefly differentiate anelection protest from a quo warranto case, as towho can file the case and the respectivegrounds therefor. (5%)SUGGESTED ANSWER;

An ELECTION PROTEST maybe filed by alosing candidate for the same office for whichthe winner filed his certificate of candidacy. A

QUO WARRANTO CASE may be filed by anyvoter who is a registered voter in theconstituency where the winning candidatesought to be disqualified ran for office.

In an election contest, the issues are: (a) whoreceived the majority or plurality of the voteswhich were legally cast and (b) whether therewere irregularities in the conduct of the electionwhich affected its results.

In a quo warranto case, the issue is whether the

candidate who was proclaimed elected shouldbe disqualified because of ineligibility ordisloyalty to the Philippines.

Election Protest vs. Quo Warranto (Q5-2006)Differentiate an election protest from an actionfor quo warranto. (2.5%)SUGGESTED ANSWER:

An ELECTION PROTEST is a proceedingwhereby a losing candidate for a particularposition contests the results of the election ongrounds of fraud, terrorism, irregularities orillegal acts committed before, during or after the

casting and counting of votes. On the otherhand, a PETITION FOR QUO WARRANTO isfiled by any registered voter to contest theelection of any candidate on grounds ofineligibility or disloyalty to the Republic of thePhilippines.

Election Protest; Jur isdiction (1996)No, 14: 1) As counsel for the protestant, wherewill you file an election protest involving acontested elective position in:

a) the barangay?b) the municipality?c) the province?d) the city?e) the House of Representatives?SUGGESTED ANSWER:1) In accordance with Section 2(2), Article IX-Cof the Constitution an election protest involvingthe elective position enumerated below should

be filed in the following courts or tribunals:a) Barangay - Metropolitan Trial Court,

Municipal Circuit Trial Court, orMunicipal Trial Court

b) Municipality - Regional Trial Courtc) Province - COMELECd) City - COMELECe) Under Section 17. Article VI of the

Constitution, an election protestinvolving the position of Member of theHouse of Representatives shall be filedin the House of RepresentativesElectoral Tribunal.

Expiration of term bars service thereof(2000)No XVI. In the elections of May 1992, Cruz andSantos were the candidates for the office ofMunicipal Mayor, the term of which was toexpire on June 30, 1995. Finding that he wonby a margin of 20 votes, the Municipal Board ofCanvassers proclaimed Cruz as the dulyelected Mayor. Santos filed an election protestbefore the Regional Trial Court (RTC) whichdecided that it was Santos who had the plurality

of 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,the Comelec reversed the ruling of the RTC andinstead ruled that Cruz won by a margin of 40votes and proclaimed him the duly electedMunicipal Mayor.a) It is now beyond June 30, 1995. CanCruz still hold office for the portion of the termhe has failed to serve? Why? (3%)SUGGESTED ANSWER;

a) As held in Malaluan v. COMELEC, 254SCRA 397 (1996). Cruz can no longer holdoffice for the portion of the term he failed toserve since his term has expired.

Petition to Declare Failure of Elections;Requisi tes & Effects (1995)No. 6: Due to violence and terrorism attendingthe casting of votes in a municipality in Lanaodel Sur during the last 8 May 1995 elections, itbecame impossible to hold therein free, orderly




and honest elections. Several candidates formunicipal positions withdrew from the race.One candidate for Mayor petitioned theCOMELEC for the postponement of theelections and the holding of special electionsafter the causes of such postponement orfailure of elections shall have ceased.

1. How many votes of the COMELEC

Commissioners may be cast to grant thepetition? Explain.

2. A person who was not a candidate at thetime of the postponement of the electionsdecided to run for an elective position and fileda certificate of candidacy prior to the specialelections. May his certificate of candidacy beaccepted? Explain.

3. Suppose he ran as a substitute for acandidate who previously withdrew hiscandidacy, will your answer be the same?

Explain.SUGGESTED ANSWER:1. According to Section 7, Article IX-A of the1987 Constitution, the COMELEC shall decideby a MAJORITY VOTE of all its members anycase or matter brought before it In Cua vs.COMELEC, 156 SCRA582, the Supreme Courtstated that a two-to-one decision rendered by aDivision of the COMELEC and a three-to-twodecision rendered by the COMELEC en bancwas valid where only five members took part indeciding the case.

2. No, his certificate of candidacy cannot beaccepted. Under Section 75 of the OmnibusElection Code, as a rule in cases ofpostponement or failure of election noadditional certificate of candidacy shall beaccepted.

3. No, the answer will be different. UnderSection 75 of the Omnibus Election Code, anadditional certificate of candidacy may beaccepted in cases of postponement or failure ofelection if there was a substitution of

candidates; but the substitute must belong toand must be endorsed by the same 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 theelections. Particulars were supplied of "B's"followers bought-off and other followers

prevented from casting their votes. TheCOMELEC dismissed the pre-proclamationcontest on the ground that all the returnsappear complete 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, falsifiedor prepared 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 mustbe raised 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 thathis followers had been bought while others hadbeen prevented from casting their ballots, hisremedy is to file an election contest and thisshould be brought in the House or SenateElectoral Tribunal which, under Art. VI, Sec. 17,

is the sole judge of the election, returns andqualifications of members of each House ofCongress.

Pre-Proc lamation Contest (1988)No. 18: In election law, what is a pre-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 theelection? Explain.SUGGESTED ANSWER:

A PRE-PROCLAMATION CONTROVERSYrefers to any question pertaining to or affectingthe proceedings of the board of canvasserswhich may be raised by any candidate or byany registered political party or coalition ofpolitical parties before the board or directly withthe COMELEC, or any matter raised undersecs. 233-236 of the Omnibus Election Code inrelation to the preparation, transmission,receipt, custody or appreciation of the electionreturns. (Omnibus Election Code, sec, 241).




The COMELEC has exclusive jurisdiction of allpre-proclamation controversies. (Id., sec. 241)Its decisions become executory after the lapseof 5 days 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, andqualifications of the candidate proclaimed. Inthe case of elective barangay officials, thecontest may be filed with the municipal trialcourts; in the case of elective municipalofficials, in the Regional Trial Court; in the caseof elective provincial and city officials, in theCOMELEC (Art. IX, C, sec. 2(2)); in the case ofSenators or Congressmen, in the Senate orHouse Electoral Tribunals (Art. VI, sec. 17); andin the case of the President and Vice President,in the Presidential 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 canvassersmay be initiated in the board of

canvassers or directly with theCOMELEC.b) Questions involving the election returns

and the certificates of canvass shall bebrought in the first instance before theboard of canvassers only, (Section 17,Republic Act No, 2166.)

c) The board of canvassers should rule onthe 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 theSupreme Court on certiorari by theaggrieved party, (Section 7, Article IX-Aof the Constitution.)

All pre-proclamation controversies pendingbefore the COMELEC shall be deemedterminated at the beginning of the term of theoffice involved and the rulings of the board ofcanvassers shall be deemed affirmed, without

prejudice to the filing of an election protest.However, the proceedings may continue whenon the basis of the evidence presented so far,the COMELEC or the Supreme Courtdetermines that the petition appears to bemeritorious. (Section 16, Republic Act No.7166)

(B) ELECTION CONTESTS

An election protest is initiated by filing a protestcontaining the following allegations:1. The protestant is a candidate who duly fileda certificate of candidacy and was voted for inthe election: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 contestsinvolving municipal officials are appealable tothe COMELEC. (Section 2(2). Article IX-C ofthe Constitution.) The decision of theCOMELEC may be brought to the SupremeCourt on certiorari on questions of law. (Riveravs. COMELEC, 199 SCRA 178)

The decision of the COMELEC in electioncontests involving regional, provincial and city

officials may be brought to the Supreme Courton certiorari (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 beproperly raised 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 theboard of canvassers are illegal;

2. The canvassed election returns areincomplete, contain material defects,approved to be tampered with, or containdiscrepancy in the same returns or in otherauthenticated copies;

3. The election returns were prepared underduress, threats, coercion, or intimidation, orthey are obviously manufactured or notauthentic; and

4. Substitute or fraudulent returns incontroverted polling places were

canvassed, the results of which materiallyaffected 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 tothe preparation, transmission, receipt, custodyand appreciation of the election returns or thecertificates of canvass with respect to thepositions of President, Vice-President, Senatorand Member of the House of Representatives.

No pre-proclamation case are allowed in thecase of barangay 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 tofollow in 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). Itis necessary for any qualified voter to register inorder to vote. (Omnibus Election Code, Sec.115) In the case of illiterate and disabled voters,their voter's affidavit may be prepared by anyrelative within the fourth civil degree ofconsanguinity or affinity or by any member ofthe board of election inspectors who shall

prepare the affidavit in accordance with thedata supplied 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 incorrectlywritten which, when read, has a sound similarto the name or surname of a candidate whencorrectly written 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 acandidate when correctly written shall becounted in his favor. Thus, if the name asspelled in the ballot, though different from thecorrect spelling thereof, conveys to the earswhen pronounced according to the commonlyaccepted methods, a sound practically Identicalwith the sound of the correct name ascommonly pronounced, the name thus given isa sufficient designation of the person referredto. The question whether one name is idemsonans with another is not a question of

spelling but of pronunciation. (Mandac v.Samonte, 49 Phil. 284). Its application isaimed at realizing the objective of everyelection which is to obtain the expression of thevoters will.

b) The term means sounding the same ornearly alike. The rule is based on the Idea thatthe misspelling of a name or lack of skill inwriting should not be taken as a ground forrejecting the votes apparently intended for acandidate, so long as the intention of the voterappears to be clear. The Supreme Court has

ruled that the principle of idem sonans isliberally construed. Corpuz v. Ibay, 84 Phil. 184(1949).

Process; Stray Ballo t (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 acandidate for an office for which he did notpresent himself. Although the Code does notprovide for stray ballot, it is presumed that strayballot refers to stray 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 theprovincial governor be recalled? (1%)B. How will the recall be initiated? (2%)C. When will the recall of an elective localofficial be considered effective? {2%}SUGGESTED ANSWER:In accordance with Section 69 of the LocalGovernment Code, the Governor can berecalled for LOSS OF CONFIDENCE.

Under Section 70 of the Local GovernmentCode, the recall may be initiated by a resolution

adopted by a majority of all the members of thepreparatory recall assembly, which consists ofall the 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 thetotal number of registered voters in theprovince.

According to Section 72 of the LocalGovernment Code, the recall of an electivelocal official shall take effect upon the election

and proclamation of a successor in the personof the candidate receiving the highest numberof votes cast during the election on recall.

Three-Term L imit 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 asmayor and served for the remaining portion ofthe term of office. In the May 1995 election,Segundo Parate ran for and won as mayor and

then served for the full term. In the May 1998elections, Parate ran for reelection as Mayorand won again. In the May 2001 election,Segundo Parate filed his certificate ofcandidacy for the same position of mayor, buthis rival mayoralty candidate sought hisdisqualification alleging violation of the three-term limit for local elective officials provided forin the Constitution and in the Local GovernmentCode.

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 theMunicipality of Tuba in the elections of 1992,1995 and 1998. He fully served his first twoterms, and during his third term, the muni-cipality was converted into the component Cityof Tuba. The said charter provided for a hold-

over and so without interregnum Manuel wenton to serve as the Mayor of the City of Tuba.

In the 2001 elections, Manuel filed hiscertificate of candidacy for City Mayor. Hedisclosed, though, that he had already servedfor three consecutive terms as elected Mayorwhen Tuba was still a municipality. He alsostated in his certificate of candidacy that he isrunning for the position of Mayor for the firsttime now that Tuba is a city.

Reyes, an adversary, ran against Manuel andpetitioned that he be disqualified because hehad already served for three consecutive termsas Mayor. The petition was not timely actedupon, and Manuel was proclaimed the winnerwith 20,000 votes over the 10,000 votesreceived by Reyes as the only other candidate.It was only after Manuel took his oath andassumed office that the COMELEC ruled thathe was disqualified for having ran and servedfor three consecutive terms. (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 heshould not be disqualified and removedbecause he was a three-term mayor of themunicipality of Tuba, and, with its conversion toa component city, the latter has a totallyseparate and different corporate personalityfrom 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 ofthe newly-created City of Tubaimmediately after having already

served for three (3) consecutive termsas Mayor of the Municipality of Tuba?

SUGGESTED ANSWER:Manuel is not eligible to run as mayor of the cityof Tuba. The 1987 Constitution specificallyincluded an exception to the people's freedomto choose those who will govern them in orderto avoid the evil of a single personaccumulating excessive power over a particularterritorial jurisdiction as a result of a prolongedstay in the same office. To allow Manuel to viefor the position of city mayor after having

served for three consecutive terms as amunicipal mayor would obviously defeat thevery intent 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

jurisdiction and inhabitants for a total ofeighteen consecutive years. This is the veryscenario sought to be avoided by theConstitution, 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' claimthat he should be proclaimed aswinner having received the next highernumber of votes.

ALTERNATIVE ANSWER:Reyes cannot be proclaimed winner forreceiving the second highest number of votes.The Supreme Court has consistently ruled thatthe fact that a plurality or a majority of the votes

are cast for an ineligible candidate at a popularelection, or that a candidate is later declared tobe disqualified to hold office, does not entitlethe candidate who garnered the second highestnumber of votes to be declared elected. Thesame merely results in making the winningcandidate's election a nullity. In the presentcase, 10,000 votes were cast for privaterespondent Reyes as against the 20,000 votescast for petitioner Manuel. The second placer isobviously not the choice of the people in this

particular election. The permanent vacancy inthe contested office should be filled bysuccession. (Labo v. COMELEC, G.R. No.105111, July 3,1992)

ALTERNATIVE ANSWER:Reyes could not be proclaimed as winnerbecause he did not win the election. To allowthe defeated candidate to take over the

Mayoralty despite his rejection by the electorateis to disenfranchise the electorate without anyfault on their part and to undermine theimportance and meaning of democracy and thepeople's right to elect officials of their choice.(Benito v. COMELEC, G.R. No. 106053, August17, 1994)

Vacancy; Effect of Vice-Mayor Acting AsMayor (2002)No XIV. Suppose A, a Municipal Mayor, wenton a sick leave to undergo medical treatment

for a period of four (4) months. During that time A. Will B, the Municipal Vice-Mayor, be

performing executive functions? Why? (2%)B. Will B at the same time be also performing

legislative functions as presiding officer ofthe Sangguniang Bayan? Why? (3%)

SUGGESTED ANSWER: A. Since the Municipal Mayor is temporarilyincapacitated to perform his duties, inaccordance with Section 46(a) of the LocalGovernment Code, the Municipal Vice-Mayorshall exercise his powers and perform his

duties and functions. The Municipal Vice-Mayorwill be performing executive functions, becausethe functions of the Municipal Mayor areexecutive.

B. The Municipal Vice-Mayor cannot continueas presiding officer of the Sangguniang Bayanwhile he is acting Municipal Mayor. Inaccordance with Gamboa v. Aguirre, 310 SCRA867 (1999), under the Local Government Code,the Vice-Municipal Mayor was deprived of thepower to preside over the Sangguniang Bayanand is no longer a member of it. The temporary

vacancy in the office of the Municipal Mayorcreates a corresponding temporary vacancy inthe Office of the Municipal Vice-Mayor when heacts as Municipal Mayor. This constitutesinability on his part to preside over the sessionsof the Sangguniang Bayan.

Vacancy; Rule of Succession (1995)No. 7: The Vice Mayor of a municipality filed hiscertificate of candidacy for the same office inthe last elections. The Municipal Mayor was




of the Constitution, the Commission on Audithas the authority to settle all accountspertaining to expenditure of public funds.Raintree Corporation cannot file a case in court.The Republic of the Philippines did not waive itsimmunity from suit when it entered into thecontract with Raintree Corporation for thesupply of ponchos for the use of the ArmedForces of the Philippines. The contract involves

the defense of the Philippines and thereforerelates to a sovereign function.

In United States vs. Ruiz, 136 SCRA 487,492, the Supreme Court held; "Therestrictive application of State immunity isproper only when the proceedings arise outof commercial transactions of the foreignsovereign. Its commercial activities oreconomic affairs. Stated differently, a Statemay be said to have descended to the levelof an individual and can thus be deemed tohave tacitly given its consent to be sued

only when it enters into business contracts.It does not apply where the contract relatesto the exercise of its sovereign functions. Inthis case the projects are an integral part ofthe naval base which is devoted to thedefense of both the United States and thePhilippines, indisputably a function of thegovernment of the highest order; they arenot utilized for nor dedicated to commercialor business purposes."

The provision for venue in the contract does not

constitute a waiver of the State Immunity fromsuit, because the express waiver of thisimmunity can only be made by a statute.

In Republic us. Purisima 78 SCRA 470,474, the Supreme Court ruled: "Apparentlyrespondent Judge was misled by the termsof the contract between the privaterespondent, plaintiff in his sala anddefendant Rice and Corn Administrationwhich, according to him, anticipated thecase of a breach of contract between theparties and the suits that may thereafter

arise. The consent, to be effective though,must come from the State acting through aduly enacted statute as pointed out byJustice 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 Government Appointment of Budget Off icer; contro l vssupervision (1999)No V - D. On May 17, 1988, the position ofProvincial Budget Officer of Province X becamevacant. Pedro Castahon, governor of theprovince, pursuant to Sec. 1 of E.O. No. 112,

submitted the names of three nominees for theaforesaid position to the Department of BudgetManagement (DBM), one of whom was that ofMarta Mahonhon. A month later, Castahoninformed the DBM that Mahonhon hadassumed the office of PBO and requested thatshe be extended the appropriate appointment.The DBM Secretary appointed Josefa Kalayoninstead. Castahon protested the appointment ofKalayon insisting that it is he who had the rightto choose the PBO by submitting the names ofhis three nominees and Kalayon was not one ofthem. The DBM countered that none of thegovernor's nominees have the necessaryqualifications for the position. Specifically,Mahonhon lacked the five-year experience inbudgeting. Hence, the DBM was left with noalternative but to name one who possesses allthe requisite qualifications in the person ofKalayon. It cited Section 6.0 of the DBM LocalBudget Circular No. 31 which states, "The DBMreserves the right to fill up any existing vacancywhere none of the nominees of the local chiefexecutive meet the prescribed requirements."(a) Was the DBM's appointment valid? (2%)

(b) What can you say regarding the above-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 theGovernor, her appointment is not valid. As heldin San Juan v. Civil Service Commission, 196SCRA 69, if the person recommended by theGovernor is not qualified, what the Secretary ofBudget and Management should do is to ask

him to recommend someone who is eligible.

(b) DBM Local Budget Circular No. 31 is notvalid, since it is inconsistent with ExecutiveOrder No. 112, which requires that theappointee for Provincial Budget Officer berecommended by the Governor. (Under theLocal Government Code, it is now the localchief executive who is empowered to appointthe budget officer).




Boundary Dispute Resolution; LGU; RTC’sJurisdiction (Q10-2005)1 - There was a boundary dispute betweenDuenas, a municipality, and Passi, anindependent component city, both of the sameprovince. State how the two local governmentunits should settle their boundary dispute. (5%)SUGGESTED ANSWER:Boundary disputes between local government

units should, as much as possible, be settledamicably. After efforts at settlement fail, thenthe dispute may be brought to the appropriateRegional Trial Court in the said province. Sincethe Local Government Code is silent as to whatbody has exclusive jurisdiction over thesettlement of boundary disputes between amunicipality and an independent componentcity of the same province, the Regional TrialCourts have general jurisdiction to adjudicatethe said controversy. (Mun. of Kananga v.Madrona, G.R. No. 141375, April 30, 2003)

Boundary Dispute Settlement; Authority;Jurisdiction (1999)No V - C. What body or bodies are vested bylaw with the authority to settle disputesinvolving:(1) two or more towns within the same

province; (1%)(2) two or more highly urbanized cities. (1%)SUGGESTED ANSWER:1.) Under Section 118(b) of the LocalGovernment Code, boundary disputes involvingtwo or more municipalities within the same

province shall be settled by the sangguniangpanlalawigan concerned.

2.) Under Section 118(d) of the LocalGovernment Code, boundary disputes involvingtwo or more highly urbanized cities shall besettled by the sangguniang panlungsod of theparties.

Creation of New Local Government Units;Plebiscite Requirement (2004)NO. VII - MADAKO is a municipality composedof 80 barangays, 30 west of Madako River and

50 east thereof. The 30 western barangays,feeling left out of economic initiatives, wish toconstitute themselves into a new and separatetown to be called Masigla.

A. Granting that Masigla’s proponentssucceed to secure a law in their favor, would aplebiscite be necessary or not? If it isnecessary, who should vote or participate in theplebiscite? Discuss briefly. (5%)SUGGESTED ANSWER:

A plebiscite is necessary, because this isrequired for the creation of a new municipality.(Section 10, Article X of the 1987 Constitution.)The voters of both Madako and Masigla shouldparticipate in the plebiscite, because both aredirectly affected by the creation of Masigla. Theterritory of Madako will be reduced. (Tan v.COMELEC, 142 SCRA 727 [1986).

De Facto Public Corporations; Effect (2004)NO. VII - MADAKO is a municipality composedof 80 barangays, 30 west of Madako River and50 east thereof. The 30 western barangays,feeling left out of economic initiatives, wish toconstitute themselves into a new and separatetown to be called Masigla. A law is passedcreating Masigla and a plebiscite is made infavor of the law.

B. Suppose that one year after Masigla wasconstituted as a municipality, the law creating itis voided because of defects. Would thatinvalidate the acts of the municipality and/or itsmunicipal officers? Explain briefly. (5%)SUGGESTED ANSWER:

Although the municipality cannot be consideredas a de facto corporation, because there is novalid law under which it was created, the acts ofthe municipality and of its officers will not beinvalidated, because the existence of the lawcreating it is an operative fact before it wasdeclared unconstitutional. Hence, the previousacts of the municipality and its officers shouldbe given effect as a matter of fairness and

justice. (Municipality ofMalabang v. Benito, 27SCRA 533 [1969]

Devolution of Power (1999)Define devolution with respect to localgovernment units.SUGGESTED ANSWER:Section 17(e) of the Local Government Codedefines devolution as the act by which theNational Government confers power andauthority upon the various local governmentunits to perform specific functions andresponsibilities.

Franchise; prior approval of LGU necessary(1988)No. 9: Macabebe, Pampanga has severalbarrios along the Pampanga river. To servicethe needs of their residents the municipality hasbeen operating a ferry service at the same river,for a number of years already.

Sometime in 1987, the municipality was serveda copy of an order from the Land Tansportation




Franchising and Regulatory Board (LTFRB),granting a certificate of public convenience toMr. Ricardo Macapinlac, a resident ofMacabebe, to operate ferry service across thesame river and between the same barrios beingserviced presently by the municipality's ferryboats. A check of the records of the applicationof Macapinlac shows that the application wasfiled some months before, set for hearing, and

notices of such hearing were published in twonewspapers of general circulation in the town ofMacabebe, and in the province of Pampanga.The municipality had never been directly serveda copy of that notice of hearing nor had theSangguniang Bayan been requested byMacapinlac for any operate. The municipalityimmediately filed a motion for reconsiderationwith the LTFRB which was denied. It the wentto the Supreme Court on a petition for certiorarito nullify the order granting a certificate of publicconvenience to Macapinlac on two grounds:(1) Denial of due process to the municipality;

and(2) For failure of Macapinlac to secure approval

of the Sangguniang Bayan for him tooperate a ferry service 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 operationof the ferry service, the Municipality ofMacabebe, Pampanga was entitled to bedirectly notified by the LTFRB ....

2. It has been held that where a ferryoperation lies entirely within the municipality,the prior approval of the Municipal governmentis necessary. Once approved, the operatormust then apply with the LTFRB for a certificateof public convenience and shall be subject toLTFRB supervision, (Municipality of Echague v.

Abellera, supra).

Law fixing the terms of local electiveoff icials (Q4-2006) State whether or not the law is constitutional.

Explain briefly.3. A law fixing the terms of local elective

officials, other than barangay officials, to 6years. (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 localofficials except for barangay officials.

Ordinance; Use & Lease of Properties;Public Use (1997)No. 9: Due to over-crowding in the publicmarket in Paco, Manila, the City Council passedan ordinance allowing the lease to vendors of

parts of the streets where the public market islocated, provided that the lessees pay to thecity government a fee of P50 per square meterof the area occupied by the lessees. Theresidents in the area complained to the Mayorthat the lease of the public streets would causeserious traffic problems to them. The Mayorcancelled the lease and ordered the removal ofthe stalls constructed on the streets.Was the act of the Mayor legal?SUGGESTED ANSWER:The cancellation of the lease and the removalof the stalls are valid. As held in Macasiano vs.

Diokno, 212 SCRA 464, the lease of publicstreets is void, since they are reserved forpublic use and are outside the commerce ofman.

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 compelthese officials to remove the market stalls fromcertain city streets which they had designated

as flea markets. Portions of the said city streetswere leased or licensed by the respondentofficials to market stallholders by virtue of a cityordinance. 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 forpublic use and are outside the commerce ofman, the City Mayor and the City Engineercannot lease or license portions of the citystreets to market stallholders.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 thata flea market may be established.

Ordinance; Validity; Compensation;Tortuous Act of an Employee (1994)No. 6; Johnny was employed as a driver by theMunicipality of Calumpit, Bulacan. While drivingrecklessly a municipal dump truck with its loadof sand for the repair of municipal streets,




Johnny hit a jeepney. Two passengers of the jeepney were killed.

The Sangguniang Bayan passed an ordinanceappropriating P300,000 as compensation forthe heirs of the victims.1) Is the municipality liable for the negligenceof Johnny?2) Is the municipal 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, themunicipal ordinance is null and void for beingultra vires. The municipality not being liable to

pay compensation to the heirs of the victims,the ordinance is utterly devoid of legal basis. Itwould in fact constitute an illegal use orexpenditure of public funds which is a criminaloffense. What is more, the ordinance does notmeet 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,it is 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.Special Assessment (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 andmaintenance of roads in private subdivisions,which roads are open for use by segments ofthe public who may have 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 holdingin Pascual v. Secretary of Public Works, 110Phil. 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,71 Phil. 547 (1941), special assessments may

be charged to property owners benefited bypublic works, because the essential differencebetween a tax and such assessment isprecisely that the latter is based wholly onbenefits 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 barbershopoperators from rendering massage service totheir customers in a separate room.SUGGESTED ANSWER:(c) The ordinance is valid. In Velasco v,

Villegas, 120 SCRA 658 (1983) such ordinancewas upheld 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 byallowing the construction of separate rooms inbarber shops.

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 surroundingthe province to invest ten percent (10%) of their

net profits from operations therein in anyenterprise located in Palawan.

NARCO Fishing Corp., a Filipino corporationwith head office in Navotas, Metro Manila,challenges the ordinance as unconstitutional.Decide the case.SUGGESTED ANSWER:The ordinance is invalid. The ordinance wasapparently enacted pursuant to Article X, Sec. 7of the Constitution, which entitles localgovernments to an equitable share in theproceeds of the utilization and development of

the national wealth within their respectiveareas. However, this should be made pursuantto law. A law is needed to implement thisprovision and a local government cannotconstitute itself unto a law. In the absence of alaw the ordinance in question is invalid.

Ordinances; Validity; Amending Nat’l Laws(1988)No. 4: Jose Y. Sabater is a real estatedeveloper. 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. Hewas surprised when he was asked to pay thecity government a service fee of P0.30 persquare meter of land, covered by hissubdivision plan. He was even more surprisedwhen informed that a fine of P200.00 and/orimprisonment for not exceeding six months orboth, have been fixed in the ordinance aspenalty for violation thereof. Believing that thecity ordinance is illegal, he filed suit to nullify thesame.Decide the case with reasons.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 ofimplementing it. In this case, the requirementactually conflicts with sec. 44 of Act No. 496because the latter does not require subdivisionplans to be submitted to the City Engineerbefore they can be submitted for approval to,and verification by, the Land RegistrationCommission and/or the Bureau of Lands.

Ordinances; Validity; Gambling Prohibition(1995)No. 4: 2. PAGCOR decided to operate a casinoin Tacloban City under authority of P.D. No.1869. It leased a portion of a building belongingto Ellen McGuire renovated and equipped it inpreparation for its inauguration. TheSangguniang Panlungsod of Tacloban Cityenacted an ordinance prohibiting the operationof casinos in the City and providing penalty forits violation. Ellen McGuire and PAGCORassailed the validity of the ordinance in court.How would you resolve the issue? Discuss fully.

SUGGESTED ANSWER:The ordinance should be declared invalid. Asheld in Magtajas vs. Pryce PropertiesCorporation. Inc., 234 SCRA 255. such anordinance contravenes Presidential Decree No.1869, which authorizes the Philippine

Amusement and Gaming Corporation tooperate casinos within the territorial Jurisdictionof the Philippines, because it prevents the saidcorporation from exercising the power conferredon it to operate a casino in Tacloban City. The

power of Tacloban City to suppress gamblingand prohibited games of chance excludes ofchance permitted by law. Implied repeals arenot favored. (Basco v. PAGCOR)

Ordinances; Validity; Limitation of Penalties(1991)No. 10: The municipality of Alcoy, Cebu,passed Ordinance No. 10, series of 1991,

requiring owners, administrators, or tenants ofbuildings and premises to keep and maintainthem in sanitary condition, and should they failto do so, cause them to be cleared and kept insanitary condition and the cost thereof to beassessed against the owner, administrator ortenant, as the case may be, which cost shallconstitute a lien against the property. It furtherpenalizes violation thereof with a fine notexceeding One Thousand Pesos (P1,000.00) orimprisonment for one (1) year at the discretionof the court. Is the ordinance 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 themto be 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 theLocal Government Code.

However, the penalty for the violation of the

ordinance is invalid, because it is excessive.The penalty in this case is a fine not exceedingP1,000 or imprisonment for one year, in thediscretion of the court. Under Sec. 149 (c) ofthe Local Government Code, however, thepenalty for the violation of a municipalordinance can not exceed a fine of P1,000.00or Imprisonment for six months, or both at thediscretion of the court.

Ordinances; Veto Power (1996)(1) How does the local legislative assembly

override the veto by the local chief

executive of an ordinance?(2) On what grounds can a local chief

executive veto an ordinance?(3) How can an ordinance vetoed by a local

chief executive become a law without itbeing overridden by the local legislativeassembly?

SUGGESTED ANSWER:(1) Under Sections 54 (a) and 55 (c) of the

Local Government Code, the locallegislative assembly can override the veto




of the local chief executive by two-thirdsvote of all its members.

(2) Under Section 55[a] of the LocalGovernment Code, the local chief executivemay veto an ordinance on the ground that itis ULTRA VIRES or PREJUDICIAL TO THEPUBLIC WELFARE.

(3) Pursuant to Section 54(b) of the LocalGovernment Code, an ordinance vetoed bythe local chief executive shall be deemedapproved if he does not communicate hisveto to the local legislative assembly within15 days in the case of a province and 10days in the case of a city or a municipality.Likewise, if the veto by the local executivehas been overridden by the local legislativeassembly, a second veto will be void. UnderSection 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 ofan open garbage dumpsite in a 9- hectare landin the Reyes Estate within the Municipality'sterritorial limits. Some concerned residents ofBinangonan filed a complaint with the LagunaLake Development Authority (LLDA) to stop theoperation of the dumpsite due to its harmfuleffects on the health of the residents. The LLDAconducted an on-site investigation, monitoring,

testing and water sampling and found that thedumpsite would contaminate Laguna de Bayand the surrounding areas of the Municipality.The LLDA also discovered that noenvironmental clearance was secured by theMunicipality from the Department ofEnvironment and Natural Resources (DENR)and the LLDA as required by law. The LLDAtherefore issued to the Binangonan municipalgovernment a cease and desist order to stopthe operation of the dumpsite. The Municipalityof Binangonan filed a case to annul the orderissued by the LLDA.

(1) Can the Municipality of Binangonan invokepolice power to prevent its residents andthe LLDA from interfering with the operationof the dumpsite by the Municipality?Explain.

(2) Can the LLDA justify its order by assertingthat the health of the residents will beadversely affected. 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 ActNo, 4850, the Laguna Lake Development

Authority is mandated to promote thedevelopment of the Laguna Lake area,including the surrounding Province of Rizal,with due regard to the prevention of pollution.The Laguna Lake Development Authority ismandated to pass upon and approve or

disapprove all projects proposed by localgovernment offices within the region.

2. Yes, the Laguna Lake Development Authority can justify its order. Since it has beenauthorized by Executive Order No. 927 to makeorders requiring the discontinuance of pollution,its power to issue the order can be inferred fromthis. 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 ForContempt (1993)No 6: Mayor Alfredo Lim closed the funhousesin the Ermita district suspected of being frontsfor prostitution. To determine the feasibility ofputting up a legalized red light district, the citycouncil conducted an inquiry and invitedoperators of the closed funhouses to get theirviews. No one honored the Invitation. The citycouncil issued subpoenas to compel theattendance of the operators but which werecompletely disregarded. The council declared

the operators guilty of contempt and issuedwarrants for their arrest.

The operators come to you for legal advice,asking the following questions:(1) Is the council empowered to issue

subpoenas to compel their attendance?(2) Does the council have the power to cite for

contempt?SUGGESTED ANSWER:(1) The city council is not empowered to issue

subpoenas to compel the attendance of theoperators of the fun-houses In the Ermita

district. There is no provision in theConstitution, the Local Government Code,or any law expressly granting locallegislative bodies the power to subpoenawitnesses. As held in Negros Oriental IIElectric Cooperative, Inc. vs. SangguniangPanlungsod of Dumaguete, 155 SCRA 421,such power cannot be implied from thegrant of delegated legislated power. Suchpower is Judicial. To allow local legislativebodies 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 noprovision in the Constitution, the LocalGovernment Code, or any other lawsgranting local legislative bodies the powerto cite for contempt. Such power cannot be

deemed implied in the delegation oflegislative power to local legislative bodies,for the existence of such power poses apotential derogation of individual 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 wasapproved by the Mayor. However, the

Sangguniang Panlalawigan of Ilocos Surdisapproved the Resolution as there might stillbe other available lots in Santa for a sportscenter.

Nonetheless, the Municipality of Santa, throughits Mayor, filed a complaint for eminent domain.Christina opposed this on the followinggrounds: (a) the Municipality of Santa has nopower to expropriate; (b) Resolution No. 1 hasbeen voided since the SangguniangPanlalawigan disapproved it for being arbitrary;

and (c) the Municipality of Santa has other andbetter lots for that purpose.Resolve the case with reasons. (5%)

SUGGESTED ANSWER:Under Section 19 of R.A. No. 7160, the powerof 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)

The Sangguniang Panlalawigan of Ilocos Sur

was without the authority to disapproveResolution No. 1 as the municipality clearly hasthe power to exercise the right of eminentdomain and its Sangguniang Bayan thecapacity to promulgate said resolution. The onlyground upon which a provincial board maydeclare any municipal resolution, ordinance ororder invalid is when such resolution, ordinanceor order is beyond the powers conferred uponthe council or president making the same. Suchis not the situation in this case. (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 lotor whether the municipality has other and betterlots for the purpose is a matter that will have tobe resolved 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 exerciseany police power. Under Section 398 of theLocal Government Code, it can onlyrecommend to the Sangguniang Barangay theadoption of measures for the welfare of thebarangay and decide on the adoption of aninitiative.

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 alocal government unit and its primary purpose isto determine representation of the mga in thesanggunians; to ventilate, articulate, andcrystallize issues affecting barangaygovernment administration; and to secure

solutions for them through proper and legalmeans.

Requisi tes; Contracts Involv ing 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 ofthe municipality;

(2) The contract must be entered into by theproper officer, i.e., the mayor, uponresolution of the Sangguniang Bayanpursuant to Section 142 of the LocalGovernment 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 bylaw.

Requisi tes; 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 whicha local executive may enter into a contract inbehalf of the government until:(1) The local government unit must have the

power to enter into the particular contract;(2) Pursuant to Section 22(c) of the Local

Government Code, there must be a priorauthorization by the sangguniangconcerned, and a legible copy of thecontract shall be posted at a conspicuousplace in the provincial capitol or the city,

municipal or barangay hall.(3) In accordance with Sections 46 and 47,

Chapter 8, Subtitle B. Book V of the 1987 Administrative Code, if the contract Involvesthe expenditure of public funds, there mustbe an appropriation therefore and acertificate of availability of funds by thetreasurer of the local government unit.

(4) The contract must conform with the formalrequisites of written contracts prescribed bylaw.

(5) Pursuant to Section 2068 of the Revised

Administrative Code, if a province is a partyto a contract conveying title to real property,the contract must be approved by thePresident. Under Section 2196 of theRevised Administrative Code, if amunicipality is a party to a contractconveying real property or any Interest in itor creating a lien upon it, the contract mustbe approved by the provincial governor.

Taxation; GOCC Liability For Real EstateTax (1999)No VI - C. The Province of X required the

National Development Company to pay realestate taxes on the land being occupied byNDC and the latter argued that since it is agovernment-owned corporation, its propertiesare exempt from real estate taxes. If you werethe Judge, how would you decide the case?Reason out. (2%)SUGGESTED ANSWER:In National Development Company v. CebuCity, 215 SCRA 382, the Supreme Court heldthat the National 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 exemptionfrom real property taxes of government-ownedor controlled corporations. If I were the Judge,I would hold the National DevelopmentCompany liable for real estate taxes.

Taxation; Sources of Revenue (1999)No V - Under the Constitution, what are thethree main sources of revenues of localgovernment units? (2%)SUGGESTED ANSWER:The following are the main sources of revenuesof local government units under theConstitution: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 convertthe park to prawn ponds and lease the same?Explain your answer.(2) May the City of Dagupan and XYZcorporation validly enter into the lease contractfor the prawn ponds? Answer with reasons.SUGGESTED ANSWER:(1) Yes, the City of Dagupan may lawfully

convert the park into prawn ponds and leasethem. A city may close a park and plaza andonce the property has been withdrawn from

public use, it falls within the commerce of manand may be leased. Section 10 of the LocalGovernment Code 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. Nosuch way or place or any part thereof




Discipline; Effect of Pardon Granted inFavor of Public Officers (1999)

No IV - C. A City Assistant Treasurer wasconvicted of Estafa through falsification ofpublic document. While serving sentence, hewas granted absolute pardon by the President.

1. Assuming that the position of Assistant CityTreasurer has remained vacant, would he

be entitled to a reinstatement without theneed of a new appointment? Explain. (2%)

2. If later the same position becomes vacant,could he reapply and be reappointed?Explain. (2%)

SUGGESTED ANSWER:

C. 1.) As held in Monsanto v. Factoran,170 SCRA 190, pardon merely frees theindividual from all the penalties and legaldisabilities imposed upon him because of hisconviction. It does not restore him to the public

office relinquished by reason of the conviction.FIRST ALTERNATIVE ANSWER:

2.) The Assistant City Treasurer canreapply and be appointed to the position, sincethe pardon removed the disqualification to holdpublic office.


2.) The Assistant City Treasurer cannotreapply and be appointed to the position, Under

Article 36 of the Revised Penal Code, a pardondoes not restore the right to hold public office

unless such right be expressly restored by thepardon;

Discipline; Preventive Suspension & Appeal ; ent it lement to salary pendente(2001)

No XV - Alfonso Beit, a supply officer in theDepartment of Science and Technology(DOST), was charged administratively. Pendinginvestigation, he was preventively suspendedfor 90 days. The DOST Secretary found him

guilty and meted him the penalty of removalfrom office. He appealed to the Civil ServiceCommission (CSC). In the meantime, thedecision was executed pending appeal. TheCSC rendered a decision which modified theappealed decision by imposing only a penalty ofreprimand, and which decision became final.

a) Can Alfonso Belt claim salary for the periodthat his case was pending investigation? Why?(3%)

b) Can he claim salary for the period that hiscase was pending appeal? Why? (2%)

SUGGESTED ANSWER;

a) Alfonso Beit cannot claim anysalary for the period of his preventivesuspension during the pendency of theinvestigation. As held in Gloria vs. Court of

Appeals, 306 SCRA 287 (1997), under Section

52 of the Civil Service Law, the provision forpayment of salaries during the period ofpreventive suspension during the pendency ofthe investigation has been deleted. Thepreventive suspension was not a penalty. Itsimposition was lawful, since it was authorizedby law.

b) If the penalty was modifiedbecause Alfonso Beit was exonerated of thecharge that was the basis for the decisionordering his dismissal, he is entitled to backwages, otherwise, this would be tantamount to

punishing him after exoneration from the chargewhich caused his dismissal. [Gloria vs. Court of Appeals, 3O6 SCRA 287 (1997)]. If he wasreprimanded for the same charge which wasthe basis of the decision ordering his dismissal,

Alfonso Belt is not entitled to back wages,because he was found guilty, and the penaltywas merely commuted. (Dela Cruz vs. Court of

Appeals, 305 SCRA 303 (1998)].

Discipline; Preventive Suspension (1990)

No. 6: In 1986, F, then the officer-in-charge ofBotolan, Zambales, was accused of havingviolated the Anti-Graft and Corrupt Practices

Act before the Sandiganbayan. Before he couldbe arrainged, he was elected Governor ofZambales, After his arraignment, he was putunder preventive suspension by theSandiganbayan "for the duration of the trial".

(1) Can F successfully challenge thelegality of his preventive suspension on theground that the criminal case against himinvolved acts committed during his term asofficer-in-charge and not during his term asGovernor?

(2) Can F validly object to theaforestated duration of his suspension?

SUGGESTED ANSWER:

(1) No, F cannot successfully challenge thelegality of his preventive suspension on theground that the criminal case against himinvolve acts committed during his term as OICand not during his term as governor because




suspension from office under Republic Act 3019refers to any office that the respondent ispresently holding and not necessarily to the onewhich he hold when he committed the crimewith which he is charged. This was the ruling inDeloso v. Sandiganbayan 173 SCRA 409.

(2) Yes, F can validly object to the duration ofthe suspension. In Deloso u. Sandiganbayan,173 SCRA 409, it was held that the impositionof preventive suspension for an indefinite periodof time is unreasonable and violates the right ofthe accused to due process. The people whoelected the governor to office would bedeprived of his services for an indefinite period,and his right to hold office would be nullified.Moreover, since under Section 42 of the CivilService Decree the duration of preventivesuspension should be limited to ninety (90)days, equal protection demands that theduration of preventive suspension under the

Anti-Graft and Corrupt Practices Act he also

limited to ninety (90) days.Discipline; Preventive Suspension (2002)

No II. Simeon Valera was formerly a 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 CorruptPractices Act (R.A. No.3019), as amended,allegedly committed when he was still aProvincial Governor, a criminal complaint wasfiled against him before the Office of theOmbudsman for which, upon a finding of

probable cause, a criminal case was filed withthe Sandiganbayan. During the course of trial,the Sandiganbayan issued an order ofpreventive suspension for 90 days against him.

Representative Valera questioned thevalidity of the Sandiganbayan order on theground that, under Article VI , Section 16(3) ofthe Constitution, he can be suspended only bythe House of Representatives and that thecriminal case against him did not arise from hisactuations as a member of the House ofRepresentatives.

Is Representative 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 contemplatedin Article VI, Section 16(3) of the Constitution isa punishment that is imposed by the Senate orHouse of Representatives upon an erringmember, it is distinct from the suspension under

Section 13 of the Anti-Graft and CorruptPractices Act, which is not a penalty but apreventive measure. Since Section 13 of the

Anti-Graft and Corruption Practices Act doesnot state that the public officer must besuspended only in the office where he isalleged to have committed the acts which hehas been charged, it applies to any office whichhe may be holding.

Elective and Appointive Officials:disciplinary authorit y (2004)2004 (3-b) CTD, a Commissioner of theNational Labor Relations Commission (NLRC),sports a No. 10 car plate. A disgruntled litigantfiled a complaint against him for violation of the

Anti-Graft and Corrupt Practices Act before theOmbudsman. CTD now seeks to enjoin theOmbudsman in a petition for prohibition,alleging that he could be investigated only bythe Supreme Court under its power ofsupervision granted in the Constitution. He

contends that under the law creating the NLRC,he has the rank of a Justice of the Court of Appeals, and entitled to the correspondingprivileges. Hence, the OMB has no jurisdictionover the complaint against him.Should CTD's petition be granted or dismissed?Reason briefly. (5%)

SUGGESTED ANSWER:The petition of CTD should be dismissed.Section 21 of the Ombudsman Act vests theOffice of the Ombudsman with disciplinaryauthority over all elective and appointive

officials of the government, except officials whomay be removed only by impeachment,Members of Congress, and the Judiciary. WhileCTD has the rank of a Justice of the Court of

Appeals, he does not belong to the Judiciarybut to the Executive Department. This simplymeans that he has the same compensation andprivileges as a Justice of the Court of Appeals.If the Supreme Court were to investigate CTD,it would be performing a non-judicial function.This will violate the principle of separation ofpowers. (Noblejas v. Teehankee, 23 SCRA 405[1968])

Elective Public Officer; De Facto Officer(2000)

No XVI. In the elections of May 1992, Cruz andSantos were the candidates for the office ofMunicipal Mayor, the term of which was toexpire on June 30, 1995. Finding that he wonby a margin of 20 votes, the Municipal Board ofCanvassers proclaimed Cruz as the dulyelected Mayor. Santos filed an election protest




nominees or transferees, shall not be barred byprescription.

Impeachment; Cronyism (2000)

No II. Is cronyism a legal ground for theimpeachment of the President? Explain. (5%)

SUGGESTED ANSWER:

Yes, cronyism is a legal ground for theimpeachment of the President. Under Section2, Article XI of the Constitution, betrayal ofpublic trust is one of the grounds forImpeachment. This refers to violation of theoath of office and includes cronyism whichinvolves unduly favoring a crony to theprejudice of public interest, (Record of theConstitutional Commission, Vol. II, p. 272)

Impeachment; Grounds (1999)

No XV - What are the grounds for

impeachment. Explain. (2%)SUGGESTED ANSWER:

Under Section 2, Article XI of the Constitution,the grounds for impeachment are

1. Culpable violation of the Constitution -means intentional violation of theConstitution and not violations committedin good faith.

2. Treason - the same meaning as in theRevised Penal Code

3. Bribery - the same meaning as in theRevised Penal Code

4. Graft and Corruption - refers toprohibited acts enumerated in the Anti-Graft and Corrupt Practices Act.

5. other High Crimes - refer to offenses thatstrike at the very life or orderly working ofthe government.

6. and Betrayal of Public Trust - refers toany violation of the oath of office. (Cruz,Philippine Political Law, 1998 ed., pp.336-337; Bernas, The 1987 Constitutionof the Philippines: A Commentary, 1996ed., pp. 991-992)

Impeachment; Nature; Grounds; PD 1606(1988)

No. 14: 1. What is impeachment, what are thegrounds therefor, and who are the high officialsremovable thereby?

2. Presidential Decree No. 1606provides that Justices of the Sandiganbayanmay be removed only by impeachment. Is thisPresidential Decree still valid? Why?

SUGGESTED ANSWER:

1. Impeachment is a method by which personsholding government positions of highauthority, prestige, and dignity and withdefinite tenure may be removed from office forcauses closely related to their conduct as publicofficials, (V.G. SINCO, PHILIPPINE POLITICALLAW 373 (llth ed. 1962)).

The grounds for impeachment are culpableviolation of the Constitution, treason, bribery,graft and corruption, other high crimes andbetrayal of public trust. (Art. XI, sec. 2).

The officials removable by impeachmentare the President, Vice President, theMembers of the Supreme Court, Members ofthe Constitutional Commissions and theOmbudsman. (Id.)

2. PD No. 1606, sec. 1, in so far as it provides

for the removal of the members of theSandiganbayan only by impeachment must bedeemed to have been rendered inoperative bythe new Constitution which provides that withthe exception of the officials there mentioned,"All other public officers and employees may beremoved from office as provided by law, but notby impeachment." Moreover, under Art. VIII,sec, 11, the power to remove lower court

judges is vested in the Supreme Court en bancwhich, by the vote of a majority of the memberswho actually take part in the deliberation on theissues in the case and vote thereon, can

dismiss lower court judges.

Law of Public Officers; Next-in-Rank Rule(1994)

No. 15 Pedro Cruz, the City Engineer ofBaguio, retired. To fill the vacant position, theCity Mayor appointed Jose Reyes, a civilengineer who formerly worked under Cruz buthad been assigned to the Office of the Mayorfor the past five years.

Vicente Estrada, the Assistant CityEngineer filed a protest with the Civil ServiceCommission claiming that being the officer nextin rank he should have been appointed as CityEngineer.

1) Who has a better right to be appointed to thecontested position?

SUGGESTED ANSWER:

1) On the assumption that Jose Reyespossesses the minimum qualification




requirements prescribed by law for the position,the appointment extended to him is valid.Consequently, he has a better right thanVicente Estrada.

The claim of Estrada that being theofficer next in rank he should have beenappointed as City Engineer is not meritorious. Itis a settled rule that the appointing authority isnot limited to promotion in filling up vacanciesbut may choose to fill them by the appointmentof persons with civil service eligibilityappropriate to the position. Even if a vacancywere to be filled by promotion, the concept of"next in rank" does not import any mandatoryrequirement that the person next in rank mustbe appointed to the vacancy. What the civilservice law provides is that if a vacancy is filledby promotion, the person holding the positionnext in rank thereto "shall be considered forpromotion." Espanol v. Civil ServiceCommission 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 theground that it encroached on navigable riversand impeded the use of the rivers. TheSecretary submitted to the President of thePhilippines a report of said investigation, whichreport contained clearly libelous mattersadversely affecting the reputation of X, a well-known civic and religious leader in thecommunity.

The Supreme Court later found that the rivers

were man-made and were constructed onprivate property owned by X.

(1) May X recover damages from the Secretaryof Public Works for the cost involved inrebuilding the fishponds and for lost profits?State your reason.

(2) Suppose X files a libel suit against theSecretary of Public Works. Will the said libelsuit prosper? 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 officialduties. He did not act in bad faith or with grossnegligence. He issued the order only after dueinvestigation. In Mabutol v. Pascual, 124 SCRA876, it was held that the members of the AdHoc Committee created to implement

Presidential Decree No. 296 and Letter ofInstruction No, 19, which ordered the demolitionof structures obstructing public waterways,could' not be sued for damages although theyordered the demolition of a building thatencroached upon a creek, because the publicofficers concerned did not act in bad faith.

(2) No, the libel suit will not prosper. Thereport submitted by the Secretary of PublicWorks to the President constitutes privilegedcommunication, as it was sent in theperformance of official duty.

Article 354 of the Revised Penal Codeprovides;

"Every defamatory imputation ispresumed to be malicious, even if it be true, ifno good intention and justifiable motive formaking it is shown, except in the followingcases:

1. A private communication made byany person to another in the performance ofany legal, moral or social duty;"

In Deano v. Godinez, 12 SCRA 483, it

was held that a report sent by a public official tohis superior is privileged communication,because its submission is pursuant to theperformance of a legal duty.

Besides, in sending his report, theSecretary of Public Works acted in thedischarge of his official duties. Hence, he wasacting in behalf of the Republic of thePhilippines and within the scope of his authority

According to the ruling in Sanders v. Veridiano,162 SCRA 88, a suit brought against a publicofficial for writing a letter which is alleged to be

libelous but which was written while he wasacting as agent of the government and withinthe scope of his authority is actually a suitagainst the State 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 On Addi tional Duties (1995)

No. 10: A City Mayor in Metro Manila wasdesignated as Member of the Local AmnestyBoard (LAB) as allowed under the Rules andRegulations Implementing AmnestyProclamation Nos. 347 and 348. as amendedby Proclamation No. 377. The LAB is entrustedwith the functions of receiving and processingapplications for amnesty and recommending tothe National Amnesty Commission approval ordenial of the applications. The term of theCommission and, necessarily, the Local

Amnesty Boards under it expires upon thecompletion of its assigned tasks as may bedetermined by the President.

May the City Mayor accept his

designation without forfeiting his electiveposition in the light of the provision of Sec. 7,1st par. Art. IX-B of the 1987 Constitution whichpertinently states that "[N]o elective official shallbe eligible for appointment or designation in anycapacity to any public office or position duringhis tenure?" Discuss fully,

SUGGESTED ANSWER:

No, the City Mayor may not accept hisdesignation without forfeiting his electivepositions. As stated in Flores vs. Drilon 223SCRA 568, it is the intention of Section 7,

Article X-B of the 1987 Constitution that localelective officials should devote their full time totheir constituents. While second paragraph ofSection 7, Article IX-B of the 1987 Constitutionallows appointive officials to hold other officeswhen allowed by law or by the primary functionsof their positions, no such exception is made inthe first paragraph, which deals with electiveofficials. It is the Intention of the 1987Constitution to be more stringent with electivelocal officials.

ALTERNATIVE ANSWER:

Yes, he may accept such designationwithout forfeiting his mayorship. TheConstitutional provision being citedcontemplates a "public office or position". It isbelieved 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 theelements of a public office.

Ombudsman: Power to Suspend; PreventiveSuspension (2004)(6) Director WOW failed the lifestyle checkconducted by the Ombudsman's Officebecause WOWs assets were grosslydisproportionate to his salary and allowances.Moreover, some assets were not included in hisStatement of Assets and Liabilities. He wascharged of graft and corrupt practices and

pending the completion of investigations, hewas suspended from office for six months.

A. Aggrieved, WOW petitioned the Court of Appeals to annul the preventive suspensionorder on the ground that the Ombudsmancould only recommend but not impose thesuspension. Moreover, according to WOW,the suspension was imposed without anynotice or hearing, in violation of dueprocess. Is the petitioner's contentionmeritorious? Discuss briefly. (5%)

SUGGESTED ANSWER:The contention of Director WOW is notmeritorious. The suspension meted out to himis preventive and not punitive. Section 24 ofRepublic Act No. 6770 grants the Ombudsmanthe power to impose preventive suspension upto six months. Preventive suspension maybeimposed without any notice or hearing. It ismerely a preliminary step in an administrativeinvestigation and is not the final determinationof 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 WOWis strong, and petitioner failed to exhaustadministrative remedies. WOW admitted hefiled no motion for reconsideration, but onlybecause the order suspending him wasimmediately executory. Should the motionto dismiss be granted or not? Discussbriefly. (5%)

SUGGESTED ANSWER:

B. The motion to dismiss should be denied.Since the suspension of Director WOW wasimmediately executory, he would have sufferedirreparable injury had he tried to exhaustadministrative remedies before filing a petitionin court (University of the Philippines Board ofRegents v. Rasul, 200 SCRA 685 [19910-Besides, 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 casedecided by the Supreme Court filed a complaintbefore the Ombudsman charging the Justiceswith knowingly and deliberately rendering anunjust decision in utter violation of the penallaws of the land. Can the Ombudsman validlytake cognizance 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 theprinciple of separation of powers, thecorrectness 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 Ombudsmancan entertain 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

Act against X was filed with the Ombudsman.Immediately after taking cognizance of the caseand the affidavits submitted to him, theOmbudsman ordered the preventivesuspension of X pending preliminaryinvestigation. X questioned the suspensionorder, contending that the Ombudsman canonly 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 empowerthe Ombudsman to suspend all officers, even ifthey are employed in other offices in theGovernment. The words "subordinate" and "inhis bureau" do not appear in the grant of suchpower to the Ombudsman.

Power to Issue Subpoena; validity ofdelegation (1989)

No. 17: Assume that under the charter of theCity of Manila, the City Mayor has the power toinvestigate city officials and employeesappointed by him and in connection therewith,administer oath, take testimony and issuesubpoenas. The mayor issued an executiveorder creating a committee, chaired by "X", toinvestigate anomalies involving licensedinspectors of the License Inspection Division ofthe Office of the City Treasurer, In the course ofits investigation, "X" subpoenaed "Y", a privatecitizen working as bookkeeper of Asia

Hardware. "Y" refused to appear contendingthat the Committee of "X" has no power to issuesubpoenas. Decide.

SUGGESTED ANSWER:

Yes, the committee has no power to issuesubpoenas according to Carmelo vs, Ramos, 6SCRA 836. In creating the committee, themayor did not grant it the power to issuesubpoenas. Besides, the mayor cannotdelegate his power to issue 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 concurrentPresidential Assistant for Political Affairs in theOffice of the President, without additionalcompensation.

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 7of the Constitution provides that no electiveofficial shall be eligible for appointment ordesignation in any capacity to any public officeor position during 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 shallbe excused from attending and testifying orfrom producing books, records,correspondence, documents or other evidencein any administrative investigation concerningthe office in which he is employed on theground that his testimony or the evidencerequired of him may tend to incriminate him orsubject him to a penalty or forfeiture; but histestimony or any evidence produced by himshall not be used against him in criminalprosecution based on the transaction, matter orthing concerning which is compelled, afterinvoking his privilege against self-incrimination,to testify or produce evidence. Provided,however, that such individual so testifying shallnot be exempt from prosecution and

punishment for perjury committed in sotestifying nor shall he be exempt from demotionor removal from office. Any employee whorefuses to testify or produce any documentsunder this Act shall be dismissed from theservice,"

Suppose further, that Ong, a member ofthe Professional Regulatory Board, is requiredto answer questions in an investigationregarding a LEAKAGE in a medicalexamination.

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 ServiceCommission has inferred his guilt from hisrefusal to answer in violation of theConstitution? |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 thequestion on the ground that he wouldincriminate himself, since the law grants himimmunity and prohibits the use against him in acriminal prosecution of the testimony orevidence produced by him. As stated by theUnited States Supreme Court in Brown vs.Walker. 161 U.S. 591, 597, what theconstitutional prohibition against self-

incrimination seeks to prevent is the convictionof the witness on the basis of testimony elicitedfrom him. The rule is satisfied when he isgranted immunity.

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 toviolate his right against self-incrimination, hemay object to it. On the other hand, under theruling in Chavez vs. Court of Appeals, 24 SCRA663, 680, If he is a respondent, Ong may refuseto answer any question because of his rightagainst self-incrimination.

SUGGESTED ANSWER:

2. No Ong cannot argue that the CivilService Commission inferred his guilt from hisrefusal to answer. He was not dismissedbecause of his involvement in the leakage in

the medical examination but for his refusal toanswer. This is a violation of the law. He couldbe compelled to answer the question on pain ofbeing dismissed in case of his refusal, becausehe was granted Immunity.

In Lefkowitz vs. Turley. 414 U.S. 70, 84,the United States Supreme Court held:

"Furthermore, the accomodationbetween the interest of the State and the Fifth

Amendment requires that the State have meansat its disposal to secure testimony if immunity is

supplied and testimony is still refused. This isrecognized by the power of courts to compeltestimony, after a grant of immunity, by use ofcivil contempt and coerced imprisonment.Shilitani v. United States, 384 US 364. 16 L Ed2d 622. 86 5 Ct 1531 (1966). Also, givenadequate immunity the State may plainly insistthat employees either answer questions underoath about the performance of their job or sufferthe loss of employment."

SUGGESTED ANSWER:

3. Jes Ong can argue that his dismissal

was based on coerced confession. In Garrityvs. New Jersey, 385 U.S. 493, 500, the UnitedStates Supreme Court held: "We now hold theprotection of the individual under the Fourteenth

Amendment against coerced statementsprohibits use in subsequent criminalproceedings of statements obtained underthreat of removal from office, and that it extendsto all, whether they are policemen or othermembers 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 hadreceived all money and property clearancesfrom the National Treasurer before herretirement.

Can the National Treasurer withholdthe retirement of A pending determination of hernegligence in the encashment of the falsifiedtreasury warrants? Explain.

SUGGESTED ANSWER:

2) In accordance with Tantuico vs.Domingo, 230 SCRA 391 and Cruz us.Tantuico, 166 SCRA 670, the NationalTreasurer cannot withhold the payment of theretirement benefits of A pending determinationof her liability for negligence in the encashment

of the falsified treasury warrants, because herretirement benefits are exempt from execution.

ARTICLE XII National Economyand Patrimony

Acquis it ion and Lease of Publ ic 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 or association, qualified to acquireprivate lands is also qualified to acquire publiclands in the Philippines. [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 cannotlease private lands In the Philippines. [2%]

4. A religious corporation can acquireprivate lands in the Philippines provided all itsmembers are citizens of the Philippines. [2%]

5. A foreign corporation can onlylease private lands in the Philippines. [2%]

SUGGESTED ANSWER:

1. I disagree. Under Section 7, ArticleXII of the Constitution, a corporation orassociation which is sixty percent owned byFilipino citizens can acquire private land,because it can lease public land and cantherefore hold public land. However, it cannotacquire public land. Under Section 3, Article XIIof the Constitution, private corporations andassociations can only lease and cannot acquire

public land.Under Section 8, Article XII of the

Constitution, a natural-born Filipino citizen wholost his Philippine citizenship may acquireprivate land only and cannot acquire publicland.

2. I disagree. The mere fact that acorporation is religious does not entitle it to ownpublic land. As held In Register of Deeds vs.Ung Siu Si Temple, 97 Phil. 58, 61, land tenureis not indispensable to the free exercise andenjoyment of religious profession of worship.

The religious corporation can own private landonly if it is at least sixty per cent owned byFilipino citizens.

3. I disagree. Under Section 1 ofPresidential Decree No. 471, corporations andassociations owned by aliens are allowed tolease private lands up to twenty-five years,renewable for another period of twenty-fiveyears upon agreement of the lessor and thelessee. Hence, even if the religious corporationis owned by aliens, it can lease private lands.

4. I disagree. For a corporation' toqualify to acquire private lands in thePhilippines, under Section 7, Article Xn of theConstitution in relation to Section 2, Article XIIof the Constitution, only sixty per cent (60%) ofthe corporation is required to be owned byFilipino citizens for it to qualify to acquire privatelands.

5. I agree. A foreign corporation canlease private lands only and cannot lease publicland. Under Section 2, Article XII of theConstitution, the exploration, development andutilization of public lands may be undertakenthrough co-production. Joint venture orproduction-sharing agreements only withFilipino citizen or corporations or associationswhich are at least sixty per cent owned byFilipino citizen.

Acquis it ion 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 fromhis father "Y". The latter had been in open,notorious, public and continued possession ofthe land since 1925. On what valid grounds canyou, as Solicitor General, oppose theapplication?

ANSWER:

As Solicitor General, I can oppose theapplication for confirmation of title on theground that under Art. XII, Sec. 3 timber landscannot be alienated. The ruling in Director ofLands v. IAC, 146 SCRA 509 (1986), andDirector of Lands v, Bengzon, No. 54045, July28, 1987, reiterated in Director of Lands v.Manila Electric Co., G.R, No. 57461, Sept. 11,1987, to the effect that a corporation is entitledto the confirmation of imperfect title to landsacquired by it from private individuals who havepossessed the same for 30 years, under bona

fide claim of ownership, for the reason that suchpersons are presumed to have performed allconditions essential to a government grant and,therefore, are entitled to the issuance of acertificate of title, applies only to agriculturallands.

Acquis it ion 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 bestof both worlds, he bought, in 1987, a residentiallot in Forbes Park and a commercial lot inBinondo. 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-born citizen of the Philippines who lost hisPhilippine citizenship may acquire private land.Since Andy Lim was a former naturalizedFilipino citizen, he is not qualified to acquireprivate lands.

Acquis it ion of Lands by HereditarySuccession (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 overthe same land in favor of their only child C. Ayear later, however, C died in vehicular

accident without leaving a last will andtestament.

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 hisfather is a Filipino. When A and B donated theland to C, it became property of a Filipinocitizen. As held in Halili v. Court of Appeals, 287SCRA 465 (1998), the sale of land to an aliencan no longer be annulled if it has been

conveyed to a Filipino citizen. Since C left nowill and his parents are his heirs, in accordancewith Article XII, Section 7 of the Constitution, Bcan acquire the land by hereditary succession.

Acquis it ion of Lands; Cit izenship issue(1989)

No. 1: Maria, a natural-born Filipino citizen,went to the United States in 1965 to work as anurse. With her savings, she bought a parcel ofland consisting of 1,000 square meters in a

residential subdivision in Metro Manila. She hadthe said property titled in her name in 1970. InJuly, 1972, Maria acquired American citizenshipby naturalization. Two months later, shemarried her Canadian 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 Philippinespermanently, can Maria buy the parcel of landconsisting of 400 square meters neighboringher own?

ANSWER:

(1) No, Maria cannot validly sell the parcel ofland to the younger sister of her husband whois a Canadian citizen. Under Section 7, ArticleXII of the 1987 Constitution, as a general rule,aliens cannot acquire private land sincepursuant to Section 2, in relation to Section 3,

Article XII, of the 1987 Constitution they are notqualified to acquire or hold lands of the public




domain. Under Section 7, Article XII of the 1987Constitution, an alien can acquire public land byhereditary succession. Under Section 8, ArticleXII of the 1987 Constitution, a natural-bornPhilippine citizen who lost his Philippinecitizenship may be a transferee of private land.The younger sister of the husband of Maria isnot acquiring the private land by hereditarysuccession but by sale. Neither is she a former

natural-born Philippine citizen who lost herPhilippine citizenship. Consequently, neither ofthe exceptions found in the above-mentionedprovisions 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 losthis Philippine citizenship, may acquire only upto 1,000 square meters of private urban land.Since Maria has previously acquired a parcel ofland with an area of 1,000 square meters, she

can no longer purchase any additional parcel ofurban land.

Alternative Answer:

Yes, she can acquire the adjacent land whichhas an area of 400 square meters since the lawlimits acquisition of lands to 1,000 squaremeters after the loss of Philippine citizenship.


No. 17: A and B leased their residential landconsisting of one thousand (1,000) squaremeters to Peter Co, a Chinese citizen, for aperiod of fifty (50) years. In 1992, before theterm of the lease expired. Co asked A and B toconvey the land to him as the contract gave himthe option to purchase said land if he became anaturalized Filipino citizen. Co took his oath asa Filipino citizen in 1991.

1) Was the contract of lease for a period offifty (50) years valid considering that the lesseewas an alien?

2) What is the effect of the naturalization ofPeter Co as a Filipino citizen on the validity ofthe option to purchase given him?

ANSWER:

1) As held in Philippine Banking Corporationvs. Lui She. 21 SCRA 52, the lease of a parcelof land with an option to buy to an alien is avirtual transfer of ownership to the alien andfalls within the 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 Coas a Filipino citizen, he can exercise the optionto purchase the land. In accordance with theruling in Yap vs. Grageda, 121 SCRA 244.since he is qualified to own land, the policy topreserve lands for 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 exclusivepossession of the property under a bona fideclaim of ownership long before 12 June 1945.

At the time of purchase, the spouses Joel andMichelle were then natural born Filipinocitizens.

In February 1987 the spouses filed anapplication for registration of their title beforethe proper court. This time however Joel andMichelle were no longer Filipino citizens. Thegovernment opposed their application forregistration alleging that they have not acquiredproprietary rights over the subject lot becauseof their subsequent acquisition of Canadiancitizenship, and that unregistered lands are

presumed to be public lands under the principlethat lands of whatever classification belong tothe State under the Regalian doctrine, hence,they still pertain to the State.

How will you resolve the issues raisedby the applicants and the oppositor? Discussfully.

ANSWER:

The argument of the government thatunregistered lands are presumed to be publiclands is utterly unmeritorious. As held in

Republic vs. Court of Appeals. 235 SCRA 562,in accordance with Section 48 of the PublicLand Act, since the predecessors-in- interest ofJoel and Michelle had been in open, public,peaceful, continuous and exclusive possessionof the land under a bona fide claim ofownership long before June 12. 1945, theirpredecessors- in-interest had acquired the land,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 virtueof the sale to them.

Joel and Michelle can have the land registeredin their names. They were natural-born Filipinocitizens at the time of their acquisition of theland. In any event they were Filipino citizens atthe time of their acquisition of the land. Theirbecoming Canadian citizens subsequently isimmaterial. Article XII, Sec. 8 of the 1987Constitution presupposes that they purchasedthe land after they lost Filipino citizenship. Itdoes not apply in this case at all.

Acquis it ion of Lands; Prohibi tion;acquisiti on of p rivate lands by aliens (1994)

No.18; John Smith, a US national, was marriedto Petra de Jesus, a Filipino citizen, on June 5,1980. Two (2) years later, Petra purchased a

parcel of residential land from Jose Cruz usingher own funds. The Deed of Sale states that theland was sold to "Petra married to John Smith"and was registered as such. With theknowledge of John Smith, Petra administeredthe land, leasing parts thereof to severalindividuals. Three (3) years later, Petra, withoutthe knowledge of John Smith, sold the land toDavid Perez. Upon learning of the transaction,John Smith filed a case to annul the Deed ofSale. Citing Art. 160 of the Civil Code, heargued that said sale was without his consent,the property being conjugal as it was purchasedat the time he was married to Petra. Hepresented the Deed of Sale executed by Petrastating that she is married to John Smith. Hewants to recover at least his conjugal share.

1) Is John Smith entitled to hisconjugal share?

2) May the Deed of Sale executed byPetra In favor of David Perez be annulled?

ANSWER:

1) No, John Smith is not entitled to his

conjugal share in the land. Firstly, since it wasacquired with the personal funds of Petra deJesus, in accordance with the ruling in Mirasolvs. Lim, 59 Phil. 701, the presumption that theproperty is conjugal has been rebutted.Secondly, a declaration that John Smith isentitled to a conjugal share in the land willviolate the prohibition against the conveyanceof private lands to aliens embodied in Section 7,

Article XII of the Constitution.

2) The Deed of Sale cannot beannulled. As held in Cheesman vs. Intermediate

Appellate Court, 193 SCRA 93. to accord toJohn Smith, an alien, the right to have adecisive vote as to the disposition of the landwould permit an indirect controversion of theconstitutional prohibition against the acquisitionof private lands by aliens.

Citizenship Requirement in Management of Advertising Industry (1989)

No. 11: (2) May a foreigner who ownssubstantial stockholdings in a corporationengaged in the advertising industry sit as atreasurer of said corporation? Cite theconstitutional provision in point.

SUGGESTED ANSWER:

Section 11(1), Article XVI of the 1987Constitution provides;

(2) No, a foreigner who owns shares of stock ina corporation engaged in the advertisingindustry cannot serve as treasurer in thecorporation, for a treasurer is an executive ormanaging 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 capitalthereof, and all the executive andmanaging officers of such entities mustbe citizens of the Philippines."

Engagement in Business & Exercise ofProfession (1987)

No. IX: The Philippine entered into a Treaty ofFriendship, Comity and Commerce withIndonesia with the following provisions:

(1 ) The nationals of each contractingState admitted to the practice of law in saidState, to practice law without taking the bar

examinations in the other contracting State.(2) The nationals of each contracting

State to engage in retail trade business in theterritory of the other contracting State.

Is the treaty valid?

SUGGESTED ANSWER:

The treaty is valid.

(1) Art. XII, Sec. 14 provides that the practiceof all professions in the Philippines shall be




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 agriculturalland, because they are granted temporaryrights only and this is not prohibited by theConstitution.

National Economy & Patrimony;Constitutional Prohibi tion (2004)(8-b) B. EAP is a government corporationcreated for the purpose of reclaiming landsincluding foreshore and submerged areas, aswell as to develop, improve, acquire, lease andsell any and all kinds of lands. A law waspassed transferring title to EAP of lands alreadyreclaimed in the foreshore and offshore areasof MM Bay, particularly the so-called LibertyIslands, as alienable and disposable lands of

the public domain. Titles were duly issued inEAP's name.

Subsequently, EAP entered into a joint ventureagreement (JVA) with ARI, a private foreigncorporation, to develop Liberty Islands.

Additionally, the JVA provided for thereclamation of 250 hectares of submerged landin the area surrounding Liberty Islands. EAPagreed to sell and transfer to ARI a portion ofLiberty Islands and a portion of the area to bereclaimed as the consideration for ARI's roleand participation in the joint venture, upon

approval by the Office of the President. Is thereany constitutional obstacle to the sale andtransfer by EAP to ARI of both portions asprovided for in the JVA? (5%)

SUGGESTED ANSWER:B. ARI cannot acquire a portion of LibertyIslands because, although EAP has title toLiberty Islands and thus such lands arealienable and disposable land, they cannot besold, only leased, to private corporations. Theportion of the area to be reclaimed cannot besold and transferred to ARI because the seabedis inalienable land of the public domain.(Section 3, Article XII of the 1987 Constitution;Chavez v. Public Estates Authority, 384 SCRA152 [2002]).

National Patrimony; defin ition (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 beallowed to acquire equity in a business activitybut cannot participate in the managementthereof?

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 withthe State for the exploration,development, and utilization ofnatural resources (Section 2, ArticleXII)

2. Operation of a public utility (Section11, Article XII)

3. Education (Section 4(2), Article XIV)

b) At least seventy percent (70%) of the equityof business entities engaged in advertisingmust be owned by Filipino citizens under theConstitution. (Section 11(2), Article XVI)

c) Mass media must be wholly owned byFilipino citizens under the Constitution (Section11(1), Article XVI).

2) Under the Constitution, aliens may acquireequity but cannot participate in themanagement of business entities engaged inthe following activities:

1) Public utilities (Section 11, ArticleXII)

2) Education (Section 4(2) .Article XIV)

3) Advertising (Section 11(2), ArticleXVI)




Ownership Requirement of Mass Media(1989)

No. 11: (1) A domestic corporation with 30%foreign equity proposes to publish a weeklymagazine for general circulation in MetroManila which will feature the lifestyles of therich and the famous. May this be done? Cite theconstitutional provision in point.

SUGGESTED ANSWER:(1) No, the corporation cannot publish a

weekly magazine since it is engaged in theoperation of a mass media and is not whollyowned by Philippine citizens.

Section 11(1), Article XVI of the 1987Constitution provides; "The ownership andmanagement of mass media shall be limited tocitizens of the Philippines, or to corporations,cooperatives or associations, wholly-owned andmanaged by such citizens."

Chinese citizens; engaging in retail trade(Q4-2006)State whether or not the following laws areconstitutional. Explain briefly.4. A law prohibiting Chinese citizens from

engaging in retail trade. (2%)SUGGESTED ANSWER:The law is invalid as it singles out anddeprives Chinese citizens from engagingin retail trade. In Ichong v. Hernandez,G.R. No. L-7995, May 31,1957, the courtheld that the Treaty of Amity between theRepublic of the Philippines and theRepublic of China guarantees equality oftreatment to the Chinese nationals "uponthe same terms as the nationals of anyother country." Thus, the court ruledtherein that the nationals of China are notdiscriminated against because nationals ofall other countries, except those of theUnited States, who are granted specialrights by the Constitution, are all prohibitedfrom engaging in the retail trade. In thecase at bar, the law discriminates only

against Chinese citizens and thus violatesthe equal protection clause.

Exploration, development, and utilization ofnatural resources (Q4-2006) State whether or not the law is constitutional.Explain briefly.5. A law creating a state corporation to

exploit, develop, and utilize compressednatural gas. (2%)

SUGGESTED ANSWER:The law is valid as under Article XII,Section 2 of the 1987 Constitution, theexploration, development, and utilization ofnatural resources shall be under the fullcontrol and supervision of the State. It isalso provided that the State may directlyundertake such activities or it may enterinto co-production, joint venture or sharing

agreements with Filipino citizens orcorporations or associations, at least 60%Filipino-owned.

Furthermore, the President may enter intoagreements with foreign-ownedcorporations involving technical orfinancial assistance for large-scaleexploration, development, and utilization ofminerals, petroleum and other mineral oils,according to terms and conditionsprovided by law. A state corporation,unlike a private corporation, may be

created by special law and placed underthe control of the President, subject tosuch conditions as the creating statutemay provide.

ARTICLE XIII Social Justice andHuman Rights

Agrar ian Reform Law; Coverage (1992)

No. 12: Teodoro Luzung is engaged in thebusiness of prawn farming, The prawns arenurtured in his fishponds in Mindoro and, upon

harvest, are immediately frozen for export.Congress passed the Comprehensive

Agrarian Reform Law of 1988 which providesamong others that all private lands devoted toagriculture shall be subject to agrarian reform.The law includes under the term "agriculture"the following activities: cultivation of the soil,planting of crops, growing of fruit trees, raisingof livestock, poultry or fish. The Department of

Agrarian Reform issued an implementing orderwhich provides that commercial farms used foraqua-culture, including salt-beds, fishponds and

prawn farms are within the scope of the law.Can the law be declared unconstitutional?Decide.

SUGGESTED ANSWER:

As held in Luz Farms vs. Secretary of theDepartment of Agrarian Reform, 192 SCRA 51,the law is unconstitutional insofar as it includedlivestock, poultry and swine raising. In thedefinition of the agricultural land which theConstitutional Commission adopted in




connection with agrarian reform, lands devotedto such purposes were not included. However,both the law and the implementing order areconstitutional insofar as they includedfishponds. The definition of agricultural landwhich the Constitutional Commission adoptedincluded fishponds.

Commission on Human Rights; Power toinvestigate (1992)

No. 15 - Walang Sugat, a vigilante groupcomposed of private businessmen and civicleaders previously victimized by the NationalistPatriotic Army (NPA) rebel group, wasimplicated in the torture and kidnapping of Dr.Mengele, a known NPA sympathizer.

b) Does the Commission on HumanRights have the power to investigate andadjudicate the matter?

SUGGESTED ANSWER;b) Under Section 18, Article XIII of the

Constitution, the Commission on Human Rightshas the power to investigate all forms of humanrights violations involving civil and politicalrights and to monitor the compliance by thegovernment with international treaty obligationson human rights. As held in Carino vs.Commission on Human Rights, 204 SCRA 483,the Commission on Human Rights has nopower to decide cases involving violations ofcivil and political rights. It can only investigatethem and then refer the matter to theappropriate government agency.

ALTERNATIVE ANSWER:

If what is referred to in the problem is theCommission on Human Rights under the UnitedNational Economic and Social Council, the casemay be investigated by the Commission basedon a special procedure for fact-finding andinquiry based on the consent of the Statesconcerned. However, this does not constituteinvestigation in the usual sense of the term,with no objective of establishing culpability. The

Commission on Human Rights is notempowered to make adjudications.

Commission on Human Rights; Power toissue TRO (1997)

No. 8 - About a hundred people occupied aparcel of land in Quezon City belonging to thecity government and built shanties thereonwhich they utilized for dwelling, sari-sari stores,etc. The City Mayor issued an order directing

the occupants to vacate the structures withinfive days from notice, otherwise they would beevicted and relocated and their shantiesremoved, in order that the parcel of land couldbe converted into a park for public use andenjoyment. The inhabitants of the parcel of landcomplained to the Commission on HumanRights urging that the Mayor of Quezon City bestopped from doing what he has threatened to

do. The Commission on Human Rights, afterconducting an investigation and finding that theshanties of petitioners were already beingdemolished by then, ordered the Quezon CityMayor and persons Implementing his order tocease and desist from demolishing petitioners'shanties under pain of contempt.

What have you to say on the validity of theactuation of the Commission on Human Rightsin relation to that of the Quezon City Mayor?

SUGGESTED ANSWER:

The actuation of the Commission on HumanRights is void. In Simon vs. Commission onHuman Rights, 229 SCRA 117. the Court heldthat the Commission on Human Rights has nopower to issue a restraining order or a writ ofinjunction and has no power to cite for contemptfor violation of the restraining order or a writ ofpreliminary injunction. The cease and desistorder, according to the Court, is a semanticInterplay for a restraining order. Its power to citefor contempt should be understood to applyonly to violations of its adopted operationalguidelines and rules of procedure essential to

carry out its investigatorial powers, which it isconstitutionally authorized to adopt.

Commission on Human Rights; Power toissue TRO (2001)

No VI - In order to implement a big governmentflood control project, the Department of PublicWorks and Highways (DPWH) and a localgovernment unit (LGU) removed squatters fromthe bank of a river and certain esteros forrelocation to another place. Their shanties were

demolished. The Commission on Human Rights(CHR) conducted an investigation and issuedan order for the DPWH and the LGU to ceaseand desist from effecting the removal of thesquatters on the ground that the human rightsof the squatters were being violated. TheDPWH and the LGU objected to the order of theCHR

Resolve which position is correct. Reasons(5%)




SUGGESTED ANSWER;

The position of the Department of Public Worksand Highways and of the local government unitis correct. As held in Export Processing Zone

Authority v. Commission on Human Rights, 208SCRA125 (1992), no provision in theConstitution or any law confers on theCommission on Human Rights jurisdiction toissue temporary restraining orders or writs ofpreliminary injunction. The Commission onHuman Rights has no judicial power. Its powersare merely investigatory.

Commission on Human Rights; Power;Limitations (Q4-2005)(2) Squatters and vendors have put up

structures in an area intended for aPeople's Park, which are impeding the flowof traffic in the adjoining highway. MayorCruz gave notice for the structures to be

removed, and the area vacated within amonth, or else, face demolition andejectment. The occupants filed a case withthe Commission on Human Rights (CHR) tostop the Mayor'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 ofhuman rights within the scope of theCHR's jurisdiction?SUGGESTED ANSWER:Under the Universal Declaration ofHuman Rights, the InternationalCovenant on Economic, Social andCultural Rights and InternationalCovenant on Civil and Political Rights,the scope of human rights includes"those that relate to an individual'ssocial, economic, cultural, political andcivil relations... along with what isgenerally considered to be his inherentand inalienable rights, encompassingalmost all aspects of life."

In the case at bar, the land adjoins abusy national highway and theconstruction of the squatter shantiesimpedes the flow of traffic. The

consequent danger to life and limbcannot be ignored. It is paradoxical thata right which is claimed to have beenviolated is one that cannot, in the firstplace, even be invoked, if it is, in fact,extant. Based on the circumstancesobtaining in this instance, the CHRorder for demolition do not fall within thecompartment of human rights violations

involving civil and political rightsintended by the Constitution. (Simon v.Commission on Human Rights, G.R.No. 100150, January 5, 1994)

(b) Can the CHR issue an "order to desist"or restraining order?SUGGESTED ANSWER:The CHR may not issue an "order todesist" or restraining order. Theconstitutional provision directing theCHR to provide for preventivemeasures to those whose human rights

have been violated or need protectionmay not be construed to confer

jurisdiction on the Commission to issuea restraining order or writ of injunctionfor, it that were the intention, theConstitution would have expressly saidso. Jurisdiction is conferred only by theConstitution or by law. It is neverderived by implication. (ExportProcessing Zone Authority v.Commission on Human Rights, G.R.No. 101476, April 14, 1992)

(c) Is the CHR empowered to declareMayor Cruz in contempt? Does it havecontempt powers at all?SUGGESTED ANSWER:The CHR does not possess adjudicativefunctions and therefore, on its own, isnot empowered to declare Mayor Cruzin contempt for issuing the "order todesist." However, under the 1987Constitution, the CHR is constitutionallyauthorized, in the exercise of itsinvestigative functions, to "adopt its

operational guidelines and rules ofprocedure, and cite for contempt forviolations thereof in accordance with theRules of Court." Accordingly, the CHR,in the course of an investigation, mayonly cite or hold any person in contemptand impose the appropriate penalties inaccordance with the procedure andsanctions provided for in the Rules ofCourt. (Carino v. Commission on




Human Rights, G.R. No. 96681,December 2, 1991)

Labor; Right to Self-Organization (1988)

No. 2: Because of the marked increase in theincidence of labor strikes and of workstoppages in industrial establishments,Congress intending to help promote industrialpeace, passed, over the objections of militantlabor unions, an amendment to the Labor Code,providing that no person who is or has been amember of the Communist Party may serve asan officer of any labor organization in thecountry. An association of former NPAs (NewPeoples Army) who had surrendered, availed ofamnesty, and are presently leading quiet andpeaceful lives, comes to you asking what couldbe done against the amendment. What wouldyou advise the association to do? Explain.

SUGGESTED ANSWER:

In PAFLU v. Secretary of Labor , 27SCRA 40 (1969) the Supreme Court upheld thevalidity of sec. 23 of the Industrial Peace Actrequiring labor unions to submit, within 60 daysof the election of its officers, affidavits of thelatter that they are not members of theCommunist Party, against the claim that therequirement unduly curtailed freedom ofassembly and association. The Court pointedout that the filing of the affidavits was merely acondition for the acquisition by a labororganization of legal personality and the

enjoyment of certain rights and privileges whichthe Constitution does not guarantee. On theother hand, the requirement constitutes a validexercise of the State's police power to protectthe public against abuse, fraud and impostors.

But the disqualification of members ofthe CPP and its military arm, the NPA, frombeing officers of a labor union would (1) nullifythe amnesty granted by the President with theconcurrence, it may be assumed, of themajority of the members of Congress and (2)permit the condemnation of the former NPA

members without judicial trial in a way thatmakes it contrary to the prohibition against theenactment of bill of attainder and ex post factolaw. The amnesty granted to the former NPAsobliterated their offense and relieved them ofthe 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 theNPA, for which they have already been forgivenby Presidential 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 congressionalcommittee have established that many firms atthe Bataan Export Processing Zone had closeddown or pulled out because of unstable laborconditions resulting in so many strikes. Toremedy the situation and inject vitality to theexport expansion program, some congressionalleaders and business executives propose thatstrike-free export zones be established.

Do you believe that under the presentConstitution, it is legally possible to put up sucha strike-free export processing zone in thecountry? Why or why not?

SUGGESTED ANSWER:No. The fact that many firms at the BataanEPZA have been forced to close down byunstable labor condition brought about by strikedoes not justify the ban on strike. TheConstitution guarantees the rights of workers toengage in "peaceful concerted activities,including the right to strike in accordance withlaw." (Art. XIII, sec. 3). It is illegal strikes whichcan be prohibited but not all strikes. For strike islabor's legitimate weapon. In the absence of acompelling interest of the state (such as health

and safety, e.g., the prohibition of strike inhospitals 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 tounstable working conditions resulting from toomany strikes. To remedy this situation. Chengproposes an amendment to SBMA lawdeclaring it as a strike-free zone or total ban onstrikes. Is this proposal 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 cannottotally prohibit the right to strike but can onlyregulate the exercise thereof. His proposal toban strikes totally in the Subic SpecialEconomic and Freeport Zone is, thereforeunconstitutional.

ALTERNATIVE ANSWER:

While the Constitution guarantees to workers

the right to engage in peaceful concertedactivities, Including the right to strike, such rightcan only be exercised in accordance with law.The phrase "in accordance with law" wasInserted precisely to Indicate that in someexceptional cases workers would not have theright to strike if it is prohibited by law. Hence,the proposal to ban strikes totally in the SubicSpecial Economic and Freeport Zone isconstitutional. (Social Security SystemEmployees Association vs. Court of Appeals,175 SCRA 686, July 28. 1989; Manila PublicSchool Teachers Association v. Laguio, 200

SCRA 323 (1991)).

Social Justice under the PresentConstitution (1995)

No. 1- 1. Discuss the concept of social justiceunder the 1987 Constitution,

2. How does it compare with the oldconcept of social Justice under the 1973Constitution? Under the 1935 Constitution?

SUGGESTED ANSWER

1. Section 10, Article II of the 1987 Constitutionprovides. "The State shall promote social justicein all phases of national development". Asstated in Marquez vs. Secretary of Labor, 171SCRA 337, social justice means that the Stateshould assist the underprivileged. Without suchhelp, they might not be able to secure justice forthemselves. Since the provision on social

justice in the 1987 Constitution covers allphases of national development, it is not limitedto the removal of socio-economic inequities butalso includes political and cultural inequities.

The 1987 Constitution elaborated on theconcept of social justice by devoting an entirearticle, Article XIII, to it.

Alternative Answers:

a) Section 5, Article II of the 1935 Constitutionprovided, "The promotion of social justice toInsure the well-being and economic security ofall the people should be the concern of theState." While this provision embodied theconcept of social justice as an obligation of the

State to alleviate the plight of theunderprivileged by removing Inequities, itsimply made a general policy declaration andfocused on social and economic 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

justice includes all phases of nationaldevelopment. It includes economic, political,social and cultural rights.

SUGGESTED ANSWER

2. In Calalang v. Williams, et. al.. 70 Phil. 726,social justice was defined as "neithercommunism nor despotism, nor atomism, noranarchy, but the humanization of laws and theequalization of social and economic forces bythe State so that justice in its rational andobjectively secular conception may at least beapproximated. Social justice means the

promotion of the welfare of all the people, theadoption 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 membersof the community,"

On the other hand, Section 6, Article II of the1973 Constitution provided. The State shallpromote social justice to ensure the dignity,welfare, and security of all the people. Towardthis end. the State shall regulate the acquisition,

ownership, use, enjoyment, and disposition ofprivate property, and equitably diffuse propertyownership and profits." This provisionexpounded on the concept of social justice byexpressly mentioning the regulation of propertyand the equitable diffusion of ownership.

Note: It is suggested that the examinershould correlate the answers to both questionsand give credit to answers which state thatthere is an expansion of the range of socialJustice in the 1987 Constitution compared tothe 1935 and the 1973 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:




No. 18: Ting, a student of BangkerohanUniversity, was given a failing grade byProfessor Mahigpit. Ting confronted ProfessorMahigpit at the corridor after class and a heatedargument ensued. Cooler heads prevented theverbal war ending in physical confrontation.Mahigpit left the campus and went shopping Ina department store. Ting saw Mahigpit andwithout any warning mauled the latter. Mahigpit

filed an administrative complaint against Tingbefore the Dean of Students for breach ofuniversity rules and regulations. The Dean setthe complaint for hearing. However, Ting filed apetition before the RTC to prohibit the Deanand the school from investigating himcontending that the mauling incident happenedoutside the school premises and therefore,outside the school's jurisdiction. The school andthe Dean answered that the school caninvestigate Ting since his conduct outsideschool hours and even outside of schoolpremises affect the welfare of the school; and

furthermore, the case involves a student andfaculty member. If you were the judge, howwould 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 ofthe student involves his status as, a student oraffects the good name or reputation of the

school. The misconduct of Ting directly affectshis suitability as a student.

Education; Academic Freedom; Extent(1999)

No II - A. What is Academic Freedom?Discuss the extent of Academic Freedomenjoyed by institutions of higher learning. (2%)

SUGGESTED ANSWER:

A. According to Reyes v. Court of Appeals, 194 SCRA 402, academic freedom isthe freedom of a faculty member to pursue hisstudies in his particular specialty and thereafterto make known or publish the result of hisendeavors without fear that retribution would bevisited on him in the event that his conclusionsare found distasteful or objectionable by thepowers that be, whether in the political,economic, or academic establishments.

In Garcia v. Faculty AdmissionCommittee, 68 SCRA 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 hasviolated the rules of discipline. Academicfreedom grants institutions of higher learning

the discretion to formulate rules for the grantingof honors. Likewise, because of academicfreedom, an institution of higher learning canclose a school.

Education; A lien Enrollees & Donors (1999)

No II - C. What is the rule on the number ofaliens who may enroll in educational institutionsin the Philippines. Give the exception to therule. May such institutions accept donationsfrom foreign students under the pretext that

such donations are to be used to buyequipment and improve school facilities?Explain. (2%)

SUGGESTED ANSWER:

C. Under Section 4(2), Article XIV ofthe Constitution, no group of aliens shallcomprise more than one-third of the enrollmentin any school. The exception refers to schoolsestablished for foreign diplomatic personnel andtheir dependents and, unless otherwiseprovided by law, for other foreign temporaryresidents.

Educational institutions may acceptdonations from foreign students. No provision inthe Constitution or any law prohibits it.

Education; Duties of State in Re Education(1999)

No II - B. Give two duties of the statemandated by the Constitution regardingeducation. (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 qualityeducation at all levels and shall takeappropriate steps to make sucheducation accessible to all. (Section1)




2. The State shall establish, maintainand support a complete, adequate,and integrated system of educationrelevant to the needs of the peopleand society. [Section 2(1)]

3. The State shall establish and maintaina system of free public education inthe elementary and high schoollevels. [Section 2(2)]

4. The State shall establish and maintaina system of scholarship grants,student loan programs, subsidies, andother incentives which shall beavailable to deserving students inboth public and private schools,especially to the underprivileged.[Section 2(3)]

5. The State shall encourage non-formal, informal and indigenouslearning systems, as well as self-

learning, independent and out-of-school study program particularlythose that respond to communityneeds, [Section 2|4|]

6. The State shall provide adult citizens,the disabled, and out-of-school youthwith training in civics, vocationalefficiency and other skills. [Section2(5)]

7. The State shall take into accountregional and sectoral needs andconditions and shall encourage local

planning in the development ofeducational policies and programs.[Section 5(1|]

8. The State shall enhance the rights ofteachers to professionaladvancement. Non-teachingacademic and non-academicpersonnel shall enjoy the protection ofthe State. [Section 5(4)]

9. The State shall assign the highestbudgetary priority to education andensure that teaching will attract andretain its rightful share of the bestavailable talents through adequateremuneration and other means of jobsatisfaction and fulfillment. [Section5(5)]

[Note: The question asks for twoconstitutional duties of the state regardingeducation.]

Education; Flag Salute (1987)

No. XIII: The requirement that school childrenparticipate in flag ceremonies has been thesubject of controversy. On the one hand it is theview that the requirement violates religiousfreedom; on the other is the Supreme Courtdecision that because of relevant provisions ofthe 1935 Constitution the flag salute may bevalidly required.

Which of the above finds support on1987 Constitution, Cite at least two provisionsto prove your point.

SUGGESTED ANSWER:

The view that flag salute may validly berequired finds support in the followingprovisions of the 1987 Constitution:

(a) Art, XIV, Sec. 3(2), which providesthat all educational institutions shall inculcate instudents, among other civil virtues, patriotism

and nationalism and teach them the rights andduties of citizenship. Thus considerablybroadening the aims of schools is originallystated in the 1935 Constitution which theSupreme Court relied upon for its decision inGerona v. Secretary of Education, 106 Phil. 2(1959), upholding the flag salute in thePhilippines. The 1935 Constitution simplymentioned the development of civic conscienceand the teaching of the duties of citizenship.

(b) Art II, Sec, 13 mandates the Stateto "inculcate in the youth patriotism and

nationalism," while Sec. 17 requires the State togive priority to education, among otherconcerns, "to foster patriotism and nationalism."

Education; Right to Choose Profession(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)disallowing flunkers from taking the test a fourthtime. Cruz filed suit assailing this rule raisingthe constitutional 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 and Sports v. San Diego,180 SCRA




533 (1989), the rule is a valid exercise of policepower to ensure that those admitted to themedical profession are qualified. Thearguments of Cruz are not meritorious. Theright to quality education and academicfreedom are not absolute. Under Section 5(3),

Article XIV of the Constitution, the right tochoose a profession is subject to fair,reasonable and equitable admission and

academic requirements. The rule does notviolate equal protection. There is a substantialdistinction between medical students and otherstudents. Unlike other professions, the medicalprofession directly affects the lives of thepeople.

Education; Right to Quality Education (2003)

No III - Children who are members of areligious sect have been expelled from theirrespective public schools for refusing, on

account of their religious beliefs, to take part inthe flag ceremony which includes playing by aband or singing the national anthem, salutingthe Philippine flag and reciting the patrioticpledge. The students and their parents assailthe expulsion on the ground that the schoolauthorities have acted in violation of their rightto free public education, freedom of speech,and religious freedom and worship. Decide thecase.

SUGGESTED ANSWER:

The students cannot be expelled from school.

As held in Ebralinag v. The DivisionSuperintendent of Schools of Cebu. 219 SCRA256 [1993], to compel students to take part inthe flag ceremony when it is against theirreligious beliefs will violate their religiousfreedom. Their expulsion also violates the dutyof the State under Article XIV, Section 1 of theConstitution to protect and promote the right ofall citizens to quality education and make sucheducation accessible to all.

Education; Teaching of Religion (1999)

No II - D. What is the constitutional provisionconcerning the teaching of religion in theelementary and high schools in the Philippines?Explain. (2%)

SUGGESTED ANSWER:

D. Under Section 3(3), Article XIV of theConstitution, at the option expressed in writingby the parents or guardians, religion shall beallowed to be taught to their children or wards in

public elementary and high schools within theregular class hours by instructors designated orapproved by the religious authorities to whichthe children or wards belong, without additionalcost to the Government.

Education; Validity of AcademicRequirements (1994)

No. 12; The Department of Education, Cultureand Sports Issued a circular disqualifyinganyone who fails for the fourth time in theNational Entrance Tests from admission to aCollege of Dentistry.

X who was thus disqualified, questionsthe constitutionality of the circular.

1) Did the circular deprive her of herconstitutional right to education?

2) Did the circular violate the equalprotection clause of the Constitution?

SUGGESTED ANSWER:

1) No, the circular disqualifying anyone whofails for the fourth time in the National EntranceTests from admission to the College ofDentistry did not deprive X of her constitutionalright to education. As held in Department ofEducation, Culture and Sports vs. San Diego,180 SCRA 533, this right is not absolute.Section 5(3). Article XIV of the Constitutionprovides that the right to choose a profession orcourse of study is subject to fair, reasonableand equitable admission and academicrequirements. Requiring that those who willenroll in a College of Dentistry should pass theNational Entrance Test is valid, because it isintended to ensure that only those who arequalified to be dentists are admitted forenrollment.

2) No, the circular did not violate the equalprotection clause of the Constitution. ...

ARTICLE XVI General

Provisions

General Provisions; Local Dialect (1987)No. V: State whether or not the following cityordinances are valid and give reasons insupport of your answers:

(a) An ordinance prescribing the use of thelocal dialect as medium of instruction in theprimary grades.

SUGGESTED ANSWER:




(a) The ordinance, which prescribes the use ofthe local dialect as medium of instruction in theprimary grades, is invalid. The Constitutionprovides in Art XIV, Sec. 7 for the use ofregional dialect as auxiliary medium ofinstruction. If the ordinance prescribes the useof local dialect not as auxiliary, but as exclusivelanguage of instruction, then it is violative of theConstitution for this additional reason. The

ordinance would thus allow more dialects to beused than it is desirable and make the quest fornational unity more difficult.

AFP; limi tat ion on accept ing addit ionaldut ies (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 appointedas trustee of the Government Service InsuranceSystem. Under Section 5(4). Article XVI of theConstitution, no member of the Armed Forcesof the Philippines in the active service shall atany time be appointed or designated in anycapacity to a civilian position in theGovernment, including government-owned orcontrolled corporations.

ARTICLE XVII Amendments or

RevisionsPeople’s Ini tiative (2004)(4-b) An amendment to or a revision of thepresent Constitution may be proposed by aConstitutional Convention or by the Congressupon a vote of three-fourths of all its members.Is there a third way of proposing revisions of oramendments to the Constitution? If so, how?(5%)

SUGGESTED ANSWER:There is no third way of proposing revisions tothe Constitution; however, the people through

initiative upon petition of at least twelve per centof the total number of registered, voters, ofwhich every legislative district must berepresented by at least three per cent of theregistered voters in it, may directly proposeamendments to the Constitution. This right isnot operative without an implementing law.(Section 2, Article XVII of the 1987Constitution.)

Amendments and Revisions; Modes (1997)

No. 20: State the various modes of, and stepsin, revising or amending the PhilippineConstitution.

SUGGESTED ANSWER:

There are three modes of amending theConstitution.

1. Under Section 1, Article XVIII ofthe Constitution. Congress may by three-fourthsvote of all its Members propose anyamendment to or revision of the Constitution.

2. Under the same provision, aconstitutional convention may propose anyamendment to or revision of the Constitution.

According to Section 3, Article XVII of theConstitution. Congress may by a two-thirds voteof all its Members call a constitutionalconvention or by a majority vote of all itsMembers submit the question of calling such aconvention to the electorate.

3. Under Section 2. Article XVII of theConstitution, the people may directly proposeamendments to the Constitution throughinitiative upon a petition of at least twelve percent of the total number of registered voters, ofwhich every legislative district must berepresented by at least three per cent of theregistered voters therein.

According to Section 4, Article XVII of theConstitution, to be valid any amendment toor revision of the Constitution must beratified by a majority of the votes cast In aplebiscite.

REFERENDUM vs. INITIATIVE (Q1-2005)(a) The present Constitution introduced theconcepts and processes of Initiative andReferendum. Compare and differentiate onefrom the other. (3%)SUGGESTED ANSWER:INITIATIVE is the power of the people topropose amendments to the Constitution or topropose and enact legislations through anelection called for the purpose. Under the 1987Constitution, the people through initiative canpropose amendments to the Constitution upona petition of at least twelve per centum of thetotal number of registered voters, of whichevery legislative district must be represented byat least three per centum of the registeredvoters therein. REFERENDUM is the power ofthe electorate to approve or reject a legislationthrough an election called for the purpose.(Sec. 3, R.A. No. 6735 [1989]).




(c) Declaratory Theory of RecognitionPrinciple

(d) Recognition of Belligerency

(e) Continental Shelf

(f) Exequatur

(g) Principle of Double Criminality

(h) Protective Personality

(i) Innocent Passage

(j) Jus cogens in International Law

SUGGESTED ANSWER:

(a) REPRISAL is a coercive measure short ofwar, directed by a state against another, inretaliation for acts of the latter and as means ofobtaining reparation or satisfaction for suchacts. Reprisal involves retaliatory acts which bythemselves would be illegal. For example, forviolation of a treaty by a state, the aggrieved

state 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.For example, when other countries recognizedBangladesh, Bangladesh already existed as astate even 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 ofthe territory of a state is under the effectivecontrol of an insurgent community which isseeking to establish a separate governmentand the insurgents are in de facto control of aportion of the territory and population, have apolitical organization, are able to maintain suchcontrol, and conduct themselves according tothe laws of war. For example, Great Britainrecognized a state of belligerency in the UnitedStates during the Civil War,

(e) CONTINENTAL SHELF of a coastal statecomprises the sea-bed and subsoil of thesubmarine areas that extend beyond itsterritorial sea throughout the naturalprolongation of its land territory to the outeredge of the continental margin, or to a distanceof 200 nautical miles from the "baselines fromwhich the breadth of the territorial sea ismeasured 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. Forexample, if the Philippines appoints a consulgeneral for New York, he cannot startperforming his functions unless the President ofthe United States issues an exequatur to him,

(g) The principle of DOUBLE CRIMINALITY isthe rule in extradition which states that for a

request to be honored the crime for whichextradition is requested must be a crime in boththe requesting state and the state to which thefugitive has fled. For example, since murder isa crime both in the Philippines and in Canada,under the Treaty on Extradition between thePhilippines and Canada, the Philippines canrequest Canada to extradite a Filipino who hasfled to Canada.

(h) PROTECTIVE PERSONALITY principle isthe principle by which the state exercise

jurisdiction over the acts of an alien even ifcommitted outside its territory, if such acts areadverse to the interest 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 passageis innocent so long as it is not prejudicial to the

peace, good order or security of the coastalstate.

(j) JUS COGENS is a peremptory norm ofgeneral international law accepted andrecognized by the international community as awhole as a norm from which no derogation ispermitted and which can be modified only by asubsequent norm of general international lawhaving the same character, An example is theprohibition against the use of force.




Constitutive Theory vs. Declaratory Theory(2004)(2-a-4) Distinguish: The constitutive theory

and the declaratory theory concerningrecognition of states.

SUGGESTED ANSWER: According to the CONSTITUTIVE THEORY,recognition is the last indispensable element

that converts the state being recognized into aninternational 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 contiguousto the territorial sea and extends up to twelvenautical miles from the territorial sea and overwhich the coastal state may exercise controlnecessary to prevent infringement of itscustoms, fiscal, immigration or sanitary lawsand regulations within its territory or territorialsea. (Article 33 of the Convention on the Law of

the Sea.)The EXCLUSIVE ECONOMIC ZONE is

a zone extending up to 200 nautical miles fromthe baselines of a state over which the coastalstate has sovereign rights for the purpose ofexploring and exploiting, conserving andmanaging the natural resources, whether livingor nonliving, of the waters superjacent to theseabed and of the seabed and subsoil, and withregard to other activities for the economicexploitation and exploration of the zone.(Articles 56 and 57 of the Convention on theLaw of the Sea.)

Diplomatic Immunity (2000)

No XX - A foreign ambassador to thePhilippines leased a vacation house inTagaytay for his personal use. For somereason, he failed to pay rentals for more thanone year. The lessor filed an action for therecovery of his property in court.

a) Can the foreign ambassador invoke hisdiplomatic immunity to resist the lessor'saction? (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 invoke

his diplomatic immunity to resist the action,since he is not using the house in TagaytayCity for the purposes of his mission butmerely for vacation. Under Article 3(l)(a) ofthe Vienna Convention on DiplomaticRelations, a diplomatic agent has noimmunity in case of a real action relating toprivate immovable property situated in theterritory of the receiving State unless heholds it on behalf of the sending State for

purposes of the mission.b) No, the lessor cannot ask the court to stop

the departure of the ambassador from 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 is tenable onthe basis that the precept that a State cannot besued in the courts of a foreign state is a long-standing rule of customary international law thenclosely identified with the personal immunity of aforeign sovereign from suit and, with the emergence

of democratic states, made to attach not just to theperson of the head of state, or his representative,but also distinctly to the state itself in its sovereigncapacity. If the acts giving rise to a suit are those ofa foreign government done by its foreign agent,although not necessarily a diplomatic personage,but acting in his official capacity, the complaint couldbe barred by the immunity of the foreign sovereignfrom suit without its consent. Suing a representativeof a state 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 WorldHealth Organization (WHO) assigned in thePhilippines, arrived at the Ninoy AquinoInternational Airport with his personal effectscontained in twelve crates as unaccompaniedbaggage. As such, his personal effects wereallowed free entry from duties and taxes, andwere directly stored at Arshaine Corporation's




warehouse at Makati, pending Dr. Velen'srelocation to his permanent quarters.

At the instance of police authorities, theRegional Trial Court (RTC) of Makati issued awarrant for the search and seizure of Dr.Velen's personal effects in view of an allegedviolation of the Tariff and Custom's Code.

According to the police, the crates containedcontraband items. Upon protest of WHOofficials, 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 toquash the search warrant. The RTC denied themotion.

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 WorldHealth Organization, Dr. Velen enjoyeddiplomatic immunity and this includedexemption from duties and taxes. Sincediplomatic immunity involves a politicalquestion, where a plea of diplomatic immunity isrecognized and affirmed by the ExecutiveDepartment, it is the duty of the court to acceptthe 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 CampCrame on suspicion that they were activelycollaborating with "terrorists" out to overthrow ordestabilize the Philippine Government. TheForeign Ambassador sought their immediaterelease, claiming that the detained embassyofficials and employees enjoyed diplomaticimmunity. If invited to express your legalopinion on the matter, what advice would yougive?

SUGGESTED ANSWER:

I shall advice that the high-ranking officials andrank-and-file employees be released becauseof their diplomatic immunity. Article 29 of theVienna Convention on Diplomatic Relationsprovides:

"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 thediplomatic mission, shall, if they are notnationals of or permanent residents in thereceiving State, enjoy the privileges andimmunities specified in Article 29.

Under Article 9 of the Vienna Convention onDiplomatic Relations, the remedy is to declarethe high-ranking officials and rank-and-fileemployees personae non gratae and ask themto leave.

ALTERNATIVE ANSWER:

Under the Vienna Convention on DiplomaticRelations, a diplomatic agent "shall not be liableto any form of arrest or detention (Article 29)and he enjoys immunity from criminal

jurisdiction (Article 31).

This immunity may cover the "high-rankingofficials" in question, who are assumed to be

diplomatic officers or agents. With respect tothe "rank-and-file employees" they are coveredby the immunity referred to above, providedthey are not nationals or permanent residents ofthe Philippines, pursuant to Article 37(2) of thesaid Convention.

If the said rank-and-file employeesbelong to the service staff of the diplomaticmission (such as drivers) they may be coveredby the immunity (even if they are not Philippinenationals or residents) as set out in Article37(3), if at the time of the arrest they were in

"acts performed in the course of their duties." Ifa driver was among the said rank-and-fileemployees and he was arrested while driving adiplomatic vehicle or engaged in related acts,still he would be covered by immunity.

Diplomatic Immunity (2004)(8-a) A. MBC, an alien businessman dealing incarpets and caviar, filed a suit againstpolicemen and YZ, an attache of XX Embassy,for damages because of malicious prosecution.MBC alleged that YZ concocted false andmalicious charges that he was engaged in drug

trafficking, whereupon narcotics policemenconducted a "buy-bust" operation and withoutwarrant arrested him, searched his house, andseized his money and jewelry, then detainedand tortured him in violation of his civil andhuman rights as well as causing him, his familyand business serious damages amounting totwo million pesos. MBC added that the trialcourt acquitted him of the drug charges.




Assailing the court's jurisdiction: YZ now movesto dismiss the complaint, on the ground that (1)he is an embassy officer entitled to diplomaticimmunity; and that (2) the suit is really a suitagainst his home state without its consent. Hepresents diplomatic notes from XX Embassycertifying that he is an accredited embassyofficer recognized by the Philippinegovernment. He performs official duties, he

says, on a mission to conduct surveillance ondrug exporters and then inform local policeofficers who make the actual arrest of suspects.

Are the two grounds cited by YZ to dismiss thesuit tenable? (5%)

SUGGESTED ANSWER: A. The claim of diplomatic immunity of YZ isnot tenable, because he does not possess anacknowledged diplomatic title and is notperforming duties of a diplomatic nature.However, the suit against him is a suit againstXX without its consent. YZ was acting as an

agent of XX and was performing his officialfunctions when he conducted surveillance ondrug exporters and informed the local policeofficers who arrested MBC. He was performingsuch duties with the consent of the Philippinegovernment, therefore, the suit against YZ is asuit against XX without its consent. (Minucher v.Court of Appeals, 397 SCRA 244 [1992]).

ALTERNATIVE SUGGESTED ANSWER:

Diplomatic Immunity; Ambassador (Q3-

2005)(1) Italy, through its Ambassador, entered intoa contract with Abad for the maintenanceand repair of specified equipment at itsEmbassy and Ambassador's Residence,such as air conditioning units, generatorsets, electrical facilities, water heaters, andwater motor pumps. It was stipulated thatthe agreement shall be effective for a periodof four years and automatically renewedunless cancelled. Further, it provided thatany suit arising from the contract shall befiled with the proper courts in the City of

Manila.

Claiming that the Maintenance Contractwas unilaterally, 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 bythe State of Italy and its

Ambassador.SUGGESTED ANSWER:

As counsel for Abad, I will argue thatsovereign immunity will not lie as it isan established rule that when a State

enters into a contract, it waives itsimmunity and allows itself to besued. Moreover, there is a provisionin the contract that any suit arisingtherefrom shall be filed with theproper courts of the City of Manila.On the issue of diplomatic immunity,I will assert that the act of the

Ambassador unilaterally terminatingthe agreement is tortuous and donewith malice and bad faith and not asovereign or diplomatic function.

(b) At any rate, what should be thecourt's ruling on the said defenses?SUGGESTED ANSWER:The court should rule against saiddefenses. The maintenance contractand repair of the Embassy and

Ambassador's Residence is acontract in jus imperii, because suchrepair of said buildings isindispensable to the performance ofthe official functions of theGovernment of Italy. Hence, the

contract is in pursuit of a sovereignactivity in which case, it cannot bedeemed to have waived its immunityfrom suit.

On the matter of whether or not the Ambassador may be sued, Article 31of the Vienna Convention onDiplomatic Relations provides that adiplomatic agent enjoys immunityfrom the criminal, civil andadministrative jurisdiction of thereceiving state except if the act

performed is outside his officialfunctions, in accordance with theprinciple of functional necessity. Inthis case, the act of entering into thecontract by the Ambassador was partof his official functions and thus, heis entitled 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 rentalsfor more than one year. E, the lessor, filed anaction for recovery of his property with theRegional Trial 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 Dafter getting hold of evidence that D is about toleave the country?

(3} Can E ask for the court to stop D'sdeparture from the Philippines?

SUGGESTED ANSWER:

(1) Yes, the action can prosper. Article 31 ofthe Vienna Convention on Diplomatic Relations

provides:"1. A diplomatic agent shall enjoyimmunity from the criminal jurisdiction ofthe receiving State. He shall also enjoyimmunity from its civil andadministrative jurisdiction, except in thecase of:

(a) A real action relating to privateimmovable property situated in theterritory of the receiving State, unlesshe holds it on behalf of the sendingState for the purposes of the mission;"

The action against the Ambassador is a realaction involving private immovable propertysituated within the territory of the Philippines asthe receiving state. The action falls within theexception to the grant of immunity from the civiland administrative jurisdiction of thePhilippines.

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 housemay be considered property held by the

Ambassador In behalf of his state (the Kingdomof Nepal) for the purposes of the mission and,therefore, such is beyond the civil andadministrative jurisdiction of 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,correspondence and the property of diplomatagents shall be inviolable. Therefore, a writ ofattachment cannot be issued against hisfurniture and any personal properties.Moreover, on the assumption that the Kingdomof Nepal grants similar protection to Philippinediplomatic agents. Section 4 of Republic Act

No. 75 provides that any writ or process issuedby any court in the Philippines for theattachment of the goods or chattels of theambassador of a foreign State to thePhilippines shall be void.

SUGGESTED ANSWER:

(3) No, E cannot ask the court to stop thedeparture of the Ambassador of the Kingdomof Nepal from the Philippines. Article 29 of theVienna Convention on Diplomatic Relationsprovides: "The person of a diplomatic agentshall be inviolable. He shall not be liable to any

form of arrest or detention."

Diplomatic Immunity; Coverage (Q3-2005)(2) Adams and Baker are American citizens

residing in the Philippines. Adamsbefriended Baker and became a frequentvisitor at his house. One day, Adamsarrived with 30 members of the PhilippineNational Police, armed with a SearchWarrant authorizing the search of Baker'shouse and its premises for dangerous drugsbeing trafficked to the United States of

America.

The search purportedly yielded positiveresults, and Baker was charged withViolation of the Dangerous Drugs Act.

Adams was the prosecution's principalwitness. However, for failure to prove hisguilt beyond reasonable doubt, Baker wasacquitted.

Baker then sued Adams for damages forfiling trumped-up charges against him.

Among the defenses raised by Adams isthat he has diplomatic immunity,conformably with the Vienna Convention onDiplomatic Relations. He presentedDiplomatic Notes from the AmericanEmbassy stating that he is an agent of theUnited States Drug Enforcement Agencytasked with "conducting surveillanceoperations" on suspected drug dealers inthe Philippines believed to be the source ofprohibited drugs being shipped to the U.S. Itwas also stated that after havingascertained the target, Adams would then




mother, child, ascendant, descendant orspouse. Consuls are not liable to arrest anddetention pending trial except in the case of agrave crime and pursuant to a decision by thecompetent judicial authority. The crime ofphysical Injuries is not a grave crime unless itbe committed against any 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 onDiplomatic Relations, if a diplomatic agent is inthe territory of a third State, which has grantedhim a passport visa if such visa was necessary,while proceeding to take up his post, the thirdState shall accord him inviolability and suchother immunities as may be required to ensurehis transit.

Diplomatic Immunity; Diplomatic Envoy andConsular Officers (1997)

No 19: X, a Secretary and Consul in the American Embassy in Manila, bought from B adiamond ring in the amount of P50,000.00which he later gave as a birthday present to hisFilipino girlfriend. The purchase price was paidin check drawn upon the Citibank. Uponpresentment for payment, the check wasdishonored for insufficiency of funds. Becauseof X's failure to make good the dishonoredcheck, B filed a complaint against X in theOffice of the City Prosecutor of Manila forviolation of Batas Pambansa Big. 22. Afterpreliminary investigation, the information wasfiled against X in the City Court of Manila. Xfiled a motion to dismiss the case against himon the ground that he is a Secretary and Consulin the American Embassy enjoying diplomaticimmunity from criminal prosecution in thePhilippines.

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,a consular officer is not immune from thecriminal jurisdiction of the receiving state. InSchneckenburger vs. Moron, 63 Phil. 249, it

was held that a consul is not exempt fromcriminal prosecution in the country where he isassigned. However, as secretary in the

American Embassy, X enjoys diplomaticimmunity from criminal prosecution Assecretary, he is a diplomatic agent. UnderParagraph 1 of Article 31 of the ViennaConvention on Diplomatic Relations, adiplomatic agent enjoys immunity from the

criminal jurisdiction of the receiving State.Exclusive Economic Zone (2000)

No XIX. b) What is the concept of theexclusive economic zone under the UNConvention on the Law 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 theexclusive economic zone:

(a) Sovereign rights for the purpose ofexploring and exploiting, conserving andmanaging the natural resources, whether livingor non-living, if the waters superjacent to thesea-bed and of the seabed and subsoil, andwith regard to other activities for the economicexploitation and exploration of the zone, suchas the production of energy from the water,currents and winds;

(b) Jurisdiction as provided in therelevant provisions of the Convention withregard to:

(i) the establishment and use ofartificial islands, installations andstructures;

(ii) marine scientific research;and

(iii) the protection andpreservation of the marine environment;

(c) Other rights and duties providedform the Convention. [Article 56 of theConvention of the Law of the Sea.)

Executive Agreements; Bind ing Effect(2003)

No XX An Executive Agreement was executedbetween the Philippines and a neighboringState. The Senate of the Philippines took it




upon itself to procure a certified true copy of theExecutive Agreement and, after deliberating onit, declared, by a unanimous vote, that theagreement was both unwise and against thebest interest 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:

a. EXTRADITION is effected for thebenefit of the state to which the person beingextradited will be surrendered because he is afugitive criminal in that state, whileDEPORTATION is effected for the protection ofthe State expelling an alien because hispresence is not conducive to the public good.

b. EXTRADITION is effected on thebasis of an extradition treaty or upon therequest of another state, while DEPORTATIONis the unilateral act of the state expelling an

alien.c. In EXTRADITION, the alien will be

surrendered to the state asking for hisextradition, while in DEPORTATION theundesirable alien may be sent to any statewilling to accept him.

Extradition; Doctrine of Specialty (1993)

No. 10: 2) Patrick is charged with illegalrecruitment and estafa before the RTC ofManila. He jumped bail and managed to escapeto America. Assume that there is an extraditiontreaty between the Philippines and America andit does not include illegal recruitment as one ofthe extraditable offenses. Upon surrender ofPatrick by the U.S. Government to thePhilippines, Patrick protested that he could not

be tried for illegal recruitment. Decide.SUGGESTED ANSWER:

2) Under the principle of specialty in extradition,Patrick cannot be tried for illegal recruitment,since this is not included in the list ofextraditable offenses in the extradition treatybetween the Philippines and the United States,unless the United States does not object to thetrial of Patrick 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 theextradition of A, a French national residing inthe Philippines, for an offense committed inFrance prior to the effectivity of the treaty?Explain.

b) Can A contest his extradition onthe ground that it violates the ex post facto

provision of the Philippine Constitution?Explain.

SUGGESTED ANSWER:

1. a) Yes, France can ask for the extradition of A for an offense committed in France before 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 pointsout, extradition does not define crimes butmerely provides a means by which a State mayobtain the return and punishment of personscharged with or convicted of having committeda crime who fled the jurisdiction of the Statewhose law has been violated. It is thereforeimmaterial whether at the time of thecommission of the crime for which extradition issought no treaty was in existence. If at the timeextradition is requested there is in forcebetween 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 factoprovision of the Constitution. As held in Wrightvs. Court of Appeals, 235 SCRA 341, theprohibition against ex post facto laws in Section22, Article III of the Constitution applies to penallaws only and does not apply to extraditiontreaties.

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 Harryby means of a series of protest actions. Hisplan was to weaken the government and, when

the situation became ripe for a take-over, toassassinate President Harry.

William, on the other hand, is a believerin human rights and a former follower ofPresident Harry. Noting the systematic acts ofharassment committed by government agentsagainst farmers protesting the seizure of theirlands, laborers complaining of low wages, andstudents seeking free tuition, William organizedgroups which held peaceful rallies in front of thePresidential Palace to express their grievances.

On the eve of the assassinationattempt, John's men were caught by membersof the Presidential Security Group. PresidentHarry went on air threatening to prosecuteplotters and dissidents of his administration.The next day, the government charged Johnwith assassination attempt and William withinciting to sedition.

John fled to Republic A. William, whowas in Republic B attending a lecture ondemocracy, was advised by his friends to stayin 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,because his offense is a political offense. Johnwas plotting to take over the government and

the plan of John to assassinate President Harrywas part of such plan. However, if theextradition treaty contains an attentat clause,Republic A can extradite John, because underthe attentat clause, the taking of the life orattempt against the life of a head of state or thatof the members of his family does not constitutea political offense and is therefore 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 todeliver him to Republic X.

Even if William were in the territorial jurisdictionof Republic A, he may not be extraditedbecause inciting to sedition, of which he ischarged, constitutes a political offense. It is astandard provision of extradition treaties, suchas the one between Republic A and Republic X,that political offenses are not extraditable.


Republic B can deny the request of Republic Xto extradite William, because his offense wasnot a political offense. On the basis of thepredominance or proportionality test his actswere not directly connected to any purelypolitical offense.

Extradition; Retroactive Application (Q2-2005)(1) The Philippines and Australia entered into a

Treaty of Extradition concurred in by theSenate of the Philippines on September 10,1990. Both governments have notified eachother that the requirements for the entryinto force of the Treaty have been compliedwith. It took effect in 1990.The Australian government is requestingthe Philippine government to extradite itscitizen, Gibson, who has committed in hiscountry the indictable offense of ObtainingProperty by Deception in 1985. The saidoffense is among those enumerated asextraditable in the Treaty.

For his defense, Gibson asserts that theretroactive application of the extraditiontreaty amounts to an ex post facto law. Ruleon Gibson's contention. (5%)

SUGGESTED ANSWER:Gibson is incorrect. In Wright v. Court of

Appeals, G.R. No.113213, August 15,1994,it was held that the retroactive application ofthe Treaty of Extradition 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 theextradition of persons wanted for offensesalready committed at the time the treatywas 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 bea genuine 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 nogenuine link with that state. (Harris, Cases andMaterials on 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 bringabout its physical destruction in wholeor 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 INTERNATIONALLAW 399-400 (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 multilateralconventions on Human Rights adopted underthe direct auspices of the United Nations? (2%)

SUGGESTED ANSWER:

A. The following are multilateral conventions onHuman Rights adopted under the directauspices of the United Nations:

1. International Covenant on Civil and PoliticalRights;

2. Convention on the Elimination of All Formsof Discrimination against Women;

3. Convention on the Rights of the Child;

4. Convention against Torture and OtherCruel, Inhuman or Degrading Treatment orPunishment;

5. International Convention on the Eliminationof All Forms of Racial Discrimination;

6. Convention on the Prevention andPunishment of 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, wasimplicated in the torture and kidnapping of Dr.Mengele, a known 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 Rightshave the power to investigate and adjudicatethe matter?

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




constitution or granted by law. For example, theliberty to enter into contracts is not a humanright but is a civil right.

Int’l Court of Justice; Jurisdiction OverStates

1994 No. 20: The sovereignty over certainislands is disputed between State A and StateB. 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 has jurisdiction 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 OverStates (1994)

No. 19; The State of Nova, controlled by anauthoritarian government, had unfriendlyrelations with its neighboring state, America.Bresla, another neighboring state, had beenshipping arms and ammunitions to Nova for usein attacking Ameria.

To forestall an attack, Ameria placedfloating mines on the territorial waterssurrounding Nova. Ameria supported a group ofrebels organized to overthrow the governmentof Nova and to replace it with a friendly

government.Nova decided to file a case against

Ameria in the International Court of Justice

1) On what grounds may Nova's causes ofaction against 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 theUnited Nations, Nova can premise its cause ofaction on a violation of Article 2(4) of the UnitedNations Charter, which requires members torefrain from the 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 ofthe International Court of Justice. Ameria caninvoke the defense of lack of jurisdiction. Evenif Ameria has accepted the jurisdiction of thecourt but the acceptance is limited and thelimitation applies to the case, it may invokesuch limitation its consent as a bar to theassumption of jurisdiction.

If jurisdiction has been accepted, Ameria can invoke the principle ofanticipatory self-defense, recognized undercustomary international law, because Nova is

planning to launch an attack against Ameria byusing the arms it bought from Bresia.

3) If jurisdiction over Ameria isestablished, the case should be decided infavor of Nova, .... if jurisdiction over Ameria isnot established, the case should be decided infavor of Ameria because of the principle ofsovereign immunity.

Int’l Court of Justice; Limitations OnJurisdiction (1999)

No X - B. Under its Statute, give twolimitations on the jurisdiction of the InternationalCourt of Justice? (2%)

SUGGESTED ANSWER:

B. The following are the limitations on the jurisdiction of the International Court of Justiceunder its Statute:

1. Only states may be parties in cases beforeit. (Article 34)

2. The consent of the parties is needed for the

court to acquire jurisdiction over a case.(Article 36)

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 thepleadings and oral argument?

4) In case State A, the petitioner, fallsto appear at the oral argument, can State B, therespondent, move for the dismissal of thepetition?

SUGGESTED ANSWER:

3) Under Article 39 of the Statutes of theInternational Court of Justice, the officiallanguages of the court are English and French.In the absence of an agreement, each partymay use the language it prefers. At the requestof any party, the court may authorize a party touse a language 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 CountryTW entered the Balintang Channel north ofBabuyan Island and with special hooks andnets dragged up red corals found near Batanes.By international convention certain corals areprotected species, just before the vesselreached the high seas, the Coast Guard patrolintercepted the vessel and seized its cargoincluding tuna. The master of the vessel andthe owner of the cargo protested, claiming therights of transit passage and innocent passage,and sought recovery of the cargo and therelease of the ship. Is the claim meritorious ornot? Reason briefly. (5%)

SUGGESTED ANSWER;The claim of innocent passage is notmeritorious. While the vessel has the right of

innocent passage, it should not commit aviolation 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 tothe good order of the Philippines. (Article 19(2)of the Convention on the Law of the Sea)

International Court of Justice (Q9-2006)

1. Where is the seat of the InternationalCourt of Justice? 11%)The seat of the International Court ofJustice is at the Hague or elsewhere, as itmay decide, except during the judicialvacations the dates and duration of whichit shall fix (I.C.J. Statute, Art. 22).

2. How many are its members? (1%)

The Court is composed of fifteen memberswho must be of high moral character andpossess the qualifications required in theirrespective countries for appointment to thehighest judicial office or are jurisconsultsof recognized competence in internationallaw (I.C.J. Statute, Art. 2).

3. What is the term of their office? (1%)They are elected for a term of nine years,staggered at three-year intervals bydividing the judges first elected into threeequal groups and assigning them by

lottery terms of three, six and nine yearsrespectively. Immediate re-election isallowed (I.C.J. Statute, Art. 13).

4. Who is its incumbent president? (1%)The incumbent President is RosalynHiggins.

5. What is his/her nationality? (1 %)She is a national of the United Kingdom ora British subject.(NOTE: Since questions IX(4) and IX(5) do

not test the examinees' knowledge of thelaw, it is suggested that they bedisregarded)

6. In 1980, the United States filed with theInternational Court of Justice a complaintagainst Iran alleging that the latter isdetaining American diplomats in violationof International Law. Explain how theInternational Court of Justice can acquire

jurisdiction over these contendingcountries. (5%)Under Article 36 of the I.C.J. Statutes,

both parties must agree to submitthemselves to the jurisdiction of theInternational Court of Justice.

International Law vs. Municipal Law;Territorial Principle; International Crimes(Q2-2005)(2) Police Officer Henry Magiting of the

Narcotics Section of the Western PoliceDistrict applied for a search warrant in theRegional Trial Court of Manila for violation




of Section 11, Article II (Possession ofProhibited Drugs) of Republic Act (R.A.)No. 9165 (Comprehensive DangerousDrugs Act of 2002) for the search andseizure of heroin in the cabin of the Captainof the MSS Seastar, a foreign-registeredvessel which was moored at the SouthHarbor, Manila, its port of destination.

Based on the affidavits of the applicant'switnesses who were crew members of thevessel, they saw a box containing ten (10)kilograms of heroin under the bed in theCaptain's cabin. The RTC found probablecause for the issuance of a search warrant;nevertheless, it denied the application onthe ground that Philippine courts have nocriminal jurisdiction over violations of R.A.No. 9165 committed on foreign-registeredvessels found in Philippine waters.

Is the ruling of the court correct? Support

your answer with reasons. (5%)

ALTERNATIVE ANSWER:The court's ruling is not correct. Theforeign-registered vessel was not in transit.It was moored in South Harbor, Manila, itsport of destination. Hence, any crimecommitted on board said vessel, likepossession of heroin, is triable by ourcourts (U.S. v. Ah Sing, G.R. No. 13005,October 10, 1917), except if the crimeinvolves the internal management of the

vessel.

ALTERNATIVE ANSWER:The RTC may assert its jurisdiction over thecase by invoking the territorial principle,which provides that crimes committedwithin a state's territorial boundaries andpersons within that territory, eitherpermanently or temporarily, are subject tothe application of local law. Jurisdiction mayalso be asserted on the basis of theuniversality principle, which confers upon allstates the right to exercise jurisdiction over

delicta juris gentium or international crimes,such as the international traffic narcotics.The possession of 10 kgs. of heroinconstitutes commercial quantity andtherefore qualifies as trafficking ofnarcotics.

Consequently, the denial of the searchwarrant should have been anchored on thefailure of the court to conduct personalexamination of the witnesses to the crime in

order to establish probable cause, asrequired by Sections 3 and 4 of Rule 126.In any event, there is no showing that therequisite quantum of probable cause wasestablished by mere reference to theaffidavits and other documentary evidencepresented.

Mandates and Trust Territories (2003)

No XVII - What are the so-called Mandates andTrust Territories? Does the United Nationsexercise sovereignty over these territories? Inthe affirmative, how is this jurisdictionexercised?

SUGGESTED ANSWER:

The Mandates were the overseaspossessions of the defeated states of Germanyand Turkey which were placed by the League ofNations under the administration ofmandatories to promote their development and

ultimate independence. (Harris, Cases andMaterials on International Law, 5th ed., p. 131.)When the United Nations replaced the Leagueof Nations, the system of Mandates wasreplaced by the System of Trust Territories. TheUnited Nations exercised residuary sovereigntyover the Trust Territories through the TrusteePowers, who exercised the powers ofsovereignty subject to supervision by andaccountability to the United Nations.(Oppenheim-Lauterpacht, International Law,Vol. I, 7th ed., pp. 213-214.) (Since there are nomore Trust Territories, this is just a matter of

historical interest.)

ALTERNATIVE ANSWER:

Mandates pertains to the mandatesystem established under Article 22 of theCovenant of the League of Nations for thetutelage and guardianship of colonies andterritories formerly held by Germany and Turkeybefore the First World War, by a victoriouspower on behalf of the League of Nations untilthey were prepared for independence.Territories under mandate were not under thesovereignty of any State; they wereadministered by a mandatory power which wasresponsible to the League of Nations for thedevelopment and welfare of the disadvantagedsubject peoples towards independence. Thus,mandated territories were under the jurisdictionof the mandatory power, subject to thesupervision of the League of Nations.

The general legal framework of themandate system passed into the trusteeshipsystem of the United Nations, together with




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 ChaptersXII and XIII of the UN Charter is establishedunder the supervision of the UN TrusteeshipCouncil under the authority of the General

Assembly for the promotion of political andsocio-economic development of peoples in trustterritories towards independent status. A newfeature of the UN trusteeship system is thecreation of a new category of territories, thestrategic trust territories, which is under thesupervision of the Security Council instead ofthe Trusteeship Council.

Under the foregoing conditions, theUnited Nations may not be said to exercisesovereignty over trust territories, the functionsand powers of the Trusteeship Council and theGeneral Assembly being limited to

administration and supervision under theprinciple of self-determination as set forth inindividual trust agreements concluded inaccordance with the UN Charter. UN

jurisidiction is exercised through theTrusteeship Council under the authority of theGeneral Assembly, except with respect tostrategic 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 prevailsover municipal law. Team "B" - Municipal lawprevails over international law. Team "C" - Acountry's Constitution prevails over internationallaw but international law prevails over municipalstatutes.

If you were given a chance to choose thecorrect proposition, which would you take andwhy?

SUGGESTED ANSWER:

I shall take the proposition for Team C.International Law and municipal law aresupreme in their own respective fields. Neitherhas hegemony over the other. (Brownlie,Principles of Public International Law, 4th ed. p.157.) Under Article II, Section 2 of the 1987Constitution, the generally accepted principlesof international law form part of the law of theland. Since they merely have the force of law, if

it is Philippine courts that will decide the case,they will uphold the Constitution overinternational law. If it is an international tribunalthat will decide the case, it will upholdinternational law over municipal law. As held bythe Permanent International Court of Justice inthe case of the Polish Nationals in Danzig, aState cannot invoke its own Constitution toevade obligations incumbent upon it under

international law. ALTERNATIVE ANSWER

I would take the proposition assigned toTeam "C" as being nearer to the legal reality inthe Philippines, namely, "A country'sConstitution prevails over international law butinternational law prevails over municipalstatutes".

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 statutesand in case of irreconcilable conflict, this maybe resolved by /ex posteriori derogat lex priorias the Supreme Court obiter dictum in Abbas v.COMELEC holds. Hence, a statute enactedlater than the conclusion or effectivity of a treatymay prevail.

In the Philippine legal system, there areno norms higher than constitutional norms. Thefact that the Constitution makes generallyaccepted principles of international law orconventional international law as part of

Philippine law does not make them superior tostatutory law, as clarified in Secretary of Justicev. Lantion and Philip Morris decisions.

Neutralit y of States (1988)

No. 20: Switzerland and Australia areoutstanding examples of neutralized states,

1. What are the characteristics of aneutralized state?

2. Is neutrality synonymous withneutralization? If not, distinguish one from theother.

SUGGESTED ANSWER:

1. Whether simple or composite, a State is saidto be neutralized where its independence andintegrity are guaranteed by an internationalconvention on the condition that such Stateobligates itself never to take up arms againstany other State, except for self-defense, orenter into such international obligations aswould indirectly involve it in war. A State seeksneutralization where it is weak and does not




wish to take an active part in internationalpolitics. The power that guarantee itsneutralization may be motivated either bybalance of power considerations or by thedesire to make the weak state a buffer betweenthe territories of the great powers. (J.SALONGA & P. YAP, PUBLICINTERNATIONAL LAW 76 (1966)).

2. Firstly, neutrality obtains only duringwar, whereas neutralization is a condition thatapplies in peace or in war. Secondly,neutralization is a status created by means oftreaty, whereas neutrality is a status createdunder international law, by means of a stand onthe part of a state not to side with any of theparties at war. Thirdly, neutrality is broughtabout by a unilateral declaration by the neutralState, while neutralization cannot be effected byunilateral act, but must be recognized by otherStates. (Id.)

Outer Space; Jurisdiction (2003)

No XIX - What is outer-space? Who or whichcan exercise jurisdiction over astronauts whilein outer space?

ALTERNATIVE ANSWER:

There are several schools of thought regardingthe determination of outer space, such as thelimit of air flight, the height of atmosphericspace, infinity, the lowest altitude of an artificialsatellite, and an altitude approximatingaerodynamic lift. Another school of thoughtproceeds by analogy to the law of the sea. It

proposes that a State should exercise fullsovereignty 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 shouldbe outer space. The boundary betweenairspace and outer space has not yet beendefined. (Harris, Cases and Materials onInternational Law, 5th ed.. pp. 251-253.) Under

Article 8 of the Treaty on the PrinciplesGoverning the Activities of States in theExploration and Use of Outer Space, Includingthe Moon and Other Celestial Bodies, a Stateon whose registry an object launched into outerspace retains jurisdiction over the astronautswhile they are in outer space.

ALTERNATIVE ANSWER:

Outer space is the space beyond the airspacesurrounding the Earth or beyond the nationalairspace. In law, the boundary between outerspace and airspace has remainedundetermined. But in theory, this has beenestimated to be between 80 to 90 kilometers.

Outer space in this estimate begins from thelowest altitude an artificial satellite can remainin orbit. Under the Moon Treaty of 1979 themoon and the other celestial bodies form part ofouter space.

In outer space, the space satellites or objectsare under the jurisdiction of States of registrywhich covers astronauts and cosmonauts. Thismatter is covered by the Registration of Objectsin Space Convention of 1974 and the Liabilityfor Damage Caused by Spaced ObjectsConvention of 1972.

Principle of Auto-Limitation (Q10-2006)1. What is the principle of auto-limitation?

(2.5%) ALTERNATIVE ANSWER:Under the principle of auto-limitation, anystate may by its consent, express orimplied, submit to a restriction of itssovereign rights. There may thus be acurtailment of what otherwise is a plenary

power (Reagan v. CIR, G.R. L-26379,December 27, 1969).

Reciprocity v. Principle of Auto-Limitation(Q10-2006)2. What is the relationship between

reciprocity and the principle of auto-limitation? (2.5%)

ALTERNATIVE ANSWER:When the Philippines enters into treaties,necessarily, these internationalagreements may contain limitations on

Philippine sovereignty. The considerationin this partial surrender of sovereignty isthe reciprocal commitment of othercontracting states in granting the sameprivilege and immunities to the Philippines.For example, this kind of reciprocity inrelation to the principle of auto-limitationcharacterizes the Philippine commitmentsunder WTO-GATT. This is based on theconstitutional provision that the Philippines"adopts the generally accepted principlesof international law as part of the law ofthe land and adheres to the policy of ...

cooperation and amity with all nations"(Tanada v. Angara, G.R. No. 118295, May2, 1997).

Recogni tion of States; De Facto vs. De JureRecognition (1998)

No XII. Distinguish between de factorecognition and de jure recognition of states.[5%)




SUGGESTED ANSWER:

The following are the distinctions between defacto recognition and de Jure recognition of agovernment:

1. De facto recognition is provisional, de Jurerecognition is relatively permanent;

2. De facto recognition does not vest title inthe government to its properties abroad; deJure recognition does;

3. De facto recognition is limited to certain juridical relations; de jure recognition bringsabout full diplomatic relations. (Cruz.International Law. 1996 ed.. p. 83.)

ALTERNATIVE ANSWER:

The distinction between de factorecognition and de jure recognition of a State isnot clear in international law. It is, however,usually assumed as a point of distinction thatwhile de facto recognition is provisional and

hence may be withdrawn, de jure recognition isfinal and cannot be withdrawn.

Confronted with the emergence of anew political entity in the internationalcommunity, a State may experience somedifficulty in responding to the question whetherthe new political order qualifies to be regardedas a state under international law, in particularfrom the viewpoint of its effectiveness andindependence on a permanent basis. Therecognizing State may consider its act in regardto the new political entity as merely a de facto

recognition, implying that it may withdraw it if inthe end it turns out that the conditions ofstatehood are not fulfilled should the newauthority not remain in power.

But even then, a de facto recognition inthis context produces legal effects in the sameway as de jure recognition. Whether recognitionis de facto or de jure, steps may be taken towithdraw recognition if the conditions ofstatehood in international law are not fulfilled.Thus, from this standpoint, the distinction is notlegally significant.

Note: The question should refer to recognitionof government not recognition of state becausethere is no such distinction in recognition ofstate.

Reparations Agreement; Validity (1992)

No. 14: The Japanese Government confirmedthat during the Second World War, Filipinaswere among those conscripted as "comfortwomen" (or prostitutes) for Japanese troops in

various parts of Asia. The JapaneseGovernment has accordingly launched agoodwill campaign and has offered thePhilippine Government substantial assistancefor a program that will promote — throughgovernment and non-governmentalorganizations — womens' rights, child welfare,nutrition and family health care.

An executive agreement is about to besigned for that purpose. The agreementincludes a clause whereby the PhilippineGovernment acknowledges that any liability tothe "comfort women" or their descendants aredeemed covered by the reparationsagreements signed and implementedimmediately after the Second World War.

Juliano Iglesias, a descendant of a nowdeceased comfort woman, seeks your adviceon the validity of the agreement. Advise him.

SUGGESTED ANSWER:

The agreement is valid. The comfort womenand their descendants cannot assert individualclaims against Japan. As stated in Davis &Moore vs. Regan, 453 U.S. 654, the sovereignauthority of a State to settle claims of itsnationals against foreign countries hasrepeatedly been recognized. This may be madewithout the consent of the nationals or evenwithout consultation with them. Since thecontinued amity between a State and othercountries may require a satisfactorycompromise of mutual claims, the necessarypower to make such compromises has beenrecognized. The settlement of such claims maybe made by executive agreement.

Right to Innocent Passage (1999)

No X - C. State Epsilon, during peace time,has allowed foreign ships innocent passagethrough Mantranas Strait, a strait withinEpsilon's territorial sea which has been used byforeign ships for international navigation. Suchpassage enabled the said ships to traverse thestrait between one part of the high seas toanother. On June 7, 1997, a warship of State

Beta passed through the above-named strait.Instead of passing through continuously andexpeditiously, the ship delayed its passage torender assistance to a ship of State Gammawhich was distressed with no one nearby toassist. When confronted by Epsilon about thedelay, Beta explained that the delay was due toforce majeure in conformity with the provision of

Article 18(2) of the 1982 Convention on the Lawof the Sea (UNCLOS). Seven months later,Epsilon suspended the right of innocent




passage of warships through Mantranas Straitwithout giving any reason therefor.Subsequently, another warship of Beta passedthrough the said strait, and was fired upon byEpsilon's coastal battery. Beta protested theaforesaid act of Epsilon drawing attention to theexisting customary international law that theregime of innocent passage (even of transitpassage) is non-suspendable. Epsilon

countered that Mantranas Strait is not anecessary route, there being another suitablealternative route. Resolve the above-mentionedcontroversy, Explain your answer. (4%)

SUGGESTED ANSWER:

Assuming that Epsilon and Beta are parties tothe UNCLOS, the controversy maybe resolvedas follows:

Under the UNCLOS, warships enjoy aright of innocent passage. It appearing that theportion of Epsilon's territorial sea in question is

a strait used for international navigation,Epsilon has no right under international law tosuspend the right of innocent passage. Article45(2) of the UNCLOS is clear in providing thatthere shall be no suspension of innocentpassage through straits used for internationalnavigation.

On the assumption that the straits inquestion is not used for international navigation,still the suspension of innocent passage byEpsilon cannot be effective becausesuspension is required under international lawto be duly published before it can take effect.There being no publication prior to thesuspension of innocent passage by Beta'swarship, Epsilon's act acquires no validity.

Moreover, Epsilon's suspension ofinnocent passage may not be valid for thereason that there is no showing that it isessential for the protection of its security. Theactuation of Beta's warship in resorting todelayed passage is for cause recognized by theUNCLOS as excusable, i.e., for the purpose ofrendering assistance to persons or ship indistress, 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 inthe Pacific Ocean, a vessel registered inCountry TW entered the Balintang Channelnorth of Babuyan Island and with special hooksand nets dragged up 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 itscargo including tuna. The master of the vesseland the owner of the cargo protested, claimingthe rights of transit passage and innocentpassage, and sought recovery of the cargo andthe release of the ship. Is the claim meritorious

or not? Reason briefly. (5%)SUGGESTED ANSWER;The claim of innocent passage is notmeritorious. While the vessel has the right ofinnocent passage, it should not commit aviolation 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 tothe 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 declaresthe invasion and conquest illegal and orders aninternational embargo against State X.Subsequently, the same U.N. body adopts aresolution calling for an enforcement actionagainst State X under Chapter VII of the U.N.Charter. State Z, a U.N. member, religiouslycomplies with the embargo but refuses to takepart in the enforcement action, sending amedical mission instead of fighting troops to thetroubled 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 under the United Nations Charter. Itcomplied with the resolution calling forenforcement action against State X, because itsent a medical team.

(b) No sanctions may be taken againstState Z. because it did not violate its obligationunder the United Nations Charter.

(c) Compliance with the resolutioncalling for enforcement action against Slate Xdoes not necessarily 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 ofthe primary sources and subsidiary sources ofinternational law, giving an illustration of each.

SUGGESTED ANSWER:

Under Article 38 of the Statute of theInternational Court of Justice, the PRIMARYSOURCES of international law are thefollowing:

1. International conventions, e.g., ViennaConvention on the Law of Treaties.

2. International customs, e.g., sabotage, theprohibition against slavery, and theprohibition against torture.

3. General principles of law recognized bycivilized nations, e.g., prescription, res

judicata, and due process.

The SUBSIDIARY SOURCES of international

law are judicial decisions, subject to theprovisions of Article 59, e.g., the decision in the Anglo-Norwegian Fisheries Case andNicaragua v. United States, and TEACHINGSof the most highly qualified publicists of variousnations, e.g., Human Rights in InternationalLaw by Lauterpacht and International Law byOppenhe im -Lauterpacht.

ALTERNATIVE ANSWER:

Reflecting general international law, Article38(1) of the Statute of the International Court ofJustice is understood as providing for

international convention, international custom,and general principles of law as primarysources of international law, while indicatingthat judicial decisions and teachings of the mosthighly qualified publicists as "subsidiary meansfor the determination 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 createdand recognized. A conventional or treaty normcomes into being by established treaty-making

procedures and a customary norm is theproduct of the formation of general practiceaccepted as law.

By way of illustrating International Conventionas a source of law, we may refer to the principleembodied in Article 6 of the Vienna Conventionon the Law of Treaties which reads: "EveryState possesses capacity to conclude treaties".It tells us what the law is and the process ormethod by which it came into being.International Custom may be concretelyillustrated by pacta sunt servanda, a customaryor general norm which came about throughextensive and consistent practice by a greatnumber of states recognizing it as obligatory.

The subsidiary means serves as evidence oflaw. A decision of the International Court ofJustice, for example, may serve as materialevidence confirming or showing that theprohibition against the use of force is acustomary norm, as the decision of the Court

has demonstrated in the Nicaragua Case. Thestatus of a principle as a norm of internationallaw may find evidence in the works of highlyqualified publicists in international law, such asMcNair, Kelsen or Oppenheim.

Sovereign Immunity of States; Absolute vs.Restric tive (1998)

No XIII. What is the doctrine of Sovereignimmunity in international Law? [5%]

SUGGESTED ANSWER:

By the doctrine of sovereign immunity, aState, its agents and property are immune fromthe judicial process of another State, exceptwith its consent. Thus, immunity may be waivedand a State may permit itself to be sued in thecourts of another State,

Sovereign immunity has developed intotwo schools of thought, namely, absoluteimmunity and restrictive immunity. By absoluteimmunity, all acts of a State are covered orprotected by immunity. On the other hand,restrictive immunity makes a distinction

between governmental or sovereign acts (acta jure imperii) and nongovernmental, propriety orcommercial acts (acta jure gestiones). Only thefirst category of acts is covered by sovereignimmunity.

The Philippine adheres to the restrictiveimmunity school of thought.

ALTERNATIVE ANSWER;




In United States vs. Ruiz, 136 SCRA 487. 490-491. the Supreme Court explained the doctrineof sovereign immunity in international law;

"The traditional rule of State immunity exemptsa State 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.

And because the activities of states havemultiplied. It has been necessary to distinguishthem — between sovereign and governmentacts [ jure imperii] and private, commercial andproprietary acts ( jure gestionis), The result isthat State immunity now extends only to acts

ju re imperi i."

Sovereignty of States; Natural Use ofTerritory (1989)

No. 19: The Republic of China (Taiwan), in its

bid to develop a hydrogen bomb and defenditself against threats of invasion coming fromthe People's Republic of China, conducted aseries of secret nuclear weapons tests in itsown atmosphere. The tests resulted inradioactive fallouts which contaminated therivers in and around Aparri and other bodies ofwater within the territorial jurisdiction of thePhilippines, Can the Philippines complainagainst the Republic of China for violation of itssovereignty?

ANSWER:

In the Trial Smelter Arbitration betweenthe United States and Canada, the ArbitralTribunal held that air pollution from Canadashould be enjoined, because sovereigntyincludes the right against any encroachmentwhich might prejudice the natural use of theterritory and the free movement of itsinhabitants.

Since the nuclear tests conducted bythe Republic China resulted in radioactivefallouts which contaminated the rivers and otherbodies of water within the Philippines, theRepublic of China violated the sovereignty ofthe Philippines.

YES, the Philippines can complain against theRepublic of China for violation of itssovereignty. Article 194 of the Convention onthe Law of the Sea requires States to take allmeasures necessary to ensure that activitiesunder their jurisdiction or control are soconducted as not to cause damage by pollutionto other States and their environment. Principle

21 of the United Nations Conference on theHuman Environment imposes upon states theresponsibility to ensure that activities withintheir jurisdiction or control do not causedamage to the environment of other States.

Sovereignty; Definition; Nature (Q10-2006)3. How is state sovereignty defined in

International Law? (2.5%)

ALTERNATIVE ANSWER:State sovereignty signifies independencein regard to a portion of the globe, and theright to exercise and enforce jurisdictiontherein, to the exclusion of any other statethe functions of the state [See Island ofLas Palmas Case (US v. The Netherlands)2 R.IAA. 829]. Sovereignty means in-dependence from outside control. The1933 Montevideo Convention expressesthis in positive terms as including "thecapacity to enter into relations with otherstates."

ALTERNATIVE ANSWER:Under the principle of state sovereignty inInternational Law, all states are sovereignequals and cannot assert jurisdiction overone another. A contrary disposition would"unduly vex the peace of nations" (DaHaber v. Queen of Portugal, 17 Q. B. 171).

4. Is state sovereignty absolute? (2.5%) ALTERNATIVE ANSWER:State sovereignty is not absolute. On thecontrary, the rule says that the state may

not be sued without its consent, whichclearly imports that it may be sued if itconsents. Moreover, certain restrictionsenter into the picture: (1) limitationsimposed by the very nature of membershipin the family of nations; and (2) limitationsimposed by treaty stipulations. Thesovereignty of a state therefore cannot infact and in reality be considered absolute(Tanada v. Angara, G.R. No. 118295, May2,1997).

ALTERNATIVE ANSWER:Sovereignty is absolute with respect to

exclusive competence over internalmatters [See Island of Las Palmas Case(US v. The Netherlands) 2 R.IAA. 829],subject only to such limitations as may beimposed or recognized by the state itselfas part of its obligations underinternational law. In the international plain,state sovereignty is realized as the co-existence with other sovereignties underconditions of independence and equality.




State Liabil ities (1995)

No. 8: In a raid conducted by rebels in aCambodian town, an American businessmanwho has been a long-time resident of the placewas caught by the rebels and robbed of hiscash and other valuable personal belongings.Within minutes, two truckloads of governmenttroops arrived prompting the rebels to withdraw.Before fleeing they shot the American causinghim physical injuries. Government troopersimmediately launched pursuit operations andkilled several rebels. No cash or other valuableproperty taken from the American businessmanwas recovered.

In an action for indemnity filed by the USGovernment in behalf of the businessman forinjuries and losses in cash and property, theCambodian government contended that underInternational Law it was not responsible for theacts of the rebels.

1. Is the contention of the Cambodiangovernment correct? Explain.

2. Suppose the rebellion is successful and anew government gains control of the entireState, replacing the lawful government that wastoppled, may the new government be heldresponsible for the injuries or losses suffered bythe American businessman? Explain.

ANSWER;

1. Yes, the contention of the CambodianGovernment is correct. Unless it clearlyappears that the government has failed to usepromptly and with appropriate force itsconstituted authority it cannot be heldresponsible for the acts of rebels, for the rebelsare not its agents and their acts were donewithout its volition. In this case, governmenttroopers immediately pursued the rebels andkilled several of them.

2. The new government may be heldresponsible if it succeeds in overthrowing thegovernment. Victorious rebel movements areresponsible for the illegal acts of their forcesduring the course of the rebellion. The acts ofthe rebels are imputable to them when theyassumed as duly constituted authorities of thestate.

State Sovereignty; Effective Occupation;Terra Nulli us (2000)

No XIX - a) What is the basis of thePhilippines' claim to a part of the SpratlyIslands?

SUGGESTED ANSWER:

The basis of the Philippine claim is effectiveoccupation of a territory not subject to thesovereignty of another state. The Japaneseforces occupied the Spratly Island group duringthe Second World War. However, under theSan Francisco Peace Treaty of 1951 Japanformally renounced all right and claim to theSpratlys. The San Francisco Treaty or anyother International agreement however, did not

designate any beneficiary state following theJapanese renunciation of right. Subsequently,the Spratlys became terra nullius and wasoccupied by the Philippines in the title ofsovereignty. Philippine sovereignty wasdisplayed by open and public occupation of anumber of islands by stationing of militaryforces, by organizing a local government unit,and by awarding petroleum drilling rights,among other political and administrative acts. In1978, it confirmed its sovereign title by thepromulgation of Presidential Decree No. 1596,which declared the Kalayaan Island Group part

of Philippine territory.

Stateless Persons; Effects; Status; Rights(1995)

1. Who are stateless persons underInternational Law?

2. What are the consequences ofstatelessness?

3. Is a stateless person entirely without right,protection or recourse under the Law ofNations? Explain.

4. What measures, if any, has InternationalLaw taken to prevent statelessness?

ANSWER:

1. STATELESS PERSONS are those who arenot considered as nationals by any State underthe operation of its laws.

2. The consequences of statelessness are thefollowing:

(a) No State can intervene or complainin behalf of a stateless person foran international delinquencycommitted by another State ininflicting injury upon him.

(b) He cannot be expelled by the Stateif he is lawfully in its territory excepton grounds of national security orpublic order.

(c) He cannot avail himself of theprotection and benefits of




citizenship like securing for himselfa passport or visa and personaldocuments.

3. No. Under the Convention in Relation tothe Status of Stateless Person, the ContractingStates agreed to accord to stateless personswithin their territories treatment at least as

favorable as that accorded to their nationalswith respect to freedom of religion, access tothe courts, rationing of products in short supply,elementary education, public relief andassistance, labor legislation and social security.They also agreed to accord to them treatmentnot less favorable than that accorded to aliensgenerally in the same circumstances. TheConvention also provides for the issuance ofidentity papers and travel documents tostateless person.

4. In the Convention on the Conflict ofNationality Laws of 1930, the ContractingStates agreed to accord nationality to personsborn in their territory who would otherwise bestateless. The Convention on the Reduction ofStatelessness of 1961 provides that if the law ofthe contracting States results in the loss ofnationality as a consequence of marriage ortermination of marriage, such loss must beconditional upon possession or acquisition ofanother nationality.

ALTERNATIVE ANSWER;

Under the Convention on the Reduction ofStateless-ness of 1961, a contracting state shallgrant its nationality to a person born in itsterritory who would otherwise be stateless anda contracting state may not deprive a person ora group 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 miles measured from the baselines of a state andover which the state has sovereignty. (Articles 2and 3 of the Convention on the Law of the Sea.)Ship of all states enjoy the right of innocentpassage through the territorial sea. (Article 14of the Convention on the Law of the Sea.)

Under Section 1, Article I of the 1987Constitution, the INTERNAL WATERS of thePhilippines consist of the waters around,between and connecting the islands of thePhilippine Archipelago, regardless of theirbreadth and dimensions, including the waters inbays, rivers and lakes. No right of innocentpassage for foreign vessels exists in the case ofinternal waters. (Harris, Cases and Materials on

International Law, 5th ed., 1998, p. 407.)Internal waters are the waters on the

landward side of baselines from which thebreadth of the territorial sea is calculated.(Brownlie, Principles of Public InternationalLaw, 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, invadedIraq to "liberate the Iraqis and destroy

suspected weapons of mass destruction." TheSecurity Council of the United Nations failed toreach a consensus on whether to support oroppose the "war of liberation".

Can the action taken by the allied forcesfind justification in International Law? Explain.

SUGGESTED ANSWER:

The United States and its allied forcescannot justify their invasion of Iraq on the basisof self-defense under Article 51 attack by Iraq,and there was no necessity for anticipatory self-

defense which may be justified undercustomary international law. Neither can they

justify their invasion on the ground that Article42 of the Charter of the United Nations permitsthe use force against a State if it is sanctionedby the Security Council. Resolution 1441, whichgave Iraq a final opportunity to disarm or faceserious consequences, did not authorize theuse of armed force.

ALTERNATIVE ANSWER:

In International Law, the action taken bythe allied forces cannot find justification. It iscovered by the prohibition against the use offorce prescribed by the United Nations Charterand it does not fall under any of the exceptionsto that prohibition.

The UN Charter in Article 2(4) prohibitsthe use of force in the relations of states byproviding that all members of the UN "shallrefrain in their international relations from thethreat or use of force against the territorialintegrity or political independence of any state,




3) If jurisdiction over Ameria is established, thecase should be decided in favor of Nova,because Ameria violated the principle againstthe use of force and the principle of non-Intervention. The defense of anticipatory self-defense cannot be sustained, because there isno showing that Nova had mobilized to such anextent that if Ameria were to wait for Nova tostrike first it would not be able to retaliate.

However, if jurisdiction over Ameria is notestablished, the case should be decided infavor of Ameria because of the principle ofsovereign immunity.

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, amember of the United Nations. As a result ofthe bombing and the collapse of the 100-storytwin towers, about 2,000 people, includingwomen and children, were killed or injured, andbillions of dollars in property were lost.

Immediately after the incident, Ali Baba,speaking through its leader Bin Derdandat,admitted and owned responsibility for thebombing of ITT, saying that it was done topressure Country Y to release capturedmembers of the terrorist group. Ali Baba

threatened to repeat its terrorist acts againstCountry Y if the latter and its allies failed toaccede 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 refusedto accede to the demand of Country Y.

What action or actions can Country Ylegally take against Ali Baba and Country X tostop the terrorist activities of Ali Baba anddissuade Country X from harboring and giving

protection to the terrorist organization? Supportyour answer with reasons. (5%)

FIRST ALTERNATIVE ANSWER:

(1) Country Y may exercise the rightof self-defense, as provided under Article 51 ofthe UN Charter "until the Security Council hastaken measure necessary to maintaininternational peace and security". Self-defenseenables Country Y to use force against CountryX as well as against the Ali Baba organization.

(2) It may bring the matter to theSecurity Council which may authorize sanctionsagainst Country X, including measure invokingthe use of force. Under Article 4 of the UNCharter, Country Y may use force againstCountry X as well as against the Ali Babaorganization by authority of the UN SecurityCouncil.


Under the Security Council Resolution No.1368, the terrorist attack of Ali Baba may bedefined as a threat to peace, as it did in definingthe September 11, 2001 attacks against theUnited States. The resolution authorizes militaryand other 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 objectivesused by 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 notwage aggressive 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 stateresorting to war allegedly in self-defense theright to determine with a legally conclusiveeffect the legality of such action.

The Judgment of the NurembergInternational Military Tribunal rejected thedefense of the Nazi war criminals:

"But whether action taken under theclaim of self-defense was in fact aggressive ordefensive must ultimately be subject to




investigation and adjudication if internationallaw is ever to be enforced."

ALTERNATIVE ANSWER:

International law on self-defense cannotassume the nature of war. War requires "adeclaration of war giving reasons" under theHague Convention II of 1907. Precisely, theNazi war criminalwere indicted before the

Nuremberg Tribunal for violating thisConvention and were found guilty.

Since the Nazi war criminal argued thatwar as self-defense is understood by them asmeaning "that the nation itself must be the soleJudge of whether its action were in self-defense", it is clear that what they had in mindin fact is "war as an instrument of nationalpolicy", not self-defense as an objective rightunder International law.

Waging was as an instrument ofnational law is prohibited by the Pact of Paris of

1928 (Kellog - Braid Part) of which Germanywas already a state party before the SecondWorld War. Precisely, the German Reich wasindicted before the Nuremberg Tribunal forviolation of the Pact of Paris and the Nazi warcriminals were found guilty of this as a warcrime.

Hence, the argument is itself an admission ofviolation of international law.

Use of Force; When allowed (1988)

1. The Charter of the United Nations prohibitsnot only recourse to war but also resort to theuse of force or threat. In the ardent desire tomaintain peace, the Charter obliges membersto settle their international disputes by peacefulmeans and to refrain in their internationalrelations from the threat or use of force.The same Charter, however, recognizingperhaps the realities of international relations,allows the use of force in exceptionaloccasions.

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 pacificmethods of settling disputes areinadequate, it may take such action by air,sea, or land forces as may be necessary tomaintain or restore international peace andsecurity. 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 anarmed attack occurs against a memberstate, until the Security Council has takenmeasures necessary to maintaininternational 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. Thethree Filipinos fought side by side with theMoslems. The Serbs prevailed resulting in thecapture of Reden, Jolan and Andy, and part ofthe civilian fighting force.

1) Are Reden, Jolan and Andy consideredcombatants thus entitled to treatment asprisoners of 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 47of the Protocol I to the Geneva Conventions of1949 provides:

"A Mercenary shall not have the right tobe combatant or a prisoner of war."

Pursuant to Article 47 of Protocol I of

the Geneva Conventions of 1949, Reden,Jolan, and Andy are mercenaries, because theywere recruited to fight in an armed conflict, theyin fact took direct part in the hostilities, theywere motivated to take part in the hostilitiesessentially by the desire for private gain and infact was promised a handsome salary by theMoslems, they were neither nationals of a partyto 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

the Estrada doctrine regarding recognition ofgovernments.

SUGGESTED ANSWER:

Under the WILSON DOCTRINE, recognitionshall not be extended to any governmentestablished by revolution or internal violenceuntil the freely elected representatives of thepeople have organized a constitutionalgovernment.

Under the ESTRADA DOCTRINE, the Mexicangovernment declared that it would, as it saw fit,continue or terminate its diplomatic relationswith any country in which a political upheavalhad taken 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 longerin the mainstream of public international law.)

ADMINISTRATIVE LAW Admin Law; Exhaustion of Administ rat iveRemedies (1991)

No. 9: B, For being notoriously undesirableand a recidivist, Jose Tapulan, an employee inthe first level of the career service in the Officeof the Provincial Governor of Masbate, wasdismissed by the Governor without formalinvestigation pursuant to Section 40 of the CivilService Decree (P.D. No. 807} which authorizessummary proceedings in such cases.

As a lawyer of Jose what steps, if any,would you 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 theCivil Service Commission, since the act of the

governor is patently Illegal.

Admin Law; Exhaustion of Administ rat iveRemedies (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 adequateremedy is available within the ExecutiveDepartment, a litigant must first exhaust thisremedy before he can resort to the courts. Thepurpose of the doctrine is to enable theadministrative agencies to correct themselves ifthey have committed an error. (Rosales v.Court of Appeals, 165 SCRA 344 [19881)

B.) The following are the exceptions to the

application of the doctrine of exhaustion ofadministrative remedies:

1. The question involved is purely legal;

2. The administrative body is in estoppel;

3. The act complained of is patently illegal;

4. There is an urgent need for Judicialintervention;

5. The claim involved is small;

6. Grave and irreparable injury will besuffered;

7. There is no other plain, speedy andadequate remedy;

8. Strong public interest is involved;

9. The subject of the controversy is privatelaw;

10. The case involves a quo warrantoproceeding (Sunville Timber Products,Inc. v. Abad. 206 SCRA 482 {1992);




11. The party was denied due process(Samahang Magbubukid ng Kapdula,Inc. v. Court of Appeals, 305 SCRA 147[1999]);

12. The decision is that of a DepartmentSecretary. (Nazareno v. Court of

Appeals, G.R. No. 131641, February23. 2000);

13. Resort to administrative remedies wouldbe futile (University of the PhilippinesBoard of Regents v. Rasul 200 SCRA685 [1991]);

14. There is unreasonable delay(Republic v, Sandiganbayan, 301 SCRA237 [1999]);

15. "The action involves recovery ofphysical possession of public land(Gabrito u. Court of Appeals, 167 SCRA771 {1988]);

16. The party is poor (Sabello v.Department of Education, Culture andSports, 180 SCRA 623 [1989]); and

17. The law provides for immediate resortto the court (Rulian v Valdez, 12 SCRA501 [1964]).

{Note: The examinee should be givenfull credit if he gives three of the above-mentioned exceptions.}

Admin Law; Exhaustion of Administrat ive

Remedies vs Doctrine of PrimaryJurisdiction (1996)

No. 11: 1) Distinguish the doctrine of primary jurisdiction from the doctrine of exhaustion ofadministrative remedies.

2) Does the failure to exhaustadministrative remedies before filing a case incourt oust said court of jurisdiction to hear thecase? Explain.

SUGGESTED ANSWER;

1) The doctrine of primary jurisdictionand the doctrine of exhaustion of administrativeremedies both deal with the properrelationships between the courts andadministrative agencies. The doctrine ofexhaustion of administrative remedies applieswhere a claim is cognizable in the first instanceby an administrative agency alone. Judicialinterference is withheld until the administrativeprocess has been completed. As stated inIndustrial Enterprises, Inc. vs. Court of Appeals,184 SCRA 426. The doctrine of primary

jurisdiction applies where a case is within theconcurrent jurisdiction of the court and anadministrative agency but the determination ofthe case requires the technical expertise of theadministrative agency. In such a case, althoughthe matter is within the jurisdiction of the court,it must yield to the jurisdiction of theadministrative case.

2) No, the failure to exhaustadministrative remedies before filing a case incourt does not oust the court of jurisdiction tohear the case. As held in Rosario vs. Court of

Appeals, 211 SCRA 384, the failure to exhaustadministrative remedies does not affect the

jurisdiction of the court but results in the lack ofa cause of action, because a conditionprecedent that must be satisfied before actioncan be filed was not fulfilled.

Admin Law; Exhaustion of Administ rat ive

Remedies; Exceptions (1991)No. 8: On the basis of a verified report andconfidential information that various electronicequipment, which were illegally imported intothe Philippines, were found in the bodega of theTikasan Corporation located at 1002 BinakayanSt., Cebu City, the Collector of Customs ofCebu issued, in the morning of 2 January 1988,a Warrant of Seizure and Detention against thecorporation for the seizure of the electronicequipment. The warrant particularly describesthe electronic equipment and specifies the

provisions of the Tariff and Customs Codewhich were violated by the importation.

The warrant was served andimplemented in the afternoon of 2 January 1988by Customs policemen who then seized thedescribed equipment. The inventory of theseized articles was signed by the Secretary ofthe Tikasan Corporation. The following day, ahearing officer in the Office of the Collector ofCustoms conducted a hearing on theconfiscation of the equipment.

Two days thereafter, the corporation

filed with the Supreme Court a petition forcertiorari, prohibition and mandamus to setaside the warrant, enjoin the Collector and hisagents from further proceeding with theforfeiture hearing and to secure the return of theconfiscated equipment, alleging therein that thewarrant issued is null and void for the reasonthat, pursuant to Section 2 of Article III of the1987 Constitution, only a judge may issue asearch warrant. In his comment to the petition,the Collector of Customs, through the Office of




the Solicitor General, contends that he isauthorized under the Tariff and Custom Code toorder the seizure of the equipment whoseduties and taxes were not paid and that thecorporation did not exhaust administrativeremedies.

(a) Should the petition be granted?Decide.

(b) If the Court would sustain thecontention of the Collector of Customs on thematter of exhaustion of administrativeremedies, what is the administrative remedyavailable to the corporation?

(c) What are the exceptions to the ruleon exhaustion of administrative remedies?

SUGGESTED ANSWER:

(a) No. No search warrant from courtneeded.

(b) As pointed out in Chia us. Acting

Collector of Customs, 177 SCRA 753, theadministrative remedy available under Section2313 of the Tariff and Customs Code is toappeal to the Commissioner of Customs, fromwhose decision an appeal to the Court of Tax

Appeals lies.

(c) The following are the exceptions tothe doctrine of exhaustion of administrativeremedies:

1. The case deals with private land;

2. The question involved is purely

legal;

3. The case involves a quo warrantoproceeding;

4. There is denial of due process;

5. The decision is patently illegal;

6. The aggrieved party will sufferirreparable injury;

7. There is estoppel;

8. Resort to administrative remedieswould be futile;

9. The decision is that of adepartment head;

10. The law expressly provides forimmediate judicial review;

11. Public interest is involved;

12. There was unreasonable delay inthe administrative proceedings; and

13. The aggrieved party is poor.

Admin Law; Judicial Review of Administ rat ive Action (2001)

No XIV Give the two (2) requisites for the judicial review of administrativedecision/actions, that is, when is anadministrative action ripe for Judicial review?(5%)

SUGGESTED ANSWER:

The following are the conditions for ripeness for judicial review of an administrative action:

1. The administrative action hasalready been fully completed and, therefore, isa final agency action; and

2. All administrative remedies havebeen exhausted. [Gonzales, AdministrativeLaw, Rex Bookstore: Manila, p. 136 (1979)].

Admin Law; Judicial Review of Administ rat ive Decisions (1988)

No. 17: Apex Logging Co. and Batibot LoggingCo. are adjacent timber concession holders inIsabela. Because of boundary conflicts, andmutual charges of incursions into theirrespective concession areas, the Bureau ofForestry ordered a survey to establish on theground their common boundary. The Bureau ofForestry's decision in effect favored Batibot.

Apex appealed to the Department of NaturalResources and Environment and this

department reversed the decision of the Bureauof Forestry and sustained Apex. It was the turnof Batibot to appeal to the Office of thePresident. The Office of the President throughan Asst. Executive Secretary sustained theDepartment of Natural Resources aridEnvironment. On a motion for reconsiderationby Batibot, however, an Asst. ExecutiveSecretary other than the one who signed thedecision affirming the decision of theDepartment of Natural Resources andEnvironment decided for Batibot, Dissatisfiedwith the Administrative action on thecontroversy. Apex filed an action with theRegional Trial Court against Batibot, theDirector of Forestry, and the Asst. ExecutiveSecretaries insisting that a judicial review ofsuch divergent administrative decisions isnecessary to determine the correct boundaryline of the licensed areas in question.

Batibot moved to dismiss the action, butthe Regional Trial Court denied the same andeven enjoined enforcement of the decision of




the Office of the President. Batibot's motion forreconsideration was likewise denied.

Batibot then filed a petition for certiorariand prohibition to review and annul the ordersof the Regional Trial Court. Do you believe thepetition for certiorari and prohibition ismeritorious? Why or why not?

SUGGESTED ANSWER:

The petition for certiorari and prohibition ismeritorious, The order of the trial court mustaccordingly be set aside. As held in a similarcase, Lianga Bay Logging Co. v. Enage, 152SCRA 80 (1987), decisions of administrativeofficers should not be disturbed by the courtsexcept when the former have acted without orin excess of their jurisdiction or with graveabuse of discretion. The mere suspicion of

Apex that there were anomalies in thenonrelease of the first "decision" and itssubstitution of a new one by another Assistant

Executive Secretary does not justify judicialreview. Mere beliefs, suspicions andconjectures cannot overcome the presumptionof regularity of official action.

Admin Law; Meaning of “ Government of thePhilippines” (1997)

No. 3: Are government-owned or controlledcorporations within the scope and meaning ofthe "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 madeeffective in the Philippines, whether pertainingto the autonomous regions, the provincial, city,municipal or barangay subdivisions or otherforms of local government.

Government owned or controlledcorporation are within the scope and meaningof the Government of the Philippines if they areperforming governmental or political functions.

Admin Law; Power of the President toReorganize Administrative Structure (2003)

No VI - The President abolished the Office ofthe Presidential Spokesman in Malacanang

Palace and a long-standing Bureau under theDepartment of Interior and Local Governments.The employees of both offices assailed theaction of the President for being anencroachment of legislative powers and therebyvoid. Was the contention of the employeescorrect? Explain.

SUGGESTED ANSWER:

The contention of the employees is not correct. As held in Buklod ng Kawaning EHB v. Zamora.360 SCRA 718 [2001], Section 31, Book III ofthe Administrative Code of 1987 has delegatedto the President continuing authority toreorganize the administrative structure of theOffice of the President to achieve simplicity,economy and efficiency. Since this includes thepower to abolish offices, the President canabolish the Office of the PresidentialSpokesman, provided it is done in good faith.The President can also abolish the Bureau inthe Department of Interior and Local

Governments, provided it is done in good faithbecause the President has been grantedcontinuing authority to reorganize theadministrative structure of the NationalGovernment to effect economy and promoteefficiency, and the powers include the abolitionof government offices. (Presidential Decree No.1416, as amended by Presidential Decree No.1772; Larin v. The Executive Secretary. 280SCRA 713 [1997]).

Admin Law; Rules and Regulat ions; DueProcess (2000)

No III. - The Maritime Industry Authority(MARINA) issued new rules and regulationsgoverning pilotage services and fees, and theconduct of pilots in Philippine ports. This it didwithout notice, hearing nor consultation withharbor pilots or their associations whose rightsand activities are to be substantially affected.The harbor pilots then filed suit to have the newMARINA rules and regulations declaredunconstitutional for having been issued withoutdue process. Decide the case. (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 publishor circulate notices of the proposed rules andafford interested parties the opportunity tosubmit their views; and in the fixing of rates, norule shall be valid unless the proposed rates



shall have been published in a newspaper ofgeneral circulation at least two weeks beforethe first hearing on them. In accordance withthis provision, in Commissioner of InternalRevenue v CA, 261 SCRA 236 (1996), it washeld that when an administrative rulesubstantially increases the burden of thosedirectly affected, they should be accorded thechance to be heard before its issuance.

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

is a government agency or a governmentinstrumentality:

a. Department of Public Works and

Highways;b. Bangko Sentral ng Pilipinas;c Philippine Ports Authority;

intents and purposes. A distinction,however, may be made with respect tothose entities possessing a separatecharter created by statute.a. DPWH is an agency. It does not

possess a separate charter.b. BSP is an instrumentality because it

was incorporated under the newCentral Bank Law (R.A. No. 7653)

c. PPA can be defined as both aninstrumentality and an agencybecause it was incorporated byspecial law and it has its owncharter, yet it is integrated with theDOTC.

d. LTO is an agency. It is an office ofthe DOTC.

e. LBP is an instrumentality having acharter under a special law and is agovernment financial institution(GFI) independent of anydepartment of government.

Quasi-Judicial Body or Agency (Q5-2006)3 What is a quasi judicial body or agency?

q&a political law scribd

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