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POLITICAL AND INTERNATIONAL LAW

TABLE OF CONTENTS

I. The Philippine Constitution

A. Constitution: definition, nature and concepts..................................................... 1


B. Parts ................................................................................................................. 2
C. Amendments and revisions ............................................................................... 3
D. Self-executing and non-self-executing provisions ............................................. 6
E. General provisions ............................................................................................ 6

II. General Considerations

A. National territory ............................................................................................... 7


1. Archipelagic doctrine
B. State immunity ................................................................................................ 10
C. General principles and state policies .............................................................. 20
D. Separation of powers ...................................................................................... 32
E. Checks and balances...................................................................................... 34
F. Delegation of powers ...................................................................................... 34
G. Forms of government ..................................................................................... 35

III. Legislative Department

A. Who may exercise legislative power ............................................................... 37


1. Congress
2. Regional/Local legislative power
3. Peoples initiative on statutes
a) Initiative and referendum
4. The President under a martial law rule or in a revolutionary government
B. Houses of Congress ....................................................................................... 43
1. Senate
2. House of Representatives
a) District representatives and questions of apportionment
b) Party-list system
C. Legislative privileges, inhibitions and disqualifications .................................... 49
D. Quorum and voting majorities ......................................................................... 52
E. Discipline of members ..................................................................................... 52
F. Electoral tribunals and the Commission on Appointments ............................... 52
1. Nature
2. Powers
G. Powers of Congress ....................................................................................... 55
1. Legislative
a) Legislative inquiries and the oversight functions
b) Bicameral conference committee
c) Limitations on legislative power
(i) Limitations on revenue, appropriations and tariff measures
(ii) Presidential veto and Congressional override
2. Non-legislative
a) Informing function
b) Power of impeachment
c) Other non-legislative powers

IV. Executive Department

A. Privileges, inhibitions and disqualifications...................................................... 68


1. Presidential immunity
2. Presidential privilege
B. Powers ........................................................................................................... 69
1. Executive and administrative powers in general ................................... 69
2. Power of appointment .......................................................................... 72
a) In general
b) Commission on Appointments confirmation
c) Midnight appointments
d) Power of removal
3. Power of control and supervision ......................................................... 79
a) Doctrine of qualified political agency
b) Executive departments and offices
c) Local government units
4. Military powers ..................................................................................... 81
5. Pardoning power .................................................................................. 85
a) Nature and limitations
b) Forms of executive clemency
6. Diplomatic power .................................................................................. 91
7. Powers relative to appropriation measures .......................................... 96
8. Delegated powers ................................................................................ 97
9. Veto powers ......................................................................................... 97
10. Residual powers ................................................................................ 99
11. Executive privilege ............................................................................. 99
C. Rules of Succession

V. Judicial Department

A. Concepts ...................................................................................................... 100


1. Judicial power .................................................................................... 100
2. Judicial review ................................................................................... 109
a) Operative fact doctrine
b) Moot questions
c) Political question doctrine
B. Safeguards of Judicial independence ........................................................... 115
C. Judicial restraint............................................................................................ 117
D. Appointments to the Judiciary ...................................................................... 117
E. Supreme Court ............................................................................................. 119
1. En banc and division cases
2. Procedural rule-making
3. Administrative supervision over lower courts
4. Original and appellate jurisdiction
F. Judicial privilege

VI. Constitutional Commissions

A. Constitutional safeguards to ensure independence of commissions ............. 126


B. Powers and functions of each commission ................................................... 128
C. Prohibited offices and interests ..................................................................... 128
D. Jurisdiction of each constitutional commission ............................................. 132
E. Review of final orders, resolutions and decisions ......................................... 135
1. Rendered in the exercise of quasi-judicial functions
2. Rendered in the exercise of administrative functions

VII. Bill of Rights

A. Fundamental powers of the state (police power, eminent domain, taxation) 137
1. Concept, application and limits
2. Requisites for valid exercise
3. Similarities and differences
4. Delegation
B. Private acts and the Bill of Rights ................................................................. 141
C. Due process the rights to life, liberty & property ......................................... 141
1. Relativity of due process
2. Procedural and substantive due process
3. Constitutional and statutory due process
4. Hierarchy of rights
5. Judicial standards of review
6. Void-for-vagueness doctrine
D. Equal protection............................................................................................ 153
1. Concept
2. Requisites for valid classification
3. Standards of judicial review
a) Rational Basis Test
b) Strict Scrutiny Test
c) Intermediate Scrutiny Test
E. Searches and seizures ................................................................................. 158
1. Concept
2. Warrant requirement
a) Requisites
3. Warrantless searches
4. Warrantless arrests
5. Administrative arrests
6. Drug, alcohol and blood tests
F. Privacy of communications and correspondence .......................................... 171
1. Private and public communications
2. Intrusion, when allowed
3. Writ of habeas data
G. Freedom of expression ................................................................................. 174
1. Concept and scope
a) Prior restraint (censorship)
b) Subsequent punishment
2. Content-based and content-neutral regulations
a) Tests
b) Applications
3. Facial challenges and the overbreadth doctrine
4. Tests
5. State regulation of different types of mass media
6. Commercial speech
7. Private vs. government speech
8. Hecklers veto
H. Freedom of religion ....................................................................................... 191
1. Non-establishment clause
a) Concept and basis
b) Acts permitted and not permitted by the clause
c) Test
2. Free exercise clause
3. Tests
a) Clear and Present Danger Test
b) Compelling State Interest Test
c) Conscientious Objector Test
I. Liberty of abode and freedom of movement .................................................. 198
1. Limitations
2. Right to travel
a) Watch-list and hold departure orders
3. Return to ones country
J. Right to information ....................................................................................... 201
1. Limitations
2. Publication of laws and regulations
3. Access to court records
4. Right to information relative to:
a) Government contract negotiations
b) Diplomatic negotiations
K. Right of association....................................................................................... 203
L. Eminent domain ............................................................................................ 205
1. Concept
2. Expansive concept of public use
3. Just compensation
a) Determination
b) Effect of delay
4. Abandonment of intended use and right of repurchase
5. Miscellaneous application
M. Contract clause ............................................................................................ 212
1. Contemporary application of the contract clause
N. Legal assistance and free access to courts .................................................. 212
O. Rights of suspects ........................................................................................ 212
1. Availability
2. Requisites
3. Waiver
P. Rights of the accused ................................................................................... 217
1. Criminal due process
2. Bail
3. Presumption of innocence
4. Right to be heard
5. Assistance of counsel
6. Right to be informed
7. Right to speedy, impartial and public trial
8. Right of confrontation
9. Compulsory process
10. Trials in absentia
Q. Writ of habeas corpus ................................................................................... 230
R. Writs of amparo, habeas data, and kalikasan................................................. 231
S. Self-incrimination clause ............................................................................... 233
1. Scope and coverage
a) Foreign laws
2. Application
3. Immunity statutes
T. Involuntary servitude and political prisoners ................................................. 240
U. Excessive fines and cruel and inhuman punishments .................................. 241
V. Non-imprisonment for debts ......................................................................... 241
W. Double jeopardy .......................................................................................... 242
1. Requisites
2. Motions for reconsideration and appeals
3. Dismissal with consent of accused
X. Ex post facto laws and bills of attainder ......................................................... 249

VIII. Citizenship

A. Who are Filipino citizens ............................................................................. 251


B. Modes of acquiring citizenship .................................................................... 256
C. Naturalization and denaturalization.............................................................. 258
D. Dual citizenship and dual allegiance............................................................ 259
E. Loss and re-acquisition of Philippine citizenship .......................................... 261
F. Natural-born citizens and public office ......................................................... 264
IX. Law on Public Officers

A. General principles ......................................................................................... 271


B. Modes of acquiring title to public office ......................................................... 271
C. Modes and kinds of appointment .................................................................. 271
D. Eligibility and qualification requirements ....................................................... 271
E. Disabilities and inhibitions of public officers .................................................. 271
F. Powers and duties of public officers .............................................................. 271
G. Rights of public officers................................................................................. 271
H. Liabilities of public officers ............................................................................ 271
1. Preventive suspension and back salaries
2. Illegal dismissal, reinstatement and back salaries
I. Immunity of public officers ............................................................................. 271
J. De facto officers ............................................................................................. 281
K. Termination of official relation ....................................................................... 284
L. The Civil Service ........................................................................................... 285
1. Scope
2. Appointments to the civil service
3. Personnel actions
M. Accountability of public officers .................................................................... 289
1. Impeachment
2. Ombudsman (Sections 5 to 14, Article XI of the 1987 Constitution, in
relation to R.A. No. 6770, or otherwise known as "The Ombudsman
Act of 1989.")
a) Functions
b) Judicial review in administrative proceedings
c) Judicial review in penal proceedings
3. Sandiganbayan
4. Ill-gotten wealth
N. Term limits

X. Administrative Law

A. General principles......................................................................................... 298


B. Administrative agencies ................................................................................ 299
1. Definition
2. Manner of creation
3. Kinds
C. Powers of administrative agencies ............................................................... 300
1. Quasi-legislative (rule-making) power
a) Kinds of administrative rules and regulations
b) Requisites for validity
2. Quasi-judicial (adjudicatory) power
a) Administrative due process
b) Administrative appeal and review
c) Administrative res judicata
3. Fact-finding, investigative, licensing and rate-fixing powers
D. Judicial recourse and review ........................................................................ 307
1. Doctrine of primary administrative jurisdiction
2. Doctrine of exhaustion of administrative remedies
3. Doctrine of finality of administrative action

XI. Election Law

A. Suffrage........................................................................................................ 312
B. Qualification and disqualification of voters .................................................... 313
C. Registration of voters .................................................................................... 313
D. Inclusion and exclusion proceedings ............................................................ 313
E. Political parties ............................................................................................. 313
1. Jurisdiction of the COMELEC over political parties
2. Registration
F. Candidacy .................................................................................................... 314
1. Qualifications of candidates
2. Filing of certificates of candidacy
a) Effect of filing
b) Substitution of candidates
c) Ministerial duty of COMELEC to receive certificate
d) Nuisance candidates
e) Petition to deny or cancel certificates of candidacy
f) Effect of disqualification
g) Withdrawal of candidates
G. Campaign .................................................................................................... 318
1. Premature campaigning
2. Prohibited contributions
3. Lawful and prohibited election propaganda
4. Limitations on expenses
5. Statement of contributions and expenses
H. Board of Election Inspectors and Board of Canvassers .............................. 319
1. Composition
2. Powers
I. Remedies and jurisdiction in election law ...................................................... 319
1. Petition not to give due course to or cancel a certificate of candidacy
2. Petition for disqualification
3. Petition to declare failure of elections
4. Pre-proclamation controversy
5. Election protest
6. Quo warranto
J. Prosecution of election offenses ................................................................... 335
XII. Local Governments

A. Public corporations ....................................................................................... 336


1. Concept
a) Distinguished from government-owned or controlled corporations
2. Classifications
a) Quasi-corporations
b) Municipal corporations
B. Municipal corporations .................................................................................. 336
1. Elements
2. Nature and functions
3. Requisites for creation, conversion, division, merger or dissolution
C. Principles of local autonomy ......................................................................... 340
D. Powers of local government units (LGUs) ................................................... 341
1. Police power (general welfare clause) .............................................. 342
2. Eminent domain ................................................................................. 346
3. Taxing power ..................................................................................... 350
4. Closure and opening of roads ............................................................ 350
5. Legislative power ............................................................................... 350
a) Requisites for valid ordinance
b) Local initiative and referendum
6. Corporate powers .............................................................................. 355
a) To sue and be sued
b) To acquire and sell property
c) To enter into contracts
(i) Requisites
(ii) Ultra vires contracts
7. Liability of LGUs ................................................................................. 359
8. Settlement of boundary disputes ........................................................ 359
9. Succession of elective officials ........................................................... 360
10. Discipline of local officials................................................................. 363
a) Elective officials
(i) Grounds
(ii) Jurisdiction
(iii) Preventive suspension
(iv) Removal
(v) Administrative appeal
(vi) Doctrine of condonation
b) Appointive officials
11. Recall ............................................................................................... 367
12. Term limits ....................................................................................... 367

XIII. National Economy and Patrimony

A. Regalian doctrine.......................................................................................... 369


B. Nationalist and citizenship requirement provisions ....................................... 369
C. Exploration, development and utilization of natural resources ...................... 373
D. Franchises, authority and certificates for public utilities ................................ 374
E. Acquisition, ownership and transfer of public and private lands .................... 375
F. Practice of professions.................................................................................. 382
G. Organization and regulation of corporations, private and public ................... 382
H. Monopolies, restraint of trade and unfair competition ................................... 382

XIV. Social Justice and Human Rights

A. Concept of social justice ............................................................................... 382


B. Commission on Human Rights ..................................................................... 383

XV. Education, Science, Technology, Arts, Culture and Sports

A. Academic freedom........................................................................................ 388

XVI. Public International Law

A. Concepts ...................................................................................................... 394


1. Obligations erga omnes
2. Jus cogens
3. Concept of ex aequo et bono
B. International and national law ....................................................................... 404
C. Sources ........................................................................................................ 409
D. Subjects ....................................................................................................... 410
1. States
2. International organizations
3. Individuals
E. Diplomatic and consular law ......................................................................... 412
F. Treaties ........................................................................................................ 417
G. Nationality and statelessness ...................................................................... 418
1. Vienna Convention on the Law of Treaties
H. State responsibility ...................................................................................... 420
1. Doctrine of state responsibility
I. Jurisdiction of States ................................................................................... 424
1. Territoriality principle
2. Nationality principle and statelessness
3. Protective principle
4. Universality principle
5. Passive personality principle
6. Conflicts of jurisdiction
J. Treatment of aliens ........................................................................................ 425
1. Extradition
a) Fundamental principles
b) Procedure
c) Distinguished from deportation
K. International Human Rights Law ................................................................... 430
1. Universal Declaration of Human Rights
2. International Covenant on Civil and Political Rights
3. International Covenant on Economic, Social and Cultural Rights
L. International Humanitarian Law and neutrality .............................................. 432
1. Categories of armed conflicts
a) International armed conflicts
b) Internal or non-international armed conflict
c) War of national liberation
2. Core international obligations of states in International Humanitarian
Law
3. Principles of International Humanitarian Law
a) Treatment of civilians
b) Prisoners of war
4. Law on neutrality
M. Law of the sea .............................................................................................. 439
1. Baselines
2. Archipelagic states
a) Straight archipelagic baselines
b) Archipelagic waters
c) Archipelagic sea lanes passage
3. Internal waters
4. Territorial sea
5. Exclusive economic zone
6. Continental shelf
a) Extended continental shelf
7. International Tribunal for the Law of the Sea
N. Madrid Protocol and the Paris Convention for the Protection of Industrial
Property ........................................................................................................ 445
O. International environmental law .................................................................... 445
1. Principle 21 of the Stockholm Declaration
P. International economic law ............................................................................ 445

POLITICAL AND INTERNATIONAL LAW

I. The Philippine Constitution

A. Constitution: definition, nature and concepts

Constitution is defined by Cooley as:


a. a body of statutory, administrative and political provisions by which the three
branches of government are defined;
b. a body of rules and maxims in accordance with which the powers of sovereignty
are habitually exercised;
c. a body of rules and edicts emanating from the rulings of courts and written
guidelines of the executive and the legislature by which government is governed;
d. a body of interpretations and rules by which the three branches of government are
judged for purposes of sovereign compliance with good corporate governance.

SUGGESTED ANSWER:

b. Cooley, Constitutional Limitations, p. 4 (2012 BAR)

In Serrano v. Gallant Maritime Services, Inc., 582 SCRA 254 (2009), the Supreme
Court declared as violative of the Equal Protection Clause the 5th paragraph of
10 R.A. No. 8042 (Migrant Workers and Overseas Filipinos Act of 1995) for
discriminating against illegally dismissed OFWs who still had more than a year
to their contract compared to those who only had less than a year remaining. The
next year, Congress enacted R.A. No 10222, an amendment to the Migrant
Workers and Overseas Filipinos Act, which practically reinstated the
provision struck down in Serrano.

Seamacho, an overseas seafarer who still had two years remaining on his
contract when he was illegally terminated, and who would only be entitled to a
maximum of six-months pay under the reinstated provision, engages you as his
counsel. How are you to argue that the new law is invalid insofar as it brings back
to the statute books a provision that has already been struck down by the Court?
(5%). (2014 BAR EXAMS)

SUGGESTED ANSWER:

I will argue that since Section 10 of Republic Act No. 8042 has already been declared
unconstitutional by the Supreme Court, its nullity cannot be cured by reincorporation or
reenactment of the same or a similar law or provision. Once a law has been
declared unconstitutional, it remains unconstitutional unless circumstances have so
changed as to warrant a reverse conclusion (Sameer Overseas Placement Agency v.
Cabiles, G.R. No. 170139, August 5, 2014).

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Congressman Sugar Oll authored a bill called House Bill No, 0056 which
legalizes jueteng. When the Bill became law (RA 10156), Fr. Nosu Gal, a priest,
filed a petition seeking for the nullification of RA 10156 on th ground that it
is unconstitutional as it violates Section 13, Article II, of the 1987 Constitution
which states that "The state recognizes the vital role of the youth in nation-
building and shall promote and protect their physical, moral, spiritual,
intellectual, and social well-being". Fr. Gal filed the petition as a concerned citizen
and as taxpayer. Does Fr. Gal have locus standi? (2012 BAR EXAMS)

a. No, because Fr. Gal has no personal and substantial interest that will be prejudiced
by the implementation of the law;
b. No, the law concerns neither citizens nor expenditure of public funds;
c. Yes, because the issue is of transcendental importance;
d. Yes, because as priest, Fr. Gal has special interest in the well-being of the youth.

SUGGESTED ANSWER:

(A) Basco Vs. Philippine Amusements And Gaming Represntatives, 415 Scra 44. It Is
Suggested That Either (A) Or (C) May Be Accepted As A Correct Answer

BNN Republic has a defense treaty with EVA Federation. According to the
Republics Secretary of Defense, the treaty allows temporary basing of friendly
foreign troops in case of training exercises for the war on terrorism. The Majority
Leader of the Senate contends that whether temporary or not, the basing of
foreign troops however friendly is prohibited by the Constitution of BNN which
provides that, No foreign military bases shall be allowed in BNN territory.

In case there is indeed an irreconcilable conflict between a provision of the treaty


and a provision of the Constitution, in a jurisdiction and legal system like ours,
which should prevail: the provision of the treaty or of the Constitution? Why?
Explain with reasons, briefly. (5%) (2004 Bar Question)

SUGGESTED ANSWER:

In case of conflict between a provision of a treaty and a provision of the Constitution, the
provision of the Constitution should prevail. Section 5(2)(a), Article VIII of the 1987
Constitution authorizes the nullification of a treaty when it conflicts with the Constitution.
(Gonzales v. Hechanova, 9 SCRA 230 [1963]).

One advantage of a written Constitution is its (2011 BAR)


(A) reliability.
(B) permanence.
(C) flexibility.
(D) expediency.

B. Parts

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The three essential parts of a Constitution are:


a. the bill of rights, governmental organization and functions, and method
of amendment;
b. the preamble, the bill of rights, and provisions on checks and
balances;
c. the national territory, the declaration of principles and state policies, and the
transitory provisions;
d. the executive department, the legislative department and the judiciary.

SUGGESTED ANSWER:

A. Nachura, Outline review in political Law, p, 3 (2012 BAR)

C. Amendments and revisions

The constitutional provision on initiative and referendum is not self-executory.


This is so because it requires:
a. an implementing resolution from the COMELEC;
b. an implementing resolution from the Supreme Court;
c. an implementing legislation;
d. an implementing resolution from the party-list representative of the House
of Representatives.

SUGGESTED ANSWER:

C. SECTION 32, ARTCLE IV OF CONSTITUTION (2012 BAR)

In an amendment to the constitution by "initiative and referendum", the


"initiative" phase is meant that the people propose the amendments. There
is a valid proposal when a proposition has received the approval of:

a. at least 3% of the persons of majority age of each district, and 12% of the
registered voters of the region from proposal emanates;
b. at least 3% of the registered voters of each province and 12% of the total
number of registered voters nationwide;
c. at least 3% of the registered voters of each district and 12% of the total
number of registered voters nationwide;
d. more than 3% of the 3% of the registered voters of each district but less
than 12% of the total number of registered voters nationwide.

SUGGESTED ANSWER:

B. SECTION 2, ARTICLE XVII OF CONSTITUTION (2012 BAR)

With the passage of time, the members of the House of Representatives

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increased with the creation of new legislative districts and the corresponding
adjustments in the number of party-list representatives. At a time when the House
membership was already 290, a great number of the members decided that it was
time to propose amendments to the Constitution. The Senators, however,
were cool to the idea. But the members of the House insisted. They accordingly
convened Congress into a constituent assembly in spite of the opposition of the
majority of the members of the Senate. When the votes were counted, 275
members of the House of Representatives approved the proposed
amendments.
Only 10 Senators supported such proposals. The proponents now claim that the
proposals were validly made, since more than the required three-fourths vote of
Congress has been obtained. The 14 Senators who voted against the proposals
claim that the proposals needed not three-fourths vote of the entire Congress
but each house. Since the required number of votes in the Senate was not
obtained, then there could be no valid proposals, so argued the Senators. Were
the proposals validly adopted by Congress? (5%)

SUGGESTED ANSWER:

The proposal were not validly adopted, because the ten (10) Senators who voted
in favor of the proposed amendments constituted less than three-fourths of all
the Members of the Senate. Although Section 1, Article XVII of the Constitution did not
expressly provide that the Senate and the House of Representatives must
vote separately, when the Legislature consist of two (2) houses, the determination of
one house is to be submitted to the separate determination of the other house iller v.
Mardo, 2 SCRA 898 [1961]. (2014 BAR)

Constituent power refers to the authority (1%) (2014 BAR)

(A) of public officials to command respect


(B) given to Congress to enact police power measures
(C) to propose constitutional amendments or revisions
(D) of the people to take back the power entrusted to those in government
(E) of the President to call out the armed forces to suppress lawless violence

State the various modes of and steps in revising or amending the Philippine
Constitution. (1997)

SUGGESTED ANSWER:

There are three modes of amending the Constitution.


1. Under Section 1. Article XVIII of the Constitution. Congress may by three-fourths vote
of all its Members propose any amendment to or revision of the Constitution.

2. Under the same provision, a constitutional convention may propose any amendment
to or revision of the Constitution. According to Section 3. Article XVII of the Constitution.

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Congress may by a two-thirds vote of all its Members call a constitutional convention or
by a majority vote of all its Members submit the question of calling such a convention to
the electorate.

3. Under Section 2, Article XVII of the Constitution, the people may directly propose
amendments to the Constitution through initiative upon a petition of at least twelve per
cent of the total number of registered voters, of which every legislative district must be
represented by at least three per cent of the registered voters therein.

According to Section 4. Article XVII of the Constitution, to be valid any amendment to or


revision of the Constitution must be ratified by a majority of the votes cast in a
plebiscite.

An amendment to or a revision of the present Constitution maybe proposed by a


Constitutional Convention or by the Congress upon a vote of three-fourths of all
its members.

Is there a third way of proposing revisions of or amendments to the Constitution?


If so, how? (5%) (2004 Bar Question)

SUGGESTED ANSWER:

There is no third way of proposing revisions to the Constitution; however, the people
through initiative upon petition of at least twelve per cent of the total number of
registered voters, of which every legislative district must be represented by at least
three per cent of the registered voters in it, may directly propose amendments to the
Constitution. This right is not operative without an implementing law. (Section 2, Article
XVI of the 1987 Constitution.)

Jose Cruz and 20 others filed a petition with the COMELEC to hold a plebiscite on
their petition for initiative to amend the Constitution by shifting to a unicameral
parliamentary form of government. Assuming that the petition has been signed
by the required number of registered voters, will it prosper? (2011 BAR)

(A) No, only Congress can exercise the power to amend the Constitution.
(B) Yes, the people can substantially amend the Constitution by direct action.
(C) Yes, provided Congress concurs in the amendment.
(D) No, since they seek, not an amendment, but a revision.

True of False. Briefly explain your answer. (2007 Bar Question)


An amendment to the Constitution shall be valid upon a vote of three-fourths of
all the Members of the Congress.

SUGGESTED ANSWER:

The statement is false. First, an amendment proposed by Congress must be approved

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by at least three-fourths (3/4) vote of the members of the Senate and of the House of
Representatives voting separately. It is inherent in a bicameral legislature for the two
houses to vote separately. (II Record of the Constitutional Commission493). Second,
the amendment shall be valid only when ratified by a majority of the votes cast in a
plebiscite (Constitution, Art. XVII, sec. 4).

All public officers and employees shall take an oath to uphold and defend the
Constitution.

FIRST ALTERNATIVE ANSWER:

The statement is true. This is expressly provided for in Section 4, Article IX-B of the
1987 Constitution.

SECOND ALTERNATIVE ANSWER:

The statement is false. The Constitution states: All public officers and employees shall
take an oath or affirmation to uphold and defend this Constitution (1987 Constitution,
Art. IX-B, sec. 4).

D. Self-executing and non-self-executing provisions

Which one of the following is a non-self-executing provision of the


Constitution:
a. no law shall be passed abridging the freedom of speech;
b. no law shall be made respecting an establishment of religion;
c. no person shall be held to answer for a criminal offense without due
process of law;
d. the state shall encourage and support researches and studies
on the arts and culture.

SUGGESTED ANSWER:

D. SECTION 15, ARTICLE XIV OF CONSTITUTION (2012 BAR)

E. GENERAL PROVISIONS

Can the Judge-Advocate General of the Armed Forces of the Philippines be


appointed a Trustee of the Government Service Insurance System? Explain. (1996
Bar Question)

SUGGESTED ANSWER:

No, the Judge Advocate General of the Armed Forces of the Philippines cannot be
appointed as trustee of the Government Service Insurance System. Under Section 5(4),
Article XVI of the Constitution, no member of the Armed Forces of the Philippines in the

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active service shall at any time be appointed or designated in any capacity to a civilian
position in the Government, including government-owned or controlled corporations.

A law changing the design of the Philippine flag. 2% State whether or not the law
is constitutional. Explain briefly. (2006 Bar Question)

SUGGESTED ANSWER:

Since the design of the flag is provided for in Section 1, Article XVI of the Constitution, it
cannot be changed by law and may be changed only by constitutional amendment.

II. General Considerations

A. National territory
1. Archipelagic doctrine

(1) A bill was introduced in the House of Representatives in order to implement


faithfully the provisions of the United Nations Convention on the Law of the Sea
(UNCLOS) to which the Philippines is a signatory. Congressman Pat Rio Tek
questioned the constitutionality of the bill on the ground that the provisions of
UNCLOS are violative of the provisions of the Constitution defining the Philippine
internal waters and territorial sea. Do you agree or not with the said objection?
Explain. (3%)

(2) Describe the following maritime regimes under UNCLOS (4%)

(a) Territorial sea


(b) Contiguous zone
(c) Exclusive economic zone
(d) Continental shelf

ANSWER:

(1) I do not agree.


The UNCLOS is a product of international negotiation that seeks to balance State
sovereignity (mare clausum) and the p[rinciple of freedom of the high seas (mare
liberum) . The freedom to use the worlds marine waters is one of the oldest customary
principles of international law. The UNCLOS gives to the coastal State sovereign
rights in varying degrees over the different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5)
the high seas. It also gives coastal States more or less jurisdiction over foreign
vessels depending on where the vessel is located. Insofar as the internal waters
and territorial sea is concerned, the Coastal State exercises sovereignty, subject to
the UNCLOS and other rules of international law. Such sovereignty extends to the air
space over the territorial sea as well as t=o its bed and subsoil. (Arigo v. Swift,
G.R. No. 206510, September 16, 2014)

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UNCLOS III does not define the internal and territorial waters of states but merely
prescribes the water-land ration, length and contour of n=baselines of
archipelagic States like the Philippines.

UNCLOS III has nothing to do with the acquisition (or loss) of territory, It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e.,
the territorial waters [12 nautical miles from the baselines], exclusive economic
zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III
delimits.

UNCLOS III ans its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by executing multilateral
treaties on the regulations of sea-use rights or enacting statutes to comply with the
treatys terms to delimit maritime zones and continental shelves. Territorial claims to
land features are outside UNCLOS III, and are instead governed by the rules on
general international law. (Magallona v. Ermita, G.R. No. 187167, August 16,
2011, 655 SCRA 476)

(2) Under the provisions of UNCLOS III-


(a) The territorial waters of an archipelagic state shall extend up to 12 nautical
miles from its baselines;
(b) Its contiguous zone shall extend up to 24 nautical miles from its baselines;
(c) Its exclusive economic zone shall extend up to 200 nautical miles from its
baselines; (Magallona v. Ermita, G.R. No. 187167, August 16, 20-11, 655
SCRA 476) while
(d) Its continental shelf comprises the seabed and subsoil of the submarine
areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or
to a distance of 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured where the outer edge of the continental
margin does not extend up to that distance. (UNCLOS III, Article 77)

Congress passed Republic Act No. 7711 to comply with the United Nations
Convention on the Law of the Sea.

In a petition filed with the Supreme Court, Anak Ti Ilocos, an association of


Ilocano professionals, argued that Republic Act No. 7711 discarded the definition
of the Philippine territory under the Treaty of Paris and in related treaties;
excluded the Kalayaan Islands and the Scarborough Shoals from the Philippine
Archipelagic baselines; and converted internal waters into archipelagic waters. Is
the petition meritorious? (6%)

SUGGESTED ANSWER:

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No, the petition is not meritorious. The United Nations Convention on the Law of the
Sea has nothing to do with the acquisition or loss of territory. It merely regulates
sea-use rights over maritime zones, contiguous zones, exclusive economic zones,
and continental shelves which it delimits. The Kalayaan Islands and the Scarborough
Shoals are located at an appreciable distance from the nearest shoreline of the
Philippines= archipelago. A straight baseline loped around them from the nearest
baseline will violate Article 47(3) and Article 47(2) of the United Nations Convention on
the Law of the Sea III. Whether the bodies of water lying landward of the baselines of
the Philippines are internal waters or archipelagic waters, the Philippines retains
jurisdiction over them (Magallona v. Ermita, G.R. No. 187167, July 16, 2011, 655 SCRA
476). (2013 BAR)

What do you understand by the archipelagic doctrine? Is this reflected in the 1987
Constitution? (1989 Bar Question)

SUGGESTED ANSWER:

The archipelagic doctrine emphasizes the unity of land and waters by defining an
archipelago either as a group of islands surrounded by waters or a body of waters
studded with islands. For this purpose, it requires that baselines be drawn by
connecting the appropriate points of the outermost islands to encircle the islands within
the archipelago. The waters on the landward side of the baselines regardless of breadth
or dimensions are merely internal waters.

Yes, the archipelagic doctrine is reflected in the 1987 Constitution. Article I, Section 1
provides that the national territory of the Philippines includes the Philippine archipelago,
with all the islands and waters embraced therein; and the waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and dimensions,
form part of the internal waters of the Philippines.

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%) (2009 Bar
Question)

Under the archipelago doctrine, the waters around, between, and connecting the
islands of the archipelago form part of the territorial sea of the archipelagic state.

SUGGESTED ANSWER:

False. Under Article I of the Constitution, the water around, between and connecting the
islands of the Philippines form part of its internal waters. Under Article 49 (1) of the U.N.
Convention on the Law of the Sea, these waters do not form part of the territorial sea
but are described as archipelagic waters.

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B. State immunity

The Ambassador of the Republic of Kafirista referred to you for handling, the
case of the Embassys Maintenance Agreement with CBM, a private
domestic company engaged in maintenance work. The Agreement binds CBM, for
a defined fee, to maintain the Embassys elevators, air-conditioning units and
electrical facilities. Section 10 of the Agreement provides that the Agreement
shall be governed by Philippine laws and that any legal action shall be brought
before the proper court of Makati. Kafiristan terminated the Agreement because
CBM allegedly did not comply with their agreed maintenance standards.

CBM contested the termination and filed a complaint against Kafiristan before the
Regional Trial Court of Makati. The Ambassador wants you to file a motion to
dismiss on the ground of state immunity from suit and to oppose the position
that under Section 10 of the Agreement, Kafiristan expressly waives its immunity
from suit.

Under these facts, can the Embassy successfully invoke immunity from suit?
(6%) (2013 BAR)

SUGGESTED ANSWER:

Yes, the Embassy can invoke immunity from suit. Section 10 of the Maintenance
Agreement is not necessarily a waiver of sovereign immunity from suit. It was meant to
apply in case the Republic of Kafiristan elects to sue in the local courts or waives its
immunity by a subsequent act. The establishment of a diplomatic mission is a sovereign
function. This encompasses its maintenance and upkeep. The Maintenance Agreement
was in pursuit of a sovereign activity (Republic of the Indonesia v. Vinzon, G.R. No.
154705, June 26, 2003, 405 SCRA 126).

In the last quarter of 2012, about 5,000 container vans of imported goods
intended for the Christmas Season were seized by agents of the Bureau of
Customs. The imported goods were released only on January 10, 2013. A group
of importers got together and filed an action for damages before the Regional
Trial Court of Manila against the Department of Finance and Bureau of Customs.

The Bureau of Customs raised the defense of immunity from suit and,
alternatively, that liability should lie with XYZ Corp. which the Bureau had
contracted for the lease of ten (10) high powered van cranes but delivered only
five (5) of these cranes, thus causing the delay in its cargo-handling operations. It
appears that the Bureau, despite demand, did not pay XYZ Corp. the Php1.0
Million deposit and advance rental required under their contract. (2013 BAR)

(A) Will the action by the group of importers prosper? (5%)

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SUGGESTED ANSWER:

(A) No. The action by the group of importers will not prosper. The primary function of
the Bureau of Customs is governmental, y=that of assessing and collecting lawful
revenues from imported articles and all other tariff and customs duties, fees, charges,
fines and penalties (Mobil Philippines Exploration, Inc. v. Customs Arrastre Service, 18
SCRA 120)

(B) Can XYZ Corp. sue the Bureau of Customs to collect rentals for the
delivered cranes? (5%)

SUGGESTED ANSWER:

(B ) No. XYZ Corporation cannot sue the Bureau of Customs to collect rentals for the
delivered cranes, The contract was a necessary incident to the performance of its
governmental function. To property collect the revenues and customs duties, the
Bureau of Customs must check to determine if the declaration of the importers tallies
with the landed merchandise. The cranes are needed to haul the landed merchandise
to a suitable place for inspection. (Mobil Philippines Exploration v. Customs Arrastre
Service, 18 SCRA 1120).

ALTERNATIVE ANSWER:

No, XYZ Corporation cannot sue the Bureau of Customs because it has no
juridical personality separate from that of the Republic of the Philippines (Mobil
Philippines Exploration v. Customs Arrastre Service, 18 SCRA 1120).

ANOTHER ALTERNATIVE ANSWER:


Yes, XYZ Corporation may sue the Bureau of Customs because the contact is
connected with a propriety function, the operation of the arrastre service
(Philippine Refining Company v. Court of Appeals, 256 SCRA 667). Besides, XYZ
Corporation leased its van cranes, because the Bureau of Customs undertook to
pay its rentals. Justice and equity demand that the bureau of Customs should not
be allowed to invoke state immunity from suit (Republ;ic v. Unimex-Micro Electonics
GmBH, 518 SCRA 19).

Mr. Sinco Sued the government for damages. After trial, the court ruled in his
favor and awarded damages amounting to P50 million against the
government. To satisfy the judgment against the government, which valid option
is available to Mr. Sinco? (1%) (2013 BAR)

(A) Garnish the government funds deposited at the Land Bank.


(B) File a claim with the Commission on Audit (COA) pursuant to
Commonwealth Act 327, as amended by Presidential Decree 1445.
(C) Make representations with the Congress to appropriated the amount to
satisfy the judgment.

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(D) FIle a petition for mandamus in court to compel Congress to appripriate P50
million to satisfy the judgment.
(E) Proceed to execute the judgment as provided by the Rules of Court because
the State allowed itself to be sued.

SUGGESTED ANSWER:

(B)(University of the Philippines v. Dizon, G.R. No. 171182, August 23, 2012, 679
SCRA 54).

The Northern Luzon Irrigation Authority (NLIA) was established by a legislative


charter to strengthen the irrigation systems that supply water to farms and
commercial growers in the area. While the NLIA is able to generate revenues
through its operations, it receives an annual appropriation from Congress. The
NLIA is authorized to exercise all the powers of a corporation under the
Corporation Code."

Due to a miscalculation by some of its employees, there was a massive irrigation


overflow causing a flash flood in Barrio Zanjera. A child drowned in the incident
and his parents now file suit against The NLIA for damages.

May the NLIA validly invoke the immunity of the State from suit? Discuss
thoroughly. (1992 Bar Question)

SUGGESTED ANSWER:

No, the Northern Luzon Irrigation Authority may not invoke the immunity of the State
from suit, because, as held in Fontanilla vs. Maliaman. 179 SCRA 685 and 194 SCRA
486, irrigation is a proprietary function. Besides, the Northern Luzon Irrigation Authority
has a juridical personality separate and distinct from the government, a suit against it is
not a suit against the State. Since the waiver of the immunity from suit is without
qualification, as held in Rayo vs. Court of First Instance of Bulacan 110 SCRA 456, the
waiver includes an action based on a quasi-delict.

The Secretary of Public Works, after an investigation, ordered the demolition of


the fishpond of X as a nuisance per se on the ground that it encroached on
navigable rivers and impeded the use of the rivers. The Secretary submitted to
the President of the Philippines a report of said investigation, which report
contained clearly libelous matters adversely affecting the reputation of X, a well-
known civic and religious leader in the community.

The Supreme Court later found that the rivers were man-made and were
constructed on private property owned by X.

May X recover damages from the Secretary of Public Works for the cost involved
in rebuilding the fishponds and for lost profits? State your reason. (1990 Bar

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Question)

Suppose X files a libel suit against the Secretary of Public Works. Will the said
libel suit prosper? Explain your answer. (1990 Bar Question)

SUGGESTED ANSWER:

No. X cannot recover damages from the Secretary of Public Works. The Secretary of
Public Works ordered the demolition of the fishpond in the performance of his official
duties. He did not act in bad faith or with gross negligence. He issued the order only
after due investigation. In Mabutol v. Pascual, 124 SCRA 876, it was held that the
members of the Ad Hoc Committee created to implement Presidential Decree No. 296
and Letter of Instruction No. 19, which ordered the demolition of structures obstructing
public waterways, could not be sued for damages although they ordered the demolition
of a building that encroached upon a creek, because the public officers concerned did
not act in bad faith.

No. the libel suit will not prosper. The report submitted by the Secretary of Public Works
to the President constitutes privileged communication, as it was sent in the performance
of official duty.

Article 354 of the Revised Penal Code provides:

Every defamatory imputation is presumed to be malicious, even if it be


true, if no good intention and justifiable motive for making it is shown, except in
the following cases:

1. A private communication made by any person to another in the


performance of any legal, moral or social duty:"

In Deano v. Godinez, 12 SCRA 483, it was held that a report sent by a public official to
his superior is privileged communication, because its submission is pursuant to the
performance of a legal duty.

Besides, in sending his report, the Secretary of Public Works acted in the discharge of
his official duties. Hence, he was acting in behalf of the Republic of the Philippines and
within the scope of his authority. According to the ruling in Sanders v. Veridiano, 162
SCRA 88, a suit brought against a public official for writing a letter which is alleged to be
libelous but which was written while he was acting as agent of the government and
within the scope of his authority is actually a suit against the State without its consent.

SUGGESTED ANSWER:

The question does not specify how the libel was committed. If the libelous statement
was not relevant to the report on the alleged illegal encroachment of the river, the fact
that it was made in the course of an official report does not immunize the Secretary of

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Public Works from liability for libel.

In February 1990, the Ministry of the Army, Republic of Indonesia, invited bids for
the supply of 500,000 pairs of combat boots for the use of the Indonesian Army.
The Marikina Shoe Corporation, a Philippine corporation, which has no branch
office and no assets in Indonesia, submitted a bid to supply 500,000 pairs of
combat boots at U.S. $30 per pair delivered in Jakarta on or before 30 October
1990. The contract was awarded by the Ministry of the Army to Marikina Shoe
Corporation and was signed by the parties in Jakarta. Marikina Shoe Corporation
was able to deliver only 200,000 pairs of combat boots in Jakarta by 30 October
1990 and it received payment for 100,000 pairs or a total of U.S. $3,000,000.00.
The Ministry of the Army promised to pay for the other 100,000 pairs already
delivered as soon as the remaining 300,000 pairs of combat boots are delivered,
at which time the said 300,000 pairs will also be paid for. Marikina Shoe
Corporation failed to deliver any more combat boots.

On 1 June 1991, the Republic of Indonesia filed an action before the Regional
Trial Court of Pasig, Rizal to compel Marikina Shoe Corporation to perform the
balance of its obligations under the contract and for damages. In its Answer,
Marikina Shoe Corporation sets up a counterclaim for U.S. $3,000,000.00
representing the payment for the 100,000 pairs of combat boots already delivered
but unpaid. Indonesia moved to dismiss the counterclaim, asserting that it is
entitled to sovereign immunity from suit. The trial court denied the motion to
dismiss and issued two writs of garnishment upon Indonesian Government funds
deposited in the Philippine National Bank and Far East Bank. Indonesia went to
the Court of Appeals on a petition for certiorari under Rule 65 of the Rules of
Court.

How would the Court of Appeals decide the case? (1991 Bar Question)

SUGGESTED ANSWER:

The Court of Appeals should dismiss the petition insofar as it seeks to annul the order
denying the motion of the Government of Indonesia to dismiss the counterclaim. The
counterclaim in this case is a compulsory counterclaim since it arises from the same
contract involved in the complaint. As such it must be set up otherwise it will be barred.
Above all, as held in Froilan vs. Pan Oriental Shipping Co., 95 Phil. 905, by filing a
complaint, the state of Indonesia waived its immunity from suit. It is not right that it can
sue in the courts but it cannot be sued. The defendant therefore acquires the right to set
up a compulsory counterclaim against it.

However, the Court of Appeals should grant the petition of the Indonesian government
insofar as it sought to annul the garnishment of the funds of Indonesia which were
deposited in the Philippine National Bank and Far East Bank. Consent to the exercise of
jurisdiction of a foreign court does not include waiver of the separate immunity from
execution. (Brownlie, Principles of Public International Law, 4th ed., p. 344.) Thus, in

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Dexter vs. Carpenter vs. Kunglig Jarnvagsstyrelsen, 43 F2d 705, it was held the
consent to be sued does not give consent to the attachment of the property of a
sovereign government.

(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 the Secretary of Public Works and the
Republic of the Philippines for payment of the compensation of the value of his
land, which was used as part of the tarmac of the Cebu International Airport,
without prior expropriation proceedings.

The Solicitor General moved to dismiss the two cases invoking state
immunity from suit. Decide. (1987 Bar Question)

SUGGESTED ANSWER:

The government cannot be sued for damages considering that the agency which
caused the damages was the Philippine Navy. Under Art. 2180 of the Civil Code, the
state consents to be sued for a quasi delict only when the damage is caused by its
special agents. Hence, the Solicitor Generals motion should be granted and the suit
brought by X be dismissed.

But the government cannot invoke the states immunity from suit. As held in Ministerio v.
Court of First Instance. 40 SCRA 464 (1971), which also involved the taking of private
property without the benefit of expropriation proceeding, The doctrine of governmental
immunity from suit cannot serve as an instrument for perpetrating an injustice on a
citizen. . . . When the government takes any property for public use, which is conditional
upon the payment of just compensation, to be judicially ascertained, it makes manifest
that it submits to the jurisdiction of the court. The Solicitor Generals motion to dismiss
should, therefore, be denied.

It is said that 'waiver of immunity by the State does not mean a concession of its
liability" What are the implications of this phrase? (1997 Bar Question)

SUGGESTED ANSWER:

The phrase that waiver of immunity by the State does not mean a concession of liability
means that by consenting to be sued, the State does not necessarily admit it is liable.
As stated in Philippine Rock Industries, Inc. vs. Board of Liquidators, 180 SCRA 171, in
such a case the State is merely giving the plaintiff a chance to prove that the State is
liable but the State retains the right to raise all lawful defenses.

A.
1.) What do you understand by state immunity from suit? Explain. (2%) (1999 Bar
Question)

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2.) How may consent of the state to be sued be given? Explain. (2%) (1999 Bar
Question)

B.
The employees of the Philippine Tobacco Administration (PTA) sued to recover
overtime pay. In resisting such claim, the PTA theorized that it is performing
governmental functions. Decide and explain. (2%) (1999 Bar Question)

SUGGESTED ANSWER:

A.1.) State immunity from suit means that the State cannot be sued without its consent.
A corollary of such principle is that properties used by the State in the performance of its
governmental functions cannot be subject to judicial execution.

2.) Consent of the State to be sued may be made expressly as in the case of a specific,
express provision of law as waiver of State immunity from suit is not inferred lightly (e.g.
C.A. 327 as amended by PD 1445) or impliedly as when the 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 a counterclaim (Froilan v. Pan Oriental Shipping) or when the
doctrine would in effect be used to perpetuate an injustice (Amigable
Cuenca, 43 SCRA 360).

B. 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 the
effective merchandising of tobacco so that those engaged in the tobacco industry will
have economic security, to stabilize the price of tobacco, and to improve the living and
economic conditions of those engaged in the tobacco industry.

The Department of National Defense entered into a contract with Raintree


Corporation for the supply of ponchos to the Armed Forces of the Philippines
(AFP), stipulating that, in the event of breach, action may be filed in the proper
courts in Manila.

Suppose the AFP fails to pay for delivered ponchos, where must Raintree
Corporation file its claim? Why? (10%) (1998 Bar Question)

SUGGESTED ANSWER:

Raintree Corporation must file its claim with the Commission on Audit. Under Section
2(1) IX-D of the Constitution, the Commission on Audit has the authority to settle all
accounts pertaining to expenditure of public funds. Raintree Corporation cannot file a
case in court. The Republic of the Philippines did not waive its immunity from suit when
it entered into the contract with Raintree Corporation for the supply of ponchos for the
use of the Armed Forces of the Philippines. The contract involves the defense of the

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Philippines and therefore relates to a sovereign function.

In United States vs. Ruiz, 136 SCRA 487, 492, the Supreme Court held:

"The restrictive application of State immunity is proper only when the proceedings arise
out of commercial transactions of the foreign sovereign, its commercial activities or
economic affairs. Stated differently, a State maybe said to have descended to the level
of an individual and can thus be deemed to have tacitly given Its consent to be sued
only when it enters into business contracts. It does not apply where the contract relates
to the exercise of its sovereign functions. In this case the projects are so integral part of
the naval base which is devoted to the defense of both the United States and the
Philippines, indisputably a function of the government of the highest order; they are not
utilized for nor dedicated to commercial or business purposes.

The provision for venue in the contract does not constitute a waiver of the State
immunity from suit, because the express waiver of this immunity can only be made by a
statute.

In Republic vs. Furisima. 78 SCRA 470 474, the Supreme Court ruled:

"Apparently respondent Judge was misled by the terms of the contract between the
private respondent, plaintiff in his sala, and defendant Rice and Corn Administration
which, according to him, anticipated the case of a breach of contract between the
parties and the suits that may thereafter arise. The consent, to be effective though, must
come from the State acting through a duly enacted statute as pointed out by Justice
Bengzon in Mobil."

SUGGESTED ANSWER:

In accordance with the doctrine of exhaustion of administrative remedies, Raintree


Corporation should first file a claim with the Commission on Audit. If the claim is denied,
it should file a petition for certiorari with the Supreme Court.

The Republic of the Philippines, through the Department of Public Works and
Highways (DPWH), constructed a new highway linking Metro Manila and Quezon
province, and which major thoroughfare traversed the land owned by Mang
Pandoy. The government neither filed any expropriation proceedings nor paid
any compensation to Mang Pandoy for the land thus taken and used as a public
road.

Mang Pandoy filed a suit against the government to compel payment for the value
of his land. The DPWH filed a motion to dismiss the case on the ground that the
State is immune from suit. Mang Pandoy filed an opposition.

Resolve the motion. (5%) (2001 Bar Question)

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SUGGESTED ANSWER:

The motion to dismiss should be denied. As held in Amigable v. Cuenca, 43 SCRA


300 (1972), when the Government expropriates private property without paying
compensation, it is deemed to have waived its immunity from suit. Otherwise, the
constitutional guarantee that private property shall not be taken for public use without
payment of just compensation will be rendered nugatory.

MBC, an alien businessman dealing in carpets and caviar, filed a suit against
policemen and YZ, an attach of XX Embassy, for damages because of malicious
prosecution. MBC alleged that YZ concocted false and malicious charges that he
was engaged in drug trafficking, whereupon narcotics policemen conducted a
buy-bust" operation and without warrant arrested him, searched his house, and
seize his money and jewelry, then detained and tortured him in violation of his
civil and human rights as well as causing him, his family and business serious
damages amounting to two million pesos. MBC added that the trial court
acquitted him of the drug charges.

Assailing the courts jurisdiction: YZ now moves to dismiss the complaint, on the
ground that

(1) he is an embassy officer entitled to diplomatic immunity; and that (2) the suit
is really a suit against his home state without its consent. He presents diplomatic
notes from XX Embassy certifying that he is an accredited embassy officer
recognized by the Philippine government. He performs official duties, he says, on
a mission to conduct surveillance of drug experts and then inform local police
officers who make the actual arrest of suspects.

Are the two grounds cited by YZ to dismiss the suit tenable? (5%) (2004 Bar
Question)

SUGGESTED ANSWER:

The claim of diplomatic immunity of YZ is not tenable, because he does not possess an
acknowledged diplomatic title and is not performing duties of a diplomatic nature.
However, the suit against him is a suit against XX without its consent. YZ was acting as
an agent of XX and was performing his official functions when he conducted
surveillance on drug exporters and informed the local police officers who arrested MBC.
He was performing such duties with the consent of the Philippine government,
therefore, the suit against YZ is a suit against XX without its consent. (Minucher v. Court
of Appeals, 397 SCRA 244 [1992]).

Adams and Baker are American citizens residing in the Philippines. Adams
befriended Baker and became a frequent visitor at his house. One day, Adams
arrived with 30 members of the Philippine National Police, armed with a Search
Warrant authorizing the search of Bakers house and its premises for dangerous

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drugs being trafficked to the United States of America.

The search purportedly yielded positive results, and Baker was charged with
Violation of the Dangerous Drugs Act. Adams was the prosecutions principal
witness. However, for failure to prove his guilt beyond reasonable doubt, Baker
was acquitted.

Baker then sued Adams for damages for filing trumped- up charges against him.
Among the defenses raised by Adams is that he has diplomatic immunity,
conformably with the Vienna Convention on Diplomatic Relations. He presented
Diplomatic Notes from the American Embassy stating that he is an agent of the
United States Drug Enforcement Agency tasked with conducting surveillance
operations on suspected drug dealers in the Philippines believed to be the
source of prohibited drugs being shipped to the U.S. It was also stated that after
having ascertained the target, Adams would then inform the Philippine narcotic
agents to make the actual arrest.

(A) As counsel of plaintiff Baker, argue why his complaint should not be
dismissed on the ground of defendant Adams diplomatic immunity from suit.

(B) As counsel of defendant Adams, argue for the dismissal of the complaint.
(5%) (2005 Bar Question)

SUGGESTED ANSWER:

As counsel of Baker, I shall argue that Baker has no diplomatic immunity, because he is
not performing diplomatic functions.

SUGGESTED ANSWER:

As counsel for Baker, I will argue that Adam's diplomatic immunity cannot be accepted
as the sole basis for dismissal of the damage suit, by mere presentation of Diplomatic
Notes stating that he is an agent of the US Drug Enforcement Agency. His diplomatic
status was a matter of serious doubt on account of his failure to disclose it when he
appeared as principal witness in the earlier criminal (drug) case against Baker,
considering that as a matter of diplomatic practice a diplomatic agent may be allowed or
authorized to give evidence as a witness by the sending state. Thus, his diplomatic
status was not sufficiently established.

SUGGESTED ANSWER:

As counsel of Adams, I shall argue that since he was acting within his assigned
functions with the consent of the Philippines, the suit against him is a suit against the
United States without its consent and is barred by state immunity from suit. [Minucher v.
Court of Appeals, 397 SCRA244 (2003)].

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Italy, through its Ambassador, entered into a contract with Abad for the
maintenance and repair of specified equipment at its Embassy and Ambassadors
Residence, such as air conditioning units, generator sets, electrical facilities,
water heaters, and water motor pumps. It was stipulated that the agreement shall
be effective for a period of four years and automatically renewed unless
cancelled. Further, it provided that any suit arising from the contract shall be filed
with the proper courts in the City of Manila.

Claiming that the Maintenance Contract was unilaterally, baselessly and


arbitrarily terminated, Abad sued the State of Italy and its Ambassador before a
court in the City of Manila. Among the defenses they raised were sovereign
immunity and diplomatic immunity".

As counsel of Abad, refute the defenses of sovereign immunity and diplomatic


immunity raised by the State of Italy and its Ambassador.

At any rate, what should be the court's ruling on the said defenses? (5%) (2005
Bar Question)

SUGGESTED ANSWER:

As counsel of Abad, I shall argue that the contract is not a sovereign function and that
the stipulation that any suit arising under the contract shall be filed with the proper
courts of the City of Manila is a waiver of the sovereign immunity from suit of Italy. I
shall also argue that the ambassador does not enjoy diplomatic immunity, because the
suit relates to a commercial activity.

The court should reject the defenses. Since the establishment of a diplomatic mission
requires the maintenance and upkeep of the embassy and the residence of the
ambassador, Italy was acting in pursuit of a sovereign activity when it entered into the
contract. The provision in the contract regarding the venue of lawsuits is not necessarily
a waiver of sovereign immunity from suit. It should be interpreted to apply only where
Italy elects to sue in the Philippine courts or waives its immunity by a subsequent act.
The contract does not involve a commercial activity of the ambassador, because it is
connected with his official functions. [Republic of Indonesia v. Vinzon, 405 SCRA 126
(2003)].

C. General Principles and State Policies

The separation of Church and State is most clearly violated when


_______________. (1%) (2013 BAR)

(A) the State funds a road project whose effect is to make a church more
accessible to its adherents
(B) the state declares the birthplace of a founder of a religious sect as a national
historical site

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(C) the State expropriates church property in order to construct an expressway


that, among others, provides easy access to the Churchs main cathedral
(D) the State gives vehicles to bishops to assist the in church-related charitable
projects
(E) the State allows prayers in schools for minor children without securing the
prior consent of their parents.

SUGGESTED ANSWER:

(E) the state allows prayers in schools for minor children without securing the prior
consent of their parents.

ALTERNATIVE ANSWER:

(D)

What do you understand by the Doctrine of Incorporation in Constitutional Law?


(1997 Bar Question)

SUGGESTED ANSWER:

The doctrine of incorporation means that the rules of international law form part of the
law of the land and no legislative action is required to make them applicable to a
country. The Philippines follows this doctrine, because Section 2. Article II of the
Constitution states that the Philippines adopts the generally accepted principles of
international law as part of the law of the land.

The Philippines has become a member of the World Trade Organization (WTO)
and resultantly agreed that it shall ensure the conformity of its laws, regulations
and administrative procedures with its obligations as provided in the annexed
Agreements." This is assailed as unconstitutional because this undertaking
unduly limits, restricts and Impairs

Philippine sovereignty and means among others that Congress could not pass
legislation that will be good for our national interest and general welfare if such
legislation will not conform with the WTO Agreements. Refute this argument. (5%)
(2000 Bar Question)

SUGGESTED ANSWER:

According to Tanada v. Angara, 272 SCRA 18(1997), the sovereignty of the Philippines
is subject to restriction by its membership in the family of nations and the limitations
imposed of treaty limitations. Section 2, Article II of the Constitution adopts the generally
accepted principles of international law as part of the law of the land. One of such
principles is pacta sunt servanda. The Constitution did not envision a hermit-like
isolation of the country from the rest of the world.

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One of the features of the government established under the 1987 Constitution is
the restoration of the principle of checks and balances. This is especially
noteworthy in the Commander-in-Chief powers of the President which
substantially affects what was styled under the past dispensation as the
calibrated response to national emergencies.

Discuss fully the provisions of the 1987 Constitution, giving the scope, limits and
the role of the principle of checks and balances on the Presidents exercise of the
power: (1987 Bar Question)

1. To suspend the privilege of the writ of habeas corpus


2. Proclamation of martial law.

SUGGESTED ANSWER:

The Presidents power to suspend the privilege of the writ of habeas corpus and to
proclaim martial law is subject to several checks by Congress and by the Supreme
Court. The President is required to report to Congress within 48 hours his action in
declaring martial law or suspending the privilege of the writ, and Congress is in turn
required to convene, if it is not in session, within 24 hours following the proclamation of
martial law or the suspension of the privilege without need of any call, in accordance
with its rules. The proclamation of martial law or suspension of the writ is effective for 60
days only, but Congress can cut short its effectivity by revoking the proclamation by the
vote of at least a majority of all its members, voting, jointly. Any extension of the
proclamation of martial law or suspension of the writ can only be granted by Congress
which will determine also the period of such extension.

On the other hand, the Supreme Court exercises a check on Executive action in the
form of judicial review at the instance of any citizen. The Constitution embodies in this
respect the ruling in Garcia v. Lansang, 42 SCRA 448 (1971) that the Court can
determine the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege or the extension thereof not for the purpose of supplanting
the judgment of the President but to determine whether the latter did not act arbitrarily.
Indeed, Art. VIII, Sec. 1 imposes upon the courts the duty of" determining whether or
not there has been grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the other branches of the government, in this case, the President.

The President cannot, by means of the proclamation of martial law, suspend the
Constitution or supplant the courts and the legislature. Neither can he authorize the trial
of civilians by military tribunals so long as courts are open and functioning, thus
overruling the case of Aquino v. Military Commission No. 2, 63 SCRA 546 (1975). His
proclamation of martial law 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) is now
overruled. Nor does the suspension of the writ deprive courts of their power to admit
persons to bail, where proper. The Constitution thus overrules the cases of Garcia-

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Padilla v. Ponce Enrile, 121 SCRA 472 (1983) and Morales v. Ponce Enrile. 121 SCRA
538 (1983).

The system of checks and balances operates when


(A) the President nullifies a conviction in a criminal case by pardoning the
offender.
(B) Congress increases the budget proposal of the President.
(C) the President does not release the countryside development funds to
members of Congress.
(D) Congress expands the appellate jurisdiction of the Supreme Court, as defined
by the Constitution.

An existing law grants government employees the option to retire upon reaching
the age of 57 years and completion of at least 30 years of total government
service. As a fiscal re-trenchment measure, the Office of the President later
issued a Memorandum Circular requiring physical incapacity as an additional
condition for optional retirement age of 65 years. A government employee,
whose application for optional retirement was denied because he was below 65
years of age and was not physically incapacitated, filed an action in court
questioning the disapproval of his application claiming that the Memorandum
Circular is void. Is the contention of the employee correct? Explain. (1989 Bar
Question)

SUGGESTED ANSWER:

Yes, the contention of the employee is correct. In Marasigan vs. Cruz, 150 SCRA 1, it
was held that such a memorandum circular is void. By introducing physical capacity as
an additional condition for optional retirement, the memorandum circular tried to amend
the law. Such a power is lodged with the legislative branch and not with the executive
branch.

Under the executive agreement entered into between the Philippines and the
other members of the ASEAN, the other members will each send a battalion-size
unit of their respective armed forces to conduct a combined military exercise in
the Subic Bay area. A group of concerned citizens sought to enjoin the entry of
foreign troops as violative of the 1987 Constitution that prohibited the stationing
of foreign troops and the use by them, of local facilities.

As the Judge, decide the case. Explain. (1996 Bar Question)

SUGGESTED ANSWER:

As a judge. I shall dismiss the case. What Section 25, Article XVII of the Constitution
prohibits in the absence of a treaty is the stationing of troops and facilities of foreign
countries in the Philippines. It does not include the temporary presence in the
Philippines of foreign troops for the purpose of a combined military exercise. Besides,

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the holding of the combined military exercise is connected with defense, which is a
sovereign function. In accordance with the ruling in Baer vs. Tizon, 57 SCRA 3., the
filing of an action interfering with the defense of the State amounts to a suit against the
State without its consent.

What is the state policy on: (1994 Bar Question)


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 Constitution provides:

The State shall protect working women by providing safe and healthful
working conditions, taking into account their maternal functions, and such
facilities and opportunities that will enhance their welfare and enable them
to realize their full potential in the service of the nation."

B. Section 16, Article II of the Constitution provides:

The State shall protect and advance the right of the people and their
posterity to a balanced and healthful ecology in accord with the rhythm
and harmony of nature."

C. Section 1, Article XVII of the Constitution provides:

The flag of the Philippines shall be red, white, and blue, with a sun and
three stars, as consecrated and honored by the people 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 national seal, which shall all be truly reflective and symbolic of the
ideals, history, and traditions of the people. Such law shall take effect only upon
its ratification by the people in a national referendum."

D. Section 22. Article II of the Constitution provides:

The State recognizes and promotes the rights of indigenous cultural


communities within the framework of national unity and development."

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Section 5. Article XII of the Constitution reads:

The State, subject to the provisions of this Constitution and national


development policies and programs, shall protect the rights of indigenous cultural
communities to their ancestral lands to ensure their economic, social and cultural
well-being.

The Congress may provide for the applicability of customary laws


governing property rights or relations in determining the ownership and extent of
the ancestral domains."

Section 6, Art. XVII of the Constitution provides:

The State shall apply the principles of agrarian reform or stewardship,


whenever applicable in accordance with law, in the disposition or utilization of
other natural resources, including lands of the public domain under lease or
concession suitable to agriculture, subject to prior rights, homestead rights of
small settlers, and the rights of indigenous communities to their ancestral lands.

The State may resettle landless farmers and farm workers in its own
agricultural estates which shall be distributed to them in the manner provided by
law."

Section 17. Article XIV of the Constitution states:

The State shall recognize, respect and protect the rights of indigenous
cultural communities to pre-serve and develop their cultures, traditions, and
institutions. It shall consider these rights in the formulation of national plans and
policies."

E. Section 17, Article II of the Constitution provides:

The State shall give priority to education, science and technology, arts, culture,
and sports to foster patriotism and nationalism, accelerate social progress, and
promote total human liberation and development.

Section 14. Article XII of the Constitution reads in part:

The sustained development of a reservoir of national talents consisting of


Filipino scientists, entrepreneurs, professionals, managers, high-level technical
manpower and skilled workers and craftsmen shall be promoted by the State.
The State shall encourage appropriate technology and regulate its transfer for
the national benefit.

Sub-section 2. Section 3. Article XTV of the Constitution states:

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They (educational institutions) shall inculcate patriotism and nationalism,


foster love of humanity, respect for human rights, appreciation of the role of
national heroes in the historical development of the country, teach the rights and
duties of citizenship, strengthen ethical and spiritual values, develop moral
character and personal discipline, encourage critical and creative thinking,
broaden scientific and technological knowledge. and promote vocational
efficiency."

Section 10. Article XIV of the Constitution declares:

Science and technology are essential for national, development and progress.
The State shall give priority to research and development, invention, innovation,
and their utilization: and to science and techno logy education, training services.
It shall support indigenous, appropriate, and self-reliant scientific and cultural
capabilities, and their application to the countrys productive systems and
national life."

Section 11, Article XIV of the Constitution provides:

The Congress may provide for incentives, including tax deductions, to


encourage private participation in programs of basic and applied scientific research.
Scholarships, grants-in-aid or other forms of incentives shall be provided to deserving
science students, researchers, scientists, investors, technologists, and specially gifted
citizens."

Section 12, Article XIV of the Constitution reads:

The State shall regulate the transfer and promote the adaptation of technology
from all sources for the national benefit. It shall encourage widest participation of private
groups, local governments, and community-based organizations in the generation and
utilization of science and technology."

NOTE: It is suggested that if an examinee gave a substantive answer without


giving the exact provisions of the Constitution, then he should be given full credit.
Further, one provision quoted/discussed by the examinee should be sufficient for him to
be given full credit.

Does the 1987 Constitution provide for a policy of transparency in matters of


public interest? Explain. (1989 Bar Question)

ANSWER:

Yes, the 1987 Constitution provides for a policy of transparency in matters of public
interest. Section 28, Article II of the 1987 Constitution provides:

Subject to reasonable conditions prescribed by law, the State adopts and

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implements a policy of full disclosure of all its transactions involving public


interest.

Section 7, Article III of the 1987 Constitution states:

The right of the people to information on matters of public concern shall


be recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.

Section 20, Article VI of the 1987 Constitution reads:

The records and books of account of the Congress shall be preserved


and be open to the public in accordance with law, and such books shall be
audited by the Commission on Audit which shall publish annually an itemized list
of amounts paid to and expenses incurred for each member.

Under Section 17, Article XI of the 1987 Constitution, the sworn statement of assets,
liabilities and net worth of the President, the Vice-President, the Members of the
Cabinet, the Congress, the Supreme Court, the Constitutional Commission and other
constitutional offices, and officers of the armed forces with general or flag rank filed
upon their assumption of office shall be disclosed to the public in the manner provided
by law.

Section 21, Article XII of the Constitution declares:

Information on foreign loans obtained or guaranteed by the government


shall be made available to the public.

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

A law was passed dividing the Philippines into three regions (Luzon. Visayas, and
Mindanao), each constituting an Independent state except on matters of foreign
relations, national defense and national taxation, which are vested in the Central
government.

Is the law valid? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

The law dividing the Philippines into three regions, each constituting an independent
state and vesting in a central government matters of foreign relations, national defense,
and national taxation, is unconstitutional. First, it violates Article I. which guarantees the

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integrity of the national territory of the Philippines because it divided the Philippines into
three states. Second, it violates Section 1. Article II of the Constitution, which provides
for the establishment of democratic and republic States by replacing it with three States
organized as a confederation. Third, it violates Section 22, Article II of the Constitution,
which, while recognizing and promoting the rights of indigenous cultural communities,
provides for national unity and development. Fourth, it violates Section 15, Article X of
the Constitution, which, provides for autonomous regions in Muslim Mindanao and in
the Cordilleras within the framework of national sovereignty as well as territorial integrity
of the Republic of the Philippines. Fifth, it violates the sovereignty of the Republic of the
Philippines.

The Secretary of Justice had recently ruled that the President may negotiate for a
modification or extension of military bases agreement with the United States
regardless of the no nukes provisions in the 1987 Constitution. The President
forthwith announced that she finds the same opinion acceptable and will adopt
it. The Senators on the other hand, led by the Senate

President, are skeptical, and had even warned that no treaty or international
agreement may go into effect without the concurrence of two-thirds of all
members of the Senate.

A former senator had said, it is completely wrong, if not erroneous, and is an


amendment of the Constitution by misinterpretation. Some members of the
Lower House agree with Secretary Ordonez, while others lament the latters
opinion as questionable, unfortunate, and without any basis at all.

Do you or do you not agree with the aforementioned ruling of the Department of
Justice? Why? (1988 Bar Question)

SUGGESTED ANSWER:

No. The Constitution provides that if foreign military bases, troops or facilities are to be
allowed after the expiration of the present Philippine-American Military Bases
Agreement in 1991, it must be under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the votes cast by the people in
a national referendum. (Art. XVIII, sec. 25) A mere agreement, therefore, not a treaty,
without the concurrence 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 provision allowing nuclear
weapons within the bases, the Constitution appears to ban such weapons from the
Philippine territory. It declares as a state policy that the Philippines, consistent with the
national interest, adopts and pursues a policy of freedom from nuclear weapons in its
territory. (Art. II, sec. 8)

However, the deliberations of the Constitutional Commission would seem to indicate


that this provision of the Constitution is not something absolute nor 100 percent without
exception. It may therefore be that circumstances may justify a provision on nuclear

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weapons.

Article II, Section 3, of the 1987 Constitution expresses, in part, that the Armed
Forces of the Philippines is the protector of the people and (of) the State."
Describe briefly what this provision means. Is the Philippine National Police
covered by the same mandate? (2003 Bar Question)

SUGGESTED ANSWER:

Article II, Section 3 of the 1987 Constitution means that the Armed Forces of the
Philippines should not serve the interest of the President but of the people and should
not commit abuses against the people. (Record of the Constitutional Commission, Vol.
V, p. 133.) This provision is specifically addressed to the Armed Forces of the
Philippines and not to the Philippine National Police, because the latter is separate and
distinct from the former. (Record of the Constitutional Commission, Vol. V, p. 296;
Manalo v. Sistoza. 312 SCRA 239 [1999].)

SUGGESTED ANSWER:

Article II, Section 3 of the 1987 Constitution can be interpreted to mean that the Armed
Forces of the Philippines can be a legitimate instrument for the overthrow of the civilian
government If it has ceased to be the servant of the people. (Bernas, The 1987
Constitution of the Philippines: A Commentary, 2003 ed., p. 66.) This provision does not
apply to the Philippine National Police, because it is separate and distinct from the
Armed Forces of the Philippines. (Record of the Constitutional Commission, Vol. V, p.
296, Manalo v. Sistoza, 312 SCRA 239 [1999].)

An organization of law students sponsored an inter-school debate among three


teams with the following assignments and propositions for each team to defend:

Team A - International law prevails over municipal law.


Team "B" - Municipal law prevails over international law
Team "C" - A countrys Constitution prevails over international law but
international law prevails over municipal statutes.

If you were given a chance to choose the correct proposition, which would you
take and why? (2003 Bar Question)

SUGGESTED ANSWER:

I shall take the proposition for Team C. International Law and municipal law are
supreme in their own respective fields. Neither has hegemony over the other. (Brownlie,
Principles of Public International Law, 4th ed. p. 157.) Under Article II, Section 2 of the
1987 Constitution, the generally accepted principles of international law form part of the
law of the land. Since they merely have the force of law, if it is Philippine courts that will
decide the case, they will uphold the Constitution over international law. If it is an

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international tribunal that will decide the case, it will uphold international law over
municipal law. As held by the Permanent International Court of Justice in the case of the
Polish Nationals in Danzig, a State cannot invoke its own Constitution to evade
obligations incumbent upon it under international law.

SUGGESTED ANSWER:

I would take the proposition assigned to Team C as being nearer to the legal reality in
the Philippines, namely, A countrys Constitution prevails over international law but
international law prevails over municipal statutes.

This is, however, subject to the place of international law in the Philippine Constitutional
setting in which treaties or customary norms in international law stand in parity with
statutes and in case of irreconcilable conflict, this may be resolved by lex posteriori
derogat lex priori as the Supreme Court obiter dictum in Abbas v. COMELEC holds.
Hence, a statute enacted later than the conclusion or effectivity of a treaty may prevail.

In the Philippine legal system, there are no norms higher than constitutional norms. The
fact that the Constitution makes generally accepted principles of international law or
conventional international law as part of Philippine law does not make them superior to
statutory law, as clarified in Secretary of Justice v. Lantion and Philip Morris
decisions.

What Constitutional provisions institutionalize the principle of civilian


supremacy? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

The provisions of the Constitution which institutionalize the principle of civilian


supremacy are Section 3, Article II, which makes civilian authority supreme at all times
over the military, and Section 18, Article VII, which makes the President the
commander- in-chief of the armed forces of the Philippines.

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%) (2009 Bar
Question)

A law that makes military service for women merely voluntary is constitutional.

SUGGESTED ANSWER:

False. In the defense of the state, all citizens may be required by law to render
personal, military or civil service (Section 4, Article II of the Constitution). The duty is
imposed on all citizens without distinction as to gender.

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SUGGESTED ANSWER:

It may make military service voluntary on females because of substantial difference.

Angelina, a married woman, is a Division Chief in the Department of Science and


Technology. She had been living with a married man, not her husband, for the
last fifteen (15) years. Administratively charged with immorality and conduct
prejudicial to the best interest of the service, she admits her live-in arrangement,
but maintains that this conjugal understanding is in conformity with their
religious beliefs. As members of the religious sect, Yahwehs Observers, they had
executed a Declaration of Pledging Faithfulness which has been confirmed and
blessed by their Council of Elders. At the formal investigation of the
administrative case, the Grand Elder of the sect affirmed Angelinas testimony
and attested to the sincerity of Angelina and her partner in the profession of their
faith. If you were to judge this case, will you exonerate Angelina? Reasons. (3%)
(2009 Bar Question)

SUGGESTED ANSWER:

Angelina should be exonerated. First, it has not been shown that there is compelling
state interest which will be undermined by granting her an exemption. Second, it has not
been shown that the least intrusive means possible was used so that the free exercise
of religion is not infringed any more than necessary (Estrada v. Escritor, 492 SCRA 1
[2006]).

Meanwhile, Jenny, also a member of Yahwehs Observers, was severely


disappointed at the manner the Grand Elder validated what she considered was
an obviously immoral conjugal arrangement between Angelina and her partner.
Jenny filed suit in court, seeking the removal of the Grand Elder from the
religious sect on the ground that his act in supporting Angelina not only ruined
the reputation of their religion, but also violated the constitutional policy
upholding the sanctity of marriage and the solidarity of the family. Will Jennys
case prosper?
Explain your answer. (2%) (2009 Bar Question)

SUGGESTED ANSWER:

The case will not prosper. This involves the performance of the official functions of
religious authorities. Because of separation of Church and State, courts must respect
the autonomy of the religious sect in such matters (Taruc v. De la Cruz, 453 SCRA 123
[2005]).

The Philippine Government is negotiating a new security treaty with the United
States which could involve engagement in joint military operations of the two
countries armed forces. A loose organization of Filipinos, the Kabataan at
Matatandang Makabansa (KMM) wrote the Department of Foreign Affairs (DFA)

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and the Department of National Defense (DND) demanding disclosure of the


details of the negotiations, as well as copies of the minutes of the meetings. The
DFA and the DND refused, contending that premature disclosure of the offers and
counter- offers between the parties could jeopardize on-going negotiations with
another country. KMM filed suit to compel disclosure of the negotiation details,
and be granted access to the records of the meetings, invoking the constitutional
right of the people to information on matters of public concern.

Decide with reasons. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

The petition of KMM must be denied. Diplomatic negotiations are privileged in order to
encourage a frank exchange of exploratory ideas between the parties by shielding the
negotiations from public view (Akbayan Citizens Action Party v. Aquino, 558 SCRA 468
[2008]).

Will your answer be the same if the information sought by KMM pertains to
contracts entered into by the Government in its proprietary or commercial
capacity? Why or why not? (3%) (2009 Bar Question)

SUGGESTED ANSWER:

KMM is entitled to have access to information pertaining to government contracts


entered into by the Government in the exercise of its proprietary or commercial
capacity. The right to information under the Constitution does not exclude contracts of
public interest and are not privileged (Section 7, Article III of the Constitution; Valmonte
v. Belmonte, 170 SCRA256 [1989]).

D. Separation of powers

Which phrase best completes the statement - The starting point of the principle of
separation of powers is the assumption of the division of the functions of
government into three distinct classes: (2012 BAR EXAMS)

a. the bill of rights, state policies, and social justice and human rights;
b. the accountability of public officers, the constitutional commissions, and
the national economy and patrimony;
c. the self-executing provisions, the non-self-executing provisions, and the
self-evident social justice provisions;
d. the executive, the legislative, and the judicial.

SUGGESTED ANSWER

D. CRUZ, PHILIPPINE POLITICAL LAW, 2005 ED., P.70

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Senator Fleur De Lis is charged with plunder before the Sandiganbayan. After
finding the existence of probable cause, the court issues a warrant for the
Senator's arrest. The prosecution files a motion to suspend the Senator relying
on Section 5 of the Plunder Law. According to the prosecution, the suspension
should last until the termination of the case. Senator Lis vigorously opposes the
motion contending that only the Senate can discipline its members; and that to
allow his suspension by the Court would violate the principle of separation of
powers. Is Senator Lis's contention tenable? Explain. (4%) 2015 BAR

ANSWER:

The Senators contention in untenable or unavailing. He can be validly


preventively suspended under the Plunder Law.

The power of each House of Congress to punish its Members for disorderly behavior,
and suspend or expel a Member by a vote of two-thirds of all its Members subject to
the qualification that the penalty of suspension, when imposed, should not exceed
sixty days under Section 6 (3). Article VI of the Constitution is distinct from the
suspension under the Plunder Law, which is not a penalty but a preliminary, preventive
measure, prescinding from the fact that the latter is not being imposed on petitioner for
misbehavior as a Member of thye House of Representatvives. (Ceferino Paredes, Jr.
vs. Sandiganbayan, et al., G.R. No. 118364, 08 August 1995, cited in Santiago v.
Sandiganbayan, G.R. No. 128055, April 18, 2001)

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

Is the grant of authority to the Oversight Committee to screen beneficiaries


constitutional? (3%) (2009 Bar Question)

Decide with reasons.

SUGGESTED ANSWER:

The grant of authority to the Oversight Committee ,to screen beneficiaries is


unconstitutional. It violates the principle of separation of powers. By being involved in
the implementation of the law, the Oversight Committee will be exercising executive
power. (Abakada Guro Party List v. Purisima, 562 SCRA 251 [2008].)

A group of losing litigants in a case decided by the Supreme Court filed a

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complaint before the Ombudsman charging the Justices with knowingly and
deliberately rendering an unjust decision in utter violation of the penal laws of the
land. Can the Ombudsman validly take cognizance of the case? Explain. (2003
Bar Question)

SUGGESTED ANSWER:

No, the Ombudsman cannot entertain the complaint. As stated in the case of In re:
Laureta, 148 SCRA 382 [1987], pursuant to the principle of separation of powers, the
correctness of the decisions of the Supreme Court as final arbiter of all justiciable
disputes is conclusive upon all other departments of the government; the Ombudsman
has no power to review the decisions of the Supreme Court by entertaining a complaint
against the Justices of the Supreme Court for knowingly rendering an unjust decision.

SUGGESTED ANSWER:

Article XI, Section 1 of the 1987 Constitution provides that public officers must at all
times be accountable to the people. Section 22 of the Ombudsman Act provides that the
Office of the Ombudsman has the power to investigate any serious misconduct
allegedly committed by officials removable by impeachment for the purpose of filing a
verified complaint for impeachment if warranted. The Ombudsman can entertain the
complaint for this purpose.

E. Checks and balances

Which of the following best exemplifies how the system of checks and balances
is carried out: (2012 BAR EXAMS)
a. the legislature passes a law that prohibits the president from
commuting a judiciary imposed sentence, as a check of the president;
b. the President pardons a convict as a way to set aside or modify a
judgment of the judiciary;
c. the judiciary overturns a pardon granted by the President as a check on
executions;
d. the President pardons an accused after arraignment in the interest of
justice.

SUGGESTED ANSWER

A. Section 19, Arcticle VII of Constituion

F. Delegation of powers

Which one of the following theories does not support the valid delegation of
authority by the Congress to an administrative agency: (2012 BAR EXAMS)

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a. an administrative agency may "fill up the details" of a statute;


b. the legislature may leave to another body the ascertainment of facts necessary
to bring the law into actual operation;
c. an administrative agency has equal expertise with the legislature in crafting
and implementing laws;
d. contingent legislation.

SUGGESTED ANSWER:

D. UNITED BF HOMEONWERS ASSOCIATION VS BF HOMES INC. 310 SCRA


304

The two accepted tests to determine whether or not there is a valid delegation of
legislative power are the Completeness Test and the Sufficient Standard Test.
Explain each. (4%) (2005 Bar Question)

SUGGESTED ANSWER:

The Completeness Test means that the law must set forth the policy to be carried out by
the delegate. The Sufficient Standard Test means that the limits to which the delegate
must conform in the performance of his functions are determinate or determinable.
[Rodrigo v. Sandiganbayan, 309 SCRA 661 (1999)]

Section 32 of Republic Act No.4670 (The Magna Carla for Public School Teachers)
reads:

Sec. 32. Penal Provision.-A person who shall willfully interfere with, restrain or
coerce any teacher in the exercise of his rights guaranteed by this Act or who shall
in any other manner commit any act to defeat any of the provisions of this Act shall,
upon conviction, be punished by a fine of not less than one hundred pesos nor more
than one thousand pesos, or by imprisonment, in the discretion of the court.

Is the proviso granting the court the authority to impose a penalty of


imprisonment in its discretion constitutional? Explain briefly. (4%) (2005)

SUGGESTED ANSWER:

The provision granting the court the authority to impose a penalty of imprisonment in its
discretion is unconstitutional. Neither a minimum nor a maximum deviation was set by
the legislature. The courts are given wide latitude to fix the term of the imprisonment
without any sufficient standard. This power is essentially legislative. [People v.
Dacuycuy, 173 SCRA. 90 (1989)

G. Forms of government

In a unitary system of government, such as the government under the Philippine

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Constitutor, local government can only be: ((2012 BAR EXAMS))

a. an imperuim in imperio;
b. an infa-sovereign subdivision;
c. a sovereign nation;
d. a sovereign entity.

SUGGESTED ANSWER:

(b) Magtajas Vs. Pryce Properties Corporation, 234 Scra 255

The Constitution declares that the Philippines is a republican state.


Republicanism means: ((2012 BAR EXAMS))
a. the form of government must be presidential;
b. the representatives of the government are elected by the people;
c. sovereignty resides in the elected representatives of the
government;
d. the form of government cannot be changed by the people.

A chief characteristic of the presidential form of government is: ((2012 BAR


EXAMS))
a. concentration of power in the judiciary thru the power of expanded judicial
review;
b. supremacy of the presidency compared to the totality of powers of the
legislative;
c. regular periodic election of the President for a fixed term;
d. unlimited term for the President for as long as elected by the people in free
and honest elections.

ANSWER:
(B) Free Telephone Workers Union vs. Minister of Labor and Employment; 108
scra 757; and (c) section 4, article vii of constitution.

It is suggested that either (b) or (c) may be accepted as a correct answer

What is the principal identifying feature of a presidential form of government?


Explain. 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

The principal identifying feature of a presidential form of government is the principle of


separation of powers. Legislative power is given to the lVegislature, whose members
hold office for a fixed term. Executive power is given to a separate executive, who holds
office for a fixed term. Judicial power is given to an independent judiciary. The President
enjoys a prominent position as chief executive (Bernas, The 1987 Constitution of the
Republic of the Philippines: A Commentary, 2003 ed., p 52).

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IIn a parliamentary form of government, the cabinet, the executive arm, are
simultaneously members of the legislature. The Prime Minister is the head of the
cabinet. The cabinet remains in power only so long as it enjoys the support of the
majority of the legislature. The Prime Minister may be removed on a vote of no-
confidence. The Prime Minister can dissolve the legislature and call for new elections.
In a parliamentary form of government, there is fusion of executive and legislative
powers in the legislature (Bernas, ibid, pp. 52- 53.)

III. Legislative Department

A. Who may exercise legislative power

1. Congress

Identify which one is an invalid exercise of the legislative power: (2012 BAR
EXAMS)
a. legislation by local government on purely local matters;
b. law granting an administrative agency the power to define policy and fix
standards on price control;
c. law authorizing the President, in times of war or other national emergency,
for a limited period, subject to prescribed restrictions, to exercise powers
necessary and proper to carry out a declared national policy;
d. law authorizing the President to fix, within specific limits, tariff rates, import
and export quotas, and other duties, within the framework of the national
development program of the government.

SUGGESTED ANSWER:

C. UNITED STATE VS. ANG TANG HO, 43 PHIL 1

Which of the following can be changed by an ordinary law enacted by Congress?


(2012 BAR EXAMS)
a. Commencement of the term of office of Senators;
b. Date of regular election for President and Vice Presidential;
c. Authority to transfer appropriation;
d. Regular election of the members of Congress.

SUGGESTED ANSWER

a. Commencement of the term of office of Senators;


SECTION 4, ARTICLE VI OF CONSTITUTION; SECTION 4, ARTICLE VII OF
CONSTITUTION; (D) SECTION 8, ARTICLE VI OF CONSTITUTION

Congress shall have the sole power to declare the existence of a state of war by
vote of: (2012 BAR EXAMS)

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a. three-fourths of both Houses in joint session assembled, voting jointly;


b. two-thirds of both Houses in joint session assembled, voting jointly;
c. two-thirds of both Houses in separate session assembled, voting jointly;
d. two-thirds of both Houses in joint session, voting separately.

SUGGESTED ANSWER:

(D) SECTION 23(2) ARTICLE VI OF CONSTITUTION

A bill upon filing by a Senator or a Member of the House of Representatives goes


through specified steps before it leaves the House of Representatives or the
Senate, as the case may be. After leaving the legislature, please name the three
methods by which said bill may become a law. (1988 Bar Question)

SUGGESTED ANSWER:

A bill passed by Congress may become a law in any of the following cases:

(A) If it is signed into law by the President. (Art. VI, sec. 27(1)).
(B) If it is repassed over the Presidents veto by the vote of two thirds of all the members
of the House of Representatives and of the Senate. (Id.)
(C) If the President fails to veto it within thirty days after receipt thereof and
communicate the veto to the House from which it originated. (Id.)

Suppose that Congress passed a law creating a Department of Human Habitat


and authorizing the Department Secretary to promulgate implementing rules and
regulations. Suppose further that the law declared that violation of the
implementing rules and regulations so issued would be punishable as a crime
and authorized the Department Secretary to prescribe the penalty for such
violation. If the law defines certain acts as violations of the law and makes them
punishable, for example, with imprisonment of three (3) years or a fine in the
amount of P 10,000.00, or both such imprisonment and fine, in the discretion of
the court, can it be provided in the implementing rules and regulations
promulgated by the Department Secretary that their violation will also be subject
to the same penalties as those provided in the law itself? Explain your answer
fully. (5%) (2002 Bar Question)

SUGGESTED ANSWER:

The rules and regulations promulgated by the Secretary of Human Habitat cannot
provide that the penalties for their violation will be the same as the penalties for the
violation of the law. As held In United States v. Barrias, 11 Phil. 327 (1908), the fixing
of the penalty for criminal offenses involves the exercise of legislative power and cannot
be delegated. The law itself must prescribe the penalty.

Are the following bills filed in Congress constitutional? (1996 Bar Question)

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1) A bill originating from the Senate, which provides for the creation of the Public
Utility Commission to regulate public service companies and appropriating the
initial funds needed to establish the same. Explain. (1996 Bar Question)

2) A bill creating a joint legislative-executive commission to give, on behalf of the


Senate, its advice, consent and concurrence to treaties entered into by the
President. The bill contains the guidelines to be followed by the commission in
the discharge of its functions. Explain. (1996 Bar Question)

SUGGESTED ANSWER:

1) A bill providing for the creation of the Public Utility Commission to regulate public
service companies and appropriating funds needed to establish it may originate from
the Senate. It is not an appropriation bill, because the appropriation of public funds is
not the principal purpose of the bill. In Association of Small Landowners of the
Philippines, Inc. vs. Secretary of Agrarian Reform 175 SCRA 343, it was held that a law
is not an appropriate measure if the appropriation of public funds is not its principal
purpose and the appropriation is only incidental to some other objective.

2) A bill creating a joint legislative-executive commission to give, on behalf of the


Senate, its advice, consent and concurrence to treaties entered into by the President.
The Senate cannot delegate this function to such a commission, because under Section
21, Article VII of the Constitution, the concurrence of at least two-thirds of the Senate
itself is required for the ratification of treaties.

In 1963, Congress passed a law creating a government- owned corporation


named Manila War Memorial Commission (MWMC), with the primary function of
overseeing the construction of a massive memorial in the heart of Manila to
commemorate victims of the 1945 Battle of Manila.

The MWMC charter provided an initial appropriation of P1,000,000, empowered


the corporation to raise funds in its own name, and set aside a parcel of land in
Malate for the memorial site. The charter set the corporate life of MWMC at 50
years with a proviso that Congress may not abolish MWMC until after the
completion of the memorial.

Forty-five (45) years later, the memorial was only 1/3 complete, and the memorial
site itself had been overrun by- squatters. Congress enacted a law abolishing the
MWMC and requiring that the funds raised by it be remitted to the National
Treasury. The MWMC challenged the validity of the law, arguing that under its
charter its mandate is to complete the memorial no matter how long it takes.
Decide with reasons. (6%) (2008 Bar Question)

SUGGESTED ANSWER:

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The contention of MWMC is untenable. An implied limitation on legislative power is the


prohibition against the passage of irrepealable laws. Such laws deprive succeeding
legislatures of the authority to craft laws appropriate to the milieu (City of Davao v.
Regional Trial Court, 467 SCRA 280 [2005]).

2. Regional/Local legislative power

3. Peoples initiative on statutes

Several citizens, unhappy with the proliferation of families dominating the


political landscape, decided to take matters into their own hands. They proposed
to come up with a peoples initiative defining political dynasties. They
started a signature campaign for the purpose of coming up with a petition for
that purpose. Some others expressed misgivings about a peoples initiative
for the purpose of proposing amendments to the Constitution, however. They
cited the Courts decision in Santiago v. Commission on Elections, 270 SCRA
106 (1997), as authority for their position that there is yet no enabling law for such
purpose. On the other hand, there are also those who claim that the individual
votes of the justices in Lambino v. Commission on Elections, 505 SCRA 160
(2006), mean that Santiagos pronouncement has effectively been abandoned. If
you were consulted by those behind the new attempt at a peoples initiative,
how would you advise them? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

I shall advise those starting a peoples initiative that initiative to pass a law defining
political dynasties may proceed as their proposal is to enact a law only and not to
amend the constitution. The decision in Santiago v. Commission on Elections,
270 SCRA 106 [1997], which has not been reversed, upheld the adequacy of the
provisions in Republic Act 6735 on initiative to enact a law.

ALTERNATIVE ANSWER:

I shall advise those starting a peoples initiative that the ruling in Santiago vs.
Commission on Election that there is as yet no enabling law for an initiative has not
been reversed. According to Section 4(3), Article VIII of the Constitution, a doctrine of
law laid down in a decision rendered by the Supreme Court en banc may not be
reversed except if it is acting en banc. The majority opinion in Lambino v.Commission
on Elections (505 SCRA 160 [2006], refused to re-examine the ruling in Santiago
v. Commission on Elections (270 SCRA 106 [1997], because it was not
necessary for deciding the case. The Justices who voted to reverse the ruling
constituted the minority.

The present Constitution introduced the concepts and processes of Initiative and
Referendum. Compare and differentiate one from the other. (3%) (2005 Bar
Question)

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SUGGESTED ANSWER:

Initiative is the power of the people to propose amendments to the Constitution or to


propose and enact legislations through an election called for the purpose (Section 3(a),
Republic Act No. 6735). Referendum is the power of the electorate to approve or reject
a legislation through an election called for the purpose. (Section 3(c), Republic Act No.
6735).

The framers of the 1987 Constitution and the people who ratified it made sure that
provisions institutionalizing people power were incorporated in the fundamental
law. Briefly discuss at least two such provisions. (1987 Bar Question)

SUGGESTED ANSWER:

Art. VI, Sec. 1, while vesting in Congress the legislative power, nonetheless states that
such conferment of power shall be subject to the reservation made in favor of the
people by provisions on initiatives and referendum. For this purpose, Congress is
required, as early as possible, to provide for a system of initiative of referendum
whereby the people can directly propose and enact laws or approve or reject an act or
law or part thereof passed by the Congress or the legislative bodies after the
registration of a petition therefore, signed by at least 10% of the total number of
registered voters, of which every legislative district must be represented by at least 3%
of the registered voters. (Id., sec. 32) The Constitution also provides that through
initiative, upon a petition of at least 12% of the total numbers of registered voters, of
which every legislative district must be represented by at least 3% of the registered
voters therein, amendments to the Constitution may be directly proposed by the people.

Art. XIII, sec. 15 states that the state shall respect the role of independent peoples
organization to enable them to pursue and protect, within the democratic framework,
their legitimate and collective interests and aspirations through peaceful lawful means.
For this purpose, the Constitution guarantees to such organizations the right to
participate at all levels of social, political and economic decision-making and the state is
required to validate the establishment of adequate mechanism for this purpose. (Id.,
sec. 16)

A. Is the concept of People Power recognized in the Constitution? Discuss


briefly. (3%) (2000 Bar Question)

B. What are the provisions of the Constitution on women? (2%) (2000 Bar
Question)

SUGGESTED ANSWER:

A. The concept of People Power is recognized in the Constitution.

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Under Section 32, Article VI of the Constitution, through initiative and referendum, the
people can directly propose and enact laws or approve or reject any act or law or part
thereof passed by the Congress or local legislative body after the registration of a
petition therefor signed by at least ten per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per
centum of the registered voters thereof.

Under Section 16, Article XIII of the Constitution, the right of the people and their
organizations to effective and reasonable participation at all levels of social, political and
economic decision-making shall not be abridged. The State shall, by law, facilitate the
establishment of adequate consultation mechanisms.

Under Section 2, Article XVII of the Constitution, the people may directly propose
amendments to the Constitution through initiative upon a petition of at least twelve per
centum of the total number of registered voters, of which every legislative district must
be represented by at least three per centum of the registered voters therein.

B. The following are the provisions of the Constitution on women:


1. It (the State) shall equally protect the life of the mother and the life of the
unborn from conception." (Section 12, Article II)
2. The State recognizes the role of women in nation- building, and shall ensure
the fundamental equality before the law of women and men. (Section 14,
Article II)
3. The State shall protect working women by providing safe and healthful
working conditions, taking into account their maternal functions, and such
facilities and opportunities that will enhance their welfare and enable them to
realize their full potential in the service of the nation." (Section 14, Article XIII)

Is people power recognized by the 1987 Constitution? Explain fully. (2003 Bar
Question)

SUGGESTED ANSWER:

People power is recognized in the Constitution. Article III, Section 4 of the 1987
Constitution guarantees the right of the people peaceable to assemble and petition the
government for redress of grievances. Article VI, Section 32 of the 1987 Constitution
requires Congress to pass a law allowing the people to directly propose and enact laws
through initiative and to approve or reject any act or law or part of it passed by
Congress or a local legislative body. Article XIII, Section 16 of the 1987 Constitution
provides that the right of the people and their organizations to participate at all levels of
social, political, and economic decision-making shall not be abridged and that the State
shall, by law, facilitate the establishment of adequate consultation mechanisms. Article
XVII, Section 2 of the 1987 Constitution provides that subject to the enactment of an
implementing law, the people may directly propose amendments to the Constitution
through initiative.

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What are the essential elements of a valid petition for a peoples initiative to
amend the 1987

Constitution? Discuss. (2%) (2010 Bar Question)

SUGGESTED ANSWER:

The elements of a valid petition for a peoples initiative are the following:

1. At least twelve per cent (12%) of the registered voters, of which every legislative
district must be represented by at least three per cent (3%) of the registered voters in it,
should directly sign the entire proposal; and

2. The draft of the proposed amendment must be embodied in the petition (Lambino v.
Commission on Elections, 505 SCRA 160 [2006]).

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%) (2009 Bar
Question)

A law making "Bayan Ko" the new national anthem of the Philippines, in lieu of
"Lupang Hinirang," is constitutional.

SUGGESTED ANSWER:

True. Congress may by law adopt a new national anthem, but it shall take effect only
upon ratification by the people in a national referendum (Section 2, Article XVI of the
Constitution).

4. The President under a martial law rule or in a revolutionary government

B. Houses of Congress

1. Senate

A candidate for Senator must be at least 35 years old on (2011 BAR)


(A) the day he is duly proclaimed.
(B) the day the election is held.
(C) the day he files his certificate of candidacy.
(D) the day he takes his oath of office.

A few months before the end of the present Congress, Strongwill was invited by
the Senate to shed light in an inquiry relative to the alleged siphoning and
diverting of the pork barrel of members of Congress to non-existent or fictitious
projects. Strongwill has been identified in the news as the principal actor
responsible for the scandal, the leader of a non-governmental organization

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which ostensibly funnelled the funds to certain local government projects which
existed only on paper. At the start of the hearings before the Senate, Strongwill
refused at once to cooperate. The Senate cited him in contempt and sent him to
jail until he would have seen the light. The Congress, thereafter, adjourned sine
die preparatory to the assumption to office of the newly-elected members. In
the meantime, Strongwill languished behind bars and the remaining senators
refused to have him released, claiming that the Senate is a continuing body and,
therefore, he can be detained indefinitely. Are the senators right? (4%) 2014 BAR
EXAMS

SUGGESTED ANSWER:

The Senators are right. The Senate is to be considered as a continuing body of


purposes of its exercise of its power punish for contempt. Accordingly, the
continuing validity of its orders punishing for contempt should not be affected by its sine
die adjournment (Arnault v. Nazareno, 87 Phil. 29 (1950).

ALTERNATIVE ANSWER:

The Senators are right. While the Senate as an institution is continuing in the conduct of
its day to day business, the Senate of each Congress acts separately from the Senate
of the Congress before it. All pending matters terminate upon expiration of each
Congress (Neri v. Senate Committee on Accountability of Public Officers and
Investigation, 564 SCRA 152 (2008).

2. House of Reperesentatives

a. District representatives and questions of apportionment

The rule in Article V1, Section 5 (3) of the Constitution that "Each
legislative district shall comprise, as far as practicable, contiguous, compact
and adjacent territory" is a prohibition against: (2012 BAR EXAMS)

a. re-apportionment;
b. commandeering of votes;
c. gerrymandering;
d. re-districting.

SUGGESTED ANSWER:

C. NAVARRO VS. ERMITA,612 SCRA 131

Article V1, Section 5(3) of the Constitution requires that for a city to be entitled to
have at least one representative, its population shall be at least: (2012 BAR
EXAMS)

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a. 250,000;
b. 150,000;
c. 100,000;
d. 175,000.

SUGGESTED ANSWER:

A. 250,000 SECTION 5(3), ARTICLE VI OF CONSTITUTION

Gerrymandering refers to the practice of: (1%) 2014 BAR EXAMS

(A) creating or dividing congressional districts in a manner intended to favor


a particular party or candidate
(B) truancy as applied to Members of Congress
(C) loafing among members of Congress
(D) coming up with guessing game when it comes to legislation
(E) commandeering large chunks of the budget for favored congressional
districts

SUGGESTED ANSWERS:

(A) Creating or dividing congressional districys in a manner intended to favor a


particular party or candidate

X, a member of the House of Representatives, was serving his third consecutive


term in the House. In June 1996 he was appointed Secretary of National Defense.

Can he run for election to the Senate in the 1998 elections? Explain. (1996 Bar
Question)

SUGGESTED ANSWER:

Yes, X can run for the Senate in the 1988 election. Under Section 7, Article X of the
Constitution, having served for three consecutive terms as Member of the House of
Representatives, X is only prohibited from running for the same position.

Suppose there, are 202 members in the House of Representatives. Of this


number, 185 belong to the Progressive Party of the Philippines or PPP, while 17
belong to the Citizens Party or CP. How would you answer the following
questions regarding the representation of the House in the Commission on
Appointments?

A. How many seats would the PPP be entitled to have in the Commission on
Appointments? Explain your answer fully. (5%) (2002 Bar Question)

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B. Suppose 15 of the CP representatives, while maintaining their party affiliation,


entered into a political alliance with the PPP in order to form the Rainbow
Coalition in the House. What effect, if any, would this have on the right of the CP
to have a seat or seats in the Commission on Appointments? Explain your
answer fully. (5%) (2002 Bar Question)

SUGGESTED ANSWER:

A. The 185 members of the Progressive Party of the Philippines represent 91.58 per
cent of the 202 members of the House of Representatives, in accordance with Article
VI, Section 18 of the Constitution, it is entitled to have ten of the twelve seats in the
Commission on Appointments. Although the 185 members of Progressive Party of the
Philippines represent 10.98 seats in the Commission on Appointments, under the ruling
in Guingona v. Gonzales, 214 SCRA 789 (1992), a fractional membership cannot be
rounded off to full membership because it will result in over-representation of that
political party and under-representation of the other political parties.

B. The political alliance formed by the 15 members of the Citizens Party with the
Progressive Party of the Philippines will not result in the diminution of the number of
seats in the Commission on Appointments to which the Citizens Party is entitled. As
held in Cunanan v. Tan, 5 SCRA 1 (1962), a temporary alliance between the members
of one political party and another political party does not authorize a change in the
membership of the Commission on Appointments. Otherwise, the Commission on
Appointments will have to be reorganized as often as votes shift from one side to
another in the House of Representatives.

b. Party-list system

Greenpeas is an ideology-based political party fighting for environmental causes.


It decided to participate under the party-list system. When the election results
came in, it only obtained 1.99 percent of the votes cast under the party-list
system. Bluebean, a political observer, claimed that Greenpeas is not entitled to
any seat since it failed to obtain at least 2% of the votes. Moreover, since it does
not represent any of the marginalized and underrepresented sectors of society,
Greenpeas is not entitled to participate under the party-list system. How valid
are the observations of Bluebean? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

The claim of Bluebean that Greenpeas is not entitled to a seal under the party-list-
system because it obtained only 1.99 percent of the votes cast under the party-list-
system is not correct. Since the provision in Section 5 (2). Article VI of the Cnstitution
that the party-list representatives shall constitute twenty percent (20%) of the total
number of the members of the House of Representatives is mandatory, after the parties
receiving at least two percent (2%) of the total votes case for the party-list system have
been allocated one seat, the remaining seats should be allocated among the parties by

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the proportional percentage of the votes received by each party as against the total
party-list votes (Barangay Association for National Advancement and Transparency
v. Commission on Elections, 586 SCRA 211 (2009).

The claim of Bluebean that Greenpeas is not entitled to participate in the party-list
elections because it does not represent any marginalized and underrepresented sectors
of society is not correct. It is enough that its principal advocacy pertains to the
special interest of its sector (Atong Panglaum, Inc. v. Commission on Election, 694
SCRA 477 (2013 BAR). (2014 BAR EXAMS)

The Partido ng Mapagkakatiwalaang Pilipino (PMP) is a major political party


which has participated in every election since the enactment of the 1987
Constitution. It has fielded candidates mostly for legislative district elections. In
fact, a number of its members were elected, and are actually serving, in the
House of Representatives. In the coming 2016 elections, the PMP leadership
intends to join the party-list system. Can PMP join the party-list system without
violating the Constitution and Republic Act (R.A.) No. 7941? (4%) %) 2015 BAR
EXAMS

SUGGESTED ANSWER:

Yes. As for political parties, they may participate in the party-list race by registering
under the party-list system and no longer field congressional candidates. These parties,
if they field congressional candidates, however, are not barred from participating in the
party-list elections; what they need to do is register their sectoral wing or party under the
party-list system. This sectoral wing shall be considered an independent sectoral
party linked to a political party through a coalition. ( Atong Paglaum vs
COMELEC, April 2, 2013)

The Supreme Court has provided a formula for allocating seats for party-list
representatives.

A. The twenty percent allocation - the combined number of all party-list


congressmen shall not exceed twenty percent of the total membership of the
House of Representatives, including those elected under the party list;

B. The two percent threshold - only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are qualified to
have a seat in the House of Representatives;

C. The three-seat limit - each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one qualifying
and two additional seats; and

For each of these rules, state the constitutional or legal basis, if any, and the
purpose. (2007 Bar Question)

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SUGGESTED ANSWER:

A. The party-list congressmen should not exceed twenty per cent of the total
membership of the House of Representatives, because this is the maximum number of
party-list congressmen (1987 Const., Art. VI, sec 5[3]; Veterans Foundation Party v.
COMELEC, 342 SCRA 244 [2000]).

B. Under Section 11 (b) of Republic Act 7941, only the parties which received at least
two per cent of the total votes cast for the party-list are entitled to have a seat in the
House of Representatives. To have meaningful representation, the elected party-list
representative must have the mandate of a sufficient number of people (Veterans
Federation Party v. COMELEC, supra.).

C. Section 11(b) of Republic Act 7941 allows qualified parties to have a maximum of
three (3) seats in the House of Representatives so that no single group will dominate
the party-list seats (Veterans Federation Party v. COMELEC, supra.).

Additional seats to which a qualified party is entitled are determined by the proportion of
the total number of votes it obtained in relation to the total number of votes obtained by
the party with the highest number of votes, to maintain proportional representation. This
is because while representation in the party-list system is proportional, a party is entitled
to a maximum of three (3) seats regardless of the number of votes it actually obtained
(Veterans Federation Party v. COMELEC, supra.).

Rudy Domingo, 38 years old, natural-born Filipino and a resident of the


Philippines since birth, is a Manila-based entrepreneur who runs KABAKA, a
coalition of peoples' organizations from fisherfolk communities. KABAKA's
operations consist of empowering fisherfolk leaders through livelihood projects
and trainings on good governance. The Dutch Foundation for Global Initiatives, a
private organization registered in The Netherlands, receives a huge subsidy from
the Dutch Foreign Ministry, which, in tum is allocated worldwide to the
Foundation's partners like KABAKA. Rudy seeks to register KABAKA as a party-
list with himself as a nominee of the coalition'. Will KABAKA and Rudy be
qualified as a party-list and a nominee, respectively? Decide with reasons. (4%)
(2009 Bar Question)

SUGGESTED ANSWER:

KABAKA and Ruby are not qualified as a party list and as nominee, respectively, since
KABAKA is receiving a subsidy from the Dutch Foreign Ministry. Under Section 2(5),
Article IX-C of the Constitution, a political party which is supported by any foreign
government cannot be registered with the Commission on Elections.

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C. Legislative privileges, inhibitions and disqualifications

A Senator or Member of the House of Representatives shall be privileged from


arrest while Congress is in session for all offenses punishable by imprisonment
of not more than: (2012 BAR EXAMS)

a. life imprisonment;
b. reclusion perpetua;
c. six years imprisonment;
d. four years imprisonment.

SUGGESTED ANSWER:

C. SECTION 11, ARTICLE VI OF CONSTITUTION

No Senator or member of the House of Representatives may personally appear


as counsel before: (2012 BAR EXAMS)

a. any regional court;


b. any court of justice;
c. any inferior court;
d. any appellate court.

SUGGESTED ANSWER:

B. SECTION 14, ARTICLE VI OF CONSTITUTION

In the May 2013 elections, the Allied Workers Group of the Philippines (AWGP),
representing land-based and sea-based workers in the Philippines and
overseas, won in the party list congressional elections. Atty. Abling, a labor
lawyer, is its nominee.

As part of the partys advocacy and services, Congressman Abling engages


in labor counseling, particularly for local workers with claims against their
employers and for those who need representation in collective bargaining
negotiations with employers. When labor cases arise, AWGP enters its
appearance in representation of the workers and the Congressman makes it a
point to be there to accompany the workers, although a retained counsel also
formally enters his appearance and is invariably there. Congressman Abling
largely takes a passive role in the proceedings although he occasionally speaks
to supplement the retained counsels statements. It is otherwise in CBA
negotiations where he actively participates.

Management lawyers, feeling aggrieved that a congressman should not actively


participate before labor tribunals and before employers because of the influence
a congressman can wield, filed a disbarment case against the Congressman

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before the Supreme Court for his violation of the Code of Professional
Responsibility and for breach of trust, in relation particularly with the
prohibitions on legislators under the Constitution.

Is the cited ground for disbarment meritorious? (6%) 2013 BAR EXAMS

SUGGESTED ANSWER:

Being a congressman, Atty. Abling is disqualified under Article Vi, Section 14 of the
1987 Constitution from personally appearing as counsel before quasi-judicial and other
administrative bodies handling labor cases constitutes personal appearance before
them (Puyat v. De Guzman, G.R. No. L-5122, 1982, 1135 SCRA 33).His
involvement in collective bargaining, negotiations also involves practice of law,
because he is making use of his legal knowledge for the benefit of others (Cayetano v.
Monsod, G.R. No. 100113, September 3, 1991, 201 SCRA 210). The Bureau of
Labor Relations is involved in collective bargaining negotiations (Article 250 of Labor
Code)

Atty. Abling should not be disbarred but should be merely suspended from the practice
of law. Suspension is the appropriate penalty for involvement in the unlawful practice of
law (Tapay v. Bancolo, A.C. No. 9604, March 20, 2013, 694 SCRA 1).

ALTERNATIVE ANSWER:

No, Congressman Abling cannot be disbarred. A retained counsel formally appears for
AWGP. His role is largely passive and cannot be considered as personal appearance.
His participation in the collective brgaining negotiations does not entail personal
appearance before an administrative bode (Article VI, Section 13 of the 1987
Constitution)

After 2 February 1987, the Philippine National Bank (PNB) grants a loan to
Congressman X. Is the loan violative of the Constitution? (1991 Bar Question)

Suppose the loan had instead been granted before 2 February 1987, but was
outstanding on that date with a remaining balance on the principal in the amount
of P50.000.00, can the PNB validly give Congressman X an extension of time after
said date to settle the obligation? (1991 Bar Question)

SUGGESTED ANSWER:

Whether or not the loan is violative of the 1987 Constitution depends upon its purpose.
If it was obtained for a business purpose, it is violative of the Constitution. If it was
obtained for some other purpose, e.g., for housing, it is not violative of the Constitution
because under Section 16, Article XI, Members of Congress are prohibited from
obtaining loans from government-owned banks only if it is for a business purpose.

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If the loan was granted before the effectivity of the Constitution on February 2. 1987, the
Philippine National Bank cannot extend its maturity after February 2. 1987, if the loan
was obtained for a business purpose. In such a case the extension is a financial
accommodation which is also prohibited by the Constitution.

Senator Bondoc was charged with murder and detained at the Quezon City Jail.
He invoked, in seeking leave from the court to attend the session of the Senate,
his immunity from arrest as a Senator. How should the court rule on his motion?
(2011 BAR)
(A) Deny the motion unless the Senate issues a resolution certifying to the
urgency of his attendance at its sessions.
(B) Grant the motion provided he posts bail since he is not a flight risk.
(C) Grant the motion so as not to deprive the people who elected him their
right to be represented in the Senate.
(D) Deny the motion since immunity from arrest does not apply to a charge
of murder.

The rule making it incompatible for members of Congress to hold offices or


employment in the government. (2%) (1998 Bar Question)

SUGGESTED ANSWER:

Section 13, Article VII of the Constitution, which prohibits Members of Congress from
holding any other office during their term without forfeiting their seat, does not
distinguish between government corporations with original charters and their
subsidiaries, because the prohibition applies to both.

JAR faces a dilemma: should he accept a Cabinet appointment now or run later
for Senator? Having succeeded in law practice as well as prospered in private
business where he and his wife have substantial investments, he now
contemplates public service but without losing the flexibility to engage in
corporate affairs or participate in professional activities within ethical bounds.

Taking into account the prohibitions and inhibitions of public office whether as
Senator or Secretary, he turns to you for advice to resolve his dilemma. What is
your advice? Explain briefly. (5%) (2004 Bar Question)

SUGGESTED ANSWER:

I shall advise JAR to run for Senator. As Senator, he can retain his investments in his
business, although he must make a full disclosure of his business and financial interests
and notify the Senate of a potential conflict of interest if he authors a bill. (Section 12,
Article VI of the 1987 Constitution.) He can continue practicing law, but he cannot
personally appear as counsel before any court of justice, the Electoral Tribunals, or
quasi-judicial and other administrative bodies. (Section 14, Article VI of the 1987
Constitution.)

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As a member of the Cabinet, JAR cannot directly or indirectly practice law or participate
in any business. He will have to divest himself of his investments in his business.
(Section 13, Article VII of the 1987 Constitution.) In fact, the Constitutional prohibition
imposed on members of the Cabinet covers both public and private office or
employment. [Civil Liberties Union v. Executive Secretary, 194 SCRA 317 [199ID.

Congresswoman A is a co-owner of an industrial estate in Sta. Rosa, Laguna


which she had declared in her Statement of Assets and Liabilities. A member of
her political party authored a bill which would provide a 5-yeal development plan
for all industrial estates in the Southern Tagalog Region to attract investors. The
plan included an appropriation of 2 billion pesos for construction of roads around
the estates. When the bill finally became law, a civil society watchdog questioned
the constitutionality of the law as it obviously benefitted Congresswoman A's
industrial estate. Decide' with reasons. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

The law is constitutional. Section 12, Article VI of the Constitution does not prohibit the
enactment of a law which will benefit the business interests of a member of the Senate
or the House of Representatives. It only requires that if the member of Congress whose
business interests will be benefited by the law is the one who will file the bill, he should
notify the House concerned of the potential conflict of interest.

D. Quorum and voting majorities

E. Discipline of members

When an elective official's preventive suspension will result in depriving his


constituents of his services or representation, the court may (2011 BAR)
(A) require the investigating body to expedite the investigation.
(B) hold in abeyance the period of such suspension.
(C) direct the holding of an election to fill up the temporary vacancy.
(D) shorten the period of such suspension.

F. Electoral tribunals and the Commission on Appointments


1. Nature
2. Power

Robert Brown was born in Hawaii on May 15, 1962, of an American father and a
Filipina mother. On May 16, 1983 while holding an American passport, he
registered as a Filipino with the Philippine Consulate at Honolulu, Hawaii. In
September, 1983 he returned to the Philippines, and took up residence at Boac,
Marinduque, hometown of his mother. He registered as a voter, voted, and even
participated as a leader of one of the candidates in that district in the 1984
Batasan elections. In the elections of 1987, he ran for Congressman, and won. His

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sole opponent is now questioning his qualifications and is trying to oust him on
two basic claims:

1. He is not a natural born Filipino citizen, but is in fact, an American, born in


Hawaii, an integral 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 House Electoral Tribunal where the petition
for Browns ouster is pending. How would you decide the three issues raised
against him? (1988 Bar Question)

SUGGESTED ANSWER:

The first and third grounds have no merit. But the second is well taken and, therefore,
Brown should be disqualified.

1. Robert Brown is a natural born citizen of the Philippines. A person born of a Filipino
mother and an alien father before January 17, 1973, who thereafter upon reaching the
age of majority 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-born citizen.

2. The Constitution requires, among other things, that a candidate for member of the
House of Representatives must be at least 25 years 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 May 15, 1987. Hence on May 11, 1987, when the election was held, he was 4 days
short of the required age.

3. The Constitution provides that those who seek either to change their citizenship or to
acquire the status of an immigrant of another country during their tenure shall be dealt
with by law (Art. XI, sec. 17). The provision cannot apply to Brown for the following
reasons: First, Brown is in addition an American citizen and thus 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 an immigrant, but is an American by birth under the principle of jus
soli obtaining in the United States. Third, he did not seek to change his status during his
tenure as a public officer. Fourth, the provision of Art. XI, sec. 17 is not self-executing
but requires an implementing law. Fifth, but above all, the House Electoral Tribunal has
no jurisdiction to decide this question since it does not concern the qualification of a
member-elect.

Y was elected Senator in the May 1987 national elections. He was born out of
wedlock in 1949 of an American father and a naturalized Filipina mother. Y never
elected Philippine citizenship upon reaching the age of majority.

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1. Before what body should T, the losing candidate, question the election of Y?
State the reasons for your answer. (1990 Bar Question)
2. Is Y a Filipino citizen? Explain your answer (1990 Bar Question)

SUGGESTED ANSWER:

1. T, the losing candidate, should question the election of Y before the Senate Electoral
Tribunal, because the issue involved is the qualification of Y to be a Senator. Section
17, Article VI of the 1987 Constitution provides that. The Senate and the House of
Representatives shall each have an Electoral Tribunal which shall be the sole judge of
all contests relating to the election, returns, and qualifications of their respective
Members.

2. Yes, Y is a Filipino citizen. More than that, he is a natural born citizen of the
Philippines qualified to become a Senator. Since Y is an illegitimate child of a Filipino
mother, he follows the citizenship of his mother. He need not elect Philippine citizenship
upon reaching the age of majority as held In re Mallare, 59 SCRA 45. In Osias v.
Antonino, Electoral Case No. 11, August 6, 1971, the Senate Electoral Tribunal held
that the illegitimate child of an alien father and a Filipino mother is a Filipino citizen and
is qualified to be a Senator.

In an election case, the House of Representatives Electoral Tribunal rendered a


decision upholding the election protest of protestant A, a member of the Freedom
Party, against protestee B, a member of the Federal Party. The deciding vote in
favor of A was cast by Representative X, a member of the Federal Party.

For having voted against his partymate, Representative X was removed by


Resolution of the House of Representatives, at the instance of his party (the
Federal Party), from membership in the HRET. Representative X protested his
removal on the ground that he voted on the basis of the evidence presented and
contended that he had security of tenure as a HRET Member and that he cannot
be removed except for a valid cause.

With whose contention do you agree, that of the Federal Party or that of
Representative X?

Why? (5%) (2002 Bar Question)

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 of Representatives Electoral Tribunal are
entitled to security of tenure like members of the judiciary. Membership in it may not be
terminated except for a just cause. Disloyalty to party is not a valid ground for the
expulsion of a member of the House of Representatives Electoral Tribunal. Its members
must discharge their functions with impartiality and independence from the political party

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to which they belong.

What is the function of the Senate Electoral Tribunal and the House of
Representatives Electoral Tribunal? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

The function of the Senate Electoral Tribunal and the House of Representatives
Electoral Tribunal is to be the sole judge of all contests relating to the election, returns
and qualifications of Senators and Congressmen, respectively (Section 17, Article VI of
the Constitution).

What is the composition of each? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

The Senate Electoral Tribunal and the House of Representatives Electoral Tribunal are
composed of nine members, three of whom are Justices of the Supreme Court
designated by the Chief Justice, and the remaining six members are Senators and
Congressmen, respectively, chosen on the basis of proportional representation from the
political parties as well as the parties registered under the party-list system represented
in the House of Representatives, in the case of the latter (Section 17, Article VI of the
Constitution).

G. Powers of Congress

Congress is considering new measures to encourage foreign corporations to


bring their investments to the Philippines. Congress has found that foreign
investments are deterred by the uncertain investment climate in the Philippines.
One source of such uncertainty is the heightened judicial intervention in
investment matters.

One such measure provides that no court or administrative agency shall issue
any restraining order or injunction against the Central Bank" in the Banks
exercise of its regulatory power over specific foreign exchange transactions.

Would this be a valid measure? Explain. (1992 Bar Question)

SUGGESTED ANSWER:

Yes, the measure is valid. In Maniruste Systems, Inc. us. Court of Appeals, 179 SCRA
136, the Supreme Court held that a law prohibiting the issuance of an injunction is valid,
because under Section 2, Article VIII of the Constitution, the jurisdiction of the courts
may be defined by law.

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SUGGESTED ANSWER:

Since under Sections 1 and 5(2), Article VIII of the Constitution, the courts are given the
power of judicial review, the measure is void. Such power must be preserved. The
issuance of restraining orders and injunctions is in aid of the power of judicial review.

During a period of national emergency. Congress may grant emergency powers


to the President. State the conditions under which such a venture is allowed.
(2010 Bar Question)

SUGGESTED ANSWER:

Under Section 23(2), Article VI of the Constitution, Congress may grant the President
emergency powers subject to the following conditions:

1. There is a war or other national emergency;


2. The grant of emergency powers must be for a limited period;
3. The grant of emergency powers is subject to such restrictions as Congress may
prescribe; and
4. The emergency powers must be exercised to carry out a declared national policy.

True or False. A proclamation of a state of emergency is sufficient to allow the


President to take over any public utility. (0.5%) (2009 Bar Question)

SUGGESTED ANSWER:

The statement that a proclamation of emergency is .sufficient to allow the President to


take over any public utility is false. Since it is an aspect of emergency powers, in
accordance with Section 23(2), Article VI of the Constitution, there must be a law
delegating such power to the President. (David v. Macapagal-Arroyo, 489 SCRA 160
(2006).)

The President issued Proclamation 9517 declaring a state of emergency and


calling the armed forces to immediately carry out necessary measures to
suppress terrorism and lawless violence. In the same proclamation, he directed
the government's temporary takeover of the operations of all privately owned
communication utilities, prescribing reasonable terms for the takeover. Is the
takeover valid? (2011 BAR)
(A) Yes, it is an implied power flowing from the President's exercise of
emergency power.
(B) No, it is a power reserved for Congress alone.
(C) Yes, subject to ratification by Congress.
(D) No, it is a power exclusively reserved for the People's direct action.

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1. Legislative
a. Legislative inquiries and the oversight functions

A statutory provision requiring the President or an administrative agency to


present the proposed implementing rules and regulations of a law to Congress
which by itself or through a committee formed by it, retains a "right" or "power"
to approve or disapprove such regulations before they may take effect, is a: (2012
BAR EXAMS)
a. legislative encroachment;
b. legislative veto;
c. legislative oversight;
d. legislative scrutiny.

SUGGESTED ANSWER:

(B) And (C) Abakada Guro Party List Vs Purisima, 562 Scra 251
It Is Suggested That Either (B) Or (C) May Be Accepted As A Correct Answer

The President issued an executive order directing all department heads to secure
his consent before agreeing to appear during question hour before Congress on
matters pertaining to their departments. Is the executive order unconstitutional
for suppressing information of public concern? (2011 BAR)
(A) No, because those department heads are his alter egos and he is but
exercising his right against self-incrimination.
(B) Yes, the President cannot control the initiative of the department heads
to conform with the oversight function of Congress.
(C) Yes, the President cannot withhold consent to the initiative of his
department heads as it will violate the principle of check and balance.
(D) No, the President has the power to withhold consent to appearance by
his department heads during question hour.

Congressman Nonoy delivered a privilege speech charging the Intercontinental


Universal Bank (IUB) with the sale of unregistered foreign securities, in violation
of R.A. 8799. He then filed, and the House of Representatives unanimously
approved, a Resolution directing the House Committee on Good Government
(HCGG) to conduct an inquiry on the matter, in aid of legislation, in order to
prevent the recurrence of any similar fraudulent activity.

The HCGG immediately scheduled a hearing and invited the responsible officials
of IUB, the Chairman and Commissioners of the Securities and Exchange
Commission (SEC), and the Governor of the Bangko Sentral ng Pilipinas (BSP).
On the date set for the hearing, only the SEC Commissioners appeared,
prompting Congressman Nonoy to move for the issuance of the appropriate
subpoena ad testificandumto compel the attendance of the invited resource
persons.

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The IUB officials filed suit to prohibit HCGG from proceeding with the inquiry and
to quash the subpoena, raising the following arguments:

a. The subject of the legislative investigation is also the subject of criminal


and civil actions pending before the courts and the prosecutors office;
thus, the legislative inquiry would preempt judicial action; (3%) (2009 Bar
Question)

SUGGESTED ANSWER:

The argument is not tenable; since this is an essential component of legislative power, it
cannot be made subordinate to criminal and civil actions. Otherwise, it would be very
easy to subvert any investigation in aid of legislation through the convenient ploy of
instituting criminal and civil actions (Standard Chartered Bank [Philippine Branch] v.
Senate Committee on Banks, Financial Institutions and Currencies, 541 SCRA 456
[2007]).

b. Compelling the IUB officials, who are also respondents in the criminal and
civil cases in court, to testify at the inquiry would violate their
constitutional right against self-incrimination. (3%) Are the foregoing
arguments tenable? Reasons. (2009 Bar Question)

SUGGESTED ANSWER:

The argument is untenable. Since the IUB officials were not being subjected to a
criminal penalty, they cannot invoke their right against self-incrimination unless a
question calling for an incriminating answer is propounded (Standard Chartered Bank
[Philippine Branch] v. Senate Committee on Banks, Financial Institutions and
Currencies, 541 SCRA 456 [2007]).

c. May the Governor of the BSP validly invoke executive privilege and, thus,
refuse to attend the legislative inquiry? Why or why not? (3%) (2009 Bar
Question)

SUGGESTED ANSWER:

No, because the power to invoke executive privilege is limited to the President (Senate
of the Philippines v. Ermita, 488 SCRA 1 [2006]).

b. Bicameral conference committee

c. Limitations on legislative power


i. Limitations on revenue, appropriations and tariff measures
ii. Presidential veto and Congressional override

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In the exercise of its power of legislative inquiries and oversight functions, the
House of Representatives or the Senate may only ask questions (2011 BAR)
(A) that the official called is willing to answer.
(B) that are relevant to the proposed legislation.
(C) to which the witness gave his prior consent.
(D) material to the subject of inquiry.

Provisions unrelated to an appropriation bill are considered prohibited. These are


called: (2012 BAR EXAMS)

a. interlopers;
b. riders;
c. outriggers;
d. add-ons.

SUGGESTED ANSWER:

(B) GARCIA VS. MATA, 65 SCRA 517

The requirement that "Every bill shall embrace only one subject which shall
be expressed in the title thereof" prevents: (2012 BAR EXAMS)
a. rollercoaster legislation;
b. log-rolling legislation;
c. rolling fields legislation;
d. loggerhead legislation.

SUGGESTED ANSWER

(B) COOLEY, CONSTITUTIONAL LIMITATIONS, P. 143

If by the end of any fiscal year, the Congress shall have failed to pass the general
appropriations bill for the ensuring fiscal year, the general appropriations
law for the preceding fiscal year shall be deemed: (2012 BAR EXAMS)
a. referred;
b. unacted;
c. refilled;
d. re-enacted.

SUGGESTED ANSWER:

(D) SECTION 25(7), ARTICLE VI OF CONSTITUTION

Senator GSC proposed a bill increasing excise taxes on tobacco and


alcohol products. The generated incremental revenues shall be used for the
universal health care program for all Filipinos and for tobacco farmers livelihood.
After the Senate passed the bill on third reading, it was transmitted to the

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House of Representatives which approved the bill in toto. The President


eventually signed it into law. Atty. JFC filed a petition before the Supreme Court,
questioning the constitutionality of the new law.

Is the law constitutional? (1%) 2013 BAR EXAMS

(A) The law is constitutional because it is for a public purpose and has duly
satisfied the three-readings-on-separate-days rule in both Houses.
(B) The law is unconstitional because it violates the equal protection clause
of the Constitution; it is limited only to alcohol and liquor products.
(C) It is constitutional because of the Enrolled Bill Theory.
(D) It is constitutional because it is valid in form and substance and
complied with the required lawmaking procedures.
(E) None of the above is correct.

SUGGESTED ANSWER:

(E)(Article VI, Section 24 of the 1987 Constitution).

The legislature may abolish this body: 5% (2006 Bar Question)


a. Commission on Appointments
b. Ombudsman
c. Judicial and Bar Council
d. Court of Tax Appeals
e. Commission on Audit

SUGGESTED ANSWER:

a. The legislature cannot abolish the Commission of Appointments, because it is a


constitutionally-created office under Section 18, Article VI of the Constitution.

b. The legislature cannot abolish the Office of the Ombudsman, because it is a


constitutionally-created officer under Section 5, Article XI of the Constitution.

c. The Legislature cannot abolish the Judicial and Bar Counsel, because it is a
constitutionally-created officer under Section 8(1), Article VIII of the Constitution.

d. The legislature may abolish the Court of Tax Appeals, because it was created by
Republic Act No. 1125, as amended. It is a statutory court. The authority of the
legislature to create the Court of Tax Appeals implies its authority to abolish it [De la
Liana v. Alba, 112 SCRA 294, [1982]).

A treaty which provides tax exemption needs no concurrence by a majority of all


the Members of the Congress. (0.5%) (2009 Bar Question)

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SUGGESTED ANSWER:

The statement that a treaty which provides tax exemption needs no concurrence by a
majority of all the Members of Congress is true. It is only a law, not a treaty, granting a
tax exemption which requires the concurrence of a majority of all the Members of
Congress. (Section 28(4), Article VI of the Constitution.) Without respect to its lawful
substantive content, a treaty, to be valid and effective, requires concurrence by at least
two-thirds of all the Members of the Senate. (Sec. 24, Art. VII of the Constitution).

Can the President take active part in the legislative process? Explain. (1996 Bar
Question)

SUGGESTED ANSWER:

The President can take active part in the legislative process to the extent allowed by the
Constitution. He can address Congress at any time to propose the enactment of certain
laws. He recommends the general appropriations bill. He can call a special session of
Congress at any time. He can certify to the necessity of the immediate enactment of a
bill to meet a public calamity or emergency. He can veto a bill.

Metropolitan newspapers have reported that the Philippine Games and


Amusement Corporation (PAGCOR) gives hefty contributions to Malacaang, to
fund socio-economic and civic projects of the President. The reports add that
for 1988 alone, some six hundred million (P600M) pesos have already been
earmarked for remittance to the Office of the President. PAGCOR had also been
reported to have funded, as coordinated by a Congressman from Mindanao,
special projects of quite a number of members of the House of Representatives.

Assuming that money earned by PAGCOR from its operations are public funds,
are such contributions to Malacaang and to certain Congressmen and their
expenditure as reported, legal? Cite constitutional or decisional rules in support
of your answer. (1988 Bar Question)

SUGGESTED ANSWER:

The contributions made to Malacaang and to certain congressmen are illegal. Under
art. VI, sec. 29(1) no money can be paid out of the Treasury except in pursuance of an
appropriation made by law. The disbursement of public funds by PAGCOR, not being
made pursuant to an appropriation made by law, violates the Constitution.

Suppose the President submits a budget which does not contain provisions for
CDF (Countrywide Development Funds), popularly known as the pork barrel, and
because of this Congress does not pass the budget.

1. Will that mean paralyzation of government operations in the next fiscal year for
lack of an appropriation law? (12%) (1998 Bar Question)

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2. Suppose in the same budget, there is a special provision in the appropriations


for the Armed Forces authorizing the Chief of Staff, AFP, subject to the approval
of the Secretary of National Defense, to use savings in the appropriations
provided therein to cover up whatever financial losses suffered by the AFP
Retirement and Separation Benefits System (RSBS) In the last five (5) years due
to alleged bad business Judgment. Would you question the
constitutionality/validity of the special provision? (13%] (1998 Bar Question)

SUGGESTED ANSWER:

1. No, the failure of Congress to pass the budget will not paralyze the operations of the
Government.
Section 25(7), Article VI of the Constitution provides:

"If, by the end of any fiscal year, the Congress shall have failed to pass the
general appropriations bill for the ensuing fiscal year, the general appropriations
law for the preced-ing fiscal year shall be deemed reenacted and shall remain in
force and effect until the general appropriations bill is passed by the Congress.

SUGGESTED ANSWER:

2. Yes, the provision authorizing the Chief of Staff, with the approval of the Secretary of
National Defense, to use savings to cover the losses suffered by the AFP Retirement
and Separation Benefits System is unconstitutional.
Section 25(5), Article VI of the Constitution provides:

No law shall be passed authorizing any transfer of appropriations; however, the
President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriation law for their respective offices from savings in other
items of their respective appropriations."

In Philippine Constitution vs. Enriquez, 235 SCRA 506, 544, the Supreme Court
held that a provision in the General Appropriation Act authorizing the Chief of Staff to
use savings to augment the funds of the AFP Retirement and Separation Benefits
Systems was unconstitutional.

"While Section 25(5) allows as an exception the realignment of savings to


augment Items in the general appropriations law for the executive branch, such
right must and can be exercised only by the President pursuant to a specific law."

Explain how the automatic appropriation of public funds for debt servicing can be
reconciled with Article VI, Section 29(1) of the Constitution. Said provision says
that no money shall be paid out of the Treasury except in pursuance of an

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appropriation made by law. (1992 Bar Question)

SUGGESTED ANSWER:

As stated in Guingona vs. Carague. 196 SCRA 221, the presidential decrees providing
for the appropriation of funds to pay the public debt do not violate Section 29(1), Article
VI of the Constitution. They provide for a continuing appropriation, there is no
constitutional prohibition against this. The presidential decrees appropriate as much
money as is needed 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 be computed from the books of the National Treasury.

Suppose that the forthcoming General Appropriations Law for Year 2002. In the
portion pertaining to the Department of Education. Culture and Sports, will
contain a provision to the effect that the Reserve Officers Training Course (ROTC)
in all colleges and universities is hereby abolished, and in lieu thereof all male
college students shall be required to plant ten (10) trees every year for two (2)
years in areas to be designated by the Department of Environment and Natural
Resources in coordination with the Department of Education, Culture and Sports
and the local government unit concerned. It further provides that the same
provision shall be incorporated in future General appropriations Acts. There is no
specific item of appropriation of funds for the purpose.

Comment on the constitutionality of said provision. (5%) (2001 Bar Question)

SUGGESTED ANSWER:

The provision is unconstitutional, because it is a rider. Section 25(2), Article VI of the


Constitution provides, No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular appropriation therein."
The abolition of the Reserve Officers Training Course involves a policy matter. As held
in Philippine Constitution Association vs. Enriquez, 235 SCRA 506 (1994), this
cannot be incorporated in the General Appropriations Act but must be embodied in a
separate law.

What are the limitations/restrictions provided by the Constitution on the power of


Congress to authorize the President to fix tariff rates, import and export quotas,
tonnage and wharfage dues. Explain. (2%) (1999 Bar Question)

SUGGESTED ANSWER:

According to Section 28(2), Article VI of the Constitution, Congress may, bylaw,


authorize the President to fix within specified limits, and subject to such limitations and
restrictions it may impose, tariff rates, import and export quotas, tonnage and wharfage
dues and other duties or imposts within the framework of the national development
program of the Government.

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Executive Orders Nos. 1 and 2 issued by President Corazon C. Aquino created


the Preidential Commission on Good Government (PCGG) and empowered it to
sequester any property shown prima facie to be ill-gotten wealth of the late
President Marcos, his relatives and cronies. Executive Order No. 14 vests on the
Sandiganbayan jurisdiction to try hidden wealth cases. On April 14, 1986, after an
investigation, the PCGG sequestered the assets of X Corporation, Inc.

1. X Corporation, Inc. claimed that President Aquino, as President, could not


lawfully issue Executive Orders Nos. 1, 2 and 14, which have the force of law, on
the ground that legislation is a function of Congress. Decide. (1990 Bar Question)

2. Said corporation also questioned the validity of the three executive orders on
the ground that they are bills of attainder and. therefore, unconstitutional. Decide.
(1990 Bar Question)

SUGGESTED ANSWER:

(1) The contention of X Corporation should be rejected. Executive Orders Nos. 1, 2 and
14 were issued in 1986. At that time President Corazon Aquino exercised legislative
power Section 1, Article II of the Provisional Constitution established by Proclamation
No. 3, provided:

Until a legislature is elected and convened under a new constitution, the


President shall continue to exercise legislative power.

Likewise, Section 6, Article XVIII of the 1987 Constitution reads:

The incumbent President shall continue to exercise legislative power until the
first Congress is convened."

In the case of Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.


Tan, 163 SCRA 371, the Supreme Court ruled that the Provisional Constitution and the
1987 Constitution, both recognized the power of the president to exercise legislative
powers until the first Congress created under the 1987 Constitution was convened on
July 27, 1987.

(2) Executive Orders Nos. 1.2 and 14 are not bills of attainder. A bill of attainder is a
legislative act which inflicts punishment without judicial trial. Accordingly, it was held in
Bataan Shipyards and Engineering company, Inc. v. Presidential Commission on Good
Government, that Executive Orders Nos. 1.2 and 14 are not bills of attainder .because
they do not inflict any punishment. On the contrary, they expressly provide that any
judgment that the property sequestered is ill-gotten wealth is to be made by a court (the
Sandiganbayan) only after trial.

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Congress passed a bill appropriating P50 million in assistance to locally based


television stations subject to the condition that the amount would be available
only in places where commercial national television stations do not operate. The
President approved the appropriation but vetoed the condition. Was the veto
valid? (2011 BAR)
(A) Yes, since the vetoed condition may be separated from the item.
(B) Yes, the President's veto power is absolute.
(C) No, since the veto amounted to a suppression of the freedom to
communicate through television.
(D) No, since the approval of the item carried with it the approval of the
condition attached to it.

Regardless of your answer to the preceding question, assume that Emest Cheng
is now a congressman. Being a businessman, he has no knowledge of legislative
procedure. Cheng retains you as his legal adviser and asks enlightenment on the
following matters:

1. When does a bill become a law even without the signature of the President;
(1993 Bar Question)

2. When does the law take effect? (1993 Bar Question)

SUGGESTED ANSWER:

1. Under Section 27(1), Article VI of the Constitution, a bill becomes a law even without
the signature of the President if he vetoed it but his veto was overriden by two-thirds
vote of all the members of both the Senate and the House of Representatives and if the
President failed to communicate his veto to the House from which the bill originated,
within thirty days after the date of receipt of the bill by the President.

2. As held in Taada vs. Tuvera. 146 SCRA 446, a law must be published as a
condition for its effectivity and in accordance with Article 2 of the Civil Code, it shall take
effect fifteen days following the completion of its publication in the Official Gazette or in
a newspaper of general circulation unless it is otherwise provided. (Executive Order No.
292, Revised Administrative Code of 1989)

2. Non-legislative
a. Informing function
b. Power of impeachment
c. Other non-legislative powers

Legislative powers had been vested by the Constitution in the Congress of the
Philippines. In addition, the Constitution also granted the lawmaking body, non-
legislative powers. Kindly name five of the latter. (1988 Bar Question)

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SUGGESTED ANSWER:

Congress has the following non-legislative powers:

a. To act as national board of canvassers for President and Vice President. (Art. VII,
sec. 4).

b. To decide whether the President is temporarily disabled in the event he reassumes


his office after the Cabinet, by a majority of vote of its members, declared that he is
unable to discharge the powers and duties of his office and now within five days insists
that the President is really unable to discharge the powers and duties of the presidency.
(Art. VII, sec. 11).

c. To concur in the grant of amnesty by the President. (Art. VII, sec. 19).

d. To initiate through the House of Representatives and, through the Senate, to try all
cases of impeachment against the President, Vice President, the Members of the
Supreme Court, the Members of the Constitutional Commissions and the Ombudsman,
for culpable violation of the Constitution, treason, bribery, graft and corruption, other
high crimes, or betrayal of public trust. (Art. XI, secs. 2-3).

e. To act as a constituent assembly for the revision or amendment of the Constitution.


(Art. XVII).

May an incumbent Justice of the Supreme Court be disbarred as a lawyer? (2011


BAR)
(A) No, it will amount to removal.
(B) No, his membership in the bar is secure.
(C) Yes, by the Supreme Court itself.
(D) Yes, by Congress in joint session.

Suppose a Commissioner of the COMELEC is charged before the Sandiganbayan


for allegedly tolerating violation of the election laws against profileration of
prohibited billboards and election propaganda with the end in view of removing
him from office. Will the action prosper? [5%] (1998 Bar Question)

SUGGESTED ANSWER:

No, the action will not prosper. Under Section 8, Article XI of the Constitution, the
Commissioners of the Commission on Elections are removable by impeachment. As
held In the case of In re Gonzales, 160 SCRA 771,774- 775, a public officer who is
removable by Impeachment cannot be charged before the Sandiganbayan with an
offense which carries with it the penalty of removal from office unless he is first
impeached. Otherwise, he will be removed from office by a method other than
impeachment.

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What is impeachment, what are the grounds therefor, and who are the high
officials removable thereby? (1988 Bar Question)

Presidential Decree No. 1606 provides that Justices of the Sandiganbayan may be
removed only by impeachment. Is this Presidential Decree still valid? Why? (1988
Bar Question)

SUGGESTED ANSWER:

Impeachment is a method by which persons holding government positions of high


authority, prestige, and dignity and with definite tenure may be removed from office for
causes closely related to their conduct as public officials. (V.G. SINCO, PHILIPPINE
POLITICAL LAW 373 (11th ed. 1962)).

The grounds for impeachment are culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes and betrayal of public trust. (Art. XI, sec.
2).

The officials removable by impeachment are the President, Vice President, the
Members of the Supreme Court, Members of the Constitutional Commissions and the
Ombudsman, (Id.)

(1) PD No. 1606, sec. 1, in so far as it provides for the removal of the members
of the Sandiganbayan only by impeachment must be deemed to have been rendered
inoperative by the new Constitution which provides that with the exception of the
officials there mentioned, All other public officers and employees may be removed from
office as provided by law, but not by impeachment. Moreover, under Art. VIII, sec. 11,
the power to remove lower court judges is vested in the Supreme Court en banc which,
by the vote of a majority of the members who actually take part in the deliberation on
the issues in the case and vote thereon, can dismiss lower court judges.

What are the grounds for impeachment? Explain. (2%) (1999 Bar Question)

SUGGESTED ANSWER:

Under Section 2, Article XI of the Constitution, the grounds for impeachment are
culpable violation of the Constitution, treason, bribery, graft and corruption, other high
crimes, and betrayal of public trust. Culpable violation of the Constitution means
intentional violation of the Constitution and not violations committed in good faith.
Treason and bribery have the same meaning as in the Revised Penal Code. Graft and
corruption refers to prohibited acts enumerated in the Anti-Graft and Corrupt Practices
Act. High crimes refer to offenses that strike at the very life or orderly working of the
government. Betrayal of public trust refers to any violation of the oath of office. (Cruz,
Philippine Political Law, 1998 ed., pp. 336-337; Bernas, The 1987 Constitution of the
Philippines: A Commentary, 1996 ed., pp. 991-992)

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Is cronyism a legal ground for the impeachment of the President? Explain. (5%)
(2000 Bar Question)

SUGGESTED ANSWER:

Yes, cronyism is a legal ground for the impeachment of the President. Under Section 2,
Article XI of the Constitution, betrayal of public trust is one of the grounds for
impeachment. This refers to violation of the oath of office and includes cronyism which
involves unduly favoring a crony to the prejudice of public interest. (Record of the
Constitutional Commission. Vol. II, p. 272)

IV. Executive Department

A. Privileges, inhibitions and disqualifications


1. Presidential immunity
2. Presidential privilege

The Chief Justice appointed X, the Presidents sister, as Assistant Court


Administrator in the Supreme Court during the President's tenure. Claiming that
the Constitution prohibits the appointment in government of a Presidents
relative, a taxpayer asks for its nullification. Will the challenge prosper? (2011
BAR)
(A) Yes, since the appointment essentially violates the law against
nepotism.
(B) Yes, because relatives of the President within the fourth civil degree
cannot be appointed as heads of offices in any department of
government.
(C) No, X's appointment, although in the government, is not in the Executive
Department that the President heads.
(D) No, the position to which X was appointed is not among those
prohibited under the Constitution.

When the President contracted a personal loan during his incumbency, he may
be sued for sum of money (2011 BAR)
(A) during his term of office.
(B) during his tenure of office.
(C) after his term of office.
(D) after his tenure of office.

Upon complaint of the incumbent President of the Republic, "A" was charged
with libel before the Regional Trial Court. A" moved to dismiss the information
on the ground that the Court had no jurisdiction over the offense charged
because the President, being immune from suit, should also be disqualified from
filing a case against A" in court

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Resolve the motion. (2010 Bar Question)

SUGGESTED ANSWER:

The motion should be denied according to Soliven vs. Makasiar, 167 SCRA 393, the
immunity of the President from suit is personal to the President. It may be invoked by
the President only and not by any other person.

During his incumbency, President Carlos shot to death one of his advisers during
a heated argument over a game of golf that they were playing. The deceased
advisers family filed a case of homicide against President Carlos before the city
prosecutors office. He moved to dismiss the case, invoking presidential
immunity from suit. Should the case be dismissed?
(A) Yes, his immunity covers his interactions with his official family,
including the deceased adviser.
(B) No, his immunity covers only work-related crimes.
(C) Yes, his immunity holds for the whole duration of his tenure.
(D) No, his immunity does not cover crimes involving moral turpitude.

Distinguish "presidential communications privilege" from "deliberative process


privilege." (3%). (2010 Bar Question)

SUGGESTED ANSWER:

Presidential communications privilege applies to decision-making of the President. The


deliberative process privilege applies to decision-making of executive officials. Unlike
the "deliberative process privilege," "the presidential communications privilege" applies
to documents in their entirety and covers final and post decisional matters, as well as
pre-deliberative ones. The deliberative process privilege includes advisory opinions,
recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. (Neri v. Senate Committee on
Accountability of Public Officers and Investigations, 549 SCRA77 [2008].)

B. Powers
1. Executive and administrative powers in general

Which of the following statements is correct? (1%) (BAR 2013)


A. The President, with the concurrence of the Monetary Board, can guarantee
a foreign loan on behalf of the Republic of the Philippines.
B. Congress may, by law, provide limitations on the President's power to
contract or guarantee foreign loans on behalf of the Republic of the
Philippines.
C. In order to be valid and effective, treaties and executive agreements must
be concurred in by at least two-thirds of all the Members of the Senate.

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D. The President shall, at the end of every quarter of the calendar year, submit
to Congress a complete report of the loans contracted or guaranteed by the
Government or government-owned and controlled corporations.
E. All the above choices are defective in some respects.

Considering the pressing problems of insurgency, rebel activities, liberation


movements and terrorist violence, which in your considered opinion among the
options available to the President as Commander-in-Chief would be the most
effective in meeting the emergencies by the nation? Explain. (1987 Bar Question)

SUGGESTED ANSWER:

The President has three options: (1) to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion; (2) to suspend the privilege of the writ of habeas
corpus or (3) to proclaim martial law. The last two options can be resorted to only in
cases of invasion or rebellion when public safety requires either the suspension of the
privilege or the proclamation of martial law.

It is submitted that the most effective means of meeting the current emergency which is
brought about by rebellion, liberation movements, and terrorism is to simply call out the
armed forces for the following reasons: (1) the exigencies to be met are not solely those
caused by invasion or rebellion but terrorism and other crimes. (2) Suspension of the
privilege will only be for a limited period and then the period of retention is limited to 3
days which may not really be effective. On the other hand, public criticism of the action
may only erode the Presidents authority. (3) There is practically little difference, as far
as the ability of the President to meet an emergency is concerned, between option 1, on
the other hand, the options 2 and 3. The President may well take comfort in the
following thought: Government of limited power need not be anemic government.
Assurance that rights are secure tends to diminish fear and jealousy of strong
government, and, by making us feel safe to live under it makes for its better support.
(West Vs. State Brd. of Educ. V. Barnette, 319 U.S. 624 (1943))

What do you mean by the Calling-out Power of the President under Section 18,
Article VII of the Constitution? 5% (2006 Bar Question)

SUGGESTED ANSWER:

The calling-out power of the President refers to the power of the President to order the
armed forces, whenever it becomes necessary, to suppress lawless violence, invasion
or rebellion (David v Macapagal- Arroyo, G.R. No. 171396, May 3, 2006).

On February 24, 2006, President Gloria Macapagal-Arroyo issued Proclamation


No. 1017 declaring a state of national emergency. Is this Proclamation
constitutional? Explain. 2.5% (2006 Bar Question)

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SUGGESTED ANSWER:

Proclamation No. 1017 is constitutional insofar as it called out the Armed Forces of the
Philippines to prevent or suppress all forms of lawless violence, and any act of
insurrection or rebellion because of the finding of the President that there was a plot to
overthrow the government. It is unconstitutional insofar as it ordered the Armed Forces
of the Philippines to enforce all laws even though not related to lawless violence and all
decrees to be issued by the President, and to impose standards on media or any form
of prior restraint on the press, because the Constitution does not grant these powers to
the President. These powers are reserved to the legislature (David v. Macapagal-
Arroyo, G.R. No. 171396, May 3, 2006).

During the effectivity of this Proclamation, General Lito and Bong were arrested
by the police for acts of terrorism. Is the arrest legal? Explain. 2.5% (2006 Bar
Question)

SUGGESTED ANSWER:

The arrest of Gener, Lito and Bong for acts of terrorism is illegal, because Congress has
not yet passed a law punishing acts of terrorism and their warrantless arrests have no
basis. (David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006).

The President abolished the Office of the Presidential Spokesman in Malacaang


Palace and a long-standing Bureau under the Department of Interior and Local
Governments. The employees of both offices assailed the action of the President
for being an encroachment of legislative powers and thereby void. Was the
contention of the employees correct? Explain. (2003 Bar Question)

SUGGESTED ANSWER:

The contention of the employees is not correct. As held in Buklod nq Kawaninq EIIB v.
Zamora. 360 SCRA 718 [2001], Section 31, Book III of the Administrative Code of 1987
has delegated to the President continuing authority to reorganize the administrative
structure of the Office of the President to achieve simplicity, economy and efficiency.
Since this includes the power to abolish offices, the President can abolish the Office of
the Presidential Spokesman, provided it is done in good faith. The President can also
abolish the Bureau in the Department of Interior and Local Governments, provided it is
done in good faith because the President has been granted continuing authority to
reorganize the administrative structure of the National Government to effect economy
and promote efficiency, and the powers include the abolition of government offices.
(Presidential Decree No. 1416, as amended by Presidential Decree No. 1772; Larin v.
The Executive Secretary. 280 SCRA 713 [I997]).

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2. Power of appointment
a. In general

The President appointed Dexter I. Ty as Chairperson of the COMELEC on June 14,


2011 for a term of seven (7) years pursuant to the 1987 Constitution. His term of
office started on June 2, 2011 to end on June 2, 2018. Subsequently, the
President appointed Ms. Marikit as the third member of the COMELEC for a term
of seven (7) years starting June 2, 2014 until June 2, 2021. On June 2, 2015,
Chairperson Ty retired optionally after having served the government for thirty
(30) years. The President then appointed Commissioner Marikit as COMELEC
Chairperson. The Commission on Appointments confirmed her appointment. The
appointment papers expressly indicate that Marikit will serve as COMELEC
Chairperson "until the expiration of the original term of her office as COMELEC
Commissioner or on June 2, 2021." Matalino, a tax payer, files a petition for
certiorari before the Supreme Court asserting that the appointment of Marikit as
COMELEC Chairperson is unconstitutional for the following reasons: (1) The
appointment of Marikit as COMELEC Chairperson constituted a reappointment
which is proscribed by Section 1 (2), Article IX of the 1987 Constitution; and (2)
the term of office expressly stated in the appointment papers of Marikit likewise
contravenes the aforementioned constitutional provision. Will the constitutional
challenge succeed? Explain. (2015 BAR)

Answer:
The first argument is untenable since Commissioner Marikit was not reappointed but
actually was a promotional appointment as she had not yet fully served her term. What
the Constitution prohibits is a reappointment of a COMELEC Commissioner after
serving the seven-year term. On the second argument, the limitation of the term of
Commissioner Marikit as chairman until expiration of her original term on June 2, 2021
is valid only until June 8, 2018, that is, the unexpired portion of the last chairmans term
but invalid if until 2021 as it exceeds the limitation. A promotional apportionment is
allowed provided that the aggregate period of the term of the appointee will not exceed
seven years and that the rotational scheme of staggering terms of the commission
membership is maintained (Funa v. Ermita, 2012).

While Congress was in session, the President appointed eight acting


Secretaries. A group of Senators from the minority bloc questioned the validity of
the appointments in a petition before the Supreme Court on the ground that while
Congress is in session, no appointment that requires confirmation by the
Commission on Appointments can be made without the latters consent and
that an undersecretary should instead be designated as Acting Secretary.

Should the petition be granted? (5%) 2013 BAR EXAMS

SUGGESTED ANSWER:

No, the petition should not be granted. The Department Head is an alter ego of the
president and must enjoy his confidence even if the appointment will be merely

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temporary. The Senators cannot require the President to designate an Undersecretary


to be the temporary alter ego of the president (Pimentel Jr. v. Ermita, 472 SCRA 587).

Since the Constitution is silent as to who can appoint the Chairman of the
Commission on Human Rights, the President appointed W to that position
without submitting his appointment to the Commission on Appointments for
confirmation. Is Ws appointment by the President valid? (2011 BAR)
(A) No, since the position of Chairman of the Commission was created by
statute, the appointment of its holder requires the consent of Congress.
(B) Yes, since the power to appoint in the government, if not lodged
elsewhere, belongs to the President as Chief Executive.
(C) Yes, since the power to fill up all government positions mentioned in
the Constitution has been lodged in the President.
(D) No, because absent any express authority under the Constitution, the
power to appoint does not exist.

An appointment held at the pleasure of the appointing power (2011 BAR)


(A) essentially temporary in nature.
(B) requires special qualifications of the appointee.
(C) requires justifiable reason for its termination.
(D) is co-extensive with the term of the public officer who appointed him.

On 3 May 1992, while Congress is on a short recess for the elections, the
president appoints Renato de Silva to the rank of General (4-star) in the Armed
Forces. She also designates him as Chief of Staff of the AFP. He immediately
takes his oath and assumes that office, with the rank of 4- star General of the
AFP.

When Congress resumes its session on 17 May 1992, the Commission on


Appointments informs the Office of the President that it has received from her
office only the appointment of De Silva to the rank of 4-star General and that
unless his appointment to the Office of the Chief of Staff of the AFP is also
submitted, the Commission will not act on the matter.

The President maintains that she has submitted to the Commission all that the
Constitution calls for.

1. Who is correct? (1991 Bar Question)


2. Did Gen. de Silva violate the Constitution in immediately assuming office prior
to a confirmation of his appointment? (1991 Bar Question)
3. Are the appointment and designation valid? (1991 Bar Question)

SUGGESTED ANSWER:

1. The President is correct. Under Presidential Decree No. 360, the grade of four-star
general is conferred only upon the Chief of Staff. Hence, the appointment of Renato de

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Silva as a four-star general must be deemed to carry with it his appointment as Chief of
Staff of the AFP.

2. Gen. Renato de Silva did not violate the Constitution when he immediately assumed
office before the confirmation of his appointment, since his appointment was an ad
interim appointment. Under Article VII, Sec. 16 of the Constitution, such appointment is
immediately effective and is subject only to disapproval by the Commission on
Appointments or as a result of the next adjournment of the Congress.

3. The appointment and designation of Gen. de Silva are valid for reasons given above.
However, from point of view they are not valid because they were made within the
period of the ban for making appointments. Under Article VII, Sec. 15 the President is
prohibited from making appointments within the period of two (2) months preceeding the
election for President and Vice President. The appointment in this case will be made on
May 3, 1992 which is just 8 days away from the election for President and Vice
President on May 11, 1992. For this reason the appointment and designation of Gen. de
Silva are after all invalid.

[Note: May 3, 1991 and May 17, 1992 are Sundays. However the Committee finds no
relevance in the fact that these are holidays and therefore decided to ignore this fact.]

A month before a forthcoming election, A" one of the incumbent Commissioners


of the Commission on Elections, died while in office and B", another
Commissioner, suffered a severe stroke. In view of the proximity of the elections
and to avoid paralyzation in the Commission on Elections, the President who was
not running for any office, appointed Commissioner C of the Commission on
Audit, who was not a lawyer but a certified public accountant by profession, ad
interim Commissioner to succeed Commissioner A and des-ignated by way of a
temporary measure. Associate Justice D of the Court of Appeals as acting
Associate Commissioner during the absence of Commissioner B.

Did the President do the right thing in extending such ad interim appointment in
favor of Commissioner C and designating Justice D acting Commissioner of the
Commission on Elections? (1997 Bar Question)

SUGGESTED ANSWER:

No. The President was wrong in extending an ad interim appointment in favor of


Commissioner C. In Summers vs. Ozaeta to, 81 Phil. 754. it was held that an ad interim
appointment is a permanent appointment. Under Section 15, Article VII of the
Constitution, within two months immediately before the next presidential elections and
up to the end of his term, the President cannot make permanent appointments.

The designation of Justice D as acting Associate Commissioner is also invalid. Section


1(2), Article IX-C of the Constitution prohibits the designation of any Commissioner of
the Commission on Elections in a temporary or acting capacity. Section 12, Article VIII

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of the Constitution prohibits the designation of any member of the Judiciary to any
agency performing quasi-judicial or administrative functions.

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


cabinet Member. The Commision on Appointment bypassed his ad interim
appointment, however, and he was not re-appointed. Can he re-assume his
position as career Ambassador? (5%) (2010 Bar Question)

SUGGESTED ANSWER:

The career Ambassador cannot re-assume his position as career Ambassador. His ad
interim appointment as Cabinet Member was a permanent appointment. (Summers vs.
Ozaeta, 81 Phil. 754 [1948]. He abandoned his position as Ambassador when he
accepted his appointment as Cabinet Member because as Cabinet Member, he could
not hold any other office during his tenure. (Section 13, Article VII, Constitution.)

The President's appointment of an acting secretary although Congress is in


session is (2011 BAR)
(A) voidable.
(B) valid.
(C) invalid.
(D) unenforceable.

b. Commission on Appointments confirmation

Whose appointment is NOT subject to confirmation by the Commission on


Appointments? (2011 BAR)
(A) Chairman of the Civil Service Commission
(B) Chief Justice of the Supreme Court
(C) Chief of Staff of the Armed Forces of the Philippines
(D) Executive Secretary

1. What are the six categories of officials who are subject to the appointing power
of the President? (2%) (1999 Bar Question)

2. Name the category or categories of officials whose appointments need


confirmation by the Commission on Appointments? (2%) (1999 Bar Question)

SUGGESTED ANSWER:

1. Under Section 16, Article VII of the Constitution, the six categories of officials who are
subject to the appointing power of the President are the following:
a. Head of executive departments;
b. Ambassadors, other public ministers and consuls;
c. Officers of the armed forces from the rank of colonel or naval captain;
d. Other officers whose appointments are vested in him by the Constitution;

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e. All other officers of the government whose appointments are not otherwise
provided by law; and
f. Those whom he may be authorized by law to appoint. (Cruz, Philippine Political
Law, 1998 ed., pp. 204- 205)

(It is suggested that if the examinee followed the classification in Sarmiento v. Mison,
156 SCRA 549 and named only four categories, because he combined the first three
categories into one, he be given full credit.)

2. According to Sarmiento v. Mison, 156 SCRA 549, the only officers whose
appointments need confirmation by the Commission on Appointments are the 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.

On December 13, 1990, the President signed into law Republic Act No.6975
(subsequently amended by R.A. No.8551) creating the Department of Interior and
Local Government. Sections 26 and 31 of the law provide that senior officers of
the Philippine National Police (PNP), from Senior Superintendent, Chief
Superintendent, Deputy Director General to Director General or Chief of PNP
shall, among others, be appointed by the President subject to confirmation by the
Commission on Appointments.

In 1991 the President promoted Chief Superintendent Roberto Matapang and


Senior Superintendent Conrado Mahigpit to the positions of Director and Chief
Superintendent of the PNP, respectively. Their appointments were in a permanent
capacity. Without undergoing confirmation by the Commission on Appointments,
Matapang and Mahigpit took their oath of office and assumed their respective
positions. Thereafter, the Department of Budget and Management authorized
disbursements for their salaries and other emoluments.

Juan Bantay filed a taxpayer's suit questioning the legality of the appointments
and disbursements made. Bantay argues that the appointments are invalid
inasmuch as the same have not been confirmed by the Commission on
Appointments, as required under Sections 26 and 31 of R.A. No. 6975.

Determine with reasons the legality of the appointments and the disbursements
for salaries by discussing the constitutional validity of Sections 26 and 31 of R.A.
No. 6975. (5%) (2002)

SUGGESTED ANSWER:

The appointments of Matapang and Mahigpit are valid even if they were not confirmed
by the Commission on Appointments, because they are not among the public officiate
whose appointments are required to be confirmed by the first sentence of Article VII,
Section 16 of the Constitution. According to Manalo v. Sistoza, 312 SCRA 239 (1999),

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Sections 26 and 31 of Republic Act 6975 are unconstitutional, because Congress


cannot by law expand the list of public officials required to be confirmed by the
Commission on Appointments. Since the appointments of Matapang and Mahigpit are
valid, the disbursements of their salaries and emoluments are valid.

The rule prohibiting the appointment to certain government positions, of the


spouse and relatives of the president within the fourth degree of consanguinity or
affinity. (2%) (1998 Bar Question)

SUGGESTED ANSWER:

Section 13, Article VII of the Constitution, which prohibits the President from appointing
his spouse and relatives within the fourth degree of consanguinity or affinity does not
distinguish between government corporations with original charters and their
subsidiaries, because the prohibition applies to both.

In March 2001, while Congress was adjourned, the President appointed Santos as
Chairman of the Commission on Elections. Santos immediately took his oath and
assumed office. While his appointment was promptly submitted to the
Commission on Appointments for confirmation, it was not acted upon and
Congress again adjourned. In June 2001, the President extended a second ad
interim appointment to Santos for the same position with the same term, and this
appointment was again submitted to the Commission on Appointments for
confirmation. Santos took his oath anew and performed the functions of his
office.

Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He
also questioned the validity of Santos' appointment.

Resolve the following issues:

A. Does Santos' assumption of office on the basis of the ad interim appointments


issued by the President amount to a temporary appointment which is prohibited
by Section 1 (2), Article IX-C of the Constitution?

B. Assuming the legality of the first ad interim appointment and assumption of


office by Santos, were his second ad interim appointment and subsequent
assumption of office to the same position violations of the prohibition on
reappointment under Section 1 (2), Article IX-C of the Constitution? (5%) (2005
Bar Question)

SUGGESTED ANSWER:

(A) The assumption of office by Santos on the basis of the ad interim appointment
issued by the President does not amount to a temporary appointment. An ad interim
appointments is a permanent appointment, because it takes effect immediately and can

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no longer be withdrawn by the President once the appointee has qualified into office.
[Art. VII. Sec. 16, second paragraph of the Constitution; Matibag v. Benipayo, 380
SCRA 49 (2002)].

(B) The second ad interim appointment of Santos does not violate the prohibition
against reappointment under Section 1(2). Article IX-C of the Constitution. The
prohibition does not apply to a by-passed ad interim appointment, because it has not
been finally disapproved by the Commission on Appointments. [Matibag v. Benipayo,
380 SCRA 49 (2002)]. The prohibition against reappointment in the Constitution
presupposes the end of the term. After the end of the term, he cannot be reappointed.

c. Power of removal

d. Midnight appointments

Margie has been in the judiciary for a long time, starting from the lowest court.
Twenty (20) years from her first year in the judiciary, she was nominated as
a Justice in the Court of Appeals. Margie also happens to be a first-degree cousin
of the President. The Judicial and Bar Council included her in the short-list
submitted to the President whose term of office was about to end - it was a
month before the next presidential elections. Can the President still make
appointments to the judiciary during the so-called midnight appointment ban
period? Assuming that he can still make appointments, could he appoint Margie,
his cousin? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

The President can make appointments to the Supreme Court two months before a
presidential election until the end of his term but not to the rest of the Judiciary like the
Court of Appeals. Under Section 4(1), Article VIII of the Constitution, vacancies in the
Supreme Court shall be filled within ninety (90) days from the occurrence of the
vacancy. Under Section 9, Article VIII of the Constitution, vacancies in the lower courts
shall be filled within ninety (90) days from submission of the list of nominees. These
appointments to the courts, which is what is sought to be prevented by the prohibition
(De Castro v. Judicial and Bar Council, 615 SCRA 666 (2010)

The President may also appoint his first cousin, Margie, as Justice of the Court of
Appeals. The prohibition in Section 13, Article VII of the Constitution against
appointment by the president of relatives within the fourth degree by consanguinity or
affinity does not include appointments to the judiciary.

ALTERNATIVE ANSWER (FOR FIRST QUESTION):

The President cannot make appointments to the Judiciary during two months
before the presidential election until the end of his term because of the ban in Section
15, Article VII of the Constitution. Despite the constitutional mandate to fill

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vacancies in Judiciary within the prescribed periods, the prohibitions against the
appointments releases the President from the obligation to appoint within them. The
delay is excusable, since it will be impossible to comply with his obligation. (2014 BAR
EXAMS)

3. Power of control and supervision


a. Doctrine of qualified political agency
b. Executive departments and offices
c. Local government units

The independent economic planning agency of the Government as provided for


by the Constitution is the:
a. National Privatization Office;
b. National Productivity Commission;
c. National Economic Development Authority;
d. National Economic Council.

Who has control of the expenditure of public funds? (1%) (BAR 2013)
A. The Office of the President through the Department of Budget and
Management.
B. The House of Representatives from where all appropriation bills emanate.
C. The Senate through its Committee on Finance.
D. The Congress of the Republic of the Philippines.
E. Both the members of Congress and the President acting jointly, if so
provided by the General Appropriations Act.

The Independent Central Monetary Authority of the Government is the:


a. Bankers Association of the Philippines;
b. Philippine Mission of the International Monetary Fund;
c. Central Bank of the Philippines;
d. World Bank, Philippine Affiliate.

When the President orders the Chief of the Philippine National Police to suspend
the issuance of permits to carry firearms outside the residence, the President
exercises (2011 BAR)
(A) the power of control.
(B) the Commander-in-Chief power.
(C) the power of supervision.
(D) the calling out power.

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%) (2009 Bar
Question)

The President exercises the power of control over all executive departments and
agencies, including government-owned or controlled corporations.

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SUGGESTED ANSWER:

True. Under Section 18, Article VII of the Constitution the President has control of all
executive departments, bureaus and offices. His power of control extends to agencies
with respect to their administrative functions, even if they are performing quasi-judicial
functions (Cruz v. Secretary of Environment and Natural Resources, 347 SCRA 128
[2000]) and to government-owned or controlled corporations (National Marketing
Corporation v. Area, 29 SCRA 648 [1969]).

Under the so-called doctrine of qualified political agency, (1%) 2014 BAR EXAMS
(A) civil servants must first qualify before they could be appointed to office
(B) all employees in the government are merely agents of the people
(C) the acts of subordinates presumptively of those of the heads of offices
disapproves them
(D) members of the Cabinet must have the absolute trust and confidence of the
President

A law provides that the Secretaries of the Departments of Finance and Trade and
Industry, the Governor of the Central Bank, the Director General of the
National Economic Development Authority, and the Chairperson of the
Philippine Overseas Construction Board shall sit as ex-officio members of the
Board of Directors (BOD) of a government owned and controlled corporation
(GOCC). The other four (4) members shall come from the private sector. The
BOD issues a resolution to implement a new organizational structure, staffing
pattern, a position classification system, and a new set of qualification
standards. After the implementation of the Resolution, Atty. Dipasupil questioned
the legality of the Resolution alleging that the BOD has no authority to do
so. The BOD claims otherwise arguing that the doctrine of qualified political
agency applies to the case. It contends that since its agency is attached to the
Department of Finance, whose head, the Secretary of Finance, is an alter ego of
the President, the BOD's acts were also the acts of the President. Is the
invocation of the doctrine by the BOD proper? Explain. 2015 BAR EXAMS

ANSWER:

The invocation by the Board of directors of the doctrine of qualified political


agency is not proper.

The doctrine of qualified political agency essentially postulates that the heads of the
various executive departments are the alter egos of the President, and, thus, the
actions taken by such heads in the performance of their official duties are deemed the
acts of the President unless the President himself should disapprove such acts. This
doctrine is in recognition of the fact that in our presidential form of government,
all executive organizations are adjuncts of a single Chief executive; that the heads of
the executive Departments are assistants and agents of the Chief Executive; and

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that the multiple executive functions of the president as the Chief Executive are
performed through the Executive Departments.

The doctrine has been adopted here out of practical necessity, considering
that the President cannot be expected to personally perform the multifarious functions of
the executive office. The Cabinet Members sat on the Board of Directors ex officio , or
by reason of their office or function, not because of their direct appointment to the
Board by the president. Evidently, it was the law, not the President, that sat them in the
Board.

Under the circumstances, when the members of the Board of Directors effected the
assailed reorganization, thet were acting as the responsible members of the Board of
Directors constituted pursuant to the law, not as the alter egos of the President.
(Trade and Investment Development Corporation of the Philippines v./ Manalang-
Demigillo, G.R. No. 185571, March 5, 2013; Manalang-Demigillo v. Trade and
Investment Development Corporation of the Philippines, G.R. No. 168613, March 5,
2013)

Jax Liner applied for a public utility bus service from Bacolod to Dumaguete from
the Land Transportation Franchising and Regulatory Board (LTFRB). BB Express
opposed. LTFRB ruled in favor of Jax. BB appealed to the Secretary of the
Department of Transportation and Communication (DOTC), who reversed the
LTFRB decision. Jax appealed to the Office of the President which reinstated the
LTFRBs ruling. BB Express went to the Court of Appeals on certiorari
questioning the decision of the Office of the President on the ground that Office
of the President has no jurisdiction over the case in the absence of any law
providing an appeal from DOTC to the Office of the President. Will the petition
prosper?
(A) No, exhaustion of administrative remedies up to the level of the
President is a pre-requisite to judicial recourse.
(B) No, the action of the DOTC Secretary bears only the implied approval of
the President who is not precluded from reviewing the decision of the
former.
(C) Yes, when there is no law providing an appeal to the Office of the
President, no such appeal may be pursued.
(D) Yes, the doctrine of qualified political agency renders unnecessary a
further appeal to the Office of the President.

4. Military Powers

Distinguish the President's authority to declare a state of rebellion from the


authority to proclaim a state of national emergency. (2%) 2015 BAR EXAMS

ANSWER:

While both the power to declare a state of rebellion and the power to proclaim a state

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of national emergency may be justified under the Presidents general Ordinance


Powers under the provisions of the Administrative Code (Chapter 2, Book III of
Executive Order No. 292 Administrative Code of 1987), the power to declare a state
of rebellion springs from the Presidents so called calling out power under Section 18
of Article VII of the Constitution, which provides that whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion, (Sanlakas v. Executive Secretary, G.R. No. 159085, February 3,
2004, 421 SCRA 656), while the power to proclaim a state of national emergency can
be said to be based primarily on his duty to enforce the laws as well as to
formulate policies to be embodied in existing laws, consistent with the provisions of
Section 17 of Article VII of the Constitution. Under said provision, the President sees to
it that all laws are enforced by the officials and employees of his department.
Moreover, in the exercise of such function, the President, if needed, may employ the
powers attached to this office as the Commander-in-Chief of all armed forces of
the country, including the Philippine National Police under the Department of
Interior and Local Government. (David v. Arroyo, G.R. No. 171396, May 3, 2006)

It must be noted though, that without a law promulgated pursuant to the provisions of
Section 23(2) of Article VI, and Section 17 of Article XII, both of which authorize the
statutory delegation of emergency powers in favor of the President, he is limited to the
statutory delegation of emergency powers in favor of the President, he is limited to the
exercise of his calling-out power under Section 18 of Article VII of the Constitution, and
may not exercise emergency powers. (David V. Arroyo, G.R. No. 171396, May 3, 2006)

To give the much needed help to the Province of Aurora which was devastated by
typhoons and torrential rains, the President declared it in a state of calamity.
Give at least four (4) legal effects of such declaration. (4%) (2005 Bar Question)

SUGGESTED ANSWER:

The proclamation of a state of calamity by the President will have the following legal
effects:

1. The local government units in the Province of Aurora may enact a supplemental
budget for the purchase of supplies and materials or the payment of services to prevent
danger to or loss of life or property. (Section 321, Local Government Code).

2. The five per cent of the estimated revenue from regular sources required to be
appropriated in the budgets of local government units for unforeseen expenditures may
be used in the Province of Aurora. (Section 324(d), Local Government Code].

3. Science and technological personnel of the government in the Province of Aurora


shall be paid hazard allowance. (Section 7(c), Republic Act No. 8439).

4. Public health workers in the Province of Aurora shall be paid hazard allowance.
(Section 21, Republic Act No. 7305).

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5. The prices of basic necessities in the Province of Aurora shall automatically be frozen
at their prevailing levels or placed under automatic price control. (Section 6(1), Republic
Act No. 7581 entitled The Price Act).

6. A crime committed in the Province of Aurora will be considered as aggravated.


(Article 14(7), Revised Penal Code).

(The last two (2) answers to this case are more appropriate for coverage in other
subjects.)

The President CANNOT call out the military (2011 BAR)


(A) to enforce customs laws.
(B) to secure shopping malls against terrorists.
(C) to arrest persons committing rebellion.
(D) to raid a suspected haven of lawless elements.

The President may proclaim martial law over a particular province subject to
revocation or extension
(A) by Congress,subject to ratification by the Supreme Court. (2011 BAR)
(B) by the Supreme Court.
(C) by Congress alone
(D) by Congress, upon recommendation of the respective Sangguniang
Panlalawigan.

Declaring a rebellion, hostile groups have opened and maintained armed conflicts
on 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%) (2000 Bar Question)

B. What are the constitutional safeguards on the exercise of the President's


power to proclaim martial law? (2%) (2000 Bar Question)

SUGGESTED ANSWER:

A. If public safety requires it. The President can place Sulu and Basilan under martial
law since there is an actual rebellion. Under Section 18, Article VII of the Constitution,
the President can place any part of the Philippines under martial law in case of
rebellion, when public safety requires it.

B. The following are the constitutional safeguards on the exercise of the power of the
President to proclaim martial law:
1. There must be actual invasion or rebellion:
2. The duration of the proclamation shall not exceed sixty days;
3. Within forty-eight hours, the President shall report his action to Congress. If

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Congress is not in session, it must convene within twenty-four hours;


4. Congress may by majority vote of all Its members voting jointly revoke the
proclamation, and the President cannot set aside the revocation;
5. By the same vote and in the same manner, upon initiative of the President,
Congress may extend the proclamation if the invasion or rebellion continues
and public safety requires the extension;
6. The Supreme Court may review the factual sufficiency of the proclamation,
and the Supreme Court must decide the case within thirty days from the time it
was filed;
7.Martial law does not automatically suspend the privilege of the writ of habeas
corpus or the operation of the Constitution. It does not supplant the functioning
of the civil courts and of Congress. Military courts have no jurisdiction over
civilians where civil courts are able to function. (Cruz, Philippine Political Law,
1995 ed., pp. 213-214.

The President issued Proclamation No. 1018 placing the Philippines under Martial
Law on the ground that a rebellion staged by lawless elements is endangering the
public safety. Pursuant to the Proclamation, suspected rebels were arrested and
detained and military tribunals were set up to try them. Robert dela Cruz, a
citizen, filed with the Supreme Court a petition questioning the validity of
Proclamation No. 1018.

A. Does Robert have a standing to challenge Proclamation No. 1018? Explain.


2.5% (2006 Bar Question)

SUGGESTED ANSWER:

A. Robert has standing to challenge Proclamation No. 1018, because any citizen may
question the sufficiency of its factual basis (Section 18, Article VII of the Constitution).

B. In the same suit, the Solicitor General contends that under the Constitution,
the President as Commander- in-Chief, determines whether the exigency has
arisen requiring the exercise of his power to declare Martial Law and that his
determination is conclusive upon the courts. How should the Supreme Court
rule? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

B. The Supreme Court should reject the contention of the Solicitor General. Since the
exercise of the power to proclaim martial law is subject to the condition that there is
invasion or rebellion and that public safety requires the proclamation, the Supreme
Court may inquire into the sufficiency of the factual basis of Proclamation No. 1018
(Section 18, Article VII of the Constitution; Lansang v. Garcia, 42 SCRA 448, [1997]).

C. The Solicitor General argues that, in any event, the determination of whether
the rebellion poses dangers to public safety involves a question of fact and the

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Supreme Court is not a trier of facts. What should be the ruling of the Court?
2.5% (2006 Bar Question)

SUGGESTED ANSWER:

C. The Supreme Court should reject the argument of the Solicitor General. Since the
Constitution authorizes the Supreme Court to review the sufficiency of the factual basis
of Proclamation No. 1018, it allows the Supreme Court to be a trier of facts in this case
(Section 18, paragraph 3, Article VII of the Constitution).

D. Finally, the Solicitor General maintains that the President reported to Congress
such proclamation of Martial Law, but Congress did not revoke the proclamation.
What is the effect of the inaction of Congress on the suit brought by Robert to the
Supreme Court? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

D. The inaction of Congress does not affect the suit brought by Robert. The power of
the Supreme Court to review the sufficiency of the factual basis of Proclamation No.
1018 is over and above the power of Congress to revoke it. (Record of the
Constitutional Commission, Vol. II, pp. 493-494).

5. Pardoning power
a. Nature and Limitation
b. Forms of Executive Clemency

The President cannot grant pardon in cases of impeachment. He may however


exercise such power when: (2012 BAR EXAMS)

a. A person convicted in an impeachment proceeding is subject to prosecution,


trial and punishment in an ordinary criminal action;
b. A person convicted in an impeachment proceeding is granted an absolute
pardon;
c. A person convicted in an impeachment proceeding files his appeal before the
Supreme Court;
d. None of the above.

SUGGESTED ANSWER:

(A) SECTION 19, ARTICLE VII OF CONSTITUTION

In connection with the May 1987 Congressional elections, Luis Millanes was
prosecuted for and convicted of an election offense and was sentenced to suffer
imprisonment for six years. The court did not impose the additional penalty of
disqualification to hold public office and of deprivation of the right of suffrage as
provided for in Section 164 of the Omnibus Election Code of the Philippines (B.P.

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Big. 881).

In April 1991, the President granted him absolute pardon on the basis of a strong
recommendation of the Board of Pardons and Parole.

Then for the election in May 1992. Luis Millanes files his certificate of candidacy
for the office of Mayor in his municipality.

A. What is the effect of the failure of the court to impose the additional penalty?
(1991 Bar Question)
B. Is the pardon valid? (1991 Bar Question)

SUGGESTED ANSWER:

These are actually accessory penalties. As such, they need not be expressly imposed
by the court because their imposition follow automatically from the imposition of the
principal penalty.

The pardon is void, since Luis Millanes was convicted for the commission of an election
offense and his pardon was not made upon the recommendation of the Commission on
Elections. Under Article IX, C, Sec. 5 of the Constitution, no pardon for violation of an
election law may be granted without the favorable recommendation of the Commission
on Elections.

Following COMELEC Chairman Bocay's conviction for acts of corruption in the


impeachment proceedings, he was indicted for plunder before the
Sandiganbayan and found guilty, as charged. Can he get Presidential pardon on
the plunder case? (2011 BAR)
(A) No, plunder is not a pardonable offense.
(B) No, conviction in a criminal case for the same acts charged in the
impeachment proceedings is not pardonable.
(C) Yes, convictions in two different fora for the same acts, are too harsh
that they are not beyond the reach of the Presidents pardoning power.
(D) Yes, conviction in court in a criminal action is subject to the President's
pardoning power.

The National Unification Commission has recommended the grant of absolute


and unconditional amnesty to all rebels. There is the view that it is not necessary
for the rebels to admit the commission of the crime charged, it being enough that
the offense falls within the scope of the amnesty proclamation, following the
doctrine laid down in Barrioquinto vs. Fernandez, 82 Phil. 642. In other words,
admission of guilt is not a condition sine qua non for the availment of amnesty. Is
this correct? Explain. (1993 Bar Question)

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SUGGESTED ANSWER:

The view that it is not necessary for rebels to admit the commission of the crime
charged in order to avail themselves of the benefits of amnesty is not correct. As stated
in Vera v. People, 7 SCRA 156, the doctrine laid down in Barrioquinto us. Fernandez,
82 Phil. 642 has been overturned. Amnesty presupposes the commission of a crime. It
is inconsistent for someone to seek for forgiveness for a crime which he denies having
committed. (People vs. Pasilan 14 SCRA 694).

Lucas, a ranking member of the NDF, was captured by policemen while about to
board a passenger bus bound for Sorsogon. Charged with rebellion he pleaded
not guilty when arraigned. Before trial he was granted absolute pardon by the
President to allow him to participate in the peace talks between the government
and the communist rebels.

1. Is the pardon of the President valid? Explain. (1995 Bar Question)

2. Assuming that the pardon is valid, can Lucas reject it? Explain. (1995 Bar
Question)

3. Instead of a pardon, may the President grant the accused amnesty if favorably
recommended by the National Amnesty Commission? Explain. (1995 Bar
Question)

4. May the accused avail of the benefits of amnesty despite the fact the he
continued to profess innocence? Explain. (1995 Bar Question)

SUGGESTED ANSWER:

1. The pardon is not valid. Under Section 19, Article VII of the 1987 Constitution, pardon
may be granted only after conviction by final judgment.

2. Yes. Lucas can reject the pardon. As held in United States vs. Wilson. 7 Pet. 150 and
Burdick vs. United States. 274 U.S. 480, acceptance is essential to complete the pardon
and the pardon may be rejected by the person to whom it is tendered, for it may inflict
consequences of greater disgrace than those form which it purports to relieve.

SUGGESTED ANSWER:

No. Lucas cannot reject the pardon. According to Biddle vs. Perovich. 274 U.S. 480,
acceptance is not necessary, for the grant of pardon involves a determination by the
President that public welfare will be better served by inflicting less than what the
judgment fixed.

3. The President may grant the accused amnesty. According to Barrioquinto vs.
Fernandez, 82 Phil. 642. Amnesty may be granted before or after the institution of the

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criminal prosecution.

4. No. the accused cannot avail of the benefits of amnesty if he continues to profess his
innocence. In Vera vs. People, 7 SCRA 152, since amnesty presupposes the
commission of a crime, it is inconsistent for an accused to seek forgiveness for
something which he claims he has not committed.

The first paragraph of Section 19 of Article VII of the Constitution providing for
the pardoning power of the President mentions reprieve, commutation, and
pardon. Please define the three of them, and differentiate one from the others.
(1988 Bar Question)

SUGGESTED ANSWER:

The terms were defined and distinguished from one another in People v. Vera, 65 Phil.
56, 111-112 (1930), as follows:
- Reprieve is a postponement of the execution of a sentence to a day certain.
- Commutation is a remission of a part of the punishment, a substitution of less
penalty for the one originally- imposed.
- A pardon, on the other hand, is an act of grace, proceeding from the power intrusted
with the execution of the laws which exempts the individual on whom it is bestowed
from the punishment the law inflicts for a crime he has committed.

A. What are the constitutional limitations on the pardoning power of the


President? (2%) (1999 Bar Question)

B. Distinguish between pardon and amnesty. (2%) (1999 Bar Question)

C. A City Assistant Treasurer was convicted of Estafa through falsification of


public document. While serving sentence, he was granted absolute pardon by the
President.
1. Assuming that the position of Assistant City Treasurer has remained
vacant, would he be entitled to a reinstatement without the need of a new
appointment? Explain. (2%) (1999 Bar Question)
2. If later the same position becomes vacant, could he reapply and be
reappointed? Explain. (2%) (1999 Bar Question)

SUGGESTED ANSWER:

A. The following are the limitations on the pardoning power of the President.
1. It cannot be granted in cases of impeachment;
2. Reprieves, commutations, pardon, and remission of fines and forfeitures can be
granted only after conviction by final judgment.
3. The favorable recommendation of the Commission on Elections is required for
violation of election laws, rules and regulations.

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B. According to Barrioquinto v. Fernandez, 82 Phil. 642, the following are the


distinctions between pardon and amnesty.
1. Pardon is a private act and must be pleaded and proved by the person pardoned;
while amnesty is a public act of which courts take judicial notice;
2. Pardon does not require the concurrence of Congress, while amnesty requires the
concurrence of Congress;
3. Pardon is granted to individuals, while amnesty is granted to classes of persons or
communities;
4. Pardon may be granted for any offense, while amnesty is granted for political
offenses;
5. Pardon is granted after final conviction, while amnesty may be granted at any time;
and Pardon looks forward and relieves the offender from the consequences of his
offense, while amnesty looks backward and the person granted it stands before
the law as though he had committed no offense

C. 1.) As held in Monsanto v. Factoran, 170 SCRA 190, pardon merely frees the
individual from all the penalties and legal disabilities imposed upon him because of his
conviction. It does not restore him to the public office relinquished by reason of the
conviction.

FIRST ALTERNATIVE ANSWER:

2.) The Assistant City Treasurer can reapply and be appointed to the position,
since the pardon removed the disqualification to hold public office.

SECOND ALTERNATIVE ANSWER:

2.) The Assistant City Treasurer cannot reapply and be appointed to the position,
Under Article 36 of the Revised Penal Code, a pardon does not restore the right to hold
public office unless such right be expressly restored by the pardon;

A, while serving imprisonment for estafa, upon recommendation of the Board of


Pardons and Parole, was granted pardon by the President on condition that he
should not again violate any penal law of the land. Later, the Board of Pardons
and Parole recommended to the President the cancellation of the pardon granted
him because A had been charged with estafa on 20 counts and was convicted of
the offense charged although he took an appeal there from which was still
pending. As recommended, the President canceled the pardon he had granted to
A. A was thus arrested and imprisoned to serve the balance of his sentence in
the first case. A claimed in his petition for habeas corpus filed in court that his
detention was illegal because he had not yet b.een convicted by final judgment
and was not given a chance to be heard before he was recommitted to prison.

Is As argument valid? (1997 Bar Question)

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SUGGESTED ANSWER:

The argument of A is not valid. As held in Torres vs. Gonzales, 152 SCRA 272. a
judicial pronouncement that a ' convict who was granted a pardon subject to the
condition that he should not again violate any penal law is not necessary before he can
be declared to have violated the condition of his pardon. Moreover, a hearing is not
necessary before A can be recommitted to prison. By accepting the conditional pardon.
A agreed that the determination by the President that he violated the condition of his
pardon shall be conclusive upon him and an order for his arrest should at once issue.

Bruno still had several years to serve on his sentence when he was conditionally
pardoned by the President. Among the conditions imposed was that he would
"not again violate any of the penal laws of the Philippines." Bruno accepted all of
the conditions and was released. Shortly thereafter, Bruno was charged with 20
counts of estafa. He was then incarcerated to serve the unexpired portion of his
sentence following the revocation by the President of the pardon.

Bruno's family filed a petition for habeas corpus, alleging that it was error to have
him recommitted as the charges were false, in fact, half of them were already
dismissed.

Resolve the petition with reasons. (4%) (2005 Bar Question)

SUGGESTED ANSWER:

The petition for habeas corpus should be denied. Conviction of a crime is not necessary
before the President can determine that Bruno violated the condition of his pardon. By
accepting the terms of the conditional pardon, Bruno agreed that the determination of
the President that he had violated its condition would be conclusive upon him. Thus,
such determination cannot be reviewed by the courts. [Torres v. Gonzales, 152 SCRA
272 (1987)].

Governor A was charged administratively with oppression and was placed under
preventive suspension from office during the pendency of his case. Found guilty
of the charge, the President suspended him from office for ninety days. Later, the
President granted him clemency by reducing the period of his suspension to the
period he has already served. The Vice Governor questioned the validity of the
exercise of executive clemency on the ground that it could be granted only in
criminal, not administrative, cases.

How should the question be resolved? (1997 Bar Question)

SUGGESTED ANSWER:

The argument of the Vice Governor should be rejected. As held In Llamas vs. Orbos,
202 SCRA 844, the power of executive clemency extends to administrative cases. In

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granting the power of executive clemency upon the President. Section 19. Article VII of
the Constitution does not distinguish between criminal and administrative cases.
Section 19. Article VII of the Constitution excludes impeachment cases, which are not
criminal cases, from the scope of the power of executive clemency. If this power may be
exercised only in criminal cases, it would have been unnecessary to exclude
impeachment cases from this scope. If the President can grant pardons in criminal
cases, with more reason he can grant executive clemency in administrative cases,
which are less serious.

ST, a Regional Trial Court judge who falsified his Certificate of Service, was found
liable by the Supreme Court for serious misconduct and inefficiency, and meted
the penalty of suspension from office for 6 months. Subsequently, ST filed a
petition for executive clemency with the Office of the President. The Executive
Secretary, acting on said petition issued a resolution granting ST executive
clemency. Is the grant of executive clemency valid? Why or why not? (6%) (2008
Bar Question)

SUGGESTED ANSWER:

The grant of executive clemency is not valid. First, in this case, the power of executive
clemency cannot be delegated for it was not signed by the President himself but by the
Executive Secretary and second, the power of executive clemency cannot extend to
administrative cases in the Judiciary, because it will violate the principle of separation of
powers and impair the power of the Supreme Court under Section 6, Article VIII of the
Constitution of administrative supervision over all courts (Petition for Judicial Clemency
of Romillo, G.R. No. 97091, December 9, 1997).

6. Diplomatic power

The President entered into an executive agreement with Vietnam for the supply to
the Philippines of animal feeds not to exceed 40,000 tons in any one year. The
Association of Animal Feed Sellers of the Philippines questioned the
executive agreement for being contrary to R.A. 462 which prohibits the
importation of animal feeds from Asian countries.

Is the challenge correct? (1%) 2013 BAR EXAMS

(A) Yes, the executive agreement is contrary to an existing domestic law.


(B) No, the President is solely in charge of foreign relations and all his actions in
this role form part of the law of the land.
(C) No, international agreements are sui generis and stand independently of our
domestic laws.
(D) Yes, the executive agreement is actually a treaty which does not take effect
without ratificaiton by the Senate.
(E) Yes, the challenge is correct because there is no law employering the
President to undertake the importation.

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SUGGESTED ANSWER:

(A)(Gonzales v. Hechanova, G.R.No. L-21897, October 22, 1963, 9 SCRA 230).

The Philippines and the Republic of Kroi Sha established diplomatic


relations and immediately their respective Presidents signed the following: (1)
Executive Agreement allowing the Republic of Kroi Sha to establish its embassy
and consular offices within Metro Manila; and (2) Executive Agreement
allowing the Republic of Kroi Sha to bring to the Philippines its military
complement, warships, and armaments from time to time for a period not
exceeding one month for the purpose of training exercises with the Philippine
military forces and exempting from Philippine criminal jurisdiction acts
committed in the line of duty by foreign military personnel, and from paying
custom duties on all the goods brought by said foreign forces into Philippine
territory in connection with the holding of the activities authorized under
the said Executive Agreement. Senator Maagap questioned the
constitutionality of the said Executive Agreements and demanded that the
Executive Agreements be submitted to the Senate for ratification pursuant to the
Philippine Constitution. Is Senator Maagap correct? Explain. ( 4 % ) 2015 BAR
EXAMS

SUGGESTED ANSWER:

It is submitted that only the first Executive Agreement regarding the establishment
of the embassy of Kroi Sha need not be submitted to the Senate for its concurrence
following the general rule that the Executive Agreements need not to submitted to
the Senate for its concurrence, under the provisions of Section 21 of Article VII of the
Constitution. (China National Machinery &^ Equipment Corporation v. Sta. Maria,
G.R. No. 185572, February 7, 2012, 665 SCRA 189)

The second Executive Agreement which allows the Republic of Kroi Sha to bring to
the Philippines its military complement, warships, and armaments from time may be
subject to the provisions of Section 25 of Article XVIII of the Constitution, which
provides that foreign bases, troops or facilities shall not be allowed in the Philippines
except under a treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the of the contracting
state.

It should be noted that, under the Constitution, the Senate merely provides its
concurrence to, and does not ratify, treaties. It is the President who ratifies treaties.
(Pimentel v. Executive Secretary, G.R. No. 15808, July 16, 2008, 462 SCRA 622)

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Alternative Answer

Senator Maagap is wrong.

Executive Agreements need not be submitted to the Senate for its concurrence,
under the provisions of Section 21 of Article VII of the Constitution. (China
National Machinery & Equipment Corporation v. Sta. Maria, G.R. NO. 185572, February
7, 2012, 665 SCRA 189) This would be true with respect to both Executive Agreements
in the problem, including the second one, which allows the Republic of Kroi Sha to bring
to the Philippines its military complements, warships and armaments from time to time.
Under Section 25 of Article XVIII of the Constitution, only such agreements with the
United States of America would be required to be the subject of a treaty which would
need the concurrence of the Senate.

It should be noted that, under the Constitution, the Senate merely provides its
concurrence to, and does not ratify, treaties. It is the President who ratifies treaties,
(Pimentel v. Executive Secretary, G.R. No. 15808, July 16, 2008, 462 SCRA 622)

The Japanese Government confirmed that during the Second World War, Filipinas
were among those conscripted as "comfort women" (or prostitutes) for Japanese
troops in various parts of Asia.

The Japanese Government has accordingly launched a goodwill campaign and


has offered the Philippine Government substantial assistance for a program that
will promote through government and non-governmental organizations
womens' rights, child welfare, nutrition and family health care.

An executive agreement is about to be signed for that purpose. The agreement


includes a clause whereby the Philippine Government acknowledges that any
liability to the "comfort women" or their descendants are deemed covered by the
reparations agreements signed and implemented immediately after the Second
World War.

Juliano Iglesias, a descendant of a now deceased comfort woman, seeks your


advice on the validity of the agreement. Advise him. (1992 Bar Question)

SUGGESTED ANSWER:

The agreement is valid. The comfort women and their descendants cannot assert
individual claims against Japan. As stated in Davis & Moore vs. Regan 453 U.S. 654,
the sovereign authority of a State to settle claims of its nationals against foreign
countries has repeatedly been recognized. This may be made without the consent of
the nationals or even without consultation with them. Since the continued amity between
a State and other countries may require a satisfactory compromise of mutual claims, the
necessary power to make such compromises has been recognized. The settlement of
such claims may be made by executive agreement.

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The President forged an executive agreement with Vietnam for a year supply of
animal feeds to the Philippines not to exceed 40,000 tons. The Association of
Animal Feed Sellers of the Philippines questioned the executive agreement for
being contrary to R.A. 462 which prohibits the importation of animal feeds from
Asian countries. Is the challenge correct? (2011 BAR)
(A) Yes, the executive agreement is contrary to our existing domestic law.
(B) No, the President is the sole organ of the government in external
relations and all his actions as such form part of the law of the land.
(C) No, international agreements are sui generis which must stand
independently of our domestic laws.
(D) Yes, the executive agreement is actually a treaty which does not take
effect without ratification by the Senate.

The President of the Philippines authorized the Secretary of Public Works and
Highways to negotiate and sign a loan agreement with the German Government
for the construction of a dam. The Senate, by a resolution, asked that the
agreement be submitted to it for ratification. The Secretary of Foreign Affairs
advised the Secretary of Public Works and Highways not to comply with the
request of the Senate.

Under the Constitution, what is the role of the Senate in the conduct of foreign
affairs? (1994 Bar Question)

SUGGESTED ANSWER:

The Senate plays a role in the conduct of foreign affairs, because of the requirement in
Section 21, Article VII of the Constitution that to be valid and effective a treaty or
international agreement must be concurred in by at least two-thirds of all the Members
of the Senate.

The President of the Philippines authorized the Secretary of Public Works and
Highways to negotiate and sign a loan agreement with the German Government
for the construction of a dam. The Senate, by a resolution, asked that the
agreement be submitted to it for ratification. The Secretary of Foreign Affairs
advised the Secretary of Public Works and Highways not to comply with the
request of the Senate.

Is the President bound to submit the agreement to the Senate for ratification?
(1994 Bar Question)

SUGGESTED ANSWER:

No, the President is not bound to submit the agreement to the Senate for ratification.
Under Section 20, Article VII of the Constitution, only the prior concurrence of the
Monetary Board is required for the President to contract foreign loans on behalf of the

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Republic of the Philippines.

Section 4, Article XVIII of the Constitution provides:

All existing treaties or international agreements which have not been ratified shall
not be renewed or extended without the concurrence of at least two thirds of all
the Members of the Senate.

Can the House of Representatives take active part in the conduct of foreign
relations, particularly in entering into treaties and international agreements?
Explain. (1996 Bar Question)

SUGGESTED ANSWER:

No, the House of Representatives cannot take active part in the conduct of foreign
relations, particularly in entering into treaties and international agreements. As held in
United States vs. Curtiss-Wright Export Corporation, 299 U.S. 304, the President alone
is the representative of the nation in the conduct of foreign affairs. Although the Senate
has the power to concur in treaties, the President alone negotiates treaties and
Congress is powerless to intrude into this. However, if the matter involves a treaty or an
executive agreement, the House of Representatives may pass a resolution expressing
its views on the matter.

What are the restrictions prescribed by the Constitution on the power of the
President to contract or guarantee foreign loans on behalf of the Republic of the
Philippines? Explain. (2%) (1999 Bar Question)

SUGGESTED ANSWER:

Under Section 20, Article VII of the Constitution, the power of the President to contract
or guarantee loans on behalf of the Republic of the Philippines is subject to the prior
concurrence of the Monetary Board and subject to such limitations as may be
prescribed by law.

The League of Filipino Political Scientists (LFPS) organized an international


conference on the human rights situation in Myanmar at the Central Luzon State
University (CLSU). An exiled Myanmar professor Sung Kui, critical of the military
government in Myanmar, was invited as keynote speaker. The Secretary. of
Foreign Affairs informed the President of the regional and national security
implications of having Prof. Kui address the conference. The President thereupon
instructed the immigration authorities to prevent the entry of Prof. Kui into
Philippine territory. The chancellor of CLSU argued that the instruction violates
the Constitution. Decide with reasons. (4%) (2009 Bar Question)

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SUGGESTED ANSWER:

The argument of the chancellor of Central Luzon State University is not valid. Since an
alien has no right to enter the Philippines, preventing Prof. Sing Kui from entering the
Philippines is not a violation of his rights. (Lee and Quigley, Consular Law and Practice,
3rd ed., p. 220.) Since the President has the power of control over. foreign relations, be
has the power to ban aliens from entering the Philippines. (United States v. Curtiss-
Wright Export Corporation, 299 U.S. 304 [1936].)

7. Powers relative to appropriation measures

The President may contract or guarantee foreign loans on behalf of the Republic
of the Philippines only upon prior concurrence of the: (2012 BAR EXAMS)

a. House of Representatives;
b. Senate;
c. Central Bank;
d. Monetary Board.

SUGGESTED ANSWER:

(D) SECTION 20, ARTICLE VII OF CONSTITUTION

Which of the following statements is correct? (1%) 2013 BAR EXAMS

(A) The President, with the concurrence of the Monetary Board, can
guarantee a foreign loan on behalf of the Republic of the Philippines.
(B) Congress may, by law, provide limitations on the Presidents power to
contract or guarantee foreign loans on behalf of the Republic of the
Philippines.
(C) In order to be valid and effective, treaties and executive agreements must be
concurred in by at least two-thirds of all the Members of the Senate.
(D) The President shall, at the end of every quarter of the calendar year, submit
to Congress a complete report of the loans contracted or guaranteed
by the Government or government-owned and controlled corporations.
(E) All the above choices are defective in some respects.

SUGGESTED ANSWER:

(B)(Article VII, Section 20 of the 1987 Constitution).

The President, concerned about persistent reports of widespread


irregularities and shenanigans related to the alleged ghost projects with which
the pork barrel funds of members of Congress had been associated,
decided not to release the funds authorized under a Special Appropriations Act
for the construction of a new bridge. The Chief Executive explained that, to

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properly conserve and preserve the limited funds of the government, as well
as to avoid further mistrust by the people, such a project - which he
considered as unnecessary since there was an old bridge near the proposed
bridge which was still functional - should be scrapped. Does the President have
such authority? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

The Presidential has the authority to withhold the release of the funds under a Special
Appropriation Act for a Project which he considered unnecessary. The faithful execution
of the laws requires the President to desist from implementing a law if by doing so will
prejudice public interest. It is folly to require the President to spend the entire
amounts appropriated in the law in such a case. (Philippine Constitution Association v.
Enriquez, 235 SCRA 506 (1994).

ALTERNATIVE ANSWER:

The President does not possess the authority to scrap the Special appropriated funds.
Generally, he cannot replace legislative discretion with his own personal judgment as to
the wisdom of a law (Araullo v. Aquino G.R. No. 209287, July 1, 2014.) (2014 BAR
EXAMS)

8. Delegated powers

The President may set a limit on the country's import quota in the exercise of his
(2011 BAR)
(A) delegated power.
(B) concurring power.
(C) residual power.
(D) inherent power.

9. Veto powers

The power of the President to veto any particular part in an appropriation


revenue, or tariff bill, is called the: (2012 BAR EXAMS)

a. specific veto;
b. revenue veto;
c. item veto;
d. monetary veto.

SUGGESTED ANSWER:

(C) SECTION 27(2) ARTICLE VI OF CONSTITUTION

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The President signs into law the Appropriations Act passed by Congress but she
vetoes separate items therein, among which is a provision stating that the
President may not increase an item of appropriation by transfer of savings from
other items.

The House of Representatives chooses not to override this veto. The Senate,
however, proceeds to consider two options: (1) to override the veto and (2) to
challenge the constitutionality of the veto before the Supreme Court.

A. Is option (1) viable? If so, what is the vote required to override the veto?(1991
Bar Question)

B. Is option (2) viable? If not, why not? If viable, how should the Court decide the
case? (1991 Bar Question)

SUGGESTED ANSWER:

A. Option 1 is not viable in as much as the House of Representatives, from which the
Appropriations Act originated and to which the President must have returned the law, is
unwilling to override the presidential veto. There is, therefore, no basis for the Senate to
even consider the possibility of overriding the Presidents veto. Under the Constitution
the vote of two-third of all the members of the House of Representatives and the
Senate, voting separately, will be needed to override the presidential veto.

B. It is not feasible to question the constitutionality of the veto before the Supreme
Court. In Gonzales vs. Macaraig, 191 SCRA 152, the Supreme Court upheld the
constitutionality of a si Bar Question milar veto. Under Article VI, Sec. 27(2) of the
Constitution, a distinct and severable part of the General Appropriations act may be the
subject of a separate veto. Moreover, the vetoed provision does not relate to any
particular appropriation and is more an expression of a congres-sional policy in respect
of augmentation from savings than a budgetary provision. It is therefore an
inappropriate provision and it should be treated as an item for purposes of the veto
power of the President.

The Supreme Court should uphold the validity of the veto in the event the question is
brought before it.

Distinguish between pocket veto and item veto. (2%) (2009 Bar Question)

SUGGESTED ANSWER:

A pocket veto is when the President is considered to have rejected a bill submitted to
him for his approval when Congress adjourns during the period given to the President to
approve or reject a bill.

On the other hand, an item veto, or partial veto, is the power of a President to nullify or

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cancel specific provisions of a bill, usually a budget appropriations bill, without vetoing
the entire legislative package.

10. Residual powers


11. Executive privilege

Several senior officers of the Armed Forces of the Philippines received


invitations from the Chairperson of the Senate Committees on National Defense
and Security for them to appear as resource persons in scheduled public
hearings regarding a wide range of subjects. The invitations state that these
public hearings were triggered by the privilege speeches of the Senators that
there was massive electoral fraud during the last national elections. The invitees
Brigadier General Matapang and Lieutenant Coronel Makatuwiran, who were
among those tasked to maintain peace and order during the last election,
refused to attend because of an Executive Order banning all public officials
enumerated in paragraph 3 thereof from appearing before either house of
Congress without prior approval of the President to ensure adherence to the rule
of executive privilege. Among those included in the enumeration are "senior
officials of executive departments who, in the judgment of the department heads,
are covered by executive privilege." Several individuals and groups challenge the
constitutionality of the subject executive order because it frustrates the power
of the Congress to conduct inquiries in aid of legislation under Section 21,
Article VI of the 1987 Constitution. Decide the case. (5%) 2015 BAR EXAMS

SUGGESTED ANSWER:

Under Section 5, Article XVI of the Constitution, the President is the Commander-in-
Chief of the Armed Forces of the Philippines. By virtue of this power, the President can
prevent the Brigadier General Matapang and Liutenant Colonel Makatwiran from
appearing before the Senate to testify before a legislative investigation (Guidani v.
Senga, 2006).

The provision in the Executive Order which authorized Department Secretaries to


invoke executive privilege in case senior officials in their departments are asked to
appear in a legislative investigation is unconstitutional. It is upon the President that
executive power is vested. Only the President can make use of Executive Privilege
(Senate v. Ermita, 2006).

The House Committee on Appropriations conducted an inquiry in aid of


legislation into alleged irregular and anomalous disbursements of the
Countrywide Development Fund (CDF) and Congressional Initiative Allocation
(CIA) of Congressmen as exposed by X, a Division Chief of the Department of
Budget and Management (DBM). Implicated in the questionable disbursement are
high officials of the Palace. The House Committee summoned X and the DBM
Secretary to appear and testify. X refused to appear, while the Secretary appeared
but refused to testify invoking executive privilege.

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May X be compelled to appear and testify? If yes, what sanction may be imposed
on him? (2%) (2009 Bar Question)

SUGGESTED ANSWER:

X may be compelled to appear and testify. Only the President or the Executive
Secretary by order of the President can invoke executive privilege. (Senate of the
Philippines v. Ermita, 488 SCRA 13 (2006).) He can be cited for contempt and ordered
to be arrested. (De la Paz v. Senate Committee on Foreign Relations, 579 SCRA 521
[2009].)

A department secretary may, with the President's consent, initiate his appearance
before the Senate or the House of Representatives which (2011 BAR)
(A) must seek the concurrence of the other House before acting.
(B) must hold an executive session to hear the department secretary.
(C) may altogether reject the initiative.
(D) must accept such initiated appearance.

Is the Budget Secretary shielded by executive privilege from responding to the


inquiries of the House Committee? Explain briefly. If the answer is no, is there
any sanction that may be imposed upon him? (3%) (2009 Bar Question)

SUGGESTED ANSWER:

The Secretary of Budget and Management is not shielded by executive privilege from
responding to the inquiries of the House Committee on Appropriations, because the
inquiry is aid of legislation and neither the President nor the Executive Secretary by
order of the President invoked executive privilege. (Senate of the Philippines v. Ermita,
488m SCRA 1 (2006.) For refusing to testify, he may cited for contempt and ordered to
be arrested (De la Paz v Senate Committee on Foreign Relations, 519 SCRA 521
[2009].)

V. Judicial Department
A. Concepts
1. Judicial power

What is the concept of expanded judicial review under the 1987 Constitution?
(2015 BAR)

Answer:
The concept of expanded judicial review of the Supreme Court, the facial challenge to
the constitutionality laws is no longer limited to laws which violate the freedom of
speech but applies to all violations of fundamental rights under the Bill of Rights
(Imbong vs. Ochoa, 2014).

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In addition, the remedies of certiorari and prohibition in the Supreme Court are broader
in scope and may be issued to correct errors of jurisdiction of judicial, quasi-judicial, or
ministerial actions and may be invoked to restrain any act of grave abuse of discretion
of any branch of government (Araullo vs, Aquino, 2014).

Differentiate the rule-making power or the power of the Supreme Court to


promulgate rules under Section 5, Article VIII of the 1987 Constitution and judicial
legislation. (2%) (2015 BAR)

Suggested Answer:
Judicial legislation refers to the encroachment by the Judiciary upon the function of the
legislature by making law rather than declaring, construing or enforcing the law.
(Ballentines Law Dictionary, 3rd ed., p. 685).

Section 3 (5), Article VIII of Constitution granted the Supreme Court power to promulgate rules
concerning the protection and enforcement of constitutional rights. In the exercise of this power,
the Supreme Court promulgated the Rule on the Writ of Amparo, the Rules on the Writ of
Habeas Data, and the Rules of Procedure for Environmental Cases.

Congress enacted R.A. No. 14344 creating the City of Masuwerte which took effect on
September 25, 2014. Section 23 of the law specifically exempts the City of Masuwerte
from the payment of legal fees in the cases that it would file and/or prosecute in the
courts of law. In two (2) cases that it filed, the City of Masuwerte was assessed legal fees
by the clerk of court pursuant to Rule 141 (Legal Fees) of the Rules of Court. The City of
Masuwerte questions the assessment claiming that it is exempt from paying legal fees
under Section 23 of its charter. Is the claim of exemption tenable? Explain. (4%) (2015
BAR)

Suggested Answer:
The exemption from payment of legal fees is not valid. The rules promulgated by the Supreme
Court for the payment of legal fees were in the exercise of its rule-making power cannot be
modified by a law granting an exemption from payment. (In Re Exemption from Payment of
Court and Sheriffs Fees of Duly Registered Cooperatives, 668 SCRA 1 [2012]).

In her interview before the Judicial and Bar Council (JBC), Commissioner Annie
Amorsolo of the National Labor Relations Commission claims that she should
be given credit for judicial service because as NLRC Commissioner, she has
the rank of a Justice of the Court of Appeals; she adjudicates cases that are
appealable to the Court of Appeals; she is assigned car plate No. 10; and she
is, by law, entitled to the rank, benefits and privileges of a Court of Appeals
Justice.

If you are a member of the JBC, would you give credit to this explanation? (6%)
2013 BAR EXAMS

SUGGESTED ANSWER:

No, I will not give credence to the explanation of Commissioner Annie Amorsolo. Her

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ranking merely means that she has the same salary and benefits as a Justice of the
Court of Appeals. However, she is not actually a Justice of the Court of Appeals. The
National labor Relations is not a court. She does not perform judicial functions
(Noblejas v. Teehankee, G.R. No. L-28790, APRIL 29, 1968, 23 SCRA 405).

A case was filed before the Sandiganbayan regarding a questionable government


transaction. In the course of the proceedings, newspapers linked the name of
Senator J. de Leon to the scandal.

Senator de Leon took the floor of the Senate to speak on a matter of personal
privilege" to vindicate his honor against those baseless and malicious
allegations. The matter was referred to the Committee on Accountability of Public
Officers, which proceeded to conduct a legislative inquiry. The Committee asked
Mr. Vince Ledesma, a businessman linked to the transaction and now a
respondent before the Sandiganbayan, to appear and to testify before the
Committee.

Mr. Ledesma refuses to appear and file suit before the Supreme Court to
challenge the legality of the proceedings before the Committee. He also asks
whether the Committee had the power to require him to testify.

Identify the issues involved and resolve them. (1992 Bar Question)

SUGGESTED ANSWER:

The issues involved in this case are the following:


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 the power to
investigate a matter which is involved 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 of Bengzon us. Senate Blue Ribbon
Committee, 203 SCRA 767.

The Supreme Court has jurisdiction over the case, because it involves the question of
whether or not the Committee on Accountability of Public Officers has the power to
conduct the investigation. Under Section 1, Article VIII of the Constitution, judicial power
includes the duty of the courts to determine whether or not any branch of the
government is acting with grave of abuse of discretion amounting to lack of jurisdiction.

The Committee on Accountability of Public Officers has no power to investigate the


scandal. Since the scandal is involved in a case pending in court, the investigation will
encroach upon the exclusive domain of the court. To allow the investigation will create
the possibility of conflicting judgments between the committee and the court. If the
decision of the committee were reached before that of the court, it might influence the
judgment of the court.

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The petitioner can invoke his right against self-incrimination, because this right is
available in all proceedings since the petitioner is a respondent in the case pending
before the Sandiganbayan, he may refuse to testify.

1. Where is judicial power vested? What are included in such power?

2. Despite the lapse of 4 months from the time that the trial was terminated and
the case submitted for decision, the trial court failed to decide the case. The
defense counsel moved to dismiss the case on the ground that after the lapse of
90 days, the court had lost jurisdiction to decide the case. Should the motion be
granted? (1989 Bar Question)

SUGGESTED ANSWER:

1. According to Section 1, Article VIII of the 1987 Constitution, judicial power is vested in
one Supreme Court and in such lower courts as may be established by law. It includes
the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.

2. No, the motion should not be granted. Section 15 (4), Article VIII of the 1987
Constitution provides:

Despite the expiration of the applicable mandatory period, the court, without
prejudice to such responsibility as may have been incurred in consequence
thereof, shall decide or resolve the case or matter submitted thereto for
determination, with-out further delay.

Thus, the failure of the trial court to decide the case within ninety days did not oust it of
jurisdiction to decide the case.

SUGGESTED ANSWER:

The 1973 Constitution provided for certain consequences on the decisions of courts in
case of the failure of the Supreme Court and other inferior collegiate courts to decide
cases within prescribed periods. But it did not provide for consequences on the
decisions of trial courts as a result of their failure to decide cases within three months
(Art. X, Sec. 11). In Marcelino vs. Cruz, 121 SCRA 51 (1983) it was held that the
periods prescribed are only directory, not mandatory.

Teodoro Luzung is engaged in the business of prawn farming. The prawns are
nurtured in his fishponds in Mindoro and, upon harvest, are immediately frozen
for export.

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Congress passed the Comprehensive Agrarian Reform Law of 1988 which


provides among others that all private lands devoted to agriculture 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, raising of livestock, poultry or fish. The Department of Agrarian Reform
issued an implementing order which provides that commercial farms used for
aqua-culture, including salt-beds, fishponds and prawn farms are within the
scope of the law.

Can the law be declared unconstitutional? Decide. (1992 Bar Question)

SUGGESTED ANSWER:

As held in Luz Farms vs. Secretary of the Department of Agrarian Reform, 192 SCRA
51, the law is unconstitutional insofar as it included livestock, poultry and swine raising.
In the definition of the agricultural land which the Constitutional Commission adopted in
connection with agrarian reform, lands devoted to such purposes were not included.
However, both the law and the implementing order are constitutional insofar as they
included fishponds. The definition of agricultural land which the Constitutional
Commission adopted included fishponds.

SDO was elected Congressman. Before the end of his first year in office, he
inflicted physical injuries on a colleague, ETI. In the course of a heated debate.
Charges were filed in court against him as well as in the House Ethics Committee.
Later, the House of Representatives, dividing along party lines, voted to expel
him. Claiming that his expulsion was railroaded and tainted by bribery, he filed a
petition seeking a declaration by the Supreme Court that the House gravely
abused its discretion and violated the Constitution. He prayed that his expulsion
be annulled and that he should be restored by the Speaker to his position as
Congressman.

Is SDOs petition before the Supreme Court justiciable? Cite pertinent issues for
consideration. (5%) (2004 Bar Question)

SUGGESTED ANSWER:

While under Section 1, Article VIII of the 1987 Constitution the Supreme Court may
inquire whether or not the decision to expel SDO is tainted with grave abuse of
discretion amounting to lack or excess of jurisdiction, the petition should be dismissed.
In Alejandrino v. Quezon (46 Phil. 83 [1924J), the Supreme Court held that it could
not compel the Senate to reinstate a Senator who assaulted another Senator and was
suspended for disorderly behavior, because it could not compel a separate and co-
equal department to take any particular action. In Osmena v. Pendatun (109Phil. 863
[1960D, it was held that the Supreme Court could not interfere with the suspension of a
Congressman for disorderly behavior, because the House of Representatives is the
judge of what constitutes disorderly behavior. The assault of a fellow Senator

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constitutes disorderly behavior.

What is the difference, if any, between the scope of judicial power under the 1987
Constitution on one hand, and the 1935 and 1973 Constitutions on the other?
(1994 Bar Question)

Assume that the constitutional question raised in a petition before the Supreme
Court is the lis mota of the case, give at least two other requirements before the
Court will exercise its power of judicial review?(1994 Bar Question)

SUGGESTED ANSWER:

The scope of judicial power under the 1987 Constitution is broader than its scope under
the 1935 and 1973 Constitution because of the second paragraph of Section 1. Article
VIII of the 1987 Constitution, which states that It includes the duty to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. As held in
Marcos us. Manglapus, 177 SCRA 668, this provision limits resort to the political
question doctrine and broadens the scope of juridical inquiry into areas which the courts
under the 1935 and the 1973 Constitutions would normally have left to the political
departments to decide.

SUGGESTED ANSWER:

Under the 1935 and 1973 Constitutions, there was no provision defining the scope of
judicial power as vested in the judiciary. While these Constitutions, both provided for
vesture of Judicial power in one Supreme Court and in such inferior courts as may be
established by law," they were silent as to the scope of such power.

The 1987 Constitution, on the other hand, re-wrote the provisions on the vesture of
judicial power originally appearing in the 1935 and 1973 Constitutions, as follows:

The Judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.

Judicial power includes the duty of the courts of Justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government." (Sec. 1,
Art. VIII)

The second paragraph of the cited provision was not found in the 1935 and 1973
Constitution. It contains a new definition of judicial power particularly the scope thereof.
The first portion thereof represents the traditional concept of judicial power, involving the
settlement of conflicting rights as by law, which presumably was implicit in the 1935 and
1973 Constitutions. The second (latter) portion of the definition represents a broadening

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of the scope of judicial power or in the language of the Supreme Court, conferment of
expanded Jurisdiction" on the judiciary (Daza v. Singson. 180

SCRA 496) to enable the courts to review the exercise of discretion by the political
departments of government. This new prerogative of the judiciary as now recognized
under the 1987 Constitution was not constitutionally permissible under the 1935 and
1973 Charters.

2) According to Macasiano vs. National Housing Authority, 224 SCRA 236, in addition to
the requirement that the constitutional question raised be the lis mota of the case, the
following requisites must be present for the exercise of the power of Judicial review:
a. There must be an actual case or controversy involving a conflict of legal rights
susceptible of Judicial determination;
b. The constitutional question must be raised by the proper party; and
c. The constitutional question must be raised at the earliest opportunity.

On the first day of the trial of a rape-murder case where the victim was a popular
TV star, over a hundred of her fans rallied at the entrance of the courthouse, each
carrying a placard demanding the conviction of the accused and the imposition of
the death penalty on him. The rally was peaceful and did not disturb the
proceedings of the case.

A. Can the trial court order the dispersal of the rallyists under pain of being
punished for contempt of court, if they fail to do so? Explain.

B. If instead of a rally, the fans of the victim wrote letters to the newspaper editors
demanding the conviction of the accused, can the trial court punish them for
contempt? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

A. Yes. the trial court can order the dispersal of the rally under pain of being cited for
contempt. The purpose of the rally is to attempt to influence the administration of justice.
As stated in People vs. Flores. 239 SCRA 83, any conduct by any party which tends to
directly or indirectly impede, obstruct or degrade the administration of justice is subject
to the contempt powers of the court.

B. No. the trial court cannot punish-for contempt the fans of the victim who wrote letters
to the newspaper editors asking for the conviction of the accused. Since the letters were
not addressed to the judge and the publication of the letters occurred outside the court,
the fans cannot be punished in the absence of a clear and present danger to the
administration of justice. In Cabansag vs. Fernandez. 102 Phil 152. it was held that a
party who wrote to the Presidential Complaints and Action Committee to complain about
the delay in the disposition of his case could not be punished for contempt in the
absence of a clear and present danger to the fair administration of justice.

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When the Marcos administration was toppled by the revolutionary government,


the Marcoses left behind several Old Masters paintings and antique silverware
said to have been acquired by them as personal gifts. Negotiations were then
made with Ellen Layne of London for their disposition and sale at public auction.
Later, the government entered into a Consignment Agreement" allowing Ellen
Layne of London to auction off the subject art pieces. Upon learning of the
intended sale, well-known artists, patrons and guardians of the arts of the
Philippines filed a petition in court to enjoin the sale and disposition of the valued
items asserting that their cultural significance must be preserved for the benefit
of the Filipino people.

A. Can the court take cognizance of the case? Explain. (1995 Bar Question)
B. What are the requisites for a taxpayers suit to prosper? (1995 Bar Question)

SUGGESTED ANSWER:

A. No, the court cannot take cognizance of the case. As held in Joya vs. Presidential
Commission on Good Government, 225 SCRA 569, since the petitioners were not the
legal owners of paintings and antique silverware, they had no standing to question their
disposition. Besides, the paintings and the antique silverware did not constitute
important cultural properties or national cultural treasures, as they had no exceptional
historical and cultural significance to the Philippines.

B. According to Joya vs. Presidential Commission on Good Government 225 SCRA


568, for a taxpayers suit to prosper, four requisites 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 the determination of the
case. In order that a taxpayer may have standing to challenge the legality of an official
act of the government, the act being questioned must involve a disbursement of public
funds upon the theory that the expenditure of public funds for an unconstitutional act is
a misapplication of such funds, which may be enjoined at the instance of a taxpayer.

Judicial power as defined in Sec. 1, 2nd par.. Art. VIII, 1987 Constitution, now
includes the duty of the Courts of Justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack of excess of
jurisdiction on the part of any branch or instrumentality of the Government." This
definition is said to have expanded the power of the judiciary to include political
questions formerly beyond its jurisdiction.

A. Do you agree with such as interpretation of the constitutional definition of


judicial power that would authorize the courts to review and if warranted, reverse
the exercise of discretion by the political departments (executive and legislative)
of the government, including the Constitutional Commissions? Discuss fully.
(1995 Bar Question)

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B. In your opinion, how should such definition be construed so as not to erode


considerably or disregard entirely the existing political question" doctrine?
Discuss fully. (1995 Bar Question)

SUGGESTED ANSWER:

A. Yes. The second paragraph of Section 1. Article VIII of the 1987 Constitution has
expanded the power of the Judiciary to include political questions. This was not found in
the 1935 and the 1973 Constitution. Precisely, the framers of the 1987 constitution
intended to widen the scope of judicial review.

B. As pointed out in Marcos vs. Manglapus, 177 SCRA 668, so as not to disregard
entirely the political question doctrine, the extent of judicial review when political
questions are involved should be limited to a determination of whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the official whose act is being questioned. If grave abuse of discretion is not shown,
the courts should not substitute their judgment for that of the official concerned and
decide a matter which by its nature or by law is for the latter alone to decide.

X, a clerk of court of the Regional Trial Court of Manila, was found guilty of being
absent without official leave for 90 days and considered dismissed from service
by the Supreme Court. He appealed to the President for executive clemency.
Acting on the appeal, the Executive Secretary, by order of the President,
commuted the penalty to a suspension of six months.

A. Can the Supreme Court review the correctness of the action of the President in
commuting the penalty imposed on X? Explain. (1996)

B. Was the action of the President constitutional and valid? Explain. (1996 Bar
Question)

SUGGESTED ANSWER:

A. Yes, the Supreme Court can review the correctness of the action of the President in
commuting the penalty imposed on X. By doing so, the Supreme Court is not deciding a
political question. The Supreme Court is not reviewing the wisdom of the commutation
of the penalty. What it is deciding is whether or not the President has the power to
commute the penalty of X. As stated in Daza vs. Singson. 180 SCRA 496, it is within the
scope of judicial power to pass upon the validity of the actions of the other departments
of the Government.

B. The commutation by the President of the penalty imposed by the Supreme Court
upon X is unconstitutional. Section 6. Article VIII of the Constitution vests the Supreme
Court with the power of administrative supervision over all courts and their personnel. In
Garcia us. De la Pena, 229 SCRA 766, it was held that no other branch of the

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Government may intrude into this exclusive power of the Supreme Court.

The 1935, 1973 and 1987 Constitutions commonly provide that Judicial power
shall be vested in one Supreme Court and in such lower courts as may be
established by law."

What is the effect of the addition in the 1987 Constitution of the following
provision: Judicial Power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government?

Discuss briefly, citing at least one illustrative case. (5%) (2004 Bar Question)

SUGGESTED ANSWER:

The effect of the second paragraph of Section 1, Article VIII of the 1987 Constitution is
to limit resort to the political question doctrine and to broaden the scope of judicial
inquiry into areas which the Judiciary, under the previous Constitutions, would have left
to the political departments to decide. If a political question is involved, the Judiciary can
determine whether or not the official whose action is being questioned acted with grave
abuse of discretion amounting to lack or excess of jurisdiction (Marcos v. Manglapus,
177 SCRA 668 [1989D: (Daza v. Singson, 180 SCRA 496 [19890. Thus, although the
House of Representatives Electoral Tribunal has exclusive jurisdiction to decide election
contests involving members of the House of Representatives, the Supreme Court
nullified the removal of one of its members for voting in favor of the protestant, who
belonged to a different party. (Bondoc v. Pineda, 201 SCRA 792 [19910.

2. Judicial review

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

Does Mang Pandoy have legal standing to question the law? (2%) (2010 Bar
Question)

SUGGESTED ANSWER:

On the assumption that Mang Pandoy is a beneficiary of the financial legal assistance,

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he has legal standing to question the law. He may be prejudiced by the improper
screening of the beneficiary families. (Province of Batangas v. Romulo, 492 SCRA 736
[2004). Besides, since the implementation of the law will require the expenditure of
public funds, as a taxpayer Mang Pandoy has legal standing to question the law. (Cruz
v. Secretary of Environment and Natural Resources, 347 SCRA 128 [2000].)

Define: Doctrine of necessary implication (1%) (2009)

SUGGESTED ANSWER:

The doctrine of necessary implication means that every statute is understood by


implication to contain all such provisions as may be necessary to effectuate its object
and purpose, or to make effective rights, powers, privileges or jurisdiction which it
grants, including all such collateral and subsidiary consequences as may be fairly and
logically inferred from its terms. (Pepsi-Cola Products Philippines, Inc. v. Secretary of
Labor, 312 SCRA 104 [1999].)

The provision under the Constitution that any member who took no part,
dissented, or inhibited from a decision or resolution must state the reason for his
dissent or non-participation applies ______________. (1%) 2013 BAR EXAMS

(A) only to the Supreme Court


(B) to both the Supreme Court and the Court of Appeals
(C) to the Supreme Court, Court of Appeals and the Sandiganbayan
(D) to the Supreme Court, the Court of Appeals, the Sandiganbayan and the Court
of Tax Appeals
(E) to all collegial judicial and quasi-judicial adjudicatory bodies

SUGGESTED ANSWER:

(D)(Article VIII, Section 13 of the 1987 Constitution).

A person who has a personal and substantial interest in the case, such that he
has sustained, or will sustain, direct injury as a result of its enforcement is
considered to have: (2012 BAR EXAMS)

a. understanding to challenge the governmental act;


b. standing to challenge the governmental act;
c. opportunity to challenge the governmental act;
d. familiarity to challenge the governmental act.

SUGGESTED ANSWER:

(B) PEOPLE VS VERA, 65 PHIL. 56

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Mr. Yellow and Mr. Orange were the leading candidates in the
vicepresidential elections. After elections, Yellow emerged as the winner by a
slim margin of 100,000 votes. Undaunted, Orange filed a protest with the
Presidential Electoral Tribunal (PET). After due consideration of the facts and the
issues, the PET ruled that Orange was the real winner of the elections and
ordered his immediate proclamation. (2012 BAR EXAMS)
a. Aggrieved, Yellow filed with the Supreme Court a Petition for Certiorari
challenging the decision of the PET alleging grave abuse of discretion. Does
the Supreme Court have jurisdiction? Explain. (3%)
b. Would the answer in (a.) be the same if Yellow and Orange were
contending for a senatorial slot and it was the Senate Electoral Tribunal
(SET) who issued the challenged ruling? (3%)
c. What is the composition of the PET? (2%)
d. What is judicial power? Explain Briefly. (2%)

SUGGESTED ANSWER:

A. The Supreme Court has no jurisdiction over the petition the presidential electoral
tribunal is not simply an agency to which the members of the supreme court were
assigned. It is notseparate from the supreme court. (macalintal vs. Presidential electoral
tribunal, 631 scra 239)

B. The supreme court would have jurisdiction if it were the senate electoral tribunal
who issued the challenged rulling. The supreme court can review its decision if it acted
with grave abuse of discretion. (lerias vs house of representative electoral tribunal, 202
scra 808)

C. The presidential electoral tribunal is composed of the chief justice and associate
justice of the supreme court sitting en banc. (section 4, article vii of the constitution.)

D. Judicial power- sec 1(1) art. 8 is the authority to settle justifiable controversies
or disputes involving right that are enforceable and demandable before the courts
of justice or the redress of wrong for violation of such right. (lopez vs roxas, 17 scra
756.) It includes the duty of the courts to settle actual controversies involving right which
are legally demandable and enforceable, and to determine whether or not there has a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentally of the government (section 1, article vii of constitution.)

In accordance with the opinion of the Secretary of Justice, and believing that it
would be good for the country, the President enters into an agreement with the
Americans for an extension for another five (5) years of their stay at their military
bases in the Philippines, in consideration of:

1. A yearly rental of one billion U.S. dollars, payable to the Philippine government
in advance;

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2. An undertaking on the part of the American government to implement


immediately the mini-Marshall plan for the country involving ten billion U.S.
dollars in aids and concessional loans; and

3. An undertaking to help persuade American banks to condone interests and


other charges on the country's outstanding loans.

In return, the President agreed to allow American nuclear vessels to stay for short
visits at Subic, and in case of vital military need, to store nuclear weapons at
Subic and at Clark Field. A vital military need comes, under the agreement, when
the sealanes from the Persian Gulf to the Pacific, are threatened by hostile
military forces.

The Nuclear Free Philippine Coalition comes to you for advice on how they could
legally prevent the same agreement entered into by the President with the US
government from going into effect. What would you advise them to do? Give your
reasons. (1988 Bar Question)

SUGGESTED ANSWER:

If the Agreement is not in the form of a treaty, it is not likely to be submitted to the
Senate for ratification as required in Art. VII, sec. 21. It may not, therefore, be opposed
in that branch of the government. Nor is judicial review feasible at this stage because
there is no justiciable controversy. While art. VIII, sec. 1, par. 2 states that judicial power
includes the duty of court of justice to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the government, it is clear that this provision does not do away
with the political question doctrine. It was inserted in the Constitution to prevent courts
from making use of the doctrine to avoid what otherwise are justiciable controversies,
albeit involving the Executive Branch of the government during the martial law period.
On the other hand, at this stage, no justiciable controversy can be framed to justify
judicial review. I would, therefore, advice the Nuclear Free Philippine Coalition to resort
to the media to launch a campaign against the Agreement.

Courts may still decide cases that have otherwise become academic when they
involve (2011 BAR)
(A) the basic interest of people.
(B) petitions for habeas corpus.
(C) acts of the Chief Executive.
(D) Presidential election protests.

Apex Logging Co and Batibot Logging Co. are adjacent timber concession
holders in Isabela. Because of boundary conflicts, and mutual charges of
incursions into their respective concession areas, the Bureau of Forestry ordered
a survey to establish on the ground their common boundary. The Bureau of
Forestrys decision in effect favored Batibot. Apex appealed to the Department of

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Natural Resources and Environment and this department reversed the decision of
the Bureau of Forestry and sustained Apex. It was the turn of Batibot to appeal to
the Office of the President. The Office of the President through an Asst. Executive
Secretary sustained the Department of Natural Resources and Environment. On a
motion for reconsideration by Batibot, however, an Asst. Executive Secretary
other than the one who signed the decision affirming the decision of the
Department of Natural Resources and Environment decided for Batibot.
Dissatisfied with the Administrative action on the controversy, Apex filed an
action with the Regional Trial Court against Batibot, the Director of Forestry, and
the Asst. Executive Secretaries insisting that a judicial review of such divergent
administrative decisions is necessary to determine the correct boundary line of
the licensed areas in question.

Batibot moved to dismiss the action, but the Regional Trial Court denied the
same and even enjoined enforcement of the decision of the Office of the
President. Batibots motion for reconsideration was likewise denied.

Batibot then filed a petition for certiorari and prohibition to review and annul the
orders of the Regional Trial Court. Do you believe the petition for certiorari and
prohibition is meritorious? Why or why not? (1988 Bar Question)

SUGGESTED ANSWER:

The petition for certiorari and prohibition is meritorious. The order of the trial court must
accordingly be set aside. As held in a similar case, Lianga Bay Logging Co. v. Enage,
152 SCRA 80 (1987), decisions of administrative officers should not be disturbed by the
courts except when the former have acted without or in excess of their jurisdiction or
with grave abuse of discretion. The mere suspicion of Apex that there were anomalies
in the non-release of the first decision and its substitution of a new one by another
Assistant Executive Secretary does not justify judicial review. Mere beliefs, suspicions
and conjectures cannot overcome the presumption of regularity of official action.

a. Operative fact doctrine

The "operative fact" doctrine of constitutional law is applied when a law is


declared: (2012 BAR EXAMS)
a. operative;
b. factual;
c. constitutional;
d. unconstitutional.

SUGGESTED ANSWER:

(D) DE AGBAYANI VS. PHILIPPINES NATIONAL BANK, 38 SCRA 429

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Define/explain: Doctrine of operative facts (1%) (2009)

SUGGESTED ANSWER:

The doctrine of operative facts means that before a law was declared unconstitutional,
its actual existence must be taken into account and whatever was done while the law
was in operation should be recognized as valid. (Rieta v. People, 436 SCRA 273
[2004].)

When the Supreme Court nullified the decisions of the military tribunal for lack of
jurisdiction, it excluded from their coverage decisions of acquittal where the
defendants were deemed to have acquired a vested right. In so doing, the
Supreme Court applied (2011 BAR)
(A) the operative fact doctrine.
(B) the rule against double jeopardy.
(C) the doctrine of supervening event.
(D) the orthodox doctrine.

b. Moot Questions

Courts may dismiss a case on ground of mootness when (2011 BAR)


(A) the case is premature.
(B) petitioner lacks legal standing.
(C) the questioned law has been repealed.
(D) the issue of validity of law was not timely raised.

c. Political question doctrine

Where there is "the impossibility of a courts undertaking independent resolution


without expressing lack of the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to a political decision already
made; or the potentially of embarrassment from multifarious pronouncement by
various departments on a question," describes what kind of political question:
a. adherence kind;
b. prudential kind;
c. respectful kind;
d. deference kind.

To what extent, if at all, has the 1987 Constitution affected the political question
doctrine? (1997)

SUGGESTED ANSWER:

Section 1, Article VIII of the Constitution has expanded the scope of judicial power by
including the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there

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has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government. In Marcos vs. Manglapus, 177
SCRA 668, the Supreme Court stated that because of this courts of justice may decide
political questions if there was grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned.

B. Safeguards of Judicial independence

Can any other department or agency of the Government review a decision of the
Supreme Court? Why or why not? (1988 Bar Question)

SUGGESTED ANSWER:

No. The Supreme Court is the highest arbiter of legal questions. (Javier v. Comelec,
144 SCRA 194 (1986)) To allow review of, its decision by the other departments of
government would upset the classic pattern of separation of powers and destroy the
balance between the judiciary and the other departments of government. As the
Justices said in their answer to the complaint for impeachment in the Committee on
Justice of the House of Representatives, Just as it is completely unacceptable to file
charges against the individual members of Congress for the laws enacted by them upon
the argument that these laws are violative of the Constitution, or are a betrayal of public
trust, or are unjust, so too, should it be equally impermissible to make the individual
members of the Supreme Court accountable for the courts decisions or rulings.

A. One Senator remarked that the Supreme Court is a continuing Constitutional


Convention. Do you agree? Explain. (2%) (2000 Bar Question)

B. Name at least three constitutional safeguards to maintain judicial


independence. (3%) (2000 Bar Question)

SUGGESTED ANSWER:
A. I do not agree that the Supreme Court is a continuing Constitutional Convention. The
criticism is based on the assumption that in exercising its power of judicial review the
Supreme Court is not merely interpreting the Constitution but is trying to remake the
Government on the basis of the personal predilections of the Members of the Supreme
Court. This is a power that properly belongs to the people and their elected
representatives.

The Supreme Court cannot decide cases merely on the basis of the letter of the
Constitution. It has to interpret the Constitution to give effect to the intent of its framers
and of the people adopting it. In interpreting the Constitution, the Supreme Court has to
adopt it to the ever-changing circumstances of society. When the Supreme Court strikes
down an act of the Legislative or the Executive Department, it is merely discharging its
duty under the Constitution to determine conflicting claims of authority.

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B. The following are the constitutional safeguards to maintain judicial independence:


1. The Supreme Court is a constitutional body and cannot be abolished by mere
legislation.
2. The members of the Supreme Court cannot be removed except by Impeachment.
3. The Supreme Court cannot be deprived of its minimum Jurisdiction prescribed in
Section 5, Article X of the Constitution.
4. The appellate jurisdiction of the Supreme Court cannot be increased by law
without its advice and concurrence.
5. Appointees to the Judiciary are nominated by the Judicial and Bar Council and are
not subject to confirmation by the Commission on Appointments.
6. The Supreme Court has administrative supervision over all lower courts and their
personnel.
7. The Supreme Court has exclusive power to discipline judges of lower courts.
8. The Members of the Judiciary have security of tenure, which cannot be
undermined by a law reorganizing the Judiciary.
9. Members of the Judiciary cannot be designated to any agency performing quasi-
judicial or administrative functions.
10. The salaries of Members of the Judiciary cannot be decreased during their
continuance in office.
11. The Judiciary has fiscal autonomy.
12. The Supreme Court has exclusive power to promulgate rules of pleading, practice
and procedure.
13. Only the Supreme Court can temporarily assign judges to other stations.
14. It is the Supreme Court who appoints all officials and employees of the Judiciary.
(Cruz, Philippine Political Law, 1995 ed., pp. 229-31.)

{Note: The examinee should be given full credit if he gives any three of the above-
mentioned safeguards.}

ALTERNATIVE ANSWER:

To a certain extent, the Supreme Court is a continuing Constitutional Convention. When


a case is brought in court involving a constitutional issue, it becomes necessary to
interpret the Constitution. Since the Supreme Court is supreme within its own sphere, its
interpretation of the Constitution will form part of the law of the land.

What do you understand by the mandate of the Constitution that the judiciary
shall enjoy fiscal autonomy? Cite the constitutional provisions calculated to bring
about the realization of the said constitutional mandate. (2%) (1999 Bar Question)

SUGGESTED ANSWER:

Under Section 3, Article VIII of the Constitution, the fiscal autonomy of the Judiciary
means that appropriations for the Judiciary may not be reduced by the legislature below
the amount appropriated for the previous year and, after approval, shall be
automatically and regularly released.

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In Bengzon v. Drilon, 208 SCRA 133, the Supreme Court explained that fiscal
autonomy contemplates a guarantee of full flexibility to allocate and utilize resources
with the wisdom and dispatch that the needs require. It recognizes the power and
authority to deny, assess and collect fees, fix rates of compensation not exceeding the
highest rates authorized by law for compensation and pay plans of the government and
allocate and disburse such sums as may be provided by law or prescribed by it in the
course of the discharge of its functions.

C. Judicial restraint

D. Appointments to the Judiciary

Margie has been in the judiciary for a long time, starting from the lowest court.
Twenty (20) years from her first year in the judiciary, she was nominated as
a Justice in the Court of Appeals. Margie also happens to be a first-degree cousin
of the President. The Judicial and Bar Council included her in the short-list
submitted to the President whose term of office was about to end - it was a
month before the next presidential elections. Can the President still make
appointments to the judiciary during the so-called midnight appointment ban
period? Assuming that he can still make appointments, could he appoint Margie,
his cousin? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

The President can make appointments to the Supreme Court two months before a
presidential election until the end of his term but not to the rest of the Judiciary like the
Court of Appeals. Under Section 4(1), Article VIII of the Constitution, vacancies in the
Supreme Court shall be filled within ninety (90) days from the occurrence of the
vacancy. Under Section 9, Article VIII of the Constitution, vacancies in the lower courts
shall be filled within ninety (90) days from submission of the list of nominees. These
appointments to the courts, which is what is sought to be prevented by the prohibition
(De Castro v. Judicial and Bar Council, 615 SCRA 666 (2010) The President may also
appoint his first cousin, Margie, as Justice of the Court of Appeals. The prohibition in
Section 13, Article VII of the Constitution against appointment by the president of
relatives within the fourth degree by consanguinity or affinity does not include
appointments to the judiciary.

ALTERNATIVE ANSWER (FOR FIRST QUESTION);

The President cannot make appointments to the Judiciary during two months
before the presidential election until the end of his term because of the ban in Section
15, Article VII of the Constitution. Despite the constitutional mandate to fill
vacancies in Judiciary within the prescribed periods, the prohibitions against the
appointments releases the President from the obligation to appoint within them. The
delay is excusable, since it will be impossible to comply with his obligation. (2014 BAR

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EXAMS)

A judge of the Regional Trial Court derives his powers and duties from (2011
BAR)
(A) statute.
(B) the President, the appointing power.
(C) Supreme Court issuances.
(D) the rules of court.

Associate Justice A retires from the Supreme Court 90 days before the
forthcoming Presidential election. May the incumbent President still appoint
Justice A's successor? (2011 BAR)
(A) No, it will violate the Constitutional prohibition against midnight
appointments.
(B) Yes, vacancies in the Supreme Court should be filled within 90 days
from occurrence of the vacancy.
(C) Yes, vacancies in the Supreme Court should be filled within 90 days
from submission of JBC nominees to the President.
(D) No, the incumbent President must yield to the choice of the next
President

The President wants to appoint A to the vacant post of Associate Justice of the
Supreme Court because of his qualifications, competence, honesty, and
efficiency. But As name is not on the list of nominees that the Judicial and Bar
Council (JBC) submitted to the President. What should the President do? (2011
BAR)
(A) Request the JBC to consider adding A to the list.
(B) Decline to appoint from the list.
(C) Appoint from the list.
(D) Return the list to JBC.

A, an associate justice of the Supreme Court reached the age of seventy on July
1, 1996. There was a case calendared for deliberation on that day where the vote
of A was crucial.

Can A hold over the position and participate in the deliberation of the case on
July 1, 1996? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

No, A cannot hold over his position as Associate Justice of the Supreme Court and
participate in the deliberations of the case on July 1, 1996. Under Section 11, Article VIII
of the Constitution, Members of the Supreme Court hold office until they reach the age
of seventy years or become incapacitated to discharge their duties. Constitutional
officers whose terms are fixed by the Constitution have no right to hold over their
positions until their successors shall have been appointed and qualified unless

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otherwise provided in the Constitution. (Mechem, A Treaties on the Law of Public


Offices and Officers, p. 258.)

A novel feature of the present Constitution is the Judicial and Bar Council. Please
state:
1. Its principal function:
2. Its composition; and
3. Who supervises it, and takes care of its appropriations? (1988 Bar
Question)

SUGGESTED ANSWER:

1. The Judicial and Bar Council has the principal function of recommending
appointees to the Judiciary. It may exercise such other functions and duties as
the Supreme Court may assign to it. (Art. VIII, sec. 8(5)).
2. The JBC is composed of the Chief Justice as ex officio Chairman, the Secretary
of Justice and a representative of the Congress as ex officio Members, a
representative of the Integrated Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private sector. (Art. VIII, sec. 8(1)).
3. The Supreme Court supervises the JBC and provides in the annual budget of the
Court the appropriations of the JBC. (Art. VIII, sec. 8(4)).

The Judicial and Bar Council is composed of the following:


1. The Chief Justice as ex officio chairman;
2. The Secretary of Justice as ex officio member;
3. A representative of Congress as ex officio member;
4. A representative of the Integrated Bar;
5. A professor of law;
6. A retired Justice of the Supreme Court; and
7. A representative of the private sector. (Section 8 (1), Article VIII of the
Constitution)

The term of office of the regular members is four (4) years. (Section 8(2), Article
VIII of the Constitution)

E. Supreme Court
1. En banc and division cases

When the Supreme Court sits in division, cases can be decided by as few as a
minimum of: (2012 BAR EXAMS)
a. three votes;
b. four votes;
c. five votes;
d. six votes.

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SUGGESTED ANSWER:

(A) SECTION 4(3), ARTICLE VII OF CONSTITUTION

When the Supreme Court sits en banc, cases are decided by the
concurrence of a majority of the members who: (2012 BAR EXAMS)

a. actually sent in memos on matters for deliberation and called in their votes
thereon;
b. actually participated in the oral arguments and voted thereon;
c. actually took part in the deliberations on the issues in the case and voted
thereon;
d. actually took part in the voting thereon and took notes on the actual
deliberations.

SUGGESTED ANSWER:

(C) SECTION 4(2), ARTICLE VII OF CONSTITUTION

The Court had adopted the practice of announcing its decision in important,
controversial or interesting cases the moment the votes had been taken among
the justices, even as the final printed decision and separate opinions are not
yet available to the public. In a greatly anticipated decision in a case of
wide-ranging ramifications, the voting was close - 8 for the majority, while 7
were for the other side. After the Court had thus voted, it issued a press release
announcing the result, with the advice that the printed copy of the decision,
together with the separate opinions, were to be issued subsequently. The
following day, however, one of the members of the Court died. The Court then
announced that it would deliberate anew on the case since apparently the one
who died belonged to the majority. Citizens for Transparency, a group of
civic-spirited professionals and ordinary citizens dedicated to transparency and
accountability in the government, questioned the act of the Court. The petitioners
claimed the decision had already been validly adopted and promulgated.
Therefore, it could no longer be recalled by the Court. At the same time, the group
also asked the Court to disclose to the public the original decision and the
separate opinions of the magistrates, together with what they had deliberated on
just before they came up with the press release about the 8-7 decision. (6%) 2014
BAR EXAMS

(A) Was the announced 8-7 decision already validly promulgated and thus not
subject to recall?

(B) If the decision was not yet finalized at the time when the justice died, could it
still be promulgated?

(C) If the decision was still being finalized, should the Court release to the public

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the majority decision and the separate opinions as originally announced,


together with their deliberations on the issues?

SUGGESTED ANSWER:

A. The decision cannot be deemed to have been promulgated simply because of the
announcement of the voting in a press release, because the decision has not yet been
issued and filled with the Clerk of Court. Until the decision is filed with the Clerk of
Court, the Justices still have control over the decision and they can still
change their votes (Limkaichong v. Commission on Elections, 594 SCRA 434 (2009).

B. The decision can no longer be promulgated if the Justice who belonged to the
majority died, for lack of majority vote. The vote he cast is no longer valid, as he was no
longer an incumbent member of the Supreme Court (lao v. To-Chip, 158 SCRA 243
(1988)

C. The Supreme Court should not release to the public the majority opinion and
the separate opinions, as well as its deliberations. They are part of its confidential
internal deliberations. (Limkaichong v. Commission on Elections, 594 SCRA 434
(2009).

ANOTHER ALTERNATIVE ANSWER FOR (B):

The decision can be promulgated even if the Supreme Court en banc is equally divided,
if after the case was again deliberated upon, no majority decision was reached. If the
case is an original action, it should be dismissed. If it is an appealed case, the decision
appealed from should be affirmed if it is a civil case. If it is a criminal case, the accused
should be acquitted (Section 7, Rule 56 of the Rules of Court; Section 3, Rule 125
Revised Rules on Criminal Procedure)

Can five members of the Supreme Court declare a municipal ordinance


unconstitutional? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

Yes, five Members of the Supreme Court sitting en- banc can declare a municipal
ordinance unconstitutional. Under Section 4(2), Article VIII of the Constitution, a
municipal ordinance can be declared `unconstitutional with the concurrence of a
majority of the Members of the Supreme Court who actually took part in the deliberation
on the issues in the case and voted thereon. If only eight Members of the Supreme
Court actually took part in deciding the case, there will still be a quorum. Five Members
will constitute a majority of those who actually took part in deciding the case.

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Enumerate the cases required by the Constitution to be heard en banc by the


Supreme Court? (2%) (1999 Bar Question)

SUGGESTED ANSWER:

The following are the cases required by the Constitution to be heard en banc by the
Supreme Court:
- Cases involving the constitutionality of a treaty, international or executive
agreement, or law;
- Cases which under the Rules of Court are required to be heard en banc
- Cases involving the constitutionality, application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other regulations;
- Cases heard by a division when the required majority is not obtained;
- Cases where a doctrine or principle of law previously laid down will be modified or
reversed;
- Administrative cases against judges when the penalty is dismissal; and

What does it mean when a Supreme Court Justice concurs in a decision pro hac
vice? (2%) (1999 Bar Question)

SUGGESTED ANSWER:

When a decision is pro hac vice, it means the ruling will apply to this particular case
only.

2. Procedural rule-making

Congress enacted a law providing for trial by jury for those charged with crime
or offenses punishable by reclusion perpetua or lifeimprisonment. The law
provides for the qualifications of members of the jury, the guidelines for the
bar and bench for their selection, the manner a trial by jury shall operate, and the
procedures to be followed.

Is the law constitutional? (6%) 2013 BAR EXAMS

SUGGESTED ANSWER:

The law providing for trial by jury is unconstitutional because of the omission in
Article VIII, Section 5 (5) of the 1987 Constitution of the provisions in Article VIII,
Section 13 of the 1935 Constitution and Article X, Section 5(5) 1973 Constitution,
which both authorized the Legislature to repeal, alter or supplement the rules of
procedure promulgated by the Supreme Court. Congress can no longer enact any law
governing rules of procedure for the courts (Echegaray v. Secretary of Justice,
G.R. No. 132601, October 12, 1998, 301 SCRA 96).

Congress enacted a law exempting certain government institutions providing

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social services from the payment of court fees. Atty. Kristopher Timoteo
challenged the constitutionality of the said law on the ground that only the
Supreme Court has the power to fix and exempt said entities from the payment of
court fees.

Congress, on the other hand, argues that the law is constitutional as it has the
power to enact said law for it was through legislative fiat that the Judiciary
Development Fund (JDF) and the Special Allowance for Judges and Justices
(SAJJ), the funding of which are sourced from the fees collected by the
courts, were created. Thus, Congress further argues that if it can enact a law
utilizing court fees to fund the JDF and SAJJ, a fortiori it can enact a law
exempting the payment of court fees.

Discuss the constitutionality of the said law, taking into account the arguments of
both parties? (2014 BAR)

SUGGESTED ANSWER:

The law is constitutional. The Constitution has taken away the power of Congress to
repeal, alter or supplement the Rules of Court. The fiscal autonomy guaranteed the
Judiciary by Section 3, Article VIII of the Constitution recognized the authority of the
Supreme Court to levy, assess and collect fees. Congress cannot amend the rules
promulgated by the Supreme Court for the payment of legal fees by granting
exemptions (In re: Petition for Recognition of Exemption of the Government Service
Insurance System from Payment of Legal Fees, 612 SCRA 193); In re: Exemption of
National Power Corporation from Payment of Filling/Docket Fees, 615 SCRA 1]; In re
Exemption from Payment of Court and Sheriffs Fees of Duly

Congress passed a law, R.A. No. 15005, creating an administrative Board


principally tasked with the supervision and regulation of legal education. The
Board was attached to the Department of Education. It was empowered, among
others, to prescribe minimum standards for law admission and minimum
qualifications of faculty members, the basic curricula for the course of study
aligned to the requirements for admission to the Bar, law practice and social
consciousness, as well as to establish a law practice internship as a requirement
for taking the Bar which a law student shall undergo anytime during the law
course, and to adopt a system of continuing legal education. Professor
Boombastick, a long-time law practitioner and lecturer in several prestigious law
schools, assails the constitutionality of the law arguing that it encroached on the
prerogatives of the Supreme Court to promulgate rules relative to admission to
the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. If you were Professor Boombasticks understudy, how may you
help him develop clear, concise and cogent arguments in support of his position
based on the present Constitution and the decisions of the Supreme Court on
judicial independence and fiscal autonomy? (2014 BAR)

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SUGGESTED ANSWER:

The statutory authority granted to the administrative Board to promulgate rules and
regulations cannot encroach upon the exclusive authority of the Supreme Court to
regulate the admission to the practice of law (Section 5(5), Article VIII of the
Constitution). Thus, The Administrative Board cannot prescribe additional standards for
admission to the practice of law, adopt a course study which is inconsistent with the
requirements to take the bar examinations (Philippine Lawyers Association v. Agrava,
105 Phil. 173). Since Congress has no power to repeal, alter or supplement the Rules of
Court, it cannot delegate such power to the Administrative Board.

Congress enacted a law establishing the right to trial by jury of an accused


charged with a felony or offense punishable with reclusion perpetua or life
imprisonment. The law provides for the qualifications of prospective jury
members, the guidelines to be observed by the judge and the lawyers in jury
selection including the grounds for challenging the selection of jury members,
and the methodology for jury deliberations. Is the law constitutional? Explain
fully. (7%) (2008 Bar Question)

SUGGESTED ANSWER:

The law is unconstitutional. The 1987 Constitution took away the power of Congress to
alter, repeal, or supplement the rules concerning pleading, practice, and procedure
promulgated by the Supreme Court (Echegaray v. Secretary of Justice, 301 SCRA 96
[1999]).

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%) (2009 Bar
Question)

A law fixing the passing grade in the Bar examinations at 70%, with no grade
lower than 40% in any subject, is constitutional.

SUGGESTED ANSWER:

False. Such a law entails amendment of the Rules of Court promulgated by the
Supreme Court. The present Constitution has taken away the power of Congress to
alter the Rules of Court (Echegaray v. Secretary of Justice, 301 SCRA 96 [1999]). The
law will violate the principle of separation of powers.

ALTERNATIVE ANSWER:

True. Deliberations in the ConCon reveal that Congress retains the power to amend or
alter the rules because the power to promulgate rules is essentially legislative even
though the power has been deleted in the 1987 Constitution. If the law, however, is
retroactive, it is unconstitutional because it is prejudicial.

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3. Administrative supervision over lower courts

Judge Lloyd was charged with serious misconduct before the Supreme Court.
The Court found him guilty and ordered him dismissed. Believing that the
decision was not immediately executory, he decided a case that had been
submitted for resolution. The decision became final and executory. But the losing
party filed a certiorari action with the Court of Appeals seeking to annul the writ
of execution issued in the case and bar Judge Lloyd from further acting as judge.
Can the relief against Judge Lloyd be granted? (2011 BAR)
(A) No, Judge Lloyd's right to stay as judge may be challenged only by
direct proceeding, not collaterally.
(B) Yes, the action against Judge Lloyd may be consolidated with the case
before the Court of Appeals and decided by it.
(C) Yes, Judge Lloyd 's right to stay as judge may be challenged as a
necessary incident of the certiorari action.
(D) No, the losing party has no standing to challenge Judge Lloyd's right to
stay as judge.

4. Original and appellate jurisdiction

Congress may increase the appellate jurisdiction of the Supreme Court: (1%)
2014 BAR EXAMS

(A) anytime it wants


(B) if requested by the Supreme Court
(C) upon recommendation of the President
(D) only with the advice and concurrence of the Supreme Court
(E) whenever it deems it appropriate, advisable or necessary.

SUGGESTED ANSWER:

(D) Only with the device and concurrence of the Supreme Court

VI. Constitutional Commissions

Patricio was elected member of the House of Representative in the May 2010
Elections. His opponent Jose questioned Patricios victory before the House of
Representatives Electoral Tribunal and later with the Supreme Court.

In the decision promulgated in November 2011, the Court ruled in Joses favor;
thus, Patricio was ousted from his seat in Congress. Within a year from that
decision, the President can appoint Patricio ________. (1%) 2013 BAR EXAMS

(A) only as member of the board of directors of any government owned and
controlled corporation

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(B) only as a deputy Ombudsman


(C) only as a Commissioner of the Civil Service Commission
(D) only as Chairman of the Commission on Elections
(E) to any position as no prohibition applies to Patricio

The Civil Service shall be administered by the Civil Service Commission


composed of a: (2012 BAR EXAMS)
a. Chairman and a Commissioner;
b. Chairman and two (2) Commissioners;
c. Chairman and three (3) Commissioners;
d. Chairman and four (4) Commissioners.

Which one of the following is NOT an independent Constitutional


Commission under Article IX, Section 1 of the Constitution: (2012 BAR EXAMS)

a. Commission on Elections;
b. Commission on Human Rights;
c. Civil Service Commission;
d. Commission on Audit.

SUGGESTED ANSWER:

(B) SECTION 1, ARTICLE IX-A OF CONSTITUTION

Which one of the following is NOT an independent Constitutional Commission


under Article IX, Section 1 of the Constitution:
a. Commission on Elections;
b. Commission on Human Rights;
c. Civil Service Commission;
d. Commission on Audit.

A. Constitutional safeguards to ensure independence of commissions

The independent Constitutional Commissions enjoy: (2012 BAR EXAMS)


a. decisional autonomy;
b. organizational autonomy;
c. fiscal autonomy;
d. quasi-judicial autonomy.

SUGGESTED ANSWER:

(A) SECTION 5, ARTICLE IX-A CONSTITUTION

Choose the least accurate statement about the independence guaranteed by the
1987 Constitution to the following constitutional bodies: (1%) 2013 BAR EXAMS

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(A) The Constitution guarantees the COMELEC decisional and


institutional independence similar to that guaranteed to the Judiciary.

(B) All bodies labeled as independent by the Constitution enjoy fiscal


autonomy as an attribute of their independence.

(C) Not all bodies labeled as independent by the Constitution were


intended to be independent from the Executive branch of government.

(D) The Constitution guarantees various degrees of independence from the other
branches of government when it labels bodies as independent.

(E) The COMELEC, the COA, and the CSC enjoy the same degree of
independence.

SUGGESTED ANSWER:

(A)(Article IX-A of the 1987 Constitution).

Towards the end of the year, the Commission on Audit (COA) sought the
remainder of its appropriation from the Department of Budget and
Management (DBM). However, the DBM refused because the COA had not yet
submitted a report on the expenditures relative to the earlier amount
released to it. And, pursuant to the no report, no release policy of the DBM,
COA is not entitled to any further releases in the meantime. COA counters that
such a policy contravenes the guaranty of fiscal autonomy granted by the
Constitution. Is COA entitled to receive the rest of its appropriations even without
complying with the DBM policy? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

Yes. COA is entitled to the rest of its appropriations even without complying with
the DBM policy. That the no report, no release policy may not be validly enforced
against offices vested with fiscal autonomy is not disputed. Indeed, such policy
cannot be enforced against offices possessing fiscal autonomy without violating
Article IX (A), Section 5 of the Constitution which provides:

Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved


appropriations shall be automatically and regularly released. (Civil Service
Commission vs Department of Budget and Management, July 22, 2005)

Each of the Constitutional Commissions is expressly described as


"independent," exemplified by its (2011 BAR)
(A) immunity from suit.
(B) fiscal autonomy.
(C) finality of action.

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(D) collegiality.

B. Powers and functions of each commission

The Commission on Elections is an independent body tasked to enforce all laws


relative to the conduct of elections. Hence, it may (2011 BAR)
(A) conduct two kinds of electoral count: a slow but official count; and a
quick but unofficial count.
(B) make an advance and unofficial canvass of election returns through
electronic transmission.
(C) undertake a separate and unofficial tabulation of the results of the
election manually.
(D) authorize the citizens arm to use election returns for unofficial count.

C. Prohibited offices and interests

The President appoints Emilio Melchor as Chairperson of the Civil Service Commission.
Upon confirmation of Melchor's appointment, the President issues an executive order
including him as Ex-Officio member of the Board of Trustees of the Government Service
Insurance System (GSIS), Employees Compensation Commission (ECC), and the Board
of Directors of the Philippine Health Insurance Corporation (PHILHEALTH). Allegedly,
this is based on the Administrative Code of 1997 (E.O. No. 292), particularly Section 14,
Chapter 3, Title I-A, Book V. This provision reads: "The chairman of the CSC shall be a
member of the Board of Directors of other governing bodies of government entities
whose functions affect the career development, employment, status, rights, privileges,
and welfare of government officials and employees... " A taxpayer questions the
designation of Melchor as ex-officio member of the said corporations before the
Supreme Court based on two (2) grounds, to wit: (1) it violates the constitutional
prohibition on members of the Constitutional Commissions to hold any other office or
employment during his tenure; and (2) it impairs the independence of the CSC. Will the
petition prosper? Explain. (4%) (2015 BAR)

Suggested Answer:

(1) The Chairperson Emilio Melchors holding ex-officio of the other offices under the Executive
Order mentioned in the problem would constitute a clear violation of the special prohibition
in Section 2 of Article IX-A of the Constitution, which strictly provides that he shall, during his
tenure, not hold any other office or employment. Said constitutional provision does not make
any distinction among the offices he may not hold, or as to whether or not the functions
attached to said offices would be primarily related to his duties as Chairperson of the Civil
Service Commission and therefore may be held in an ex-officio capacity.

The GSIS, PHILHEALTH, ECC and HDMF are vested by their respective charters with various
powers and functions to carry out the purposes for which they were created. While powers and
functions associated with appointments, compensation and benefits affect the career
development, employment status, rights, privileges, and welfare of government officials and
employees, the GSIS, PHILHEALTH, ECC and HDMF are also tasked to perform other
corporate powers and functions that are not personnel-related. All of these powers and
functions, whether personnel-related or not, are carried out and exercised by the respective

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Boards of the GSIS, PHILHEALTH, ECC and HDMF. Hence, when the CSC Chairman sits as a
member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF, he may exercise
these powers and functions, which are not anymore derived from his position as CSC
Chairman, such as imposing interest on unpaid or unremitted contributions, issuing guidelines
for the accreditation of health care providers, or approving restructuring proposals in the
payment of unpaid loan amortizations.

The CSC Chairmans designation as a member of the governing Boards of the GSIS,
PHILHEALTH, ECC and HDMF entitles him to receive per diem, a form of additional
compensation that is disallowed by the concept of an ex officio position by virtue of its clear
contravention of the proscription set by Section 2, Article IX-A of the 1987 Constitution. This
situation goes against the principle behind an ex officio position, and must, therefore, be held
unconstitutional.

(2) Apart from violating the prohibition against holding multiple offices, Melchors designation as
member of the governing Boards of the GSIS, PHILHEALTH, ECC and HDMF impairs the
independence of the CSC. Under Section 17, Article VII of the Constitution, the President
exercises control overall government offices in the Executive Branch. An office that is legally
not under the control of the President is not part of the Executive Branch. (Funa v. The
Chairman, Civil Service Commission, G.R. No. 184740, February 11, 2010, 612 SCRA 308).

Professor Masipag who holds a plantilla or regular item in the University of the
Philippines (UP) is appointed as an Executive Assistant in the Court of Appeals
(CA). The professor is considered only on leave of absence in UP while he reports
for work at the CA which shall pay him the salary of the Executive Assistant. The
appointment to the CA position was questioned, but Professor Masipag
countered that he will not collect the salary for both positions; hence, he can
not be accused of receiving double compensation. Is the argument of the
professor valid? Explain. (4%) 2015 BAR EXAMS

ANSWER:

Although Professor Masipag is correct in saying that he cannot be accused of


receiving double compensation as he would not actually be receiving additional or
double compensation, it is submitted that he may nevertheless not be allowed to accept
the position of Executive Assistant of the Court of Appeals during his incumbency as a
regular employee of the University of the Philippines, as the former would be an
incompatible office not allowed to be concurrently held by him under the provisions of
Article IX-B, Section 7 of the Constitution, the second paragraph of which species that
unless otherwise allowed by law or by the primary functions of his position, no
appointive official shall hold any other office in the Governement.

Can the Secretary of Finance be elected Chairman of the Board of Directors of the
San Miguel Corporation? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

No, the Secretary of Finance cannot be elected Chairman of the Board of Directors of

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the San Miguel Corporation. Under Section 13, Article VII of the Constitution, members
of the Cabinet cannot hold any other office or employment during their tenure unless it
is otherwise provided in the Constitution. They shall not also during said tenure
participate in any business or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency or
instrumentality thereof, including government - owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

A, while an incumbent Governor of his province, was invited by the Government


of Cambodia as its official guest.

While there, the sovereign king awarded Governor A with a decoration of honor
and gifted him with a gold ring of insignificant monetary value, both of which he
accepted.

Was Governor As acceptance of the decoration and gift violative of the


Constitution? (1997 Bar Question)

SUGGESTED ANSWER:

Yes. It violated Section 8, Article IX-B of the Constitution. For his acceptance of the
decoration of honor and the gold ring from the Government of Cambodia to be valid,
Governor A should first obtain the consent of Congress.

Assume that a law has been passed creating the Export Control Board composed
of:
A. The Secretary of Trade and Industry as Chairman, and as Members:
B. The Chairman of the Senate Committee on Trade and Industry
C. An Associate Justice of the Supreme Court designated by the Chief Justice
D. The Commissioner of Customs, and
E. The President of the Philippine Chamber of Commerce and Industry.

The National Constitutional Association of the Philippines has filed suit to


challenge the constitutionality of the law.

Determine whether the membership of each of the above in the Board can be
upheld. Cite relevant constitutional provisions. (1987 Bar Question)

SUGGESTED ANSWER:

a. The chairmanship of the Secretary of Trade and Industry in the Board can be
upheld on the basis of Art. IX, B. Sec. 7, which allows appointive officials to hold other
offices if allowed by law (such as the law in this case creating the Export Control Board)
or justified by the primary functions of their offices. The functions of the Board are
related to his functions as Secretary of Trade and Industry.

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The provision of Art. VII. Sec. 13, prohibiting Cabinet members from holding any other
office or employment, is subject to the exceptions in Art. IX, B, Sec. 7.

b. Dean Sinco believes That members of Congress cannot be members of the


Board of Regents of the University of the Philippines under the Incompatibility Clause of
the 1935 Constitution which is similar to the provision of Art. VI, Sec. 13 of the present
Constitution. Under this view, the membership of the Chairman of the Senate
Committee on Trade and Industry in the Export Control Board cannot be sustained.
(Sinco, Philippine Political Law 136 (11th Ed. 1962).

Moreover, since the apparent justification for the membership of the Chairman of
the Senate Committee is to aid him in his legislative functions, this purpose can easily
be achieved through legislative investigations under Art. VI, Sec. 21.

On the other hand, Dean Cortes appears to suggest a contrary view, noting that
after the decision in Government of the Philippine Islands v. Springer 50 Phil. 259
(1927), in validating the law designating the Senate President and Speaker as members
of the Board of Control of government corporations, no other decision has been
rendered. On the contrary, laws have been enacted, making members of Congress
members of various boards.

Indeed, the membership of the Chairman of the Senate Committee on Trade and
Industry may be upheld as being in aid of his legislative functions since what is
prohibited by Art. VI, Sec. 13 is the acceptance of an incompatible office-or employment
in the government. (Cortes, Philippine Pre-sidency, pp. 111-1 12 (1966))

c. The designation of an Associate Justice of the Supreme Court cannot


be sustained being the imposition on the members of the Court, of non-judicial duties,
contrary to the principle of separation of powers. It is judicial power and judicial power
only which the Supreme Court and its members may exercise. (Art. VIII, Sec. 1; Manila
Electric Co. v. Pasay Trans. Co., 57 Phil. 600 (1932))

d. The Commissioner of Customs may be made member of the Board for


the same reason in the case of the Secretary of Trade and Industry, under Art. IX, B,
Sec. 7.

e. The membership of the President of the Philippine Chamber of


Commerce may also be upheld on the ground that Congress has the power to prescribe
qualifications for the office.

The rule prohibiting members of the Constitutional Commissions, during their


tenure, to be financially interested in any contract with or any franchise or
privilege granted by the government. (2%) (1998 Bar Question)

SUGGESTED ANSWER:

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Section 2, Article IX-A of the Constitution, which prohibits Members of the Constitutional
Com-missions from being financially interested in any contract with or any franchise or
privilege granted by the Government, does not distinguish between government
corporations with original charters and their subsidiaries, because the prohibition
applies to both

What is the rotational scheme of appointments in the COMELEC? (2%) (2009 Bar
Question)

SUGGESTED ANSWER:

The rotational scheme of appointments in the Commissions on Elections refers to the


scheme in which there is a regular recurrence of a two-year interval between the
expiration of terms of the Chairman and the Commissioners. (Gamide vs. Commission
on Audit, 347 SCRA 655 [2000].)

What are the two conditions for its workability (2%) (2009 Bar Question)

SUGGESTED ANSWER:

The two (2) conditions for the workability of the rotational scheme of appointments are
the following: (1) the terms of the first Chairman and Commissioners should start on a
common date, irrespective of variation of dates of their appointments and qualifications,
and (2) any vacancy due to the death, resignation or disability before expiration of the
term should be filled only for the unexpired balance of the term. (Gaminde v.
Commission on Audit, 347 SCRA 655 [2000].)

To what other constitutional offices does the rotational scheme of appointments


apply? (2%) (2009 Bar Question)

SUGGESTED ANSWER:

The rotational scheme of appointments applies also to the Judicial and Bar Council, the
Civil Service Commission, and the Commission on Audit. (Section 9(2), Article VIII,
Section 1(2), Article IX-B and Section 1(2), Article IX-D of the Constitution.)

D. Jurisdiction of each constitutional commission

The rule providing for post audit by the COA of certain government agencies.
(2%) (1998 Bar Question)

SUGGESTED ANSWER:

Section 2(1) Article IX-D of the Site Constitution, which provides for post audit by the
Commission on Audit of government corporations, does not distinguish between
government corporations with original charters and their subsidiaries, because the

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provision applies to both.

Upon request of a group of overseas contract workers in Brunei, Rev. Father


Juan de la Cruz, a Roman Catholic priest, was sent to that country by the
President of the Philippines to minister to their spiritual needs. The travel
expenses, perdiems, clothing allowance and monthly stipend of P5,000.00 were
ordered charged against the Presidents discretionary fund. Upon post audit of
the vouchers therefor, the Commission on Audit refused approval thereof
claiming that the expenditures were in violation of the Constitution.

Was the Commission on Audit correct is disallowing the vouchers in question?


(1997 Bar Question)

SUGGESTED ANSWER:

Yes, the Commission on Audit was correct in disallowing the expenditures. Section
29(2), Article VI of the Constitution prohibits the expenditure of public funds for the use,
benefit, or support of any priest. The only exception is when the priest is assigned to the
armed forces, or to any penal institution, or government orphanage or leprosarium. The
sending of a priest to minister to the spiritual needs of overseas contract workers does
not fall within the scope of any of the exceptions.

The Philippine National Bank was then one of the leading government-owned
banks and it was under the audit jurisdiction of the Commission on Audit (COA).
A few years ago, it was privatized.

What is the effect, if any of the privatization of PNB on the audit Jurisdiction of
the COA? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

In accordance with the ruling in Philippine Airlines vs. Commission on Audit, 245
SCRA 39, (1995), since the Philippine National Bank is no longer owned by the
Government, the Commission on Audit no longer has jurisdiction to audit it as an
institution. Under Section 2(2), Article IX-D of the Constitution, it is government- owned
or controlled corporations and their subsidiaries which are subject to audit by the
Commission on Audit. However, in accordance with Section 2(1), Article IX-D of the
Constitution, the Commission on Audit can audit the Philippine National Bank with
respect to its accounts because the Government still has equity in it.

Let us suppose that Congress enacted a law which amended the Omnibus
Election Code (particularly Sections 138, 139, 142, 143) by vesting in the
Commission on Elections the jurisdiction over inclusion and exclusion cases
filed by voters, instead of in the courts (MTC, then RTC).

Is the law valid or not, and why? (5%) (2001 Bar Question)

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SUGGESTED ANSWER:

The law granting the Commission on Elections jurisdiction over inclusion and exclusion
cases is unconstitutional. Under Section 2(3), Article IX-C of the Constitution, the
Commission on Elections cannot decide the right to vote, which refers to the inclusion
and exclusion of voters. Under Section 2(6), Article IX-C of the Constitution, it can only
file petitions in court for inclusion or exclusion of voters.

The Comelec en banc cannot hear and decide a case at first instance EXCEPT
when (2011 BAR)
(A) a Division refers the case to it for direct action.
(B) the case involves a purely administrative matter.
(C) the inhibition of all the members of a Division is sought.
(D) a related case is pending before the Supreme Court en banc.

In an election protest involving the position of Governor of the Province of


Laguna between "A", the protestee, and "B" the protestant, the First Division of
the Commission on Elections rendered a decision upholding B's protest.

Can "A" file a petition for certiorari with the Supreme Court under Rule 65 of the
Rules of Court, from the decision of the COMELEC First Division? If yes, Why? If
not what procedural step must he undertake first? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

"A" cannot file a petition for certiorari with the Supreme Court. As held in Mastura vs.
Commission on Elections, 285 SCRA 493 (1998), the Supreme Court cannot review
the decisions or resolutions of a division of the Commission on Elections. "A" should
first file a motion for reconsideration with the Commission on Elections en banc.

The COMELEC en banc shall decide a motion for reconsideration of (2011 BAR)
(A) the House or Representatives and the Senate electoral tribunals.
(B) the decision of the election registrar.
(C) the decision of the COMELEC division involving an election protest.
(D) its own decision involving an election protest.

Luzviminda Marfel, joined by eleven other retrenched employees, filed a


complaint with the Department of Labor and Employment (DOLE) for unpaid
retrenchment or separation pay, underpayment of wages and non-payment of
emergency cost of living allowance. The complaint was filed against Food
Terminal, Inc. Food Terminal Inc. moved to dismiss on the ground of lack of
jurisdiction, theorizing that it is a government-owned and controlled corporation
and its employees are governed by the Civil Service Law and not by the Labor
Code. Marfel opposed the motion to dismiss, contending that although Food
Terminal, Inc. is a corporation owned and controlled by the government earlier

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created and organized under the general corporation law as The Greater Manila
Food Terminal, Inc., it has still the marks of a private corporation: it directly
hires its employees without seeking approval from the Civil Service Commission
and its personnel are covered by the Social Security System and not the
Government Service Insurance System. The question posed in the petition for
certiorari at bar is whether or not a labor law claim against a government-owned
or controlled corporation like the Food Terminal, Inc. falls within the jurisdiction
of the Department of Labor and Employment or the Civil Service Commission?
Decide and ratiocinate. (4%) (1999 Bar Question)

SUGGESTED ANSWER:

The claim of the retrenched employees falls under the jurisdiction of the National Labor
Relations Commission and not under the jurisdiction of the Civil Service Commission.
As held in Lumanta v. National Labor Relations Commission, 170 SCRA 79, since Food
Terminal, Inc. was organized under the Corporation Law and was not created by a
special law in accordance with Section 2(1), Article IX-B of the Constitution, it is not
covered by the jurisdiction of the Civil Service Commission

E. Review of final orders, resolutions and decisions

Former Governor PP of ADS Province had dismissed several employees to scale


down the operations of his Office. The employees complained to the Merit
Systems Protection Board, which ruled that the Civil Service rules were violated
when the employees were dismissed. The Civil Service Commission (CSC)
affirmed the MSPB decision, and ordered ADS to reinstate the employees with full
backwages. ADS did not appeal and the order became final.

Instead of complying immediately, BOP, the incumbent Governor of ADS, referred


the matter to the Commission on Audit (COA), which ruled that the amounts due
are the personal liabilities of the former Governor who dismissed the employees
in bad faith. Thus, ADS refused to pay. The final CSC decision, however, did not
find the former Governor in bad faith. The former Governor was likewise not
heard on the question of his liability.

Is ADS refusal justified? Can COA disallow the payment of backwages by ADS to
the dismissed employees due under a final CSC decision? Decide and reason
briefly. (5%) (2004 Bar Question)

SUGGESTED ANSWER:

The refusal of ADS is not justified, and the Commission on Audit cannot disallow the
payment of backwages by ADS to the dismissed employee. The Commission on Audit
cannot make a ruling that it is the former governor who should be personally liable,
since the former governor was not given the opportunity to be heard. In addition, the
Commission on Audit cannot set aside a final decision of the Civil Service Commission.

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The payment of backwages to illegally dismissed government employee is not an


irregular, unnecessary, excessive, extravagant or unconscionable expenditure. (Uy v.
Commission on Audit, 328 SCRA 607 [2000]).

VII. Bill of Rights

How is the Bill of Rights strengthened in the 1987 Constitution? (1991 Bar
Question)

SUGGESTED ANSWER:

There are several ways in which the Bill of Rights is strengthened in the 1987
Constitution.

New rights are given explicit recognition such as the prohibition against detention by
reason of politi-cal beliefs and aspirations. The waiver of Miranda rights is now required
to be made in writing with the assistance of counsel. The use of solitary,
incommunicado and secret detention places is prohibited, while the existence of
substandard and inadequate penal facilities is made the concern of legislation.

There is also recognition of the right of expression, an express prohibition against the
use of torture, a mandate to the State to provide compensation and rehabilitation for
victims of torture and their families.

1. Some rights have been expanded. For instance, free access to courts now
includes access to quasi-judicial bodies and to adequate legal assistance.
2. The requirements for interfering with some rights have been made more strict.
For instance, only judges can now issue search warrants or warrants of arrest.
There must be a law authorizing the Executive Department to interfere with the
privacy of communication, the liberty of abode, and the right to travel before
these rights may be impaired or curtailed.
3. The Constitution now provides that the suspension of the privilege of the writ of
habeas corpus does not suspend the right to bail, thus resolving a doctrinal
dispute of long standing.
4. The suspension of the privilege of the writ of habeas corpus and the
proclamation of martial law have been limited to sixty (60) days and are now
subject to the power of Congress to revoke. In addition, the Supreme Court is
given the jurisdiction, upon the petition of any citizen to determine the sufficiency
of the factual basis of the suspension of the privilege of the writ of habeas corpus
and the proclamation of martial law.
5. The Supreme Court is empowered to adopt rules for the protection and
enforcement of constitutional rights.
6. Art. II. Sec. 11 commits the State to a policy which places value on the dignity of
every human person and guarantees full respect for human rights.
7. A Commission on Human Rights is created.

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8. Under Article XVI, Sec. 5(2) the State is mandated to promote respect for the
people's rights among the members of the military in the performance of their
duty.

A. Fundamental powers of the state (police power, eminent domain, taxation)


1. Concept, application and limits
2. Requisites for valid exercise
3. Similarities and differences
4. Delegation

A tax is progressive when: ((2012 BAR EXAMS))


a. the rate fluctuates as the tax base decreases;
b. the rate increases as the tax base remains the same;
c. the rate increases as the tax base increases;
d. the rate decreases as the tax base increases.

The most essential, insistent and the least limitable of (government) powers,
extending as it does to all the great public needs, is: (2012 BAR EXAMS)
a. emergency power;
b. police power;
c. legislative power;
d. power to declare martial law.

SUGGESTED ANSWER:

(B) EDU VS. ERICTA, 35 SCRA 482

The totality of governmental power is contained in three great powers: (2012 BAR
EXAMS)
a. police power, power of sequestration, power of foreign policy;
b. power of immigration, municipal power, legislative power;
c. executive power, legislative power, judicial power;
d. police power, power of eminent domain, power of taxation.

SUGGESTED ANSWER:
It is suggested that either (c) and (d) may be accepted as a correct answer.

The price of staple goods like rice may be regulated for the protection of the
consuming public through the exercise of (2011 BAR)
(A) power of subordinate legislation.
(B) emergency power.
(C) police power.
(D) residual power.

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Congress passes a law prohibiting television stations from airing any-commercial


advertisement which promotes tobacco or in any way glamorizes the
consumption of tobacco products.

This legislation was passed in response to findings by the Department of Health


about the alarming rise in lung diseases in the country. The World Health
Organization has also reported that U.S. tobacco companies have shifted
marketing efforts to the Third World due to dwindling sales in the health-
conscious American market.

Cowboy Levy's, a jeans company, recently released an advertisement featuring


model Richard Burgos wearing Levys jackets and jeans and holding a pack of
Marlboro cigarettes.

The Asian Broadcasting Network (ABN), a privately owned television station,


refuses to air the advertisement in compliance with the law.

Regardless of your answers above, decide the constitutionality of the law in


question. (1992 Bar Question)

SUGGESTED ANSWER:

The law is constitutional. It is a valid exercise of police power, because smoking is


harmful to health. In Posadas de Puerto Rico Associates vs. Tourism Company of
Puerto Rico, 478 U.S. 328, it was ruled that a law prohibiting certain types of
advertisements is valid if it was adopted in the interest of the health, safety, and welfare
of the people. In Capital Broadcasting Company vs. Mitchell, 333 F Supp 582, a law
making it unlawful to advertise cigarettes on any medium of electronic communication
was upheld. The United States Supreme Court summarily sustained this ruling in
Capital Broadcasting Company vs. Acting Attorney General, 405 U.S. 1000. The law in
question was enacted on the basis of the legislative finding that there is a need to
protect public health, because smoking causes lung diseases. Cowboy Levys has not
overthrown this finding.

Undaunted by his three failures in the National Medical Admission Test (NMAT),
Cruz applied to take it again but he was refused because of an order of the
Department of Education, Culture and Sports (DECS) disallowing flunkers from
taking the test a fourth time. Cruz filed suit assailing this rule raising the
constitutional grounds of accessible quality education, academic freedom and
equal protection. The government opposes this, upholding the constitutionality of
the rule on the ground of exercise of police power. Decide the case discussing
the grounds raised. (5%) (2000)

SUGGESTED ANSWER:

As held in Department of Education, Culture and Sports v. San Diego, 180 SCRA 533

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(1989), the rule is a valid exercise of police power to ensure that those admitted to the
medical profession are qualified. The arguments of Cruz are not meritorious. The right
to quality education and academic freedom are not absolute. Under Section 5(3), Article
XIV of the Constitution, the right to choose a profession is subject to fair, reasonable
and equitable admission and academic requirements. The rule does not violate equal
protection. There is a substantial distinction between medical students and other
students. Unlike other professions, the medical profession directly affects the lives of
the people.

As a reaction to the rice shortage and the dearth of mining engineers. Congress
passed a law requiring graduates of public science high schools henceforth to
take up agriculture or mining engineers as their college course. Several students
protested, invoking their freedom to choose their profession. Is the law
constitutional? (6%) (2008 Bar Question)

SUGGESTED ANSWER:

Yes, the law is constitutional, it is a valid exercise of the States police power. Police
power concerns government enactments which precisely interfere with personal liberty
or property in order to promote the general welfare or the common good.

In this case, it may be said that the interests of the public generally, as distinguished
from those of a particular class, require the exercise of the police power, and that the
means employed are reasonably necessary for the accomplishment of the purpose and
not unduly oppressive upon individuals.

It cannot be denied that a rice shortage and a dearth of mining engineers are valid
concerns that affect the common good and must be addressed by the State. Since the
law is limited to public science high schools, it is within the police power of the state to
require the graduates whose education it has subsidized to take up agriculture or mining
engineering. The law provides for a lawful method geared towards a lawful objective,
and as such may be considered to be a reasonable exercise of the States police power.

ALTERNATIVE ANSWER:

The law is unconstitutional. It violates the right granted by Section 5(3), Article XIV of
the Constitution to the high school graduates to select their professions or courses of
study. This provision authorizes the State to impose fair, reasonable, and equitable
requirements for admission to the professions or courses of study selected by the
students. It does not authorize the State to select for them the professions or courses of
study they will pursue.

The city government filed a complaint for expropriation of 10 lots to build a


recreational complex for the members of the homeowners' association of Sitio
Sto. Tomas, the most populated residential compound in the city. The lot owners

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challenged the purpose of the expropriation. Does the expropriation have a valid
purpose? (2011 BAR)
(A) No, because not everybody uses a recreational complex.
(B) No, because it intends to benefit a private organization.
(C) Yes, it is in accord with the general welfare clause.
(D) Yes, it serves the well-being of the local residents.

When the State requires private cemeteries to reserve 10% of their lots for burial
of the poor, it exercises its (2011 BAR)
(A) eminent domain power.
(B) zoning power.
(C) police power.
(D) taxing power.

The government sought to expropriate a parcel of land belonging to Y. The law


provides that, to get immediate possession of the land, the government must
deposit the equivalent of the land's zonal value. The government insisted,
however, that what apply are the rules of court which require an initial deposit
only of the assessed value of the property. Which should prevail on this matter,
the law or the rules of court? (2011 BAR)
(A) Both law and rules apply because just compensation should be fixed
based on its zonal or assessed value, whichever is higher.
(B) Both law and rules apply because just compensation should be fixed
based on its zonal or assessed value, whichever is lower.
(C) The law should prevail since the right to just compensation is a
substantive right that Congress has the power to define.
(D) The rules of court should prevail since just compensation is a
procedural matter subject to the rule making power of the Supreme
Court.

To address the pervasive problem of gambling, Congress is considering the


following options:

(1) prohibit all forms of gambling; (2) allow gambling only on Sundays; (3) allow
gambling only in government-owned casinos; and (4) remove all prohibitions
against gambling but impose a tax equivalent to 30% on all winnings.

If Congress chooses the first option and passes the corresponding law
absolutely prohibiting all forms of gambling, can the law be validly attacked on
the ground that it is an invalid exercise of police power? Explain your answer.
(2%) (2009 Bar Question)

SUGGESTED ANSWER:

The law absolutely prohibiting all forms of gambling is a valid exercise of police power,
because it is an evil that undermines the social, moral and economic growth of the

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nation (People v. Punto, 68 Phil.


[1939]).

If Congress chooses the last option and passes the corresponding law imposing
a 30% tax on all winnings and prizes won from gambling, would the law comply
with the constitutional limitations on the exercise of the power of taxation?
Explain your answer. (2%) (2009 Bar Question)

SUGGESTED ANSWER:

A tax of 30% on winnings from gambling does not violate due process as to the
reasonableness of the rate of the tax imposed. Taxes on non-useful enterprises may be
increased to restrain the number of persons who might otherwise engage in it (Brmita-
Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 20 SCRA
849 [1967]). Taxes may be imposed for the attainment of the objective of police power
(Lutz v. Araneta, 98 Phil. 148 [1955]).

The Metropolitan Manila Development Authority is authorized to confiscate a


driver's' license in the enforcement of traffic regulations. (0.5%) (2010 Bar
Question)

SUGGESTED ANSWER:

The statement that the Metropolitan Manila Development Authority is authorized to


confiscate a driver's license in the enforcement of traffic regulations is false. Since
Republic Act No. 7924 does not grant the Metropolitan Manila Development Authority
the authority to enact ordinances, the grant to it by Section 5(f) of Republic Act No. 7924
of the power to confiscate drivers' licenses without the need of any other law is an
unauthorized exercise of police power. (Metropolitan Manila Development Authority v.
Garin, 456 SCRA 176 [2005].)

B. Private acts and the Bill of Rights

C. Due process the rights to life, liberty & property

1. Relativity of due process


2. Procedural and substantive due process
3. Constitutional and statutory due process

X, a Filipino and Y, an American, both teach at the International Institute in


Manila. The institute gave X a salary rate of P1,000 per hour and Y, P1,250 per
hour plus housing, transportation, shipping costs, and leave travel allowance.
The school cited the dislocation factor and limited tenure of Y to justify his high
salary rate and additional benefits. The same package was given to the other
foreign teachers. The Filipino teachers assailed such differential treatment,

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claiming it is discriminatory and violates the equal protection clause. Decide.


(2011 BAR)
(A) The classification is based on superficial differences.
(B) The classification undermines the "Filipino First" policy.
(C) The distinction is fair considering the burden of teaching abroad.
(D) The distinction is substantial and uniformly applied to each class.

Sheila, an actress, signed a two -year contract with Solidaridad Films. The film
company undertook to promote her career and to feature her as the leading lady
in at least four movies. In turn, Sheila promised that, for the duration of the
contract, she shall not get married or have a baby; otherwise, she shall be liable
to refund to the film company a portion of its promotion expenses.

A. Does this contract impair, or impinge upon, any constitutionally protected


liberty of Sheila? Explain. (1992 Bar Question)

B. If Solidaridad Films tries to enforce this contract judicially, will this


constitutionally protected liberty prevail? Explain. (1992 Bar Question)

SUGGESTED ANSWER:

Yes, the contract impairs the right of Sheila to many and to procreate. The case of
Loving vs. Virginia, 388 U.S. 1 and Zablocki vs. Redhail, 434 U.S. 374 recognized the
right to marry is a basic civil right. Likewise, the case of Sldnner vs. Oklahoma 316 U.S.
535 recognized that the right to procreate is a basic civil right. These rights are part of
the liberty protected by the due process clause in Section 1, Article 1 of the Constitution.

Yes, the constitutionally protected liberty of Sheila will prevail, because it involves basic
human rights. The waiver of these basic human rights is void. What Solidaridad Films is
seeking to recover are promotion expenses. These involve property rights. As held in
Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills, Inc., 51
SCRA 189, civil rights are superior to property rights.

SUGGESTED ANSWER:

The waiver of the right to marry and the right to procreate is valid. Enforcement of the
contract does not entail enforcement of the stipulation not to marry and not to have a
baby. It is limited to a refund of a portion of the promotion expenses incurred by
Solidaridad Films.

At the trial of a rape case where the victim- complainant was a well known
personality while the accused was a popular movie star, a TV station was allowed
by the trial judge to televise the entire proceedings like the O.J. Simpson trial.
The accused objected to the TV coverage and petitioned the Supreme Court to
prohibit the said coverage.

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As the Supreme Court, how would you rule on the petition? Explain. (1996 Bar
Question)

SUGGESTED ANSWER:

The Supreme Court should grant the petition. In its Resolution dated October 22, 1991,
the Supreme Court prohibited live radio and television coverage of court proceedings to
protect the right of the parties to due process, to prevent the distraction of the
participants in the proceedings, and in the last analysis to avoid a miscarriage of justice.

On November 7, 1990, nine lawyers of the Legal Department of Y Bank who were
all under Fred Torre, sent a complaint to management accusing Torre of abusive
conduct and mismanagement. Furnished with a copy of the complaint, Torre
denied the charges. Two days later, the lawyers and Torre were called to a
conference in the office of the Board Chairman to give their respective sides of
the controversy. However, no agreement was reached thereat. Bank Director
Romulo Moret was tasked to look further into the matter. He met with the lawyers
together with Torre several times but to no avail. Moret then submitted a report
sus-taining the charges of the lawyers. The Board Chairman wrote Torre to inform
him that the bank had chosen the compassionate option of waiting for Torres
resignation. Torre was asked, without being dismissed, to turn over the
documents of all cases handled by him to another official of the bank but Torre
refused to resign and requested for a full hearing. Days later, he reiterated his
request for a full hearing, claiming that he had been constructively
dismissed. Moret assured Torre that he is free to remain in the employ of the
bank even if he has no particular work assignment. After another request for a
full hearing was ignored, Torre filed a complaint with the arbitration branch of
NLRC for illegal dismissal. Reacting thereto, the bank terminated the services of
Torre.

Questions:
Was Torre constructively dismissed before he filed his complaint?
Given the multiple meetings held among the bank officials, the lawyers
and Torre, is it correct for him to say that he was not given an
opportunity to be heard? Explain your answers. (4%) (2010 Bar
Question)

SUGGESTED ANSWER:

Torre was constructively dismissed, as held in Equitable Banking Corporation v.


National Labor Relations Commission, 273 SCRA 352. Allowing an employee to
report for work without being assigned any work constitutes constructive dismissal.

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Torre is correct in saying that he was not given the chance to be heard. The meetings
in the nature of consultations and conferences cannot be considered as valid
substitutes for the proper observance of notice and hearing.

Give examples of acts of the state which infringe the due process clause:
1.) in its substantive aspect and (1%) (1999 BarQuestion)
2.) in its procedural aspect? (1%) (1999 Bar Question)

SUGGESTED ANSWER:

1.) A law violates substantive due process when it is unreasonable or unduly


oppressive. For example, Presidential Decree No. 1717, which cancelled all the
mortgages and liens of a debtor, was considered unconstitutional for being oppressive.
Likewise, as stated in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila, 20 SCRA 849, a law which is vague so that men of common
intelligence must guess at its meaning and differ as to its application violates sub-
stantive due process. As held in Taada v. Tuvera, 146 SCRA 446, due process
requires that the law be published.

2.) In State Prosecutors v. Muro, 236 SCRA 505, it was held that the dismissal of a case
without the benefit of a hearing and without any notice to the prosecution violated due
process. Likewise, as held in People v. Court of Appeals, 262 SCRA 452, the lack of
impartiality of the judge who will decide a case violates procedural due process.

A law interfering with the rights of the person meets the requirements of
substantive due process when (2011 BAR)
(A) the means employed is not against public policy.
(B) it is in accord with the prescribed manner of enforcement as to time,
place, and person.
(C) all affected parties are given the chance to be heard.
(D) the interest of the general public, as distinguished from those of a
particular case, requires such interference.

On April 6, 1963, Police Officer Mario Gatdula was charged by the Mayor with
Grave Misconduct and Violation of Law before the Municipal Board. The Board
investigated Gatdula but before the case could be decided, the City charter was
approved. The City Fiscal, citing Section 30 of the city charter, asserted that he
was authorized thereunder to investigate city officers and employees. The case
against Gatdula was then forwarded to him, and a re-investigation was
conducted. The office of the Fiscal subsequently recommended dismissal. On
January 11, 1966, the City Mayor returned the records of the case to the City
Fiscal for the submission of an appropriate resolution but no resolution was
submitted. On March 3,-1968, the City Fiscal transmitted the records to the City
Mayor recommending that final action thereon be made by the City Board of
Investigators (CBI). Although the CBI did not conduct an investigation, the

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records show that both the Municipal Board and the Fiscals Office exhaustively
heard the case with both parties afforded ample opportunity to adduce their
evidence and argue their cause. The Police Commission found Gatdula guilty on
the basis of the records forwarded by the CBI. Gatdula challenged the adverse
decision o'f the Police Commission theorizing that he was deprived of due
process. Questions: Is the Police Commission bound by the findings of the City
Fiscal? Is Gatdulas protestation of lack or non- observance of due process well-
grounded? Explain your answers. (4%) (2010 Bar Question)

SUGGESTED ANSWER:

The Police Commission is not bound by the findings of the City Fiscal. In Mangubat v.
de Castro, 163 SCRA 608, it was held that the Police Commission is not prohibited from
making its own findings on the basis of its own evaluation of the records. Likewise, the
protestation of lack of due process is not well-grounded, since the hearings before the
Municipal Board and the City Fiscal offered Gatdula the chance to be heard. There is no
denial of due process if the decision was rendered on the basis of evidence contained in
the record and disclosed to the parties affect

Is entitled to the right against illegal searches and seizures and against illegal
arrests. (2%) (2001 Bar Question)

SUGGESTED ANSWER:

Aliens are entitled to the right against illegal searches and seizures and illegal arrests.
As applied in People v. Chua Ho San, 307 SCRA 432 (1999), these rights are available
to all persons, including aliens.

The Philippine Ports Authority (PPA) General Manager issued an administrative


order to the effect that all existing regular appointments to harbor pilot positions
shall remain valid only up to December 31 of the current year and that henceforth
all appointments to harbor pilot positions shall be only for a term of one year
from date of effectivity, subject to yearly renewal or cancellation by the PPA after
conduct of a rigid evaluation of performance. Pilotage as a profession may be
practiced only by duly licensed individuals, who have to pass five government
professional examinations.

The Harbor Pilot Association challenged the validity of said administrative order
arguing that it violated the harbor pilots' right to exercise their profession and
their right to due process of law and that the said administrative order was issued
without prior notice and hearing. The PPA countered that the administrative order
was valid as it was issued in the exercise of its administrative control and
supervision over harbor pilots- under PPA's legislative charter; and that in
issuing the order as a rule or regulation, it was performing its executive or
legislative, and not a quasi-judicial function.

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Due process of law is classified into two kinds, namely, procedural due process
and substantive due process of law. Was there, or, was there no violation of the
harbor pilots' right to exercise their profession and their right to due process of
law? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

The right of the harbor pilots to due process was violated. As held, in Corona vs.
United Harbor Pilots Association of the Philippines, 283 SCRA 31 (1997), pilotage
as a profession is a property right protected by the guarantee of due process. The pre-
evaluation cancellation of the licenses of the harbor pilots every year is unreasonable
and violated their right to substantive due process. The renewal is dependent on the
evaluation after the licenses have been cancelled. The issuance of the administrative
order also violated procedural due process, since no prior public bearing was
conducted. As hold in Commissioner of Internal Revenue vs. Court of Appeals, 261
SCRA 237 (1998), when a regulation is being issued under the quasi-legislative
authority of an administrative agency, the requirements of notice, hearing and
publication must be observed.

The Maritime Industry Authority (MARINA) issued new rules and regulations
governing pilotage services and fees, and the conduct of pilots in Philippine
ports. This it did without notice, hearing nor consultation with harbor pilots or
their associations whose rights and activities are to be substantially affected. The
harbor pilots then filed suit to have the new MARINA rules and regulations
declared unconstitutional for having been issued without due process. Decide the
case. (5%) (2000 Bar Question)

SUGGESTED ANSWER:

The issuance of the new rules and regulations violated due process. Under Section 9,
Chapter II, Book VII of the Administrative Code of 1987, as far as practicable, before
adopting proposed rules, an administrative agency should publish or circulate notices of
the proposed rules and afford interested parties the opportunity to submit their views;
and in the fixing of rates, no rule shall be valid unless the proposed rates shall have
been published in a newspaper of general circulation at least two weeks before the first
hearing on them. In accordance with this provision, in Commissioner of Internal
Revenue v. Court of Appeals. 261 SCRA 236(1996), it was held that when an
administrative rule substantially increases the burden of those directly affected, they
should be accorded the chance to be heard before its issuance.

SUGGESTED ANSWER:

Submission of the rule to the University of the Philippines Law Center for publication is
mandatory. Unless this requirement is complied with, the rule cannot be enforced.

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Ten public school teachers of Caloocan City left their classrooms to join a strike,
which lasted for one month, to ask for teachers' benefits.

The Department of Education, Culture and Sports charged them administratively,


for which reason they were required to answer and formally investigated by a
committee composed of the Division Superintendent of Schools as Chairman, the
Division Supervisor as member, and a teacher, as another member. On the basis
of the evidence adduced at the formal investigation which amply established their
guilt, the Director rendered a decision meting out to them the penalty of removal
from office. The decision was affirmed by the DECS Secretary and the Civil
Service Commission.

On appeal, they reiterated the arguments they raised before the administrative
bodies, namely:

They were deprived of due process of law as the Investigating Committee was
improperly constituted because it did not include a teacher in representation of
the teachers organization as required by the Magna Carta for Public School
Teachers (R.A. No.4670, Sec. 9).

How should these issues be resolved? (5%) (2002 Bar Question)

SUGGESTED ANSWER:

The teachers were deprived of due process of law. Under Section 9 of the Magna Carta
for Public School Teachers, one of the members of the committee must be a teacher
who is a representative of the local, or in its absence, any existing provincial or national
organization of teachers. According to Patella v. Court of Appeals, 283 SCRA 256
(1997), to be considered the authorized representative of such organization, the teacher
must be chosen by the organization itself and not by the Secretary of Education, Culture
and Sports. Since in administrative proceedings, due process requires that the tribunal
be vested with jurisdiction and be so constituted to afford a person charged
administratively a reasonable guarantee of impartiality, if the teacher who is a member
of the committee was not appointed in accordance with the law, any proceeding before
it is tainted with deprivation of procedural due process.

Does a Permit to Carry Firearm Outside Residence (PTCFOR) constitute a


property right protected by the Constitution? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

A permit to carry a firearm outside the residence is not a property right protected by the
Constitution. It is merely a statutory privilege. The Constitution does not contain a
provision similar to the Second Amendment of the United States Constitution, which
guarantees the right to bear arms (Chavez v. Romulo, 431 SCRA 534, [2004]).

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A law provides that in the event of expropriation, the amount to be paid to a


landowner as compensation shall be either the sworn valuation made by the
owner or the official assessment thereof, whichever is lower. Can the landowner
successfully challenge the law in court? Discuss briefly your answer. (1989 Bar
Question)

SUGGESTED ANSWER:

Yes, the landowner can successfully challenge the law in court. According to the
decision in Export-Processing Zone Authority vs. Dulay, 149 SCRA 305, such a law is
unconstitutional. First of all, it violates due process, because it denies to the landowner
the opportunity to prove that the valuation in the tax declaration is wrong. Secondly, the
determination of just compensation in expropriation cases is a judicial function. Since
under Section 9, Article III of the 1987 Constitution private property shall not be taken
for public use without just compensation, no law can mandate that its determination as
to the just compensation shall prevail over the findings of the court.

The City Mayor issues an Executive Order declaring that the city promotes
responsible parenthood and upholds natural family planning. He prohibits all
hospitals operated by the city from prescribing the use of artificial methods of
contraception, including condoms, pills, intrauterine devices and surgical
sterilization. As a result, poor women in his city lost their access to affordable
family planning programs. Private clinics, however, continue to render family
planning counsel and devices to paying clients.

Is the Executive Order in any way constitutionally infirm? Explain. (2007 Bar
Question)

SUGGESTED ANSWER:

The Executive Order is constitutionally infirm. It violates the guarantees of due process
and equal protection. Due process includes the right to decisional privacy, which refers
to the ability to make ones own decisions and to act on those decisions, free from
governmental or other unwanted interference. Forbidding the use of artificial methods of
contraception infringes on the freedom of choice in matters of marriage and family life
(Griswoldv. Connecticut, 381 U.S. 415 [1965]). Moreover, the Executive Order violates
equal protection as it discriminates against poor women in the city who cannot afford to
pay private clinics.

SUGGESTED ANSWER:

The Executive Order is constitutionally infirm. It violates Section 3(1), Article XV of the
1987 Constitution, which recognizes the right of spouse to found a family in accordance
with the demands of responsible parenthood, which includes the use of artificial
methods of contraception.

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SUGGESTED ANSWER:

The Executive Order is constitutionally infirm. When Section 12, Article II of the 1987
Constitution provides that the State shall equally protect the life of the mother and the
life of the unborn from conception, it is prohibiting , abortion only and not the use of
artificial contraceptives (Record of the Constitutional Commission, Vol. IV, pp. 683, 711
and 760).

Is the Philippines in breach of any obligation under international law? Explain.


(2007 Bar Question)

SUGGESTED ANSWER:

The acts of the City Mayor may be attributed to the Philippines under the principle of
state responsibility. Article 26 of the International Covenant on Civil and Political rights
requires that Philippine law shall prohibit any discrimination and shall guarantee to all
persons equal and effective protection against discrimination on any ground such as
social origin, birth or other status. The Executive Order of the City Mayor discriminates
against poor women.

SUGGESTED ANSWER:

The Philippines is not in breach of any obligation under international law. The protection
of the life of the unborn from conception is consistent with Article 6(1) of the Convention
on the Rights of the Child, which recognizes the inherent right to life of every child.
While Article 24 (2)(f) of the Convention of the Rights of the Child requires the States
Parties to develop family planning education and services and Article 10(h), Article
12(2) and Article 14(b) of the Convention on the Elimination of all Forms of
Discrimination against Women require States Parties to provide access to information,
advice and services in family planning, they do not prescribe any specific form of such
information and services.

May the Commission on Human Rights order the Mayor to stop the
implementation of the Executive Order? Explain. (2007 Bar Question)

SUGGESTED ANSWER:

The Commission on Human Rights cannot order the City Mayor to stop the
implementation of his Executive Order, because it has no power to issue writs of
injunction (Export Processing Zone Authority v. Commission on Human Rights, 208
SCRA 125 [1992]).

The Philippine National Police (PNP) issued a circular to all its members directed
at the style and length of male police officers hair, sideburns and moustaches, as
well as the size of their waistlines. It prohibits beards, goatees and waistlines
over 38 inches, except for medical reasons. Some police officers questioned the

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validity of the circular, claiming that it violated their right to liberty under the
Constitution. Resolve the controversy. (6%) (2008 Bar Question)

SUGGESTED ANSWER:

The circular is valid. The circular is based on a desire to make police officers easily
recognizable to the members of the public or to inculcate spirit de corps which such
similarity is felt to inculcate within the police force. Either one is a sufficient rational
justification for the circular (Kelley v. Johnson, 425 U.S. 238 [1976]).

Macabebe, Pampanga has several barrios along the Pampanga river. To service
the needs of their residents, the municipality has been operating a ferry service at
the same river, for a number of years already.

Sometime in 1987, the municipality was served a copy of an order from the Land
Tansportation Franchising and Regulatory Board (LTFRB), .granting a certificate
of public convenience to Mr. Ricardo Macapinlac, a resident of Macabebe, to
operate ferry service across the same over and between the same barrios being
serviced presently by the municipalitys ferry boats. A check of the records of the
application of Macapinlac shows that the application was filed some months
before, set for hearing, and notices of such hearing were published in two
newspapers of general circulation in the town of Macabebe, and in the province
of Pampanga. The municipality had never been directly served a copy of that
notice of hearing nor had the Sangguniang Bayan been requested by Macapinlac
for any operate. The municipality immediately filed a motion for reconsideration
with the LTFRB which was denied. It then went to the Supreme Court on a petition
for certiorari to nullify the order granting a certificate of public convenience 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 to operate a ferry service in Macabebe.

Resolve the two points in the petition with reasons. (1988 Bar Question)

SUGGESTED ANSWER:

The petition for certiorari should be granted.

1. As a party directly affected by the operation of the ferry service, the Municipality
of Macabebe, Pampanga was entitled to be directly notified by the LTFRB of its
proceedings relative to Macapinlacs application, even if the Municipality had not
notified the LTFRB of the existence of the municipal ferry service. Notice by
publication was not enough. (Municipality of Echague v. Abellera, 146 SCRA
180(1986)).

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2. It has been held that where a ferry operation lies entirely within the municipality,
the prior approval of the Municipal government is necessary. Once approved, the
operator must then apply with the LTFRB for a certificate of public convenience
and shall be subject to LTFRB super-vision. (Municipality of Echague v. Abellera,
supra).

On 29 July 1991, the Energy Regulatory Board (ERB), in response to public


clamor, issued a resolution approving and adopting a schedule for bringing down
the prices of petroleum products over a period of one (1) year starting 15 August
1991, over the objection of the oil companies which claim that the period covered
is too long to prejudge and foresee.

Is the resolution valid? (1991 Bar Question)

SUGGESTED ANSWER:

No, the resolution is invalid, since the Energy Regulatory Board issued the resolution
without a hearing. The resolution here is not a provisional order and therefore it can only
be issued after appropriate notice and hearing to affected parties. The ruling in
Philippine Communications Satellite Corporation vs. Alcuaz, 180 SCRA 218, to the
effect that an order provisionally reducing the rates which a public utility could charge,
could be issued without previous notice and hearing, cannot apply.

A criminal statute that "fails to give a person of ordinary intelligence fair


notice that his contemplated conduct is forbidden by statute" is: (2012 BAR
EXAMS)

a. void for fair notice;


b. void for arbitrariness;
c. void for vagueness;
d. void conclusively.

SUGGESTED ANSWER:

A) ESTRADA VS. SANDIGANBAYAN, 369 SCRA 394

3. Hierarchy of rights

What do you understand by the term "heirarchy of civil liberties"? Explain. (2012
BAR EXAMS)

SUGGESTED ANSWER:

A. The hierarchy of civil liberties means that freedom of expression and the rights of
peaceful assembly are superior to property rights. (Philippine blooming mills employees
organization vs. Philippine blooming mills company, inc. ., 51 scra 189.)

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In the hierarchy of civil liberties, which right occupies the highest preferred
position: (2012 BAR EXAMS)
a. right to academic freedom;
b. right to a balanced and healthful ecology;
c. right to freedom of expression and of assembly;
d. right to equal health.

SUGGESTED ANSWER:

(C) PHILIPPINE BLOOMING MILLS EMPLOYEES ORGANIZATION VS. PHILIPPINE


BLOOMING COMPANY INC. SCRA 51 SCRA 189

4. Judicial standards of review


5. Overbreadth doctrine and Void-for-vagueness doctrine

Compare and contrast overbreadth doctrine from void-for-vagueness


doctrine. (5%) (2010 Bar Question)

SUGGESTED ANSWER:

While the overbreadth doctrine decrees that a governmental purpose may not be
achieved by means in a statute which sweep unnecessary broadly and thereby invades
the area of protected freedom. A statute is void for vagueness when it forbids or
requires the doing of an act in terms so vague that men of common intelligence cannot
necessarily guess at its meaning and differ as to its application. (Estrada v.
Sandiganbayan, 369 SCRA 394 [2001].)

An ordinance prohibits "notorious street gang members" from loitering in public


places. The police are to disperse them or, if they refuse, place them under arrest.
The ordinance enumerates which police officers can make arrest and defines
street gangs, membership in them, and public areas. The ordinance was
challenged for being vague regarding the meaning of "notorious street gang
members." Is the ordinance valid? (2011 BAR)
(A) No, it leaves the public uncertain as to what conduct it prohibits.
(B) No, since it discriminates between loitering in public places and
loitering in private places.
(C) Yes, it provides fair warning to gang members prior to arrest regarding
their unlawful conduct.
(D) Yes, it is sufficiently clear for the public to know what acts it prohibits.

The void-for-vagueness doctrine is a concept which means that: (1%) 2014 BAR
EXAMS
(A) if a law is vague, then it must be void
(B) any law which could not be understood by laymen is a nullity
(C) if a law is incomprehensible to ordinary people such that they do not really

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know what is required or prohibited, then the law must be struck down
(D) a government regulation that lacks clear standards is nonsensical and
useless as a guide for human conduct
(E) clarity in legal language is a mandate of due process.

SUGGESTED ANSWER:

(B) If a law is incomprehensible to ordinary people such that they do not really know
what is required or prohibited, then the law must be struck down.

6. Equal protection
1. Concept
2. Requisites for valid classification
3. Standards of judicial review
a. Rational Basis Test
b. Strict Scrutiny Test
c. Intermediate Scrutiny Test

The Gay, Bisexual and Transgender Youth Association (GBTYA), an organization


of gay, bisexual, and transgender persons, filed for accreditation with the
COMELEC to join the forthcoming party-list elections. The COMELEC denied the
application for accreditation on the ground that GBTY A espouses immorality
which offends religious dogmas. GBTY A challenges the denial of its application
based on moral grounds because it violates its right to equal protection of the
law.

a. What are the three (3) levels of test that are applied in equal protection cases?
Explain.
b. Which of the three (3) levels of test should be applied to the present case?
Explain. (2015 BAR)

Answer:
a. The three levels of test applied in equal protection cases are as follow:

First, the STRICT SCRUTINY TEST which is applied when the legislative
classification disadvantages a subject class or impinges upon a fundamental right,
the statute must fall unless the government can show that the classification serves a
compelling governmental interest.

Second, the INTERMEDIATE SCRUTINY TEST, when the classification, while not
facially invidious, gives rise to recurring constitutional difficulties or disadvantages a
quasi-suspect class. The law must not only further an important government interest
and be related to that interest. The justification must be genuine and must not
depend on broad generalizations.

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Lastly, the RATIONALITY TEST, if neither the strict nor the intermediate scrutiny is
appropriate, the statute will be tested for mere rationality. The presumption is in
favor of the classification, the reasonableness and fairness of state action and of
legitimate grounds of distinction.

b. Classification on the basis of sexual orientation is a quasi-subject classification that


prompts intermediate review. Sexual orientation has no relation to a persons ability
to contribute to society. The discrimination that distinguishes the gays and lesbian
persons are beyond their control. The group lacks sufficient political strength to bring
an end to discrimination through political mean (Ang Ladlad v. COMELEC, 618
SCRA 32 [2010]).

ALTERNATIVE ANSWER: (1) The three levels of tests that may be applied in equal
protection cases may be classified as follow: the STRICT SCRUTINY TEST, for laws
dealing with freedom of the mind or restricting the political processes; the RATIONAL
BASIS STANDARD for the review of economic legislation; and HEIGHTENED or
INTERMEDIATE SCRUTINY for evaluating classifications based on gender and
legitimacy.

(2) It is submitted that the strict scrutiny test should be applied in this case because the
challenged classification restricts the political process.

The Department of Education, Culture and Sports issued a circular disqualifying


anyone who fails for the fourth time in the National Entrance Tests from
admission to a College of Dentistry.

X who was thus disqualified, questions the constitutionality of the circular.

Did the circular violate the equal protection clause of the Constitution? (1994 Bar
Question)

SUGGESTED ANSWER:

No, the circular did not violate the equal protection clause of the Constitution. There is a
substantial distinction between dentistry students and other students. The dental
profession directly affects the lives and health of people. Other professions do not
involve the same delicate responsibility and need not be similarly treated. This is in
accordance with the ruling in Department of Education, Culture and Sports vs. San
Diego, 180 SCRA 533.

X, a scion of a rich family, applied for enrolment with the San Carlos Seminary
in Mandaluyong, Metro Manila. Because he had been previously expelled from
another seminary for scholastic deficiency, the Rector of San Carlos Seminary
denied the application without giving any grounds for the denial. After X was
refused admission, the Rector admitted another applicant, who is the son of a
poor farmer who was also academically deficient.

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A. Prepare a short argument citing rules, laws, or constitutional provisions in


support of Xs motion for reconsideration of the denial of his application. (1987
Bar Question)

B. Prepare a brief argument citing rules, laws, or Constitutional provisions in


support of the Rectors denial of the motion for reconsideration. (1987 Bar
Question)

C. Give your decision on the appeal of X from the Rectors denial of Xs


application. (1987 Bar Question)

SUGGESTED ANSWER:

A. The refusal of the seminary to admit X constitutes invidious discrimination, violative


of the Equal Protection Clause (Art. Ill, Sec. 1) of the Constitution. The fact that the
other applicant is the son of a poor farmer does not make the discrimination any less
invidious since the other applicant is also academically deficient. The reverse
discrimination practiced by the seminary cannot be justified because unlike the race
problem in America, poverty is not a condition of inferiority needing redress.

B. The seminary has institutional autonomy which gives it the right, all things being
equal, to choose whom it will admit as student. (Garcia v. Faculty of Admission, Loyola
School of Theology, 68 SCRA 277 (1975); Villar v. Technological Institute of the
Philippines, 135 SCRA 706 (1985); Tangonan v. Cruz Pao, 137 SCRA 245 (1985))
This autonomy is sufficiently large to permit in this case the seminary to choose
between the rich mans son and the poor mans son.

C. The preference given to the poor mans son is justified. Not only is the seminary
entitled to choose whom it will admit because it enjoys institutional autonomy (Art. XIV,
Sec. 5(2) ) but the choice made in this case is a wise and judicious one. The rich mans
son had been expelled from another school because of academic delinquency. Despite
the economic advantage and opportunity he had, he still failed in his school work,
warranting a finding that he cannot really do school work. On the other hand, the poor
mans son may be academically deficient precisely as a result of poverty so that if
relieved of its effects it is probable he will do better in school. The democratization of
wealth and power, implicit in Art. XIII, Sec. 1, and justifies the decision of the Rector in
this case.

The equal protection clause allows valid classification of subjects that applies
(2011 BAR)
(A) only to present conditions.
(B) so long as it remains relevant to the government.
(C) for a limited period only.
(D) for as long as the problem to be corrected exists.

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Marina Neptunia, daughter of a sea captain and sister to four marine officers
decided as a child to follow in her fathers footsteps. In her growing up years she
was as much at home on board a boat as she was in the family home by the sea.
In time she earned a Bachelor of Science degree in Marine Transportation, major
in Navigation and Seamanship. She served her apprenticeship for a year in a
merchant marine vessel registered for foreign trade and another year on a
merchant marine vessel registered for coastwise trade. But to become a full-
fledged marine officer she had to pass the appropriate board examinations before
she could get her professional license and registration. She applied in January
1986 to take examination for marine officers but her application was rejected for
the reason that the law Regulating the Practice of Marine Profession in the
Philippines (Pres. Dec. No. 97 (1973)) specifically prescribes that No person snail
be qualified for examination as marine officer unless he is:

Marina feels very aggrieved over the denial and has come to you for advice. She
wants to know: (1987 Bar Question)

Whether the Board of Examiners had any plausible or legal basis for rejecting her
application in 1986. Explain briefly.

Whether the 1987 Constitution guarantees her the right to admission to take the
coming January 1988 marine officers examinations. Explain and cite relevant
provisions.

SUGGESTED ANSWER:

The disqualification of females from the practice of marine profession constitutes as


individious discrimination condemned by the Equal Protection Clause of that
Constitution (Art. IV, Sec. 1) In the United States, under a similar provision, while earlier
decisions of the Supreme Court upheld the validity of a statute prohibiting women from
bar- tending unless she was the wife or daughter of a male owner (Goesart v. Cleary,
335 U.S. 464 (1948) and denying to women the right to practice law (Bradwell v. State,
83 U.S. (16 Wall) 130 (1873), recent decisions have invalidated statutes or regulations
providing for differential treatment of females based on nothing stereotypical and
inaccurate generalizations. The Court held that classification based on sex, like
classifications based upon race, alienage, or national origin, are inherently suspect, and
must therefore be subjected to strict judicial scrutiny. Accordingly, the Court invalidated
a statute permitting a male serviceman to claim his spouse as a dependent to obtain
increased quarter allowance, regardless of whether the wife is actually dependent on
him, while denying the same right to a servicewoman unless her husband was in fact
dependent on her for over one half of his support. (Frontierro v. Richardson, 411 U.S.
687 (1973); Accord Craig, v. Boren, 429 U.S. 190 (1976) (providing for sale of beer to
males under 21 and to females under 18); Reed v. Reed. 404 U.S. 71 (1971)
(preference given to men over women for appointment as administrators of estates
invalid).

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In addition to the Equal Protection Clause, the 1987 Constitution now requires the State
to ensure the fundamental equality before the law of women and men (Art II, Sec. 14)
and to provide them with such facilities and opportunities that will enhance their welfare
and enable them to realize their full potential in the service of the nation. (Art. XIII, Sec.
14). These provisions put in serious doubt the validity of PD 97 limiting the practice of
marine profession to males.

An ordinance of the City of Manila requires every alien desiring to obtain


employment of whatever kind, including casual and part-time employment, in the
city to secure an employment permit from the City Mayor and to pay a work
permit fee of P500.00. Is the ordinance valid? (1989 Bar Question)

SUGGESTED ANSWER:

No, the ordinance is not valid. In Villegas vs. Hiu Chiong Tsai Pao Ho, 86 SCRA 270, it
was held that such an ordinance violates equal protection. It failed to consider the valid
substantial differences among the aliens required to pay the fee. The same among it,
being collected from every employed alien, whether he is casual or permanent, part-
time or full-time. The ordinance also violates due process, because it does not contain
any standard to guide the mayor in the exercise of the power granted to him by the
ordinance. Thus, it confers upon him unrestricted power to allow or prevent an activity
which is lawful per se.

X was sentenced to a penalty of 1 year and 5 months of prision correccional


and to pay a fine of P8,000.00, with subsidiary imprisonment in case of solvency.
After serving his prison term, X asked the Director of Prisons whether he could
already be released. X was asked to pay the fine of P5,000.00 and he said he
could not afford it, being an indigent. The Director informed him he has to serve
an additional prison term at the rate of one day per eight pesos in accordance
with Article 39 of the Revised Penal Code. The lawyer of X filed a petition for
habeas corpus contending that the further incarceration of his client for unpaid
fines violates the equal protection clause of the Constitution. Decide. (1989 Bar
Question)

SUGGESTED ANSWER:

The petition should be granted, because Article 39 of the Revised Penal Code is
unconstitutional. In Tate vs. Short, 401 U.S. 395, the United States Supreme Court held
that imposition of subsidiary imprisonment upon a convict who is too poor to pay a fine
violates equal protection, because economic status cannot serve as a valid basis for
distinguishing the duration of the imprisonment between a convict who is able to pay the
fine and a convict who is unable to pay it.

On the other hand, in United States ex rel. Privitera vs. Kross, 239 F Supp 118, it was
held that the imposition of subsidiary imprisonment for inability to pay a fine does not
violate equal protection, because the punishment should be tailored to fit the individual,

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and equal protection does not compel the eradication of every disadvantage caused by
indigence. The decision was affirmed by the United States Circuit Court of Appeals in
345 F2d 533, and the United States Supreme Court denied the petition for certiorari in
382 U.S. 911. This ruling was adopted by the Illinois Supreme Court in People vs.
Williams, 31 ALR3d 920.r

A law prohibiting Chinese citizens from engaging in retail trade. 2.5%. State
whether or not the law is constitutional. Explain briefly. (2006 Bar Question)

SUGGESTED ANSWER:

A law prohibiting Chinese citizens from engaging in retail trade is unconstitutional,


because it violates the guarantee of equal protection of the laws found in the Bill of
Rights (Section 1, Article III of the Constitution). Equal protection applies even to aliens.
It singled out Chinese citizens and did not include other aliens although they are
similarly situated. The prohibition should have applied to all aliens. For a classification to
be valid, it must apply to all those belonging to the same class (Central Bank
Employees Association, Inc. v. Bangko Sentral ng Pilipinas, 446 SCRA 299, [2004]).

The City Mayor issues an Executive Order declaring that the city promotes responsible
parenthood and upholds natural family planning. He prohibits all hospitals operated by
the city from prescribing the use of artificial methods of contraception, including
condoms, pills, intrauterine devices and surgical sterilization. As a result, poor women in
his city lost their access to affordable family planning programs. Private clinics,
however, continue to render family planning counsel and devices to paying clients.

The equal protection clause is violated by ______________. (1%) 2013 BAR


EXAMS

(A) a law prohibiting motorcycles from plying on limited access highways.


(B) a law granting Value Added Tax exemption to electric cooperatives that sells
electricity to the homeless poor.
(C) a law providing that a policeman shall be preventively suspended until the
termination of a criminal case against him.
(D) a law providing higher salaries to teachers in public schools who are foreign
hires.
(E) a law that grants rights to local Filipino workers but denies the same rights to
overseas Filipino workers.

SUGGESTED ANSWER:
International School Alliance of Educators v. Quisumbing, G.R. 128845, June 1, 2000,
333 SCRA 13)

7. Searches and seizures


1. Concept
2. Warrant requirement

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a. Requisites
3. Warrantless searches
4. Warrantless arrests
5. Administrative arrests
6. Drug, alcohol and blood tests

Around 12:00 midnight, a team of police officers was on routine patrol in


Barangay Makatarungan when it noticed an open delivery van neatly covered with
banana leaves. Believing that the van was loaded with contraband, the team
leader flagged down the vehicle which was driven by Hades. He inquired from
Hades what was loaded on the van. Hades just gave the police officer a blank
stare and started to perspire profusely. The police officers then told Hades that
they will look inside the vehicle. Hades did not make any reply. The police officers
then lifted the banana leaves and saw several boxes. They opened the boxes and
discovered several kilos of shabu inside. Hades was charged with illegal
possession of illegal drugs. After due proceedings, he was convicted by the
trial court. On appeal, the Court of Appeals affirmed his conviction.

In his final bid for exoneration, Hades went to the Supreme Court claiming that
his constitutional right against unreasonable searches and seizures was violated
when the police officers searched his vehicle without a warrant; that the shabu
confiscated from him is thus inadmissible in evidence; and that there being no
evidence against him, he is entitled to an acquittal. For its part, the People of the
Philippines maintains that the case of Hades involved a consented warrantless
search which is legally recognized. The People adverts to the fact that Hades did
not offer any protest when the police officers asked him if they could look inside
the vehicle. Thus, any evidence obtained in the course thereof is admissible in
evidence. Whose claim is correct? Explain. (2015 BAR)

Answer:
The warrantless search was illegal. There was no probable cause to search the van.
The shabu was not immediately apparent. It was discovered only after they opened the
boxes. The mere passive silence of Hades did not constitute consent to the warrantless
search (Caballes v. CA, 373 SCRA 221 [2002]).

Using the description of the supplier of shabu given by persons who had been
arrested earlier for selling it, the police conducted a surveillance of the area
indicated. When they saw a man who fitted the description walking from the
apartment to his car, they approached and frisked him and he did not object. The
search yielded an unlicensed gun tucked on his waist and shabu in his car. Is the
search valid? (2011 BAR)
(A) No, the man did not manifest any suspicious behavior that would give
the police sufficient reason to search him.
(B) Yes, the police acted on reliable information which proved correct when
they searched the man and his car.

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(C) Yes, the man should be deemed to have waived his right to challenge
the search when he failed to object to the frisking.
(D) No, reliable information alone, absent any proof beyond reasonable
doubt that the man was actually committing an offense, will not validate
the search.

An informer told the police that a Toyota Car with plate ABC 134 would deliver an
unspecified quantity of ecstacy in Forbes Park, Makati City. The officers whom
the police sent to watch the Forbes Park gates saw the described car and flagged
it down. When the driver stopped and lowered his window, an officer saw a gun
tucked on the driver's waist. The officer asked the driver to step out and he did.
When an officer looked inside the car, he saw many tablets strewn on the driver's
seat. The driver admitted they were ecstacy. Is the search valid? (2011 BAR)
(A) No, the rule on warrantless search of moving vehicle does not allow
arbitrariness on the part of the police.
(B) Yes, the police officers had the duty to verify the truth of the information
they got and pursue it to the end.
(C) Yes, the police acted based on reliable information and the fact that an
officer saw the driver carrying a gun.
(D) No, police officers do not have unbridled discretion to conduct a
warrantless search of moving vehicles.

On the basis of a verified report and confidential information that various


electronic equipment, which were illegally imported into the Philippines, were
found in the bodega of the Tikasan Corporation located at 1002 Binakayan St.,
Cebu City, the Collector of Customs of Cebu issued, in the morning of 2 January
1988, a Warrant of Seizure and Detention against the corporation for the seizure
of the electronic equipment. The warrant particularly describes the electronic
equipment and specifies the provisions of the Tariff and Customs Code which
were violated by the importation.

The warrant was served and implemented in the afternoon of 2 January 1988 by
Customs policemen who then seized the described equipment. The inventory of
the seized articles was signed by the Secretary of the Tikasan Corporation. The
following day, a hearing officer in the Office of the Collector of Customs
conducted a hearing on the confiscation of the equipment.

Two days thereafter, the corporation filed with the Supreme Court a petition for
certiorari, prohibition and mandamus to set aside the warrant, enjoin the
Collector and his agents from further proceeding with the forfeiture hearing and
to secure the return of the confiscated equipment, alleging therein that the
warrant issued is null and void for the reason that, pursuant to Section 2 of
Article III of the 1987 Constitution, only a judge may issue a search warrant. In his
comment to the petition, the Collector of Customs, through the Office of the
Solicitor General, contends that he is authorized under the Tariff and Custom
Code to order the seizure of the equipment whose duties and taxes were not paid

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and that the corporation did not exhaust administrative remedies.

Should the petition be granted? Decide. (1991 Bar Question)

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 any warehouse, not used as
dwelling, for the purpose of seizing any article which is subject to forfeiture. For this
purpose they need no warrant issued by a court. As stated in Viduya vs. Berdiago, 73
SCRA 553, for centuries the seizure of goods by customs officials to enforce the
customs laws without need of a search warrant has been recognized.

Armed with a search and seizure warrant, a team of policemen led by Inspector
Trias entered a compound and searched the house described therein as No. 17
Speaker Perez St., Sta. Mesa Heights, Quezon City, owned by Mr. Ernani Pelets,
for a reported cache of firearms and ammunition. However, upon thorough search
of the house, the police found nothing.

Then, acting on a hunch, the policemen proceeded to a smaller house inside the
same compound with address at No. 17-A Speaker Perez St., entered it, and
conducted a search therein over the objection of Mr. Pelets who happened to be
the same owner of the first house. There, the police found the unlicensed
firearms and ammunition they were looking for.

As a result, Mr. Ernani Pelets was criminally charged in court with illegal
possession of firearms and ammunition as penalized under P.D. 1866, as
amended by R.A. 8294. At the trial, he vehemently objected to the presentation of
the evidence against him for being inadmissible.

Is Mr. Ernani Pelet's contention valid or not? Why? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

The contention of Ernani Pelet is valid. As held in People vs. Court of Appeals, 291
SCRA 400 (1993), if the place searched is different from that stated in the search
warrant, the evidence seized is inadmissible. The policeman cannot modify the place to
be searched as set out in the search warrant.

Crack agents of the Manila Police Anti-Narcotics Unit were on surveillance of a


cemetery where the sale and use of prohibited drugs were rumored to be
rampant. The team saw a man with reddish and glassy eyes walking unsteadily
towards them, but he immediately veered away upon seeing the policemen. The
team approached the man, introduced themselves as peace officers, then asked
what he had in his clenched fist. Because the man refused to answer, a
policeman pried the fist open and saw a plastic sachet filled with crystalline

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substance. The team then took the man into custody and submitted the contents
of the sachet to forensic examination. The crystalline substance in the sachet
turned out to be shabu. The man was accordingly charged in court.

During the trial, the accused:

Challenged the validity of his arrest; (2%) and (2009 Bar Question)

SUGGESTED ANSWER:

The warrantless arrest of the accused was valid. The cemetery was rumored to be a
place where the sale of drugs was rampant. The eyes of the accused were reddish and
glassy. He was walking unsteadily, veered away from the policemen upon seeing them,
and refused to say what was in his clenched fist. The policemen had sufficient reason to
stop him and investigate if he was high on drugs. Since the investigation showed that
the accused was in possession of shabu, he could be arrested without the need for a
warrant (Manalili v. Court of Appeals, 280 SCRA 400 [1997]).

ALTERNATIVE ANSWER:

The warrantless arrest of the accused was void. There was no overt act or suspicious
circumstances that would indicate that he was committing a crime. The search
preceded his arrest (People v. Tudtud, 412 SCRA 142 [2003]).

Objected to the admission in evidence of the prohibited drug, claiming that it was
obtained in an illegal search and seizure. (2%) Decide with reasons. (2009 Bar
Question)

SUGGESTED ANSWER:

Since the search and seizure of the shabu were incidental to a valid warrantless arrest,
the shabu is admissible in evidence (Manalili v. Court: of Appeals, 280 SCRA 400
[1997]).

ALTERNATIVE ANSWER:

The search and seizure were illegal, because they preceded the arrest and were not
incidental to the arrest. The shabu confiscated as a result thereof is inadmissible in
evidence (People v. Tudtud, 412 SCRA 142 [2003]).

X a Constabulary Officer, was arrested pursuant to a lawful court order in


Baguio City for murder. He was brought to Manila where a warrantless search
was conducted in his official quarters at Camp Crame. The search team found
and seized the murder weapon in a drawer of X. Can X claim that the search
and seizure were illegal and move for exclusion from evidence of the weapon
seized? Explain. (1987 Bar Question)

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SUGGESTED ANSWER:

Yes, X can do so. The warrantless search cannot be justified as an incident of a valid
arrest, because considerable time had elapsed after his arrest in Baguio before the
search of his quarters in Camp Crame, Quezon City was made, and because the
distance between the place of arrest and the place of search negates any claim that the
place searched is within his immediate control' so as to justify the apprehension that
he might destroy or conceal evidence of crime before a warrant can be obtained.
(Chimel v. California, 395 U.S. 752 (1969) ) in Nolasco v. Cruz Pao, 147 SCRA 509
(1987), the Supreme Court reconsidered its previous decision holding that a
warrantless search, made after 30 minutes from the time of arrest, and, in a place
several blocks away from the place of arrest, was valid. It held that a warrantless
search is limited to the search of the person of the arrestee at the time and incident to
his arrest and for dangerous weapons or anything which may be used as proof of the
offense. A contrary rule would justify the police in procuring a warrant of arrest and, by
virtue thereof, not only arrest the person but also search his dwelling, requires that all
facts as to the condition of the property and its surroundings and its improvements and
capabilities must be considered, and this can only be done in a judicial proceeding.

In what scenario is an extensive search of moving vehicles without warrant valid?


(2011 BAR)
(A) The police became suspicious on seeing something on the cars back
seat covered with blanket.
(B) The police suspected an unfenced lot covered by rocks and bushes was
planted to marijuana.
(C) The police became suspicious when they saw a car believed to be of the
same model used by the killers of a city mayor.
(D) The driver sped away in his car when the police flagged him down at a
checkpoint.

Crack officers of the Anti -Narcotics Unit were assigned on surveillance of the
environs of a cemetery where the sale and use of dangerous drugs are rampant.
A man with reddish and glassy eyes was walking unsteadily moving towards
them but veered away when he sensed the presence of policemen. They
approached him, introduced themselves as police officers and asked him what he
had clenched in his hand. As he kept mum, the policemen pried his hand open
and found a sachet of shabu, a dangerous drug. Accordingly charged in court,
the accused objected to the admission in evidence of the dangerous drug
because it was the result of an illegal search and seizure. Rule on the objection.
(3%) (2000 Bar Question)

What are the instances when warrantless searches may be effected? (2%) (2000
Bar Question)

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SUGGESTED ANSWER:

The objection is not tenable. In accordance with Manalili v. Court of Appeals, 280 SCRA
400 (1997), since the accused had red eyes and was walking unsteadily and the place
is a known hang-out of drug addicts, the police officers had sufficient reason to stop the
accused and to frisk him. Since shabu was actually found during the investigation, it
could be seized without the need for a search warrant.

A warrantless search maybe effected in the following cases:


- Searches incidental to a lawful arrest;
- Searches of moving vehicles;
- Searches of prohibited articles in plain view;
- Enforcement of customs law;
- Consented searches;
- Stop and frisk (People u. Montilla, 285 SCRA 703 [1998]);
- Routine searches at borders and ports of entry (United States v. Ramsey, 431 U.S.
606 [1977]); and
- Searches of businesses in the exercise of visitorial powers to enforce police
regulations (New York u. Burger, 482 U.S. 691 [1987/).

A witnessed two hooded men with baseball bats enter the house of their next
door neighbor B. After a few seconds, he heard B shouting, "Huwag Pilo
babayaran kita agad. Then Asaw the two hooded men hitting B until the latter fell
lifeless. The assailants escaped using a yellow motorcycle with a fireball sticker
on it toward the direction of an exclusive village nearby. A reported the incident
to POI Nuval. The following day, POI Nuval saw the motorcycle parked in the
garage of a house at Sta. Ines Street inside the exclusive village. He inquired with
the caretaker as to who owned the motorcycle. The caretaker named the brothers
Pilo and Ramon Maradona who were then outside the country. POI Nuval insisted
on getting inside the garage. Out of fear, the caretaker allowed him. POI Nuval
took 2 ski masks and 2 bats beside the motorcycle. Was the search valid? What
about the seizure? Decide with reasons. (4%) (2009 Bar Question)

SUGGESTED ANSWER:

The warrantless search and the seizure was not valid. It was not made as an incident to
a lawful warrantles arrest. (People v. Baula, 344 SCRA 663 [2000].) The caretaker had
no authority to waive the right of the brothers Pilo and Ramon Maradona to waive their
right against an unreasonable search and seizure. (People v. Damaso, 212 SCRA547
[1992].) The warrantless seizure of the ski masks and bats cannot be justified under the
plain view doctrine, because they were seized after an invalid intrusion into the house.
(People v. Bolasa, 321 SCRA 459 [1999].)

Johann learned that the police were looking for him in connection with the rape of
an 18-year old girl, a neighbor. He went to the police station a week later and
presented himself to the desk sergeant. Coincidentally, the rape victim was in the

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premises executing an extrajudicial 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 prior to arraignment invoked his right to preliminary investigation. This
was denied by the Judge, and thus, trial proceeded. After the prosecution
presented several witnesses, Johann through counsel, invoked the right to bail
and filed a motion therefor, which was denied outright by the judge. Johann now
files a petition for certiorari before the Court of Appeals arguing that:

His arrest was not in accordance with law.


Decide. (1993 Bar Question)

SUGGESTED ANSWER:

Yes, the warrantless arrest of Johann was not in accordance with law. As held in Go v.
Court of Appeals, 206 SCRA 138, his case does not fall under the instances in Rule
113, sec. 5 (a) of the 1985 Rules of Criminal Procedure authorizing warrantless arrests.
It cannot be considered a valid warrantless arrest because Johann did not commit a
crime in the presence of the police officers, since they were not present when Johann
had allegedly raped his neighbor. Neither can it be considered an arrest under Rule 113
sec. 5 (b) which allows an arrest without a warrant to be made when a crime has in fact
Just been committed and the person making the arrest has personal knowledge of facts
indicating that the person to be arrested committed it. Since Johann was arrested a
week after the alleged rape, it cannot be deemed to be a crime which has just been
committed". Nor did the police officers who arrested him have personal knowledge of
facts indicating that Johann raped his neighbor.

Where a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and dangerous and he identifies
himself and makes reasonable inquiries, but nothing serves to dispel his
reasonable fear for his own or others safety, he is entitled to conduct a carefully
limited search of the outer clothing of such persons for weapons. Such search is
constitutionally permissible and is known as a: (2012 BAR EXAMS)

a. stop and search;


b. stop and frisk;
c. stop and interrogate;
d. stop and detain.

SUGGESTED ANSWER:

(B) TERRY VS. OHIO, 392 U.S.I

When can evidence "in plain view" be seized without need of a search warrant?
Explain. (2%) (2012 BAR EXAMS)

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SUGGESTED ANSWER:
Evidence in plain view can be seized without need of a search warrant if the following
elements are present.

1. There was a prior valid intrusion based on the valid warrantless arrest in which the
police were legally present pursuant of their duties;

2. The evidence was inadvertently discovered by the police who had the right to be
where they were:

3. The evidence must be immediately apparent; and

4. Plain view justified seizure of the evidence without further search. (del rosario vs.
People, 358 scra 372)

It is form of entrapment. The method is for an officer to pose as a buyer. He,


however, neither instigates nor induces the accused to commit a crime because
in these cases, the "seller" has already decided to commit a crime. The offense
happens right before the eyes of the officer. Under these circumstances: (2012
BAR EXAMS)

a. there is a need for an administrative but not a judicial warrant for seizure of
goods and arrest of the offender;
b. there is need for a warrant for the seizure of the goods and for the arrest of the
offender;
c. there is no need for a warrant either for the seizure of the goods or for the
arrest of the offender;
d. the offender can be arrested but there is a need for a separate warrant for the
seizure of the goods.

SUGGESTED ANSWER:

(c) PEOPLE VS BOHOL, 560 SCRA 232

Larry was an overnight guest in a motel. After he checked out the following day,
the chambermaid found an attache case which she surmised was left behind by
Larry. She turned it over to the manager who, to determine the name and address
of the owner, opened the attache case and saw packages which had a peculiar
smell and upon squeezing felt like dried leaves. His curiosity aroused, the
manager made an opening on one of the packages and took several grams of the
contents thereof. He took the packages to the NBI, and in the presence of agents,
opened the packages, the contents of which upon laboratory examination, turned
out to be marijuana flowering tops. Larry was subsequently found, brought to the
NBI Office where he admitted ownership of the attache case and the packages. He
was made to sign a receipt for the packages. Larry was charged in court for

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possession of prohibited drugs. He was convicted. On appeal, he now poses the


following issues:

The packages are inadmissible in evidence being the product of an illegal search
and seizure; (1993 Bar Question)

Decide.

SUGGESTED ANSWER:

On the assumption that the issues were timely raised, the answers are as follows:

The packages are admissible in evidence. The one who opened the packages was the
manager of the motel without any interference of the agents of the National Bureau of
Investigation. As held in People vs. Marti 193 SCRA 57, the constitutional right against
unreasonable searches and seizures refers to unwarranted intrusion by the government
and does not operate as a restraint upon private individuals.

During the recent elections, checkpoints were set up to enforce the election
period ban on firearms. During one such routine search one night, while looking
through an open window with a flashlight, the police saw firearms at the backseat
of a car, partially covered by papers and clothes

a) Antonio, owner and driver of the car in question, was charged for violation of
the firearms ban. Are the firearms admissible in evidence against him? Explain.
(1992 Bar Question)

b) If upon further inspection by the police, prohibited drugs were found inside the
various compartments of Antonios car, can the drugs be used in evidence
against Antonio if he is prosecuted for possession of prohibited drugs? Explain.
(1992 Bar Question)

SUGGESTED ANSWER:

a. Yes, the firearms are admissible in evidence, because they were validly seized. In
Valmonte vs. De Villa, 178 SCRA 211 and 185 SCRA 665, the Supreme Court held that
checkpoints may be set up to maintain peace and order for the benefit of the public and
checkpoints are a security measure against unauthorized firearms. Since the search
which resulted in the discovery of the firearms was limited to a visual search of the car,
it was reasonable. Because of the ban on firearms, the possession of the firearms was
prohibited. Since they were found in plain view in the course of a lawful search, in
accordance with the decision in Magoncia vs. Palacio, 80 Phil. 770, they are admissible
in evidence.

b. No, the drugs cannot be used in evidence against Antonio if he is prosecuted for
possession of prohibited drugs. The drugs were found after a more extensive search of

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the various compartments of the car. As held in Valmonte us. De Villa, 185 SCRA 665,
for such a search to be valid, there must be a probable cause. In this case, there was
no probable cause, as there was nothing to indicate that Antonio had prohibited drugs
inside the compartments of his car.

Some police operatives, acting under a lawfully issued warrant for the purpose of
searching for firearms in the House of X located at No. 10 Shaw Boulevard. Pasig.
Metro Manila, found, instead of firearms, ten kilograms of cocaine.

1. May the said police operatives lawfully seize the cocaine? Explain your answer.
(1990)

2. May X successfully challenge the legality of the search on the ground that the
peace officers did not inform him about his right to remain silent and his right to
counsel? Explain your answer. (1990)

3. Suppose the peace officers were able to find unlicensed firearms in the house
in an adjacent lot, that is, No. 12 Shaw Boulevard, which is also owned by X. May
they lawfully seize the said unlicensed firearms? Explain your answer. (1990 Bar
Question)

SUGGESTED ANSWER:

(1) Yes, the police operatives may lawfully seize the cocaine, because it is an item
whose possession is prohibited by law, it was in plain view and it was only inadvertently
discovered in the course of a lawful search. The possession of cocaine is prohibited by
Section 8 of the Dangerous Drugs Act. As held in Magoncia v. Palacio. 80 Phil. 770, an
article whose possession is prohibited by law may be seized without the need of any
search warrant if it was discovered during a lawful search. The additional requirement
laid down in Roan v. Gonzales, 145 SCRA 687 that the discovery of the article must
have been made inadvertently was also satisfied in this case.

(2) No, X cannot successfully challenge the legality of the search simply because the
peace officers did not inform him about his right to remain silent and his right to counsel.
Section 12(1), Article III of the 1987 Constitution provides:

Any person under investigation for the commission of an offense shall


have the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice.

As held in People v. Dy. 158 SCRA 111, for this provision to apply, a suspect must be
under investigation. There was no investigation involved in this case.

(3) The unlicensed firearms stored at 12 Shaw Boulevard may lawfully be seized since
their possession is illegal. As held in Magoncia v. Palacio, 80 Phil. 770, when an
individual possesses contraband (unlicensed firearms belong to this category), he is

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committing a crime and he can be arrested without a warrant and the contraband can
be seized.

SUGGESTED 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 in the house at 12 Shaw Boulevard
may not be lawfully seized, since they were not included in the description of the articles
to be seized by virtue of the search warrant. The search warrant described the articles
to be seized as firearms in the house of X located at 10 Shaw Boulevard.

Pursuing reports that great quantities of prohibited drugs are being smuggled at
nighttime through the shores of Cavite, the Southern Luzon Command set up
checkpoints at the end of the Cavite coastal road to search passing motor
vehicles. A 19-year old boy, who finished fifth grade, while driving, was stopped
by the authorities at the checkpoint. Without any objection from him, his car was
inspected, and the search yielded marijuana leaves hidden in the trunk
compartment of the car. The prohibited drug was promptly seized, and the boy
was brought to the police station for questioning.

Was the search without warrant legal? (1989 Bar Question)

SUGGESTED ANSWER:

No, the search was not valid, because there was no probable cause for conducting the
search. As held in Almeda Sanchez vs. United States, 413 U.S. 266, while a moving
vehicle can be searched without a warrant, there must still be probable cause. In the
case in question, there was nothing to indicate that marijuana leaves were hidden in the
trunk of the car. The mere fact that the boy did not object to the inspection of the car
does not constitute consent to the search. As ruled in People vs. Burgos, 144 SCRA 1,
the failure to object to a warrantless search does not constitute consent, especially in
the light of the fact.

SUGGESTED ANSWER:

Yes. The requirement of probable cause differs from case to case. In this one, since the
police agents are confronted with large-scale smuggling of prohibited drugs, existence
of which is of public knowledge, they can set up checkpoints at strategic places, in the
same way that of in a neighborhood a child is kidnapped, it is lawful to search cars and
vehicles leaving the neighborhood or village: This situation is also similar to warrantless
searches of moving vehicles in customs area, which searches have been upheld. (Papa
vs. Mago, 22 SCRA 857 (1968). The rule is based on practical necessity.

While serving sentence in Muntinlupa for the crime of theft, X stabbed dead one
of his guards. X was charged with murder. During his trial, the prosecution
introduced as evidence a letter written in prison by X to his wife tending to

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establish that the crime of murder was the result of premeditation. The letter was
written voluntarily. In the course of inspection, it was opened and read by a
warden pursuant to the rules of discipline of the Bureau of Prisons and
considering its contents, the letter was turned over to the prosecutor. The lawyer
of X objected to the presentation of the letter and moved for its return on the
ground that it violates the right of X against unlawful search and seizure.
Decide. (1989 Bar Question)

SUGGESTED ANSWER:

The objection of the lawyer must be sustained. Section 3(1), Article IV of the 1987
Constitution provides:

The privacy of communication and correspondence shall be inviolable except


upon lawful order of the court, or when public safety or order requires otherwise
as prescribed by law.

The privacy of communication and correspondence shall be inviolable except


upon lawful order of the court, or when public safety or order requires otherwise
as prescribed by law.

There was no court order which authorized the warden to read the letter of X. Neither
is there any law specifically authorizing the Bureau of Prisons to read the letter of X.
Under Section'3(1), Article III of the 1987 Constitution, to interfere with any
correspondence when there is no court order, there must be a law authorizing it in the
interest of public safety or order.

The ruling of the United States Supreme Court in the case of Stroud vs. United States,
251 U.S. 15 is not applicable here, because Section 3(1), Article III of the 1987
Constitution has no counterpart in the American Constitution.

Hence, in accordance with Section 3(2), Article III of the 1987 Constitution, the letter is
inadmissible in evidence.

SUGGESTED 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 illegal searches and seizures does
not extend to the confines of the prison. In Stroud vs. United States, 251 U.S. 15, the
United States Supreme Court held that letters voluntarily written by a prisoner and
examined by the warden which contained incriminatory statements were admissible in
evidence. Their inspection by the prison authorities did not violate the constitutional
prohibition against illegal searches and seizures. This is an established practice
reasonably designed to promote discipline within the penitentiary.

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One day a passenger bus conductor found a man's handbag left in the bus. When
the conductor opened the bag, he found inside a calling card with the owners
name (Dante Galang) and address, a few hundred peso bills, and a small plastic
bag containing a white powdery substance. He brought the powdery substance to
the National Bureau of Investigation for laboratory examination and it was
determined to be methamphetamine hydrochloride or shabu, a prohibited drug.
Dante Galang was subsequently traced and found and brought to the

NBI Office where he admitted ownership of the handbag and its contents. In the
course of the interrogation by NBI agents, and without the presence and
assistance of counsel, Galang was made to sign a receipt for the plastic bag and
its shabu contents. Galang was charged with illegal possession of prohibited
drugs and was convicted.

On appeal he contends that


The plastic bag and its contents are inadmissible in evidence being the
product of an illegal search and seizure; (3%) and

Decide the case with reasons. (2002 Bar Question)

SUGGESTED ANSWER:

The plastic bag and its contents are admissible in evidence, since it was not the
National Bureau of Investigation but the bus conductor who opened the bag and
brought it to the National Bureau of Investigation. As held in People v. Marti, 193 SCRA
57 (1991), the constitutional right against unreasonable search and seizure is a restraint
upon the government. It does not apply so as to require exclusion of evidence which
came into the possession of the Government through a search made by a private
citizen.

F. Privacy of communications and correspondence


1. Private and public communications
2. Intrusion, when allowed
3. Writ of habeasdata

Under Article III, Section 2 of the Bill of Rights, which provides for the exclusion
of evidence that violate the right to privacy of communication and
correspondence, to come under the exclusionary rule, the evidence must be
obtained by:
a. private individuals acting on their own;
b. government agents;
c. private individuals acting on orders of superiors;
d. former high government officials.

In a criminal prosecution for murder, the prosecution presented, as witness, an


employee of the Manila Hotel who produced in court a videotape recording

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showing the heated exchange between the accused and the victim that took place
at the lobby of the hotel barely 30 minutes before the killing. The accused objects
to the admission of the videotape recording on the ground that it was taken
without his knowledge or consent, in violation of his right to privacy and the Anti-
Wire Tapping law. Resolve the objection with reasons. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

The objection should be overruled. What the law prohibits is the overhearing,
intercepting, and recording of private communications. Since the exchange of heated
words was not private, its videotape recording is not prohibited (Navarro v. Court of
Appeals, 313 SCRA 153 [1999]).

The police had suspicions that Juan Samson, member of the subversive New
Proletarian Army, was using the mail for propaganda purposes in gaining new
adherents to its cause. The Chief of Police of Bantolan, Lanao del Sur ordered the
Postmaster of the town to intercept and open all mail addressed to and coming
from Juan Samson in the interest of the national security. Was the order of the
Chief of Police valid? [5%] (1998 Bar Question)

SUGGESTED ANSWER:

No, the order of the Chief of Police is not valid, because there is no law which
authorizes him to order the Postmaster to open the letters addressed to and coming
from Juan Samson. An official in the Executive Department cannot interfere with the
privacy of correspondence and communication in the absence of a law authorizing him
to do so or a lawful order of the court.

Section 3(1), Article III of the Constitution provides:

"The privacy of communication and correspondence shall be inviolable


except upon lawful order of the court, or when public safety or order requires
otherwise as prescribed by law."

The privacy of communication and correspondence shall be inviolable except


upon lawful order of the court or when (2011 BAR)
(A) public safety or public health requires otherwise as prescribed by law.
(B) dictated by the need to maintain public peace and order.
(C) public safety or order requires otherwise as prescribed by law.
(D) public safety or order requires otherwise as determined by the
President.

"A" has a telephone line with an extension. One day, "A" was talking to "B" over
the 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 the conversation wherein "B" confidentially admitted

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that with evident premeditation, he (B) killed "D" for having cheated him in their
business partnership. "B" was not aware that the telephone conversation was
being tape- recorded.

In the criminal case against "B" for murder, is the tape- recorded conversation
containing his admission admissible in evidence? Why? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

The tape-recorded conversation is not admissible 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 the conversation, inadmissible in evidence. In addition, the taping of the
conversation violated the guarantee of privacy of communications enunciated in Section
3, Article m of the Constitution.

Mariano was arrested by the NBI as a suspect in the shopping mall bombings.
Advised of his rights, Mariano asked for the assistance of his relative, Atty.
Santos. The NBI noticed that Atty. Santos was inexperienced, incompetent and
inattentive. Deeming him unsuited to protect the rights of Mariano, the NBI
dismissed Atty. Santos. Appointed in his place was Atty. Barroso, a bar
topnotcher who was in the premises visiting a relative. Atty. Barroso ably
assisted Mariano when the latter gave a statement. However. Mariano assailed the
investigation claiming that he was deprived of counsel of his choice.

Was the NBI correct in dismissing Atty. Santos, and appointing Atty. Barroso in
his stead? Is Marianos statement, made with the assistance of Atty. Barroso,
admissible in evidence? (5%) (2005 Bar Question)

SUGGESTED ANSWER:

Since Atty. Santos was chosen by Mariano himself, the National Bureau of Investigation
had no authority to dismiss him. [People v. Jimenez , 204 SCRA 719 (1991)]. If he was
incompetent, the National Bureau of Investigation should have stopped the
investigation. The statement of Mariano made with the assistance of Atty. Barrosa is not
admissible in evidence if the person he visited is connected with the National Bureau of
Investigation. Atty. Barroso is not of Marianos own choice. [People v. Sahagun, 274
SCRA 208 (1997)].

Emilio had long suspected that Alvin, his employee, had been passing trade
secrets to his competitor. Randy, but he had no proof. One day, Emilio broke
open the desk of Alvin and discovered a letter wherein Randy thanked Alvin for
having passed on to him vital trade secrets of Emilio. Enclosed in the letter was a
check for P50.000.00 drawn against the account of Randy and payable to Alvin.
Emilio then dismissed Alvin from his employment. Emilio's proof of Alvin's
perfidy are the said letter and check which are objected to as inadmissible for

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having been obtained through an illegal search. Alvin filed a suit assailing his
dismissal.

Rule on the admissibility of the letter and check. (5%) (2005 Bar Question)

SUGGESTED ANSWER:

The check is admissible in evidence against Alvin, because the constitutional prohibition
against unreasonable searches and seizures is a restraint upon the government and not
upon private parties. [Waterous Drug Corporation v. National Labor Relations
Commission, 280 SCRA 735 (1997)].

However, the letter is inadmissible as evidence against Alvin, because the constitutional
provision declaring that the privacy of communication and correspondence is inviolable
is applicable to private parties. The letter was seized without a lawful court order, as
required by Section 3(1), Article EH of the Constitution. Zulueta v. Court of Appeals,
253 SCRA 699 (1996)

G. Freedom of expression
1. Concept and scope
a. Prior restraint (censorship)
b. Subsequent punishment
2. Content-based and content-neutral regulations
a. Tests
b. Applications
3. Facial challenges and the overbreadth doctrine
4. Tests
5. State regulation of different types of mass media
6. Commercial speech
7. Private vs. government speech
8. Heckler's veto

May the Commission on Elections (COMELEC) prohibit the posting of decals and
stickers on mobile places, public or private, such as on a private vehicle, and
limit their location only to the authorized posting areas that the COMELEC itself
fixes? Explain. (2003 Bar Question)

SUGGESTED ANSWER:

According to Adionq v. Commission on Elections. 207 SCRA 712 [1992], the


prohibition is unconstitutional. It curtails the freedom of expression of individuals who
wish to express their preference for a candidate by posting decals and stickers on their
cars and to convince others to agree with them. It is also overbroad, because it
encompasses private property and constitutes deprivation of property without due
process of law. Ownership of property includes the right to use. The prohibition is
censorship, which cannot be justified.

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An example of a content based restraint on free speech is a regulation


prescribing (2011 BAR)
(A) maximum tolerance of pro-government demonstrations.
(B) a no rally-no permit policy.
(C) when, where, and how lawful assemblies are to be conducted.
(D) calibrated response to rallies that have become violent.

A Commission on Elections (COMELEC) resolution provides that political parties


supporting a common set of candidates shall be allowed to purchase jointly air
time and the aggregate amount of advertising space purchased for campaign
purposes shall not exceed that allotted to other political parties or groups that
nominated only one set of candidates. The resolution is challenged as a violation
of the freedom of speech and of the press. Is the resolution consti-tutionally
defensible? Explain. (1989 Bar Question)

SUGGESTED ANSWER:

Yes, the resolution is constitutionally defensible. Under Section 4, Article IX C of the


1987 Constitution, during the election period the Commission on Elections may
supervise or regulate the media of communication or information to ensure equal
opportunity, time, and space among candidates with the objective of holding free,
orderly, honest, peaceful, and credible elections. To allow candidates which are
supported by more than one political party to purchase more air time and advertising
space than candidates supported by one political party only will deprive the latter of
equal time and space in the media.

SUGGESTED ANSWER:

No. Although the expenditure limitation applies only to the purchase of air time, thus
leaving political parties free to spend for other forms of campaign, the limitation
nonetheless results in a direct and substantial reduction of the quantity of political
speech by restricting the number of issues that can be discussed, the depth of their
discussion and the size of the audience that can be reached, through the broadcast
media. Since the purpose of the Free Speech Clause is to promote the widest possible
dissemination of information, and the reality is that to do this requires the expenditure of
money, a limitation on expenditure for this purpose cannot be justified, not even for the
purpose of equalizing the opportunity of political candidates. This is the ruling in Buckley
vs. Valeo, 424 U.S. 1 (1976), which invalidated a law limiting the expenditures of
candidates for campaigning in the United States. In the Philippines, a provision of the
Tanada-Singson Law, limiting the period for campaigning, was nearly invalidated on this
same principle, except that the majority of court lacked one more vote to make their
decision effective. (See Gonzalez vs. Comelec, 27 SCRA 835 (1969).

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Congress passes a law prohibiting television stations from airing any-commercial


advertisement which promotes tobacco or in any way glamorizes the
consumption of tobacco products.

This legislation was passed in response to findings by the Department of Health


about the alarming rise in lung diseases in the country. The World Health
Organization has also reported that U.S. tobacco companies have shifted
marketing efforts to the Third World due to dwindling sales in the health-
conscious American market.

Cowboy Levy's, a jeans company, recently released an advertisement featuring


model Richard Burgos wearing Levys jackets and jeans and holding a pack of
Marlboro cigarettes.

The Asian Broadcasting Network (ABN), a privately owned television station,


refuses to air the advertisement in compliance with the law.

Assume that such refusal abridges the freedom of speech. Does the
constitutional prohibition against the abridgement of the freedom of speech apply
to acts done by ABN, a private corporation? Explain. (1992 Bar Question)

May Cowboy Levy's, a private corporation, invoke the free speech guarantee in its
favor? Explain. (1992 Bar Question)

SUGGESTED ANSWER:

The constitutional prohibition against the freedom of speech does not apply to ABN, a
private corporation. As stated in Hudgens vs. National Labor Relations Board, 424 U.S.
507, the constitutional guarantee of freedom of speech is a guarantee only against
abridgement by the government. It does not therefore apply against private parties.

SUGGESTED ANSWER:

Since ABN has a franchise, it may be considered an agent of the government by


complying with the law and refusing to air the advertisement, it aligned itself with the
government. Thus it rendered itself liable for a lawsuit which is based on abridgement of
the freedom of speech. Under Article 32 of the Civil Code, even private parties may be
liable for damages for impairment of the freedom of speech.

Cowboy Levys may invoke the constitutional guarantee of freedom of speech in its
favor. In First National Bank of Boston vs. Bellotti 435 U.S. 765, it was ruled that this
guarantee extends to corporations. In Virginia State Board, of Pharmacy vs. Virginia
Citizens Consumer Council. Inc.. 425 U.S. 748, it was held that this right extends to
commercial advertisements. In Ayer Productions Pty. Ltd. vs. Capulong, 160 SCRA
861, the Supreme Court held that even if the production of a film is a commercial activity
that is expected to yield profits, it is covered by the guarantee of freedom of speech.

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The Destilleria Felipe Segundo is famous for its 15-year old rum, which it has
produced and marketed successfully for the past 70 years. Its latest commercial
advertisement uses the line:

Nakatikim ka na ba ng kinse anyos? Very soon, activist groups promoting


womens and childrens rights were up in Arms against the advertisement.

All advertising companies in the Philippines have formed an association, the


Philippine Advertising Council, and have agreed to abide by all the ethical
guidelines and decisions by the Council. In response to the protests, the Council
orders the pull -out of the kinse anyos advertising campaign. Can Destilleria
Felipe Segundo claim that its constitutional rights are thus infringed? (2007 Bar
Question)

SUGGESTED ANSWER:

Destilleria Felipe Segundo cannot claim that its constitutional rights were infringed. In
this case, a private association formed by advertising companies for self regulation was
the one who ordered that the advertisement be pulled out, because Destilleria did not
comply with the associations ethical guidelines. The guarantee of freedom of speech is
a limitation on state action and not on the action of private parties (Lloyd Corporation v.
Tanner, 407 U.S. 551 [1972]). The mass media are private enterprises, and their refusal
to accept any advertisement does not violate freedom of speech (Times-Picayune
Publishing Comp any v. United States, 345 U.S. 594 [1953]; Columbia Broadcasting
System, Inc. v. Democrat Control Committee, 412 U.S. 94 [1973])

One of the militant groups, the Amazing Amazonas, call on all government-owned
and controlled corporations (GO.CC) to boycott any newspaper, radio or TV
station that carries the kinse anyos advertisements. They call on all
government nominees in sequestered corporations to block any advertising
funds allocated for any such newspaper, radio or TV station. Can the GOCCs and
sequestered corporations validly comply? (2007 Bar Question)

SUGGESTED ANSWER:

The government-owned and controlled corporations and the government nominees in


sequestered corporations cannot block any advertising funds allocated for any
newspaper, radio or television station which carries the advertisements of Destilleria
Felipe Segundo. Since they are government entities and officers, they are bound by the
guarantee of freedom of speech. Freedom of speech extends to commercial
advertisements (Metromedia, Inc. v. San Diego, 453 U.S. 490 [1981]). The mere fact
that an advertisement is offensive cannot justify its suppression (Carey v. Population
Services International, 431 U.S. 678 [1977]). The blocking of advertising funds is a
threat intended to prevent the exercise of the freedom of speech of Destilleria Felipe
Segundo through the fear of consequences. Such a threat qualifies as prior restraint

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(Rosden, The Law of Advertising, Vol. I, pp. 5-13.

Ten public school teachers of Caloocan City left their classrooms to join a strike,
which lasted for one month, to ask for teachers' benefits.

The Department of Education, Culture and Sports charged them administratively,


for which reason they were required to answer and formally investigated by a
committee composed of the Division Superintendent of Schools as Chairman, the
Division Supervisor as member, and a teacher, as another member. On the basis
of the evidence adduced at the formal investigation which amply established their
guilt, the Director rendered a decision meting out to them the penalty of removal
from office. The decision was affirmed by the DECS Secretary and the Civil
Service Commission.

On appeal, they reiterated the arguments they raised before the administrative
bodies, namely: Their strike was an exercise of their constitutional right to
peaceful assembly and to petition the government for redress of grievances.
(2002 Bar Question)

SUGGESTED ANSWER:

According to De la Cruz v. Court of Appeals, 305 SCRA 303 (1999), the argument of
Bar Question the teachers that they were merely exercising their constitutional right to
peaceful assembly and to petition the government for redress of grievance cannot be
sustained, because such rights must be exercised within reasonable limits. When such
rights were exercised on regular school days instead of during the free time of the
teachers, the teachers committed acts prejudicial to the best interests of the service.

Executive Secretary Chua issued an order prohibiting the holding of rallies along
Mendiola because it hampers the traffic flow to Malacanang. A group of militants
questioned the order for being unconstitutional and filed a case against Secretary
Chua to restrain him from enforcing the order. Secretary Chua raised state
immunity from suit claiming that the state cannot be sued without its consent. Is
the claim correct? (2011 BAR)
(A) No, public officers may be sued to restrain him from enforcing an act
claimed to be unconstitutional.
(B) Yes, the order was not a proprietary act of the government.
(C) No, only the president may raise the defense of immunity from suit.
(D) Yes, Secretary Chua cannot be sued for acts done in pursuance to his
public office.

The Samahan Ng Mga Mahihirap (SM) filed with the Office of the City Mayor of
Manila an application for a permit to hold a rally on Mendiola Street on September
5, 2006 from 10:00 a.m. to 3:00 p.m. to protest the political killings of journalists.
However, the City Mayor denied their application on the ground that a rally at the
time and place applied for will block the traffic in the San Miguel and Quiapo

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Districts. He suggested the Liwasang Bonifacio, which has been designated a


Freedom Park, as venue for the rally.

Does the SM have a remedy to contest the denial of its application for a permit?
2.5% (2006 Bar Question)

SUGGESTED ANSWER:

The Samahan ng Mga Mahihirap may contest the denial of its application for a permit by
filing an action in an appropriate court of law (Section 6(e) Batas Pambansa (BP) Big.
880, The Public Assembly Act of 1985).

SUGGESTED ANSWER:

No, SM cannot contest the denial of a permit to rally. The right of the people peaceably
to assemble for redress of grievances is constitutionally guaranteed, but is subject to
time, place and manner regulations. These constraints are content-neutral and entail
only the minimum test of rationality (and not to heightened scrutiny). The City Mayor
has denied the permit on the ground that it will block traffic in the San Miguel and
Quiapo districts. This is a proper time, place and manner regulation expressly
authorized by BP 880, the Public Assembly act of 1985. SM may argue that their rally
will not be held during rush hour", and merely from 10 am to 3 pm; however, since only
the minimum test of rationality is applied, the courts may not second-guess the local
government unit.

Does the availability of a Freedom Park justify the denial of SMs application for a
permit? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

The availability of a Freedom Park does not by itself justify the denial of the application
for a permit, because a rally may be held in another public place, such as, in a campus
of a government-owned or operated educational institution or even in a private property,
unless there is a clear and present danger of a substantive evil which the State has the
right to prevent (Section 4, BP 880).

Is the requirement to apply for a permit to hold a rally a prior restraint on freedom
of speech and assembly? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

The requirement to apply for a permit to hold a rally is not a prior restraint on freedom of
speech and assembly, because the requirement merely regulates the exercise of the
right as to the time, place and manner of the rally to the extent needed to avoid a clear
and present danger of the substantive evil which the State has the right to prevent. The
requirement is not content-based, since the content of the speech is not relevant to the

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regulation. (Bayan v. Ermita, G.R. No. 169777 and 169838, April 26, 2006, 488 SCRA
226, [2006]).

Assuming that despite the denial of SMs application for a permit, its members
hold a rally, prompting the police to arrest them. Are the arrests without judicial
warrants lawful? 2.5% (2006 Bar Question)

SUGGESTED ANSWER:

Only the leader or organizer can be arrested without a warrant during the rally for
holding a rally without a permit, but no person can be arrested for merely participating in
or attending the rally if it was peaceful (Section 13(a), BP 880). The rally should just be
peacefully dispersed (Section 12, BP 880).

Batas Pambansa 880, the Public Assembly Law of 1985, regulates the conduct of
all protest rallies in the Philippines.

Salakay, Bayan! held a protest rally and planned to march from Quezon City to
Luneta in Manila. They received a permit from the Mayor of Quezon City, but not
from the Mayor of Manila. They were able to march in Quezon City and up to the
boundary separating it from the City of Manila. Three meters after crossing the
boundary, the Manila Police stopped them for posing a danger to public safety.
Was this a valid exercise,of police power? (2007 Bar Question)

SUGGESTED ANSWER:

Since the protesters merely reached three meters beyond the boundary of Quezon City,
the police authorities in Manila should not have stopped them, as there was no clear
and present danger to public order. In accordance with the policy of maximum
tolerance, the police authorities should have asked the protesters to disperse and if they
refused, the public assembly may be dispersed peacefully.

SUGGESTED ANSWER:

The police officers may disperse the rally peacefully, because the permit from the Mayor
of Quezon City is limited to Quezon City only and does not extend to the City of Manila
and no permit was obtained from the Mayor of Manila (Batas Pambansa Big. 880, sec.
13[a]).

The security police of the Southern Luzon Expressway spotted a caravan of 20


vehicles, with paper banners taped on their sides and protesting graft and
corruption in government. They were driving at 50 kilometers per hour in a 40-90
kilometers per hour zone. Some banners had been blown off by the wind, and
posed a hazard to other motorists. They were stopped by the security police. The
protesters then proceeded to march instead, sandwiched between the caravan
vehicles. They were also stopped by the security force. May the security police

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validly stop the vehicles and the marchers? (2007 Bar Question)

SUGGESTED ANSWER:

In accordance with the policy of maximum tolerance, the security policy should not have
stopped the protesters. They should have simply asked the protesters to take adequate
steps to prevent their banners from being blown off, such as rolling them up while they
were in the expressway and required the protesters to board their vehicles and proceed
on their way.

SUGGESTED ANSWER:

The security police may stop the protesters to prevent public inconvenience, because
they were using the expressway for an appreciable length of time by marching while
sandwiched between the caravan vehicles (Batas Pambansa Blg. 880, sec. 7).

Nationwide protests have erupted over rising gas prices, including disruptive
demonstrations in many universities throughout the country. The Metro Manila
State University, a public university, adopted a university-wide circular
prohibiting public mass demonstrations and rallies within the campus. Offended
by the circular, militant students spread word that on the following Friday, all
students were to wear black T-shirts as a symbol of their protest both against
high gas prices and the university ban on demonstrations. The effort was only
moderately successful, with around 30% of the students heeding the call.
Nonetheless, university officials were outraged and compelled the student
leaders to explain why they should not be expelled for violating the circular
against demonstrations.

The student leaders approached you for legal advice They contended that they
should not be expelled since they did not violate the circular, their protest action
being neither a demonstration nor a rally since all they did was wear black T-
shirts. What would you advise the students? (6%) (2008 Bar Question)

SUGGESTED ANSWER:

I shall advise the students that the circular is void. The constitutional guarantee of
freedom of speech and peaceful assembly extends to students within the premises of
the Metro Manila State University (Malabanan v. Ramente, 129 SCRA 359 [1984]).

I shall also advise the students that their wearing of black T-shirts as a sign of protest is
covered by their freedom of speech, because it is closely akin to free speech (Tinker v.
DesMoines Community School District, 393 U.S. 503).

The STAR, a national daily newspaper, carried an exclusive report stating that
Senator XX received a house and lot located at YY Street, Makati, in consideration
for his vote cutting cigarette taxes by 50%. The Senator sued the STAR, its

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reporter, editor and publisher for libel, claiming the report was completely false
and malicious. According to the Senator, there is no YY Street in Makati, and the
tax cut was only 20%. He claimed one million pesos in damages.

The defendants denied actual malice," claiming privileged communication and


absolute freedom of the press to report on public officials and matters of public
concern. If there was any error, the STAR said it would publish the correction
promptly.

Is there actual malice" in STARS reportage? How is actual malice" defined?


Are the defendants liable for damages? (5%) (2004 Bar Question)

SUGGESTED ANSWER:

Since Senator XX is a public person and the questioned imputation is directed against
him in his public capacity, in this case actual malice means the statement was made
with knowledge that it was false or with reckless disregard of whether it was false or not
{Borjal v. Court of Appeals, 301 SCRA 1 [1999J). Since it is a matter of public
knowledge that there is no YY Street in Makati, the publication was made with reckless
disregard of whether or not it is false. The defendants may be held liable for damages.

The Secretary of Transportation and Communications has warned radio station


operators against selling blocked time, on the claim that the time covered thereby
are often used by those buying them to attack the present administration.
Assume that the department implements this warning and orders owners and
operators of radio stations not to sell blocked time to interested parties without
prior clearance from the Department of Transportation and Communications.

You are approached by an interested party affected adversely by that order of the
Secretary of Transportation and Communications. What would you do regarding
that ban on the sale of blocked time? Explain your answer. (1988 Bar Question)

SUGGESTED ANSWER:

I would challenge its validity in court on the ground that it constitutes a prior restraint on
freedom of expression. Such a limitation is valid only in exceptional cases, such as
where the purpose is to prevent actual obstruction to recruitment of service or the
sailing dates of transports or the number and location of troops, or for the purpose of
enforcing the primary requirements of decency or the security of community life. (Near
v. Minnesota, 283 U.S. 697 (1931)). Attacks on the government, on the other hand,
cannot justify prior restraints. For as has been pointed out, the interest of society and
the maintenance of good government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men
in public life may suffer under a hostile and an unjust accusation; the wound can be
assuaged with the balm of a clear conscience. (United States v. Bustos, 37 Phil. 741

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(1918)).

The parties adversely affected may also disregard the regulation as being on its face
void. As has been held, any system of prior restraints of expression comes to the court
bearing a heavy presumption against its constitutional validity, and the government
thus carries a heavy burden of showing justification for the imposition of such a
restraint. (New York Times Co. v. United States, 403 U.S. 713
(1971)).

The usual presumption of validity that inheres in legislation is reversed in the case of
laws imposing prior restraint on freedom of expression.

In the morning of August 28, 1987, during the height of the fighting at Channel 4
and Camelot Hotel, the military closed Radio Station XX, which was excitedly
reporting the successes of the rebels and movements towards Manila and troops
friendly to the rebels. The reports were correct and factual. On October 6, 1987,
after normalcy had returned and the Government had full control of the situation,
the National Telecommunications Commission, without notice and hearing, but
merely on the basis of the report of the military, cancelled the franchise of station
XX.

Discuss the legality of: (1987 Bar Question)

(a) The action taken against the station on August 28, 1987;
(b) The cancellation of the franchise of the station on October 6, 1987.

SUGGESTED ANSWER:

(a) The closing down of Radio Station XX during the fighting is permissible. With respect
news media, wartime censorship has been upheld on the ground that when a nation is
at war many things that might be said in time of peace are such a hindrance to its efforts
that their utterance will not be endured so long as men fight and that no Court could
regard them as protected by any constitutional right. The security of community life
may be protected against incitements to acts of violence and the overthrow by force of
orderly government. (Near v. Minnesota, 283 U.S. 697 (1931), quoting Justice Holmes
opinion in Schenck v. United States, 249 U.S. 47 (1919); New York Times v.

United States, 403 U.S. 713 (1971)) With greater reason then may censorship in times
of emergency be justified in the case of broadcast media since their freedom is
somewhat lesser in scope. The impact of the vibrant speech, as Justice Gutierrez said,
is forceful and immediate. Unlike readers of the printed work, a radio audience has
lesser opportunity to cogitate, analyze and reject the utterance. (Eastern Broadcasting
Corp (DYRE) v. Dans, 137 SCRA 647 (1985)) In FCC v. Pacifica Foundation, 438 U.S.
726 (1978), it was held that of all forms of communication, it is broadcasting which has
received the most limited First Amendment Protection.

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(b) But the cancellation of the franchise of the station on October 6, 1987, without prior
notice and hearing, is void. As held in Eastern Broadcasting Corp. (DYRE) v. Dans. 137
SCRA 647 (1985), the cardinal primary requirements in administrative proceedings (one
of which is that the parties must first be heard) as laid down in Ang Tibay v. CIR, 69
Phil. 635 (1940) must be observed in closing a radio station because radio broadcasts
are a form of constitutionally-protected expression.

The KKK Television Network (KKK-TV) aired the documentary, Case Law: How
the Supreme Court Decides, without obtaining the necessary permit required by
P.D. 1986. Consequently, the Movie and Television Review and Classification
Board (MTRCB) suspended the airing of KKK- TV programs. MTRCB declared that
under P.D. 1986, it has the power of prior review over all television programs,
except newsreels and programs by the Government, and the subject
documentary does not fall under either of these two classes. The suspension
order was ostensibly based on Memorandum Circular No. 98-17 which grants
MTRCB the authority to issue such an order.

KKK-TV filed a certiorari petition in court, raising the following issues:

The act of MTRCB constitutes prior restraint and violates the constitutionally
guaranteed freedom of expression; (3%) (2009 Bar Question)

SUGGESTED ANSWER:

The contention of KKK-TV is not tenable. The prior restraint is a valid exercise of police
power. Television is a medium which reaches even the eyes and ears of children
(Iglesia ni Cristo v. Court of Appeals, 259 SCRA 529 [1996]).

ALTERNATIVE ANSWER:

The memo circular is unconstitutional. The act of the Movie and Television Review and
Classification Board constitutes prior restraint and violates freedom of expression. Any
system of prior restraint has against it a heavy presumption against its validity. Prior
restraint is an abridgment of the freedom of expression. There is no showing that the
airing of the programs would constitute a clear and present danger (New York Times v.
United States, 403 U.S. 713 [1971]).

While Memorandum Circular No. 98-17 was issued and published in a newspaper
of general circulation, a copy thereof was never filed with the Office of the
National Register of the University of the Philippines Law Center. (2%) Resolve.
(2009 Bar Question)

SUGGESTED ANSWER:

In accordance with Chapter 2, Book VII of the Administrative Code of 1987,


Memorandum Circular No. 98-17 must be filed with the University of the Philippines Law

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Center. It cannot be enforced until it has been filed with the University of the Philippines
Law Center (Pilipinas Shell Petroleum Corporation v. Commissioner of Internal
Revenue, 541 SCRA 316 [2007]).

"Chilling effect" is a concept used in the area of constitutional litigation affecting:


(2012 BAR EXAMS)

a. protected speech;
b. protected executive privilege;
c. protected legislative discretion;
d. protected judicial discretion

SUGGESTED ANSWER:

a. CHAVEZ VS. GONZALES, 545 SCRA 411

In a protest rally' along Padre Faura Street, Manila, Pedrong Pula took up the
stage and began shouting "kayong mga kurakot kayo! Magsi-resign na kayo!
Kung hindi, manggugulo kami dito!" ("you corrupt officials, you better resign
now, or else we will cause trouble here!") simultaneously, he brought out a rock
the size of a fist and pretended to hurl it at the flagpole area of a government
building. He did not actually throw the rock. (2012 BAR EXAMS)

a. Police officers who were monitoring the situation immediately approached


Pedrong Pula and arrested him. He was prosecuted for seditious speech and was
convicted. On appeal, Pedrong Pula argued he was merely exercising his freedom
of speech and freedom of expression guaranteed by the Bill of Rights. Decide
with reasons. (5%)

b. xxx;

c. What are the two (2) basic prohibitions of the freedom of speech and of the
press clause? Explain. (2%)

SUGGESTED ANSWER:

A. Pedrong Pula should be acquitted, his freedom of speech should not be limited in the
absence of a clear and present danger of a substantive evil that the state had the right
to prevent. He pretended to hurl a rock but did not actually throw it. He did not commit
any act of lawless violence. (David Vs. Macapagal Arroyo, 489 Scra 160)

B. xxx

C. The two basic prohibitions on freedom of speech and freedom of the press are prior
restraint and subsequent punishment. (Chavez Vs Gonzales, 545 Scra 411)

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The complementing regime that best characterizes the guarantees of freedom of


speech and of the press are: (2012 BAR EXAMS)
a. prior punishment and moderate punishment;
b. prior censorship and subsequent remedies;
c. no prior restraint and subsequent punishment;
d. no prior restraint and no subsequent punishment.

SUGGESTED ANSWER:

(D) CHAVEZ VS GONZALES, 545 SCRA 441

Surveys Galore is an outfit involved in conducting nationwide surveys. In one


such survey, it asked the people about the degree of trust and confidence they
had in several institutions of the government. When the results came in, the
judiciary was shown to be less trusted than most of the government offices. The
results were then published by the mass media. Assension, a trial court judge,
felt particularly offended by the news. He then issued a show-cause order against
Surveys Galore directing the survey entity to explain why it should not be cited in
contempt for coming up with such a survey and publishing the results which
were so unflattering and degrading to the dignity of the judiciary. Surveys Galore
immediately assailed the show-cause order of Judge Assension, arguing that it is
violative of the constitutional guaranty of freedom of expression.

Is Surveys Galores petition meritorious? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

Yes. Surveys Galores petition is meritorious. Unwarranted attacks on the dignity of the
courts cannot be disguised as free speech, for the exercise of said right cannot be used
to impair the independence and efficiency of courts or public respect therefore and
confidence therein . Without the sub judice rule and the contempt power, the courts will
be powerless to protect their integrity and independence that are essential in the orderly
and effective dispensation and administration of justice.

This, of course, is not meant to stifle all forms of criticism against the court. As the third
branch of the government, the courts remain accountable to the people. The peoples
freedom to criticize the government includes the right to criticize the courts, their
proceedings and decisions. This is the principle of open justice, which is fundamental to
our democratic society and ensures that (a) there is a safeguard against judicial
arbitrariness or idiosyncrasy, and that (b) the publics confidence in the administration of
justice is maintained.[ The criticism must, however, be fair, made in good faith, and not
spill over the walls of decency and propriety. And to enhance the open court principle
and allow the people to make fair and reasoned criticism of the courts, the sub judice
rule excludes from its coverage fair and accurate reports (without comment) of what
have actually taken place in open court.

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In sum, the court, in a pending litigation, must be shielded from embarrassment or


influence in its all-important duty of deciding the case. Any publication pending a suit,
reflecting upon the court, the parties, the officers of the court, the counsel, etc., with
reference to the suit, or tending to influence the decision of the controversy, is contempt
of court and is punishable. The resulting (but temporary) curtailment of speech because
of the sub judice rule is necessary and justified by the more compelling interests to
uphold the rights of the accused and promote the fair and orderly administration of
justice.

However, in the cae of Surveys Galore there is no pending case before the court. Thus,
the subjudice rule does not apply. Surveys Galores petition is meritorious.

The guarantee of freedom of expression signifies: (1%) 2014 BAR EXAMS


(A) absolute freedom to express oneself
(B) freedom from prior restraint
(C) right to freely speak on anything without limitations
(D) the right of the government to regulate speech
(E) the right of broadcast stations to air any program.

SUGGESTED ANSWER:

(A) Freedom from prior restraint

a. What is the doctrine of "overbreath"? In what context can it be correctly


applied? Not correctly applied? Explain (5%)

b. What is the doctrine of "void for vagueness"? In what context can it be


correctly applied? Not correctly applied? Explain (5%)(2012 BAR EXAMS)

SUGGESTED ANSWER:

a. A Statement Is Overbroad When A Governmental Purpose To Control Or Prevent


Activities Constitutionally Subject To State Regulations Is Sought To Be Achieved By
Means Which Sweep Unnecessarily Broadly And Invade The Area Of Protected
Freedom. It Applies Both To Free Speech Case And Penal Statutes. However, A Facial
Challenge On The Ground Of Overbreadth Can Only Be Made In Free Speech Cases
Because Of Its Chilling Effect Upon Protected Speech. A Facial Challenge On The
Ground Of Overbreadth Is Not Applicable To Challenge On The Ground Of Overbreadth
Is Not Applicable To Penal Statutes, Because In General They Have An In Terrorem
Effect. (Southern Hemisphere Engagement Network, Inc. Vs Anti Terrorism Council,
632 Scra 146.)

Note: The Word Overbreath Should Read Overbreadth Because Breath Has No Limit
Especially If It Is Bad Breath.

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b. A Statute Is Vague When It Lacks Comprehensible Standards That Men Of Common


Intelligence That Guess Its Meaning And Differ As To Its Application. Its Applies To
Both Free Speech Cases And Penal Statues. However, A Facial Challenge On The
Ground Of Vagueness Can Be Made Only In Free Speech Cases. It Does Not Apply To
Penal Statutes. (Southern Hemisphere Engagement Network, Inc. Vs. Anti- Terrorism
Council, 632 Scra 146.)

In keeping with the modern age of instant and incessant information and
transformation, Congress passed Cybercrime Prevention Act to regulate access
to and use of the amenities of the cyberspace. While ostensibly the law is
intended to protect the interests of society, some of its provisions were also seen
as impermissibly invading and impairing widely cherished liberties of the people
particularly the freedom of expression. Before the law could even be
implemented, petitions were filed in the Supreme Court questioning said
provisions by people who felt threatened, for themselves as well as for the benefit
of others who may be similarly affected but not minded enough to challenge the
law. The Solicitor General countered that there is no basis for the exercise of the
power of judicial review since there has yet been no violation of the law, and
therefore, there is no actual case or controversy to speak of, aside from the fact
that the petitioners have no locus standi since they do not claim to be in
imminent danger of being prosecuted under the law. Can the Court proceed to
decide the case even if the law has not yet become effective? (4%) 2014 BAR
EXAMS

SUGGESTED ANSWER:

The Supreme Court can proceed to decide the case even if the law has not yet become
effective. Since the petitions filed sought to nullify the Cybercrime Prevention Act,
Because it violated several provisions of the Bill of Rights, the Supreme Court became
duty-bound to settle the dispute (Tanada v. Angara, 272 SCRA 18 (1997). Since it is
alleged that the CYbercrime Prevention Act violates various provisions of the Bill of
Rights, including freedom of speech, freedom of the press, and the right against
unreasonable searches and seizures, the issues raised are of paramount public interest
of transcendental importance and with far-reaching constitutional implications that justify
dispensation with locus standi and exercise of the power of judicial review by the
Supreme Court (Chavez v. Gonzalesm 545 Scra 441 (2008). Jurisprudence provides
that locus standi is not required when the action was filed to prevent a chilling effect on
the exercise of the right to freedom of expression and overbreadth.

The overbreadth doctrine posits that the government: (1%)2014 BAR EXAMS
(A) must know the extent of its power
(B) when it exercises too much power it is like someone with bad breath it is not
healthy to society
(C) can enact laws which can reach outside its borders, like long-arm statues
(D) the government is prohibited in banning unprotected speech if a substantial
amount of protected speech is restrained or chilled in the process

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SUGGESTED ANSWER:

(D) The government is prohibited in banning unprotected speech if a substantial amount


of protected speech is restrained or chilled in the process.

When is a facial challenge to the constitutionality of a law on the ground of


violation of the Bill of Rights traditionally allowed? Explain your answer. (3%)
2015 BAR EXAMS

ANSWER:
In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statues
concerning not only protected speech, but also all other rights in the First Amendment.

This include religious freedom, freedom of the press, and the rights of the people to
peaceably assemble, and to petition the Government for a redress of grievances. After
all, the fundamental right to religious freedom, freedom of the press and peaceful
assembly are but component rights of the right to ones freedom of expression, as they
are modes which ones thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has withheld the
application of facial challenges to strictly penal statues, it has expanded its scope to
cover statues not only regulating free speech, but also those involving religious
freedom, and other fundamentals rights. The underlying reason for this modification is
simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction,
is mandated by the Fundamental Law not only to settle actual controversies involving
rights which are legally demandable and enforceable, but also to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. (Imbong v.
Ochoa, G.R. No. 204819, April 8, 2014, 721 SCRA 146)

The Gay, Bisexual and Transgender Youth Association (GBTYA), an organization of


gay, bisexual, and transgender persons, filed for accreditation with the COMELEC to
join the forthcoming party-list elections. The COMELEC denied the application for
accreditation on the ground that GBTY A espouses immorality which offends religious
dogmas. GBTY A challenges the denial of its application based on moral grounds
because it violates its right to equal protection of the law.

Which one of the following is not a proper test in cases of challenges to


governmental acts that may violate protected speech: (2012 BAR EXAMS)
a. clear and present danger;
b. balancing of interests;
c. reasonable relation;
d. dangerous tendency.

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SUGGESTED ANSWER:

(D) CHAVEZ VS. GONZALES, 545 SCRA 411

Commercial speech is entitled to: (2012 BAR EXAMS)


a. more protection compared to other constitutionally guaranteed expression;
b. equal protection compared to other constitutionally guaranteed expression;
c. lesser protection compared to other constitutionally guaranteed expression;
d. none of the above.

SUGGESTED ANSWER:

(C) IGLESIA NI CRISTO VS. COURT OF APPEALS, 259 SCRA 529

In a protest rally' along Padre Faura Street, Manila, Pedrong Pula took up the
stage and began shouting "kayong mga kurakot kayo! Magsi-resign na kayo!
Kung hindi, manggugulo kami dito!" ("you corrupt officials, you better resign
now, or else we will cause trouble here!") simultaneously, he brought out a rock
the size of a fist and pretended to hurl it at the flagpole area of a government
building. He did not actually throw the rock. (2012 BAR EXAMS)

a. xxx;
b. What is "commercial speech"? Is it entitled to constitutional protection? What
must be shown in order for government to curtail "commercial speech"? Explain.
(3%)
c. xxx

SUGGESTED ANSWER:

B. Commercial speech is communication which involves only the commercial interests


of the speaker and the audience such as advertisements. ( Blacks Law Dictionary, 9th
Ed.,P. 1529) Commercial speech is entitled to constitutional protection. (Ayer
Productions Pty., Ltd Vs Capulong, 160 Scra 861.) Commercial speech may be required
to be submitted to a government agency for review to protect public interest by
preventing false or deceptive claims. (Pharmaceutical And Health Care Association Of
The Philippines Vs. Duque, 535 Scra 265.)

No liability can attach to a false, defamatory statement if it relates to official


conduct, unless the public official concerned proves that the statement was with
knowledge that it was false or with reckless disregard of whether it was false or
not. This is known as what rule? (2012 BAR EXAMS)

a. libel malice rule;


b. actual malice rule;
c. malice in fact rule;

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d. legal malice rule.

SUGGESTED ANSWER:

(B) VASQUEZ VS. COURT OF APPEALS , 314 SCRA 460

In the law of libel and protected speech, a person who, by his accomplishments,
fame, or mode of living, or by adopting a profession or calling which gives the
public a legitimate interest in his doings, his affairs, and his character, has
become a: (2012 BAR EXAMS)

a. public figure;
b. celebrity;
c. public official;
d. de facto public officer.

SUGGESTED ANSWER:

(A) AYERS PRODUCTION PTY., LTD VS CAPULONG,160 SCRA 861

H. Freedom of religion
1. Non-establishment clause
a. Concept and basis
b. Acts permitted and not permitted by the clause
c. Test
2. Free exercise clause
3. Tests
a. Clear and Present Danger Test
b. Compelling State Interest Test
c. Conscientious Objector Test

Section 28, Title VI, Chapter 9, of the Administrative Code of 1987 requires all
educational institutions to observe a simple and dignified flag ceremony,
including the playing or singing of the Philippine National Anthem, pursuant to
rules to be promulgated by the Secretary of Education Culture and Sports. The
refusal of a teacher, student or pupil to attend or participate in the flag ceremony
is a ground for dismissal after due investigation. The Secretary of Education,
Culture and Sports issued a memorandum implementing said provision of law. As
ordered, the flag ceremony would be held on Mondays at 7:30 a.m, during class
days. A group of teachers, students and pupils requested the Secretary that they
be exempted from attending the flag ceremony on the ground that attendance
thereto was against their religious belief. The Secretary denied the request. The
teachers, students and pupils concerned went to Court to have the memorandum
circular declared null and void.

Decide the case. (2009 Bar Question)

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SUGGESTED ANSWER:

The teachers and the students should be exempted from the flag ceremony. As held in
Ebralinag vs. Division Superintendent of Schools of Cebu. 251 SCRA 569, to compel
them to participate in the flag ceremony will violate their freedom of religion. Freedom of
religion cannot be impaired except upon the showing of a clear and present danger of a
substantive evil which the State has a right to prevent. The refusal of the teachers and
the students to participate in the flag ceremony does not pose a clear and present
danger.

Children who are members of a religious sect have been expelled from their
respective public schools for refusing, on account of their religious beliefs, to
take part in the flag ceremony which includes playing by a band or singing the
national anthem, saluting the Philippine flag and reciting the patriotic pledge. The
students and their parents assail the expulsion on the ground that the school
authorities have acted in violation of their right to free public education, freedom
of speech, and religious freedom and worship. Decide the case. (2003 Bar
Question)

SUGGESTED ANSWER:

The students cannot be expelled from school. As held in _Ebralinaq v. The Division
Superintendent of Schools of Cebu. 219 SCRA 256 [1993], to compel students to
take part in the flag ceremony when it is against their religious beliefs will violate their
religious freedom. Their expulsion also violates the duty of the State under Article XIV,
Section 1 of the Constitution to protect and promote the right of all citizens to quality
education and make such education accessible to all.

The principal of Jaena High School, a public school, wrote a letter to the parents
and guardians of all the schools pupils, informing them that the school was
willing to provide religious instruction to its Catholic students during class
hours, through a Catholic priest. However, students who wished to avail of such
religious instruction needed to secure the consent of their parents and guardians
in writing.

Does the offer violate the constitutional prohibition against the establishment of
religion? (3%) (2008 Bar Question)

SUGGESTED ANSWER:

The offer does not violate the constitutional prohibition against the establishment of
religion. Section 3(3), Article XTV of the Constitution provides that at the option
expressed in writing by their parents or guardians, religion shall be taught to students in
public elementary and high schools within regular class hours by instructors designated
or approved by the religious authorities of their religion.

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The parents of evangelical Christian students, upon learning of the offer,


demanded that they too be entitled to have their children instructed in their own
religious faith during class hours. The principal, a devout Catholic, rejected the
request. As counsel for the parents of the evangelical students, how would you
argue in support of their position? (3%) (2008 Bar Question)

SUGGESTED ANSWER:

As counsel for the parents of the evangelical students, I shall argue that the rejection of
their request violates the guarantee of the free exercise and enjoyment of religious
profession and worship, without discrimination or preference. The exercise of religious
freedom includes the right to disseminate religious information (Iglesia ni Cristo v. Court
of Appeals, 259 SCRA 529 [1996]).

Tawi-Tawi is a predominantly Moslem province. The Governor, the Vice-Governor,


and members of its Sangguniang Panlalawigan are all Moslems. Its budget
provides the Governor with a certain amount as his discretionary funds. Recently,
however, the Sangguniang Panlalawigan passed a resolution appropriating
P100,000.00 as a special discretionary fund of the Governor, to be spent by him in
leading a pilgrimage of his provincemates to Mecca,
Saudi Arabia, Islams holiest city.

Philconsa, on constitutional grounds, has filed suit to nullify the resolution of the
Sangguniang Panlalawigan giving the special discretionary fund to the Governor
for the stated purpose.

How would you decide the case? Give your reasons. (1988 Bar Question)

SUGGESTED ANSWER:

The resolution is unconstitutional First, it violates art. VI, sec. 29(2) of the Constitution
which prohibits the appropriation of public money or property, directly or indirectly, for
the use, benefit o support of any system of religion, 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 purely religious purpose is thus unconstitutional, and
the fact that the disbursement is made by resolution of a local legislative body and not
by Congress does not make it any less offensive to the Constitution. Above all, the
resolution constitutes a clear violation of the Non-establishment Clause (art. III, sec. 5)
of the Constitution.

To instill religious awareness in the students of Doa Trinidad High School, a


public school in Bulacan, the Parent Teachers Association of the school
contributed funds for the construction of a grotto and chapel where ecumenical
religious services and seminars are being held after school hours. The use of the
school grounds for these purposes was questioned by a parent who does not

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belong to any religious group. As his complaint was not addressed by the school,
officials, he filed and administrative complaint against the principal before the
DECS is the principal liable? Explain briefly. (5%) (2010 Bar Question)

SUGGESTED ANSWER:

The principal is liable. Although the grotto and the chapel can be used by different
religious sects without discrimination, the land occupied by the grotto and the chapel will
be permanently devoted to religious use without being required to pay rent. This violates
the prohibition against the establishment of religion enshrine in Section 5 of the Bill of
Rights. (Opinion No. 12 of the Secretary of Justice dated February 2, 1979.) Although
religion is allowed to be taught in public elementary and high schools, it should be
without additional cost to the government. (Section 3(3), Article XIV of the Constitution.)

X is serving his prison sentence in Muntinlupa. He belongs to a religious sect


that prohibits the eating of meat. He asked the Director of Prisons that he be
served with meatless diet. The Director refused and X sued the Director for
damages for violating his religious freedom. Decide. (1989 Bar Question)

SUGGESTED ANSWER:

Yes, the Director of Prison is liable under Article 32 of the Civil Code for violating the
religious freedom of X. According to the decision of the United States Supreme Court
in the case of OLone vs.

Estate of Shabazz, 107 S. Ct. 2400, convicted prisoners retain their right to free
exercise of religion. At the same time, lawful incarceration brings about necessary
limitations of many privileges and rights justified by the considerations underlying the
penal system. In considering the appropriate balance between these two factors,
reasonableness should be the test. Accommodation to religious freedom can be made if
it will not involve sacrificing the interests of security and it will have no impact on the
allocation of the resources of the penitentiary. In this case, providing X with a meatless
diet will not create a security problem or unduly increase the cost of food being served
to the prisoners. In fact, in the case of OLone vs. Estate of Shabazz, it was noted that
the Moslem prisoners were being given a different meal whenever pork would be
served.

SUGGESTED ANSWER:

The suit should be dismissed. The Free Exercise Clause of the Constitution is
essentially a restraint on governmental interference with the right of individuals to
worship as they please. It is not a mandate to the state to take positive, affirmative
action to enable the individual to enjoy his freedom. It would have been different had the
Director of Prisons prohibited meatless diets in the penal institution.

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A religious organization has a weekly television program. The program presents


and propagates its religious, doctrines, and compares their practices with those
of other religions.

As the Movie and Television Review and Classification Board (MTRCB) found as
offensive several episodes of the program which attacked other religions, the
MTRCB required the organization to submit its tapes for review prior to airing.

The religious organization brought the case to court on the ground that the action
of the MTRCB suppresses its freedom of speech and interferes with its right to
free exercise of religion. Decide. (5%) (1998 Bar Question)

SUGGESTED ANSWER:

The religious organization cannot invoke freedom of speech and freedom of religion as
grounds for refusing to submit the tapes to the Movie and Television Review and
Classification Board for review prior to airing. When the religious organization started
presenting its program over television, it went into the realm of action. The right to act
on one's religious belief is not absolute and is subject to police power for the protection
of the general welfare. Hence the tapes maybe required to be reviewed prior to airing.

In Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529, 544, the Supreme Court
held:
"We thus reject petitioner's postulate that its religious program is per se
beyond review by the respondent Board. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief. Television is a medium that
reaches even the eyes and ears of children. The Court reiterates the rule that the
exercise of religious freedom can be regulated by the State when it will bring about
the clear and present danger of some substantive evil which the State is duty
bound to prevent, i.e., serious detriment to the mere overriding interest of public
health, public morals, or public welfare."

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

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

Moreover, the broadcasts do not give rise to a clear and present danger of a
substantive evil. In the case of Iglesia ni Cristo vs. Court of Appeals, 259 SCRA
529, 549:

"Prior restraint on speech, including the religious speech, cannot be


justified by hypothetical fears but only by the showing of a substantive and

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imminent evil which has taken the reality already on the ground."

The free exercise and non-establishment clauses pertain to which right under the
Bill of Rights: (2012 BAR EXAMS)

a. liberty of movement;
b. liberty of abode;
c. religion;
d. life and liberty.

SUGGESTED ANSWER:

(C) SECTION 5, ARTICLE III OF CONSTITUTION

The Constitution provides that the "separation of church and state shall be
inviolable." This is implemented most by the constitutional principles embodied
in: (2012 BAR EXAMS)

a. the free exercise clause;


b. the non-establishment clause;
c. . the freedom of religious belief clause;
d. the freedom of religion clause.

SUGGESTED ANSWER;

B. SECTION 5, ARTICLE III OF CONSTITUTION

a. xxx;
b. Distinguish fully between the "free exercise of religion clause" and the "non-
establishment of religion clause". (3%) (2012 BAR EXAMS)
c. xxx

SUGGESTED ANSWER:

B. The freedom of exercise of religion entails the right to believe, which is absolute, and
the right to act on ones belief , which is subject to regulation. As a rule , the freedom of
exercise of religion can be restricted only if there is a clear and present danger of a
substantive evil which the state has the right to prevent. (iglesia ni cristo vs. Court of
appeals, 259 scra 529.)

The non establishment clause implements the principle of seperation of church and
state. The state cannot set up a church. Pass laws that aid one religion, and all
religions, prefer one religion over another force or influence a person to go to or remain
away from church against his will, of force him to profess a belief or disbelief in any
religion. (everson vs. Board of education, 330 u.s 1.)

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The Gangnam Styles Witnesses (whose tenets are derogatory to the Catholic
Church), applied for a permit to use the public plaza and kiosk to hold their
religious meeting on the occasion of their founding anniversary. Mayor Lebron
allowed them to use the north-western part of the plaza but not the kiosk (which
is a few meters away from the Catholic church). Members of the Gangnam Style
Witnesses claim that the act of Mayor Lebron is a violation of their freedom of
assembly and religion. Is this correct? (2012 BAR EXAMS)

a. No, because this is valid exercise of police power;


b. Yes, because the plaza being of public use can be used by anybody regardless
of religious belief;
c. No, because historical experience shows that peace and order may be
disturbed whenever two opposing religious groups or beliefs expound their
dogmas;
d. Yes, because there is no clear and present danger in holding a religious
meeting by another religious group near a catholic church.

SUGGESTED ANSWER:

(C) Ignacio vs. Dela Cruz, 99 phil. 346; and (d) Iglesia ni Cristo vs. Court of Appeals,
259 scra 529. It is suggested that either (c) or (d) may be accepted as a correct answer

Allmighty Apostles is a relatively new religious group and movement with fast-
growing membership. One time, DeepThroat, an investigative reporter, made a
research and study as to what the groups leader, Maskeraid was actually doing.
DeepThroat eventually came up with the conclusion that Maskeraid was a phony
who is just fooling the simpleminded people to part with their money in exchange
for the promise of eternal happiness in some far-away heaven. This was
published in a newspaper which caused much agitation among the followers of
Maskeraid. Some threatened violence against DeepThroat, while some others
already started destroying properties while hurting those selling the newspaper.
The local authorities, afraid of the public disorder that such followers might do,
decided to ban the distribution of the newspaper containing the article.
DeepThroat went to court complaining about the prohibition placed on the
dissemination of his article. He claims that the act of the authorities partakes of
the nature of hecklers veto, thus a violation of the guaranty of press freedom. On
the other hand, the authorities counter that the act was necessary to protect the
public order and the greater interest of the community. If you were the judge, how
would you resolve the issue? (4%)2014 BAR EXAMS

SUGGESTED ANSWER:

If I were the judge, I would rule that the distribution of the newspaper cannot be banned.
Freedom of the news should be allowed although it induces a condition of unrest and
stirs people to anger. Freedom of the press includes freedom of circulation (Chavez v.
Gonzales, 545 SCRA 441 (2008).

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When governmental action that restricts freedom of the press is based on content, it is
given the strictest scrutiny and the government must shoe that there is a clear and
present danger of the substantive evil which the government has the right to prevent.
The threats of violence and even the destruction of properties while hurting those selling
the newspaper do not constitute a clear and present danger as to warrant curtailment of
the right of Deep Throat to distribute the newspaper (Chavez v. Gonzales 545 SCRA
441 (2008)

ALTERNATIVE ANSWER:

The action of the government is justified.

The fact that some people had already started destroying properties while hurting those
selling the newspaper can be validly considered by the government as a clear and
present danger, which will justify its banning of the further distribution of the newspaper
containing the article. The test for limitations on freedom of expression continues to be
the cleas and present danger rule-that words are used in such circumstances and are of
such a nature as ro create a clear and present danger that they will bring about the
substantive evils that the lawmaker has a right to prevent (Chavez vs. Gonzales, 545
SCRA 441 92008).

Candida has been administratively charged of immorality for openly living with
Manuel, a married man. Candida urges that her conjugal arrangement with
Manuel fully conforms with their religious beliefs and with the teachings of their
church.

In resolving whether Candida should be administratively penalized which is the


best test to apply? (1%) 2013 BAR EXAMS

(A) Clear and Present Danger Test


(B) Compelling State Interest Test
(C) Balancing of Interests Test
(D) Conscientious Objector Test
(E) Dangerous Tendency Test

SUGGESTED ANSWER:

(B)(Estrada v. Escritor, A.M.No. P-02-1651, August 4, 2003, 492 SCRA 1)

I. Liberty of abode and freedom of movement


1. Limitations
2. Right to travel
a. Watch-list and hold departure orders
3. Return to one's country

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The military commander -in charge of the operation against rebel groups directed
the inhabitants of the island which would be the target of attack by government
forces to evacuate the area and offered the residents temporary military hamlet.

Can the military commander force the residents to transfer their places of abode
without a court order? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

No. the military commander cannot compel the residents to transfer their places of
abode without a court order. Under Section 6. Article III of the Constitution, a lawful
order of the court is required before the liberty of abode and of changing the same can
be impaired.

SUGGESTED ANSWER:

Yes, the military commander can compel the residents to transfer their places of abode
without a court order. If there is no reasonable time to get a court order and the change
of abode is merely temporary, because of the exigency, this exercise of police power
may be justified

Juan Casanova contracted Hansen's disease (leprosy) with open lesions. A law
requires that lepers be isolated upon petition of the City Health Officer. The wife
of Juan Casanova wrote a letter to the City Health Officer to have her formerly
philandering husband confined in some isolated leprosarium. Juan Casanova
challenged the constitutionality of the law as violating his liberty of abode. Will
the suit prosper? (15%) (1998 Bar Question)

SUGGESTED ANSWER:

No, the suit will not prosper.

Section 6, Article III of the Constitution provides:

"The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court."

The liberty of abode is subject to the police power of the State. Requiring the
segregation of lepers is a valid exercise of police power. In Lorenzo us. Director of
Health, 50 PhiJL 595, 598, the Supreme Court held:

"Judicial notice will be taken of the fact that leprosy is commonly believed
to be an infectious disease tending to cause one afflicted with it to be shunned
and excluded from society, and that compulsory segregation of lepers as a
means of preventing the spread of the disease is supported by high scientific
authority.

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Mr. Esteban Krony, a Filipino citizen, is arrested for the crime of smuggling. He
posts bail for his release. Subsequently, he jumps bail and is about to leave the
country when the Department of Foreign Affairs (DFA) cancels his passport. He
sues the DFA, claiming violation of his freedom to travel, citing the new provision
in the Bill of Rights of the 1987 Constitution, to wit: Neither shall the right to
travel be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.

Decide the case. (1991 Bar Question)

SUGGESTED ANSWER:

The case should be dismissed. Any person under an order of arrest is under restraint
and therefore he cannot claim the right to travel. If he is admitted to bail his freedom of
movement is confined within the country. Therefore, if he subsequently jumps bail, he
cannot demand passport which in effect will facilitate his escape from the country; he is
in fact liable to be arrested anytime. Indeed, the right to travel under the Constitution
presupposes that the individual is under no restraint such as that which would follow
from the fact that one has a pending criminal case and has been placed under arrest.

Mr. Violet was convicted by the RTC of Estafa. On appeal, he filed with the Court
of Appeals a Motion to Fix Bail for Provisional Liberty Pending Appeal. The Court
of Appeals granted the motion and set a bail amount in the sum of Five (5) Million
Pesos, subject to the conditions that he secure "a certification/guaranty from the
Mayor of the place of his residence that he is a resident of the area and that he
will remain to be a resident therein until final judgment is rendered or in case he
transfers residence, it must be with prior notice to the court". Further, he was
ordered to surrender his passport to the Division Clerk of Court for safekeeping
until the court orders its return.

a. Mr. Violet challenges the conditions imposed by the Court of Appeals as


violative of his liberty of abode and right to travel. Decide with reasons. (5%)
b. Are "liberty of abode" and "the right to travel" absolute rights? Explain. What
are the respective exception/s to each right if any? (5%) (2012 BAR EXAMS)

SUGGESTED ANSWER:

a. the right to change adobe and the right to travel are not absolute. The liberty of
changing adobe may be unpaired upon order to the court. The order of the court of
appeals is lawful, because the purpose is to ensure that the accused will be available
whenever his presence is required. He is not being prevented from changing his adobe.
He is merely being required to inform the court of appeals if he does. (YAP vs Court of
Appeals, 358 scra 564).

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b. The liberty of adobe and the right to travel are not absolute the liberty of adobe and of
changing it can be imposed within the limits prescribed by law upon lawful order of the
court. The right to travel may be unpaired in the interest of national security, public
safety, or public health as may be provided by law. (section 6, article III of the
Constitution.) In addition , the court has the inherent power to restrict the right of an
accused who has pending criminal case to travel abroad to maintain its jurisdiction over
him. (Santiago vs Vasquez, 217 scra 633.)

J. Right to information
1. Limitations
2. Publication of laws and regulations
3. Access to court records
4. Right to information relative to:
a. Government contract negotiations
b. Diplomatic negotiations

At the Senate impeachment trial of Justice Pablo P. San Quintin, Hon. Emilio A.
Tan, Congressman and Impeachment Panel Manager, wrote the Supreme Court
requesting that the prosecutors be allowed to examine the court records of
Stewards Association of the Philippines, Inc. (SAP!) v. Filipinas Air, et al., G.R.
No. 987654, a case that is still pending. The High Court __________. (1%) (BAR
2013)
A. may grant the request by reason of inter-departmental courtesy
B. may grant the request as the records of the Filipinas Air case are public
records
C. should deny the request since records of cases that are pending for
decision are privileged except only for pleadings, orders and resolutions
that are available to the public
D. should deny the request because it violates the Court's independence and
the doctrine of separation of powers
E. should grant the request because of the sui generis nature of the power of
impeachment, provided that the Bill of Rights is not violated

Which one is NOT a recognized limitation to the right to information on matters of


public concern: (2012 BAR EXAMS)
a. national security matters;
b. trade secrets and banking transactions;
c. criminal matters or classified law enforcement matters;
d. government research data used as a basis for policy development.

SUGGESTED ANSWER:

(D) SECTION 7, ARTICLE III OF CONSTITUTION

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State at least three constitutional provisions reflecting the State policy on


transparency in matters of public interest. What is the purpose of said policy?
(5%) (2000 Bar Question)

SUGGESTED ANSWER:

The following are the constitutional provisions reflecting the State policy on
transparency in matters of public interest:
1. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
Interest." (Section 28, Article II)
2. The right of the people to information on matters' of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining
to omcial acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded to citizen, subject to such
limitations as may be provided by law." (Section 7, Article III)
3. The records and books of accounts of the Congress shall be preserved and be
open to the public in accordance with law, and such books shall be audited by
the Commission on Audit which shall publish annually an itemized list of amounts
paid to and expenses incurred for each Member." (Section 20, Article VI)
4. The Office of the Ombudsman shall have the following powers, functions, and
duties:
xxx xxx xxx

Publicize matters covered by its investigation when circumstances so


warrant and with due prudence. (Section 12, Article XI)

5. A public officer or employee shall, upon assumption of office, and as often as


thereafter may be required by law, submit a declaration under oath of his assets,
liabilities, and net worth. In the case of the President, the Vice President, the
Members of the Cabinet, the Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and officers of the armed forces
with general or flag rank, the declaration shall be disclosed to the public in the
manner provided by law. (Section 17, Article XI)
6. Information on foreign loans obtained or guaranteed by the Government shall be
made available to the public. (Section 21, Article XII)

As explained in Valmonte v. Belmonte, 170 SCRA 256 (1989), the purpose of the policy
is to protect the people from abuse of governmental power. If access to information of
public concern is denied, the postulate "public office is a public trust" would be mere
empty words.

{Note: The examinee should be given full credit if he gives any three of the above-
mentioned provisions.}

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K. Right of association

Bona fide associations of citizens which demonstrate capacity of promote the


public interest and with identifiable leadership, membership, and structure are:
a. independent party-list organizations;
b. independent sectoral organizations;
c. independent indigenous organizations;
d. independent peoples organizations.

Hearings before a congressional committee have established that many firms at


the Bataan Export Processing Zone had closed down or pulled out because of
unstable labor conditions resulting in so many strikes. To remedy the situation
and inject vitality to the export expansion program, some congressional leaders
and business executives propose that strike-free export zones be established.

Do you believe that under the present Constitution, it is legally possible to put up
such a strike-free export processing zone in the country? Why or why not? (1988
Bar Question)

SUGGESTED ANSWER:

No. The fact that many firms at the Bataan EPZA have been forced to close down by
unstable labor condition brought about by strike does not justify the ban on strike. The
Constitution guarantees the rights of workers to engage in peaceful concerted
activities, including the right to strike in accordance with law. (Art. XIII, sec. 3). It is
illegal strikes which can be prohibited but not all strikes. For strike is labors legitimate
weapon. In the absence of a compelling interest of the state, (such as health and safety,
e.g., the prohibition of strike in hospitals and industries indispensable to the national
interest) it cannot be prohibited.

Congressman Cheng says he is one of the co-authors of the Subic Bay


Metropolitan Authority Charter. He declares that the SBMA is the answer to rapid
economic growth and the attainment of the President's Philippine 2000" dream.
However, Cheng is worried that foreign capital might be slow in coming in due to
unstable working conditions resulting from too many strikes. To remedy this
situation, Cheng proposes an amendment to SBMA law declaring it as a strike-
free zone or total ban on strikes. Is this proposal legally defensible? Explain
briefly. (1993 Bar Question)

SUGGESTED ANSWER:

Art. XIII, sec. 3 of the Constitution guarantees the right of all workers to engage in
peaceful concerted activities, including the right to strike in accordance with law. Thus, a
law cannot totally prohibit the right to strike but can only regulate the exercise thereof.
His proposal to ban strikes totally in the Subic Special Economic and Freeport Zone is,
therefore unconstitutional.

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SUGGESTED ANSWER:

While the Constitution guarantees to workers the right to engage in peaceful concerted
activities, including the right to strike, such right can only be exercised in accordance
with law. The phrase in accordance with law" was inserted precisely to indicate that in
some exceptional cases workers would not have the right to strike if it is prohibited by
law. Hence, the proposal to ban strikes totally in the Subic Special Economic and
Freeport Zone is constitutional. (Social Security System Employees Association vs.
Court of Appeals. 175 SCRA 686, July 28, 1989; Manila Public School Teachers
Association vs. Laguio, 200 SCRA 323 (1991)).

Public school teachers staged for days mass actions at the Department of
Education. Culture and Sports (DECS) to press for the immediate grant of their
demand for additional pay. The DECS Secretary issued to them a notice of the
illegality of their unauthorized action, ordered them to immediately return to work,
and warned them of imposable sanctions. They ignored this and continued with
their mass action. The DECS Secretary issued orders for their preventive
suspension without pay and charged the teachers with gross misconduct and
gross neglect of duty for unauthorized abandonment of teaching posts and
absences without leave.

Are employees in the public sector allowed to form unions? To strike? Why? (3%)
(2000 Bar Question)

SUGGESTED ANSWER:

Section 8, Article III of the Constitution allows employees in the public sector to form
unions. However, they cannot go on strike. As explained In Social Security System
Employees Association v. Court of Appeals, 175 SCRA 686 (1989), the terms and
conditions of their employment are fixed by law. Employees in the public sector cannot
strike to secure concessions from their employer.

The teachers claim that their right to peaceably assemble and petition the
government for redress of grievances has been curtailed. Are they correct? Why?
(2%) (2000 Bar Question)

SUGGESTED ANSWER:

The teachers cannot claim that their right to peaceably assemble and petition for the
redress of grievances has been curtailed. According to Bangalisan v. Court of
Appeals, 276 SCRA 619 (1997), they can exercise this right without stoppage of
classes.

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Offended by the President's remarks that the Bureau of Customs is a pit of misfits
and the corrupt, the Bureau of Customs Employees Association composed of
3,000 workers seeks your legal advice on how best to protest what it views to be
the President's baseless remarks. (BAR 2013)
A prudent legal advice is that __________. (1%)
A. employees can go on mass leave of absence for one week
B. employees can march and rally at Mendiola every Monday
C. employees can barricade the gates of the Port of Manila at South Harbor
and call for the resignation of the incumbent Commissioner of Customs
D. employees can wear black arm bands and pins with the word "UNFAIR"
inscribed
E. None of the above can legally be done.

L. Eminent domain
1. Concept
2. Expansive concept of public use
3. Just compensation
a. Determination
b. Effect of delay
4. Abandonment of intended use and right of repurchase
5. Miscellaneous application

Which one of the following circumstances is NOT an element of taking under


eminent domain:
a. entering upon public property for a momentary period;
b. under color of legal authority;
c. devoting it to public use;
d. as substantially to cust the owner of all beneficial ownership.

Mr. Roland Rivera is the owner of four lots sought to be expropriated by the
Export Processing Zone Authority for the expansion of the export processing
zone at Baguio City. The same parcels of land had been valued by the Assessor
at P120.00 per square meter, while Mr. Rivera had previously fixed the market
value of the same at P100.00 per square meter. The Regional Trial Court decided
for expropriation and ordered the payment to Mr. Rivera at the rate of P1QO.OO a
square meter pursuant to Presidential Decree No. 1533, providing that in
determining just compensation for private property acquired through eminent
domain proceedings, the compensation to be paid shall not exceed the value
declared by the owner or determined by the Assessor, pursuant to the Real
Property Tax Code, whichever value is lower, prior to the recommendation or
decision of the appropriate government office to acquire the property.

Mr. Rivera appealed, insisting that just compensation for his property should be
determined by Commissioners who could evaluate all evidence on the real value
of the property, at the time of its taking by the government. He maintains that the
lower court erred in relying on Presidential Decree No. 1533, which he claims is

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unconstitutional.

How would you decide the appeal? Explain your answer. (1988 Bar Question)

SUGGESTED ANSWER:

The decision of the lower court should be reversed. In EPZA V. Dulay, 149 SCRA 305
(1987) the Supreme Court declared PD No. 1533 to be an unconstitutional
encroachment on the prerogatives of the judiciary. It was explained that although a
court would technically have the power to determine the just compensation for property
under the Decree, the courts task would be relegated to simply stating the lower value
of the property as declared either by the owner or by the assessor. Just compensation
means the value of the property at the time of the taking. It means a fair and full
equivalent for the loss sustained. To determine it requires consideration of the condition
of the property and its surroundings, its improvements and capabilities.

The Philippine Commodities Office (PCO), a government agency, wishes to


establish a direct computer and fax linkup with trading centers in the United
States. The advanced technology of a private company, Philippine Pacific
Telecommunications, is necessary for that purpose but negotiations between the
parties have failed. The Republic, in behalf of the PCO, files suit to compel the
telecommunications company to execute a contract with PCO for PCOs access
and use of the company's facilities.

Decide. If the case will not prosper, what alternative will you propose to the
Republic? (1992 Bar Question)

SUGGESTED ANSWER:

The action will not prosper. As held in Republic of the Philippines us. Philippine Long
Distance Telephone Company, 26 SCRA 620, parties cannot be compelled to enter into
a contract. However, since under Section 18, Article XII of the Constitution, the State
may expropriate public utilities, the Republic of the Philippines may compel the
Philippine Pacific Telecommunications to allow access to its facilities. If the Republic of
the Philippines can take title to the facilities of Philippine Pacific Telecommunications by
its power of expropriation, there is no reason why it cannot use such power to impose
only a burden upon Philippine Pacific Telecommunication without loss of title.

A property owner filed an action directly in court against the Republic of the
Philippines seeking payment for a parcel of land which the national government
utilized for a road widening project.

A. Can the government invoke the doctrine of non- suitability of the state? (1989
Bar Question)

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B. In connection with the preceding question, can the property owner garnish
public funds to satisfy his claim for payment? (1989 Bar Question)

Explain your answers.

SUGGESTED ANSWER:

A. No, the government cannot invoke the doctrine of state of immunity from suit. As held
in Ministerio vs. Court of First Instance of Cebu, 40 SCRA 464, when the government
expropriates property for public use without paying just compensation, it cannot invoke
its immunity from the suit. Otherwise, the right guaranteed in Section 9, Article III of the
1987 Constitution that private property shall not be taken for public use without just,
compensation will be rendered nugatory.

B. No, the owner cannot garnish public funds to satisfy his claim for payment. Section 7
of Act No. 3083 prohibits execution upon any judgment against the government. As held
in Republic vs. Palacio, 23 SCRA 899, even if the government may be sued, it does not
follow that its properties may be seized under execution.

SUGGESTED ANSWER:

No, funds of the government on deposit in the bank cannot be garnished for two
reasons: (i) Under Art. II, Sec. 29(1) public funds cannot be spent except in pursuance
of an appropriation made by law, and (ii) essential public services will be impaired if
funds of the government were subject to execution. (Commissioner of Public Highways
vs. San Diego, 31 SCRA 616 (1970)). The remedy of the prevailing party is to have the
judgment credit in his favor included in the general appropriations law for the next year.

The City of Pasig initiated expropriation proceedings on a one-hectare lot "which


is part of a ten-hectare parcel of land devoted to the growing of vegetables. The
purpose of the expropriation is to use the land as a relocation site for 200 families
squatting along the Pasig river.

A. Can the owner of the property oppose the expropriation on the ground that
only 200 out of the more than 10,000 squatter families in Pasig City will
benefit from the expropriation? Explain.

B. Can the Department of Agrarian Reform require the City of Pasig to first
secure authority from said Department, before converting the use of the land
from agricultural to housing? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

A. No, the owner of the property cannot oppose the expropriation on the ground that
only 200 out of more than 10.000 squatter families in Pasig City will benefit from the
expropriation. As held in Philippine Columbian Association vs. Panis, 228 SCRA 668,

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the acquisition of private property for socialized housing is for public use and the fact
that only a few and not everyone will benefit from the expropriation does not detract
from the nature of the public use.

B. No. the Department of Agrarian Reform cannot require Pasig City to first secure
authority from it before converting the use of the land from agricultural to residential.
According to Province of Camarines Sur vs. Court of Appeals, 222 SCRA 173, there is
no provision in the Comprehensive Agrarian Reform Law which subjects the
expropriation of agricultural lands by local government units to the control of the
Department of Agrarian Reform and to require approval from the Department of
Agrarian Reform will mean that it is not the local government unit but the Department of
Agrarian Reform who will determine whether or not the expropriation is for a public use.

In expropriation proceedings:

A. What legal interest should be used in the computation of interest on just


compensation? (1993 Bar Question)

B. Can the Judge validly withhold issuance of the writ of possession until full
payment of the final value of the expropriated property? (1993 Bar Question)

SUGGESTED ANSWER:

A. As held in National Power Corporation vs. Angas, 208 SCRA 542, in accordance with
Article 2209 of the CMl Code, the legal interest should be six per cent (6%) a year.
Central Bank Circular No. 416, which increased the legal interest to twelve per cent
(12%) a year is not applicable to the expropriation of property and is limited to loans,
since its issuance is based on Presidential Decree No. 116, which amended the Usury
Law.

B. No, the Judge cannot validly withhold the issuance of the writ of possession until full
payment of the final value of the expropriated property. As held in National Power
Corporation vs. Jocson, 206 SCRA 520, it is the ministerial duty of the judge to issue
the writ of possession upon deposit of the provisional value of the expropriated property
with the National or Provincial Treasurer.

Devi is the owner of a piece of land. Without prior expropriation or negotiated


sale, the national government used a portion thereof for the widening of the
national highway. Devi filed a money claim with the Commission on Audit which
was denied. Left with no other recourse, Devi filed a complaint for recovery of
property and/or damages against the Secretary of Public Works and Highways
and the Republic of the Philippines. The defendant moved for dismissal of the
complaint contending that the government cannot be sued without its consent.
The RTC dismissed the complaint. On appeal, how would you decide the case?
(1993 Bar Question)

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SUGGESTED ANSWER:

The order dismissing the complaint should be reversed. In Ministerio v. Court of First
Instance of Cebu. 40 SCRA 464, it was held that when the government takes property
from a private landowner without prior expropriation or negotiated sale, the landowner
may maintain a suit against the government without violating the doctrine of government
immunity from suit. The government should be deemed to have waived impliedly its
immunity from suit. Otherwise, the constitutional guarantee that private property shall
not be taken for public use without just compensation will be rendered nugatory.

Madlangbayan is the owner of a 500 square meter lot which was the birthplace of
the founder of a religious sect who admittedly played an important role in
Philippine history and culture. The National Historical Commission (NHC) passed
a resolution declaring it a national landmark and on its recommendation the lot
was subjected to expropriation proceedings. This was opposed by Madlangbayan
on the following grounds: a) that the lot is not a vast tract; b) that those to be
benefited by the expropriation would only be the members of the religious sect of
its founder, and c) that the NHC has not initiated the expropriation of birthplaces
of other more deserving historical personalities. Resolve the opposition raised by
Madlangbayan. (5%) (2000 Bar Question)

SUGGESTED ANSWER:

The arguments of Madlangbayan are not meritorious. According to Manosca v. Court of


Appeals, 252 SCRA 412 (1996), the power of eminent domain is not confined to
expropriation of vast tracts of the land. The expropriation of the lot to preserve it as the
birthplace of the founder of the religious sect because of his role in Philippine history
and culture is for a public purpose, because public use is no longer restricted to the
traditional concept. The fact that the expropriation will benefit the members of the
religious sect is merely incidental. The fact that other birthplaces have not been
expropriated is likewise not a valid basis for opposing the expropriation. As held in J.M.
Tuason and. Company, Inc. v. Land Tenure Administration. 31 SCRA 413 (1970), the
expropriating authority is not required to adhere to the policy of all or none".

Congress passed a law authorizing the National Housing Authority (NHA) to


expropriate or acquire private property for the redevelopment of slum areas, as
well as to lease or resell the property to private developers to carry out the
redevelopment plan. Pursuant to the law, the NHA acquired all the properties
within a targeted badly blighted area in San Nicolas, Manila, except a well-
maintained drug and convenience store that poses no blight or health problem
itself. Thereafter, NHA sold all the properties it has thus far acquired to a private
realty company for redevelopment. Thus, the NHA initiated expropriation
proceedings against the store owner who protested that his property could not be
taken because it is not residential or slum housing. He also contended that his
property is being condemned for a private purpose, not a public one, noting the
NHAs sale of the entire area except his property to a private party. If you were the

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judge, how would you decide the case? (6%) (2008 Bar Question)

SUGGESTED ANSWER:

If I were the judge, I would order the expropriation of the property. The expropriation of
the property is valid being a lawful exercise of the States power of eminent domain,
exercised through the NHA by Congressional fiat. The expropriation of the private land
for slum clearance urban development is for a public purpose even if the developed
area is later sold to private homeowners, commercial firms, and other private parties
(Heirs of Juancho Ardona v. Reyes, 125 SCRA 220 [1983]). It is function of Congress to
decide which type of taking is for public use and that the agency authorized to do the
taking may do so to the full extent of its statutory authority. It is not the immediate
effects, but rather the ultimate results which determine whether a particular act is for
public good.

Filipinas Computer Corporation (FCC), a local manufacturer of computers and


computer parts, owns a sprawling plant in a 5,000-square meter lot in Pasig City.
To remedy the citys acute housing shortage, compounded by a burgeoning
population, the Sangguniang Panglungsod authorized the City Mayor to negotiate
for the purchase of the lot. The Sanggunian intends to subdivide the property into
small residential lots to be distributed at cost to qualified city residents. But FCC
refused to sell the lot. Hard-pressed to find a suitable property to house its
homeless residents, the City filed a complaint for eminent domain against FCC.

If FCC hires you as lawyer, what defense or defenses would you set up in order to
resist the expropriation of the property? Explain. (5%) (2008 Bar Question)

SUGGESTED ANSWER:

I will raise the defense that the selection of the lot to be expropriated violates due
process, because it is arbitrary. Since it is devoted to commercial use, the beneficiaries
of the expropriation will not settle there and will instead merely lease out or resell the lot
for a profit (Manotok v. National Housing Authority, 150 SCRA 89 [1987]).

If the Court grants the Citys prayer for expropriation, but the City delays payment
of the amount determined by the court as just compensation, can FCC recover
the property from Pasig City? Explain. (2%) (2005 Bar Question)

SUGGESTED ANSWER:

The mere delay in the payment of the just compensation will not entitle the Filipinas
Computer Corporation to recover the property.

Instead, legal interest on the just compensation should be paid (National Power
Corporation v. Henson, 300 SCRA 751 [1998]). However, if the payment was not made
within five (5) years from the finality of judgment in the expropriation case, Filipinas

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Computer Corporation can recover the property. To be just, the compensation must be
paid within a reasonable time. (Republic v. Lim, 462 SCRA 265 [2005]).

Suppose the expropriation succeeds, but the City decides to abandon its plan to
subdivide the property for residential purposes having found a much bigger lot,
can FCC legally demand that it be allowed to repurchase the property from the
City of Pasig? Why or why not? (2%) (2005 Bar Question)

SUGGESTED ANSWER:

If the lot was expropriated with the condition it can be used only for low-cost housing, it
should be returned to Filipinas Computer Corporation upon abandonment of the
purpose (Heirs of Timoteo Moreno v. Mactan-Cebu International Airport Authority, 413
SCRA 502 [2003]).

Market value for purposes of determining just compensation in eminent domain


has been described as the fair value of property: (2012 BAR EXAMS)

a. between one who desires to purchase and one does not desire to sell;
b. between one who desires to purchase and one who wants to delay
selling;
c. between one who desires to purchase and one who desires to sell;
d. between one who desires to purchase on terms and one who desires to
sell after a period of time.

SUGGESTED ANSWER:

(C) CITY OF MANILA VS. ESTRADA, 25 PHIL. 208

The National Power and Grid Corporation (NPGC), a government entity involved
in power generation distribution, had its transmission lines traverse some fields
belonging to Farmerjoe. NPGC did so without instituting any expropriation
proceedings. Farmerjoe, not knowing any better, did not immediately press his
claim for payment until after ten years later when a son of his took up Law and
told him that he had a right to claim compensation. That was then the only time
that Farmerjoe earnestly demanded payment. When the NPGC ignored him, he
instituted a case for payment of just compensation. In defense, NPGC pointed out
that the claim had already prescribed since under its Charter it is clearly provided
that actions for damages must be filed within five years after the rights of way,
transmission lines, substations, plants or other facilities shall have been
established and that after said period, no suit shall be brought to question the
said rights of way, transmission lines, substations, plants or other facilities. If
you were the lawyer of Farmerjoe, how would you protect and vindicate the rights
of your client? (4%) 2014 BAR EXAMS

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SUGGESTED ANSWER:

As held in NATIONAL POWER CORPORATION v. SPOUSES BERNARDO AND


MINDALUZ SALUDARES G. R. No. 189127, April 25, 2012; the right to recover just
compensation is enshrined in no less than our Bill of Rights, which states in clear and
categorical language that private property shall not be taken for public use without just
compensation. This constitutional mandate cannot be defeated by statutory prescription.

Thus, It would be a confiscatory act on the part of the government to take the property
of respondent spouses for a public purpose and deprive them of their right to just
compensation, solely because they failed to institute inverse condemnation proceedings
within five years from the time the transmission lines were constructed.

M. Contract clause
1. Contemporary application of the contract clause

N. Legal assistance and free access to courts

O. Rights of suspects
1. Availability
2. Requisites
3. Waiver

Under Article III, Section 12 of the Constitution, any person under investigation
for the commission of an offense shall have the right to be informed of his right
to remain silent, etc. The investigation referred to is called: (2012 BAR EXAMS)

a. preliminary investigation;
b. summary investigation;
c. criminal investigation;
d. custodial investigation.

SUGGESTED ANSWER:

(A) People vs Sunga, 339 scra 624; (c) Galman vs. Pamaran 138 SCRA 294; and (d)
Section 12, Article iii of Constitution

SUGGESTED ANSWER:

(B) KHETIN VS. VILLAREAL, 42 PHIL. 886

Mr. Brown, a cigarette vendor, was invited by PO1 White to a nearby police
station. Upon arriving at the police station, Brown was asked to stand side-by-
side with five (5) other cigarette vendors in a police line-up. PO1 White informed
them that they were looking for a certain cigarette vendor who snatched the
purse of a passer-by and the line-up was to allow the victim to point at the vendor

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who snatched her purse. No questions were to be asked from the vendors. (2012
BAR EXAMS)

a. Brown, afraid of a "set up" against him, demanded that he be allowed to secure
his lawyer and for him to be present during the police line-up. Is Brown entitled to
counsel? Explain (5%)

b. Would the answer in (a.) be the same if Brown was specifically invited by White
because an eyewitness to the crime identified him as the perpetrator? Explain.
(3%)

c. Briefly enumerate the so-called "Miranda Rights". (2%)

SUGGESTED ANSWER:

A. Brown is not entitled to counsel during the police line up. He was not yet being asked
to answer for a criminal offense. (garaboa vs. Cruzm 162 scra 642.)

B. Brown would be entitled to the assistance of a lawyer. He was already considered as


a suspect and was therefore entitled to the right under custodial investigation. (People
vs Legaspi, 331 scra 95.);

C. The Miranda warning means that a person in custody who will be interrogated must
be informed of the following.

1. He has right to remain silent.


2. anything said can be used as evidence against him;
3. he has the right to have counsel during the investigation; and
4. he must be informed that if he is indigent, a lawyer will be appointed to represent
him. (Miranda vs. Arizona , 384 U.S 436)

A robbery with homicide had taken place and Lito, Badong, and Rollie were
invited for questioning based on the information furnished by a neighbor that he
saw them come out of the victims house at the time of the robbery/killing. The
police confronted the three with this and other information they had gathered,
and pointedly accused them of committing the crime.

Lito initially resisted, but eventually broke down and admitted his participation in
the crime. Elated by this break and desirous of securing a written confession
soonest, the police called City Attorney Juan Buan to serve as the trios counsel
and to advise them about their rights during the investigation.

Badong and Rollie, weakened in spirit by Litos early admission, likewise


admitted their participation.The trio thus signed a joint extrajudicial
confessionwhich served as the main evidence against them attheir trial.

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They were convicted based on their confession. Should the judgment of


conviction be affirmed or reversed on appeal?
(5%)2013 BAR EXAMS

SUGGESTED ANSWER:

The judgment of conviction should be reversed on appeal. It relied mainly on the extra
judicial confession of the accused. The lawyer assisting them must be independent. City
Attorney Juan Buan is not independent. As City Attorney, he provided legal support to
the City Mayor in performing his duties which include the maintenance of peace and
order (People v. Sunga, 399 SCRA 624).

ALTERNATIVE ANSWER:

The judgment of conviction should be affirmed if the accused failed to object when their
extrajudicial confession was offered in evidence which was rendered it admissible
(People v. Samus, 389 SCRA 93).

The police got a report about a shooting incident during a town fiesta. One
person was killed. The police immediately went to the scene and started asking
the people about what they witnessed. In due time, they were pointed to Edward
Gunman, a security guard, as the possible malefactor. Edward was then having
refreshment in one of the eateries when the police approached him. They asked
him if he had a gun to which question he answered yes. Then they asked if he had
seen anybody shot in the vicinity just a few minutes earlier and this time he said
he did not know about it. After a few more questions, one of the policemen asked
Edward if he was the shooter. He said no, but then the policeman who asked him
told him that several witnesses pointed to him as the shooter. Whereupon
Edward broke down and started explaining that it was a matter of selfdefense.
Edward was eventually charged with murder. During his trial, the statements he
made to the police were introduced as evidence against him. He objected
claiming that they were inadmissible since he was not given his Miranda rights.
On the other hand, the prosecution countered that there was no need for such
rights to be given since he was not yet arrested at the time of the questioning. If
you were the judge, how would you rule on the issue? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

I would rule in favour of Edward. The statements made are inadmissible. It was made in
violation of the constitutional rights of Edwards. Custodial investigation refers to any
questioning initiated by law enforcement officers after a person has been taken into
custody. The rights are available when the person interrogated is already treaded as a
particular suspect and the investigation is no longer a general inquiry into an unsolved
crime. However, during this stage, no complaint or criminal case has been filed yet. As
such, the person suspected to have committed a crime is not yet an accused, since no
case was instituted against him.

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However, in the case of Edward, the questioning made was more than just a general
inquiry into an unsolved crime. It was already in the accusatory stage in which the
Miranda rights must be given to the accused.

As he was entering a bar, Arnold who was holding an unlit cigarette in this
right hand was handed a match box by someone standing near the doorway.
Arnold unthinkingly opened the matchbox to light his cigarette and as he did so,
a sprinkle of dried leaves fell out, which the guard noticed. The guard
immediately frisked Arnold, grabbed the matchbox, and sniffed its contents. After
confirming that the matchbox contained marijuana, he immediately arrested
Arnold and called in the police. At the police station, the guard narrated to the
police that he personally caught Arnold in possession of dried marijuana leaves.
Arnold did not contest the guards statement; he steadfastly remained silent and
refused to give any written statement. Later in court, the guard testified and
narrated the statements he gave the police over Arnolds counsels objections.
While Arnold presented his own witnesses to prove that his possession and
apprehension had been set-up, he himself did not testify. The court convicted
Arnold, relying largely on his admission of the charge by silence at the police
investigation and during trial.

From the constitutional law perspective, was the court correct in its ruling? (6%)
2013 BAR EXAMS

SUGGESTED ANSWER:

The court was wrong in relying on the silence of Arnold during the police investigation
and during the trial. Under Article III, Section 12 of the 1987 Constitution, he had the
right to remain silent. His silence cannot be taken as a tacit admission, otherwise, his
right to remain silent would be rendered nugatory. Considering that his right against
self-incrimination protects his right to remain silent, he cannot be penalized for
exercising it (People v. Galvez, G.R. No. 157221, March 30, 2007, 519 SCRA 521).

ALTERNATIVE ANSWER:

The court correctly convicted Arnold. There is no showing that the evidence for the
prosecution was insufficient. When Arnold remained silent, he runs the risk of an
interference of guilt from non-production of evidence in his behalf (People v. Solis G.R.
No. 124127, June 29, 1998, 128 SCRA 217).

In his extrajudicial confession executed before the police authorities, Jose


Walangtakot admitted killing his girlfriend in a fit of jealousy. This admission was
made after the following answer and question to wit:

"T - Ikaw ay may karapatan pa rin kumuha ng serbisyo ng isang abogado para
makatulong mo sa imbestigasyong ito at kung wala kang makuha, ikaw ay aming

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bibigyan ng libreng abogado, ano ngayon ang iyong masasabi?"

S - Nandiyan naman po si Fiscal (point to Assistant Fiscal Aniceto Malaputo)


kaya hindi ko na kinakailangan ang abogado."

During the trial, Jose Walangtakot repudiated his confession contending that it
was made without the assistance of counsel and therefore inadmissible in
evidence. Decide. (1993 Bar Question)

SUGGESTED ANSWER:

The confession of Jose Walangtakot is inadmissible in evidence. The warning given to


him is insufficient. In accordance with the ruling in People u. Duero, 104 SCRA379, he
should have been warned also that he has the right to remain silent and that any
statement he makes may be used as evidence against him. Besides, under Art. Ill, Sec.
12(1) of the Constitution, the counsel assisting a person being investigated must be
independent. Assistant Fiscal Aniceto Malaputo could not assist Jose Walangtakot. As
held in People v. Viduya. 189 SCRA 403, his function is to prosecute criminal cases. To
allow him to act as defense counsel during custodial investigations would render
nugatory the constitutional rights of the accused during custodial investigation. What the
Constitution requires is a counsel who will effectively undertake the defense of his client
without any conflict of interest. The answer of Jose Walangtakot indicates that he did
not fully understand his rights. Hence, it cannot be said that he knowingly and
intelligently waived those rights.

After X, a rape suspect, was apprised of his right to silence and to counsel, he
told the investigators that he was waiving his right to have his own counsel or to
be provided one. He made his waiver in the presence of a retired Judge who was
assigned to assist and explain to him the consequences of such waiver. Is the
waiver valid? (2011 BAR)
(A) No, the waiver was not reduced in writing.
(B) Yes, the mere fact that the lawyer was a retired judge does not cast
doubt on his competence and independence.
(C) Yes, the waiver was made voluntarily, expressly, and with assistance of
counsel.
(D) No, a retired Judge is not a competent and independent counsel.

Armando Salamanca, a notorious police character, came under custodial


investigation for a robbery in Caloocan City. From the outset, the police officers
informed him of his right to remain silent, and also his right to have a counsel of
his choice, if he could afford one or if not, the government would provide him
with such counsel.

He thanked the police investigators, and declared that he fully understands the
rights enumerated to him, but that, he is voluntarily waiving them. Claiming that
he sincerely desires to atone for his misdeeds, he gave a written statement on his

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participation in the crime under investigation.

In the course of the trial of the criminal case for the same robbery, the written
admission of Salamanca which he gave during the custodial investigation was
presented as the only evidence of his guilt. If you were his counsel, what would
you do? Explain your answer. (1988 Bar Question)

SUGGESTED ANSWER:

I would object to it on the ground that the waiver of the rights to silence and to counsel
is void, having been made without the presence of counsel. (Art. Ill, sec. 12(1); People
v. Galit, 135 SCRA 465 (1980). The waiver must also be in writing, although this
requirement might possibly have been complied with in this case by embodying the
waiver in the written confession. It should also be noted that under Rule 134, sec. 3,
even if the extrajudicial confession is valid, it is not a sufficient ground for conviction if it
is not corroborated by evidence of corpus delicti.

Pursuing reports that great quantities of prohibited drugs are being smuggled at
nighttime through the shores of Cavite, the Southern Luzon Command set up
checkpoints at the end of the Cavite coastal road to search passing motor
vehicles. A 19-year old boy, who finished fifth grade, while driving, was stopped
by the authorities at the checkpoint. Without any objection from him, his car was
inspected, and the search yielded marijuana leaves hidden in the trunk
compartment of the car. The prohibited drug was promptly seized, and the boy
was brought to the police station for questioning.

Before interrogation, the policeman on duty informed the boy in English that he
does have a right to remain silent and the right to counsel. However, there was
no counsel available as it was midnight. He declared orally that he did not need
any lawyer as he was innocent, since he was only bringing the marijuana leaves
to his employer in Quezon City and was not a drug user. He was charged with
illegal possession of prohibited drugs. Is his waiver of the right to counsel
valid?(1989 Bar Question)

SUGGESTED ANSWER:

No, the waiver of the right to counsel is not valid, since it was not reduced in writing and
made in the presence of counsel. Under Section 12(1), Article III of the 1987
Constitution to be valid, the waiver must be made in writing and in the presence of
counsel.

P. Rights of the accused


1. Criminal due process
2. Bail
3. Presumption of innocence
4. Right to be heard

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5. Assistance of counsel
6. Right to be informed
7. Right to speedy, impartial and public trial
8. Right of confrontation
9. Compulsory process
10. Trials inabsentia

The right of the accused to be informed is violated if:


a. he was accused of killing his wife by strangulation but it was proven that
his wife died of poisoning;
b. it was proven that he killed somebody on a date different from the one
alleged in the information;
c. he was charged with parricide but was convicted of murder, because it
turned out that he and the victim were not married;
d. the accused was charged with commission of acts of lasciviousness and
was convicted of unjust vexation.

Having received tips that the accused was selling narcotics, two police officers
forced open the door of his room. Finding him sitting partly dressed on the side
of the bed, the officers spied two capsules on a night stand beside the bed. When
asked, Are these yours?, the accused seized the capsules and put them in his
mouth. A struggle ensued, in the course of which the officers pounced on the
accused but failed to extract the capsules. The officers handcuffed the accused,
took him to a hospital where at their direction, a doctor forced an emetic solution
through a tube into the accuseds stomach against his will. This process induced
vomiting. In the vomited matter were found two capsules which proved to contain
heroin. In the criminal case, the chief evidence against the accused was the two
capsules.

As counsel for the accused, what constitutional rights will you invoke in his
defense? (4%) (2008 Bar Question)

SUGGESTED ANSWER:

As counsel for the accused, I shall invoke the following constitutional rights of the
accused:

1. The arrest of the accused and the extraction of the heroin violated his constitutional
right against illegal searches and seizures under Section 2, Article III of the Constitution.
Since the police officers had no personal knowledge that the accused was selling
marijuana and acted merely on a tip, there was no probable cause and the intrusion into
his room was invalid (People v. Bolasa, 321 SCRA 459).

2. The extraction of the heroin from the stomach of the accused by the use of an emetic
pump against his will violated his right to due process and his right against self-
incrimination, because the brutal method used to obtain the evidence offends the sense

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of justice [Rochin v. California, 342 U.S. 165).

3. The coerced extraction of the heroin violated the provision in Section 12(2), Article III
of the Constitution that no force shall be used against any person.

How should the court decide the case? (3%) (2008 Bar Question)

SUGGESTED ANSWER:

The court should acquit the accused. Under Section 3(2), Article III of the Constitution,
evidence obtained in violation of the right against unreasonable searches and seizures
is inadmissible. Besides, under Section 12(3), Article in of the Constitution, any
confession or admission obtained in violation of Section 12 or Section 17 or any object
discovered as a result of it is inadmissible in evidence (People v. Suela, 273 SCRA
163).

During promulgation of sentence, the presence of the accused is mandatory but


he may appear by counsel or representative when (2011 BAR)
(A) he is charged with a light offense.
(B) he was able to cross-examine the prosecutions witnesses.
(C) he waives his right to be present.
(D) he is convicted of a bailable offense.

Rafael, Carlos and Joseph were accused of murder before the Regional Trial
Court of Manila. Accused Joseph turned state witness against his co-accused
Rafael and Carlos, and was accordingly discharged from the information. Among
the evidence presented by the prosecution was an extrajudicial confession made
by Joseph during the custodial investigation, implicating Rafael and Carlos who,
he said, together with him (Joseph), committed the crime. The extrajudicial
confession was executed without the assistance of counsel.

Accused Rafael and Carlos vehemently objected on the ground that said
extrajudicial confession was inadmissible in evidence against them.

Rule on whether the said extrajudicial confession is admissible in evidence or


not. (5%) (2001 Bar Question)

FIRST ALTERNATIVE ANSWER:

According to People vs. Balisteros, 237 SCRA 499 (1994), the confession is
admissible. Under Section 12, Article III of the Constitution, the confession is
inadmissible only against the one who confessed. Only the one whose rights were
violated can raise the objection as his right is personal.

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SECOND ALTERNATIVE ANSWER:

According to People vs. Jara, 144 SCRA 516 (1986), the confession is inadmissible. If
it is inadmissible against the one who confessed, with more reason it should be
inadmissible against others.

William, a private American citizen, a university graduate and frequent visitor to


the Philippines, was inside the U.S. embassy when he got into a heated argument
with a private Filipino citizen. Then, in front of many shocked witnesses, he killed
the person he was arguing with. The police came, and brought him to the nearest
police station. Upon reaching the station, the police investigator, in halting
English, informed William of his Miranda rights, and assigned him an
independent local counsel. William refused the services of the lawyer, and
insisted that he be assisted by a Filipino lawyer currently based in the U.S. The
request was denied, and the counsel assigned by the police stayed for the
duration of the investigation.

William protested his arrest.

He argued that since the incident took place inside the U.S. embassy, Philippine
courts have no jurisdiction because the U.S. embassy grounds are not part of
Philippine territory; thus, technically, no crime under Philippine law was
committed. Is William correct? Explain your answer. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

William is not correct. The premises occupied by the United States Embassy do not
constitute territory of the United States but of the Philippines. Crimes committed within
them are subject to the territorial jurisdiction of the Philippines. Since William has no
diplomatic immunity, the Philippines can prosecute him if it acquires custody over him
(Reagan v. Commissioner of Internal Revenue, 30 SCRA 968 [1969]).

He also claimed that his Miranda rights were violated because he was not given
the lawyer of his choice; that being an American, he should have been informed
of his rights in proper English; and that he should have been informed of his
rights as soon as he was taken into custody, not when he was already at the
police station. Was William denied his Miranda rights? Why or why not? (3%)
(2009 Bar Question)

SUGGESTED ANSWER:

The fact that the police officer gave him the Miranda warning in halting English does not
detract from its validity. Under Section 2 (b) of Republic Act No. 7438, it is sufficient that
the language used was known to and understood by him. William need not be given the
Miranda warning before the investigation started. William was not denied his Miranda
rights. It is not practical to require the police officer to provide a lawyer of his own choice

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from the United States (Gamboa v. Cruz, 162 SCRA


(c) [1988]).

If William applies for bail, claiming that he is entitled thereto under the
international standard of justice and that he comes from a U.S. State that has
outlawed capital punishment, should William be granted bail as a matter of right?
Reasons. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

William should not be granted bail as a matter of right. He is subject to Philippine


criminal jurisdiction, therefore, his right to bail must be determined on the basis of
Section 13, Article III of the Constitution.

State with reason(s) whether bail is a matter of right or a matter of discretion in


the following cases:

a. The imposable penalty for the crime charged is reclusion perpetua and the
accused is a minor;

b. The imposable penalty for the crime charged is life imprisonment and the
accused is a minor;

c. The accused has been convicted of homicide on a charge of murder and


sentenced to suffer an indeterminate penalty of from eight (8) years and one (1)
day of prision mayor, as minimum, to twelve (12) years and four (4) months of
reclusion temporal as maximum. (4%) (2005 Bar Question)

SUGGESTED ANSWER:

a. A minor charged with a crime punishable with reclusion perpetua is entitled to bail
as a matter of right. Under Article 68 of the Revised Penal Code, in case of conviction
the penalty would be one degree lower than reclusion perpetua. This rules out
reclusion perpetua. [Bravo v. Borja, 134 SCRA 466 (1985)].

b. Bail is a matter of discretion for a minor charged with an offense punishable with life
imprisonment, because Article 68 of the Revised Penal Code is inapplicable and he is
not entitled to the privileged mitigating circumstance under it. [People u. Lagasca, 148
SCRA 264 (1987)].

c. Bail is a matter of discretion for an accused convicted of homicide on a charge of


murder, because an appeal opens the whole case of review. There is a possibility that
he may be convicted of murder, which is punishable with reclusion perpetua to death.
His conviction shows the evidence of his guilt is strong. [Obosa v. Court of Appeals, 266
SCRA 281 (1997)].

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An information for murder was filed against X. After examining the case records
forwarded to him by the prosecution, the trial judge granted bail to X based on
the prosecution's manifestation that it was not objecting to the grant of bail. Is the
trial judge correct? (2011 BAR)
(A) Yes, the trial judge may evaluate the strength or weakness of the
evidence based on the case records forwarded to him.
(B) No, the trial judge should have held a hearing to ascertain the quality of
the evidence of guilt that the prosecution had against X.
(C) No, the trial judge should have conducted a hearing to ascertain first
whether or not X was validly arrested.
(D) Yes, the trial judge may reasonably rely on the prosecution's
manifestation that he had no objection to the grant of bail.

May an alien invoke the constitutional right to bail during the pendency of
deportation proceedings? (1989 Bar Question)

SUGGESTED ANSWER:

No, an alien may not invoke the constitutional right to bail during the pendency of
deportation proceedings. In Harvey vs. Santiago, 162 SCRA 840, it was held that the
constitutional guarantee to bail may not be invoked in deportation proceedings, because
they do not partake of the nature of a criminal action.

Johann learned that the police were looking for him in connection with the rape of
an 18-year old girl, a neighbor. He went to the police station a week later and
presented himself to the desk sergeant. Coincidentally, the rape victim was in the
premises executing an extrajudicial 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 prior to arraignment invoked his right to preliminary investigation. This
was denied by the Judge, and thus, trial proceeded. After the prosecution
presented several witnesses, Johann through counsel, invoked the right to bail
and filed a motion therefor, which was denied outright by the judge. Johann now
files a petition for certiorari before the Court of Appeals arguing that:

He is entitled to bail as a matter of right, thus the judge should not have denied
his motion to fix bail outright.

Decide. (1993 Bar Question)

SUGGESTED ANSWER:

In accordance with Art. Ill, sec. 13 of the Constitution, Johann may be denied bail if the
evidence of his guilt is strong considering that the crime with which he is charged is
punishable by reclusion perpetua. It is thus not a matter of right for him to be released
on bail in such case. The court must first make a determination of the strength of the

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evidence on the basis of evidence already presented by the prosecution, unless it


desires to present some more, and give the accused the opportunity to present
countervailing evidence. If having done this the court finds the evidence not to be
strong, then it becomes the right of Johann to be admitted to bail. The error of the trial
court lies in outrightly denying the motion for bail of Johann.

A law denying persons charged with crimes punishable by reclusion perpetua or


death the right to bail. 2% State whether or not the law is constitutional. Explain
briefly. (2006 Bar Question)

SUGGESTED ANSWER:

A law denying persons charged with crimes punishable by reclusion perpetua or death
the right to be bail is unconstitutional, because according to the constitution, [A]all
persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or
be released on recognizance as may be provided by law (Section 13, Article in of the
Constitution).

JC, a major in the Armed Forces of the Philippines, is facing prosecution before
the Regional Trial Court of Quezon City for the murder of his neighbor whom he
suspected to have molested his (JCs) 15-year old daughter.

Is JC entitled to bail? Why or why not? (3%) (2008 Bar Question)

SUGGESTED ANSWER:

If the evidence of guilt is strong, JC is not entitled to bail, since the penalty for murder is
reclusion perpetua. (Section 13, Article III of the Constitution; Article 248 of the Revised
Penal Code, as amended.) Although under Paragraph 5 of Article 13 of the Revised
Penal Code the murder is mitigated by the fact that it was committed in the immediate
vindication of the molestation of his daughter, in case of conviction the penalty will be
reclusion perpetua since the Revised Penal Code provides a single indivisible penalty
for murder (Article 63 of the Revised Penal Code).

SUGGESTED ANSWER:

As a rule, bail is a matter of right even in capital offense, unless it is determined, after
due hearing, that the evidence of his guilt is strong (Section 13, Article III of the
Constitution; Article 248 of the Revised Penal Code, as amended).

OZ lost five head of cattle which he reported to the police as stolen from his bam.
He requested several neighbors, including RR, for help in looking for the missing
animals. After an extensive search, the police found two head in RRs farm. RR
could not explain to the police how they got hidden in a remote area of his farm.

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Insisting on his innocence. RR consulted a lawyer who told him he has a right to
be presumed innocent under the Bill of Rights. But there is another
presumptionof theft arising from his unexplained possession of stolen cattle-
under the penal law.

Are the two presumptions capable of reconciliation in this case? If so, how can
they be reconciled? If not, which should prevail? (5%) (2004 Bar Question)

SUGGESTED ANSWER:

The two presumptions can be reconciled. The presumption of innocence stands until the
contrary is proved. It may be overcome by a contrary presumption founded upon human
experience. The presumption that RR is the one who stole the cattle of OZ is logical,
since he was found in possession of the stolen cattle. RR can prove his innocence by
presenting evidence to rebut the presumption. The burden of evidence is shifted to RR,
because how he came into possession of the cattle is peculiarly within his knowledge.
(Dizon-Pamintuan v. People, 234 SCRA 63 [1994]).

Norberto Malasmas was accused of estafa before the Regional Trial Court of
Manila. After the trial, he was found guilty. On appeal, his conviction was affirmed
by the Court of Appeals. After the records of his case had been remanded to the
Regional Trial Court for execution, and after the latter Court had set the date for
the promulgation of judgment, the accused filed a motion with the Court of
Appeals to set aside the entry of judgment, and to remand the case to the
Regional Trial Court for new trial on the ground that he had just discovered that
Atty. Leonilo Maporma whom he had chosen and who had acted as his counsel
before the trial court and the Court of Appeals, is not a lawyer. Resolved the
motion of the accused with reasons. (2010 Bar Question)

SUGGESTED ANSWER:

The motion should be granted and the entry of judgment should be set aside. An
accused is entitled to be heard by himself or counsel. (Art. Ill, sec. 14(2)). Unless he is
represented by an attorney, there is a great danger that any defense presented in his
behalf will be inadequate considering the legal requisite and skill needed in court
proceedings. There would certainly be a denial of due process. (Delgado v. Court of
Appeals, 145 SCRA 357 (1986)).

Larry was an overnight guest in a motel. After he checked out the following day,
the chambermaid found an attache case which she surmised was left behind by
Larry. She turned it over to the manager who, to determine the name and address
of the owner, opened the attache case and saw packages which had a peculiar
smell and upon squeezing felt like dried leaves. His curiosity aroused, the
manager made an opening on one of the packages and took several grams of the
contents thereof. He took the packages to the NBI, and in the presence of agents,
opened the packages, the contents of which upon laboratory examination, turned

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out to be marijuana flowering tops. Larry was subsequently found, brought to the
NBI Office where he admitted ownership of the attache case and the packages. He
was made to sign a receipt for the packages. Larry was charged in court for
possession of prohibited drugs. He was convicted. On appeal, he now poses the
following issues:

Neither is the receipt he signed admissible, his rights under custodial


investigation not having been observed. (1993 Bar Question)

Decide.

SUGGESTED ANSWER:

The receipt is not admissible in evidence. According to the ruling in People vs. Mirantes.
209 SCRA 179, such receipt is in effect an extrajudicial confession of the commission of
an offense. Hence, if it was signed without the assistance of counsel, in accordance
with Section 12(3), Article IV of the Constitution, it is inadmissible in evidence. [People
v. Duhan, 142 SCRA 100 (1986)].

An information for parricide was filed against Danny. After the NBI found an
eyewitness to the commission of the crime. Danny was placed in a police line-up
where he was identified as the one who shot the victim. After the line-up, Danny
made a confession to a newspaper reporter who interviewed him.

Can Danny claim that his identification by the eyewitness be excluded on the
ground that the line-up was made without benefit of his counsel? (1994 Bar
Question)

SUGGESTED ANSWER:

No, the identification of Danny, a private person, by an eyewitness during the line-up
cannot be excluded in evidence. In accordance with the ruling in People vs. Hatton, 210
SCRA 1, the accused is not entitled to be assisted by counsel during a police line-up,
because it is not part of custodial investigation.

SUGGESTED ANSWER:

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

Can Danny claim that his confession be excluded on the ground that he was not
afforded his "Miranda" rights? (1994 Bar Question)

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SUGGESTED ANSWER:

No, Danny cannot ask that his confession to a newspaper reporter should be excluded
in evidence. As held in People vs. Bernardo, 220 SCRA 31, such an admission was not
made during a custodial interrogation but a voluntary statement made to the media.

Johann learned that the police were looking for him in connection with the rape of
an 18-year old girl, a neighbor. He went to the police station a week later and
presented himself to the desk sergeant. Coincidentally, the rape victim was in the
premises executing an extrajudicial 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 prior to arraignment invoked his right to preliminary investigation. This
was denied by the Judge, and thus, trial proceeded. After the prosecution
presented several witnesses, Johann through counsel, invoked the right to bail
and filed a motion therefor, which was denied outright by the judge. Johann now
files a petition for certiorari before the Court of Appeals arguing that:

He should have been informed of his right to be represented by counsel prior to


his identification via the police line up.

Decide. (1993 Bar Question)

SUGGESTED ANSWER:

Pursuant to the decision in People vs. Casimillo, 213, SCRA 111, Johann need not be
informed of his right to counsel prior to his identification during the police line-up. The
police line- up is not part of custodial investigation, since Johann was not being
questioned but was merely being asked to exhibit his body for identification by a
witness.

As an alternative answer, it may be argued that in United States vs. Wade, 388 U.S.
218 (1967) and Gilbert vs. California, 388 U.S. 263 (1967) it was held that on the basis
of the Sixth, rather than the Fifth Amendment (equivalent to Art. Ill, sec. 14 (2) rather
than sec. 12 (1)), the police lineup is such a critical stage" that it carries potential
substantial prejudice" for which reason the accused is entitled to the assistance of
counsel.

A, who was arrested as a suspect in a murder case, was not represented by


counsel during the question and answer stage. However, before he was asked
to sign his statements to the police investigator, the latter provided A with a
counsel, who happened to be at the police station. After conferring with A, the
counsel told the police investigator that A was ready to sign the statements.

Can the statements of A be presented in court as his confession? Explain. (1996


Bar Question)

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SUGGESTED ANSWER:

No, the statements of A cannot be presented in court as his confession. He was not
assisted by counsel during the actual questioning. There is no showing that the lawyer
who belatedly conferred with him fully explained to him the nature and consequences of
his confession. In People vs. CompiL 244 SCRA 135. the Supreme Court held that the
accused must be assisted by counsel during the actual questioning and the belated
assistance of counsel before he signed the confession does not cure the defect.

SUGGESTED ANSWER:

Yes, the statements of A can be presented in court as his confession. As held in People
vs. Rous. 242 SCRA 732, even if the accused was not assisted by counsel during the
questioning, his confession is admissible if he was able to consult a lawyer before he
signed.

A, while on board a passenger jeep one night, was held up by a group of three
teenagers who forcibly divested her of her watch, necklace and wallet containing
P 100.00. That done, the trio jumped off the passenger jeep and fled. B, the Jeep
driver, and A complained to the police to whom they gave description of the
culprits. According to the Jeep driver, he would be able to identify the culprits if
presented to him. Next morning A and B were summoned to the police station
where five persons were lined up before them for identification. A and B
positively identified C and D as the culprits. After preliminary investigation, C and
D and one John Doe were charged with robbery In an information filed against
them in court. C and D set up, in defense, the illegality of their apprehension,
arrest and confinement based on the identification made of them by A and B at a
police line-up at which they were not assisted by counsel.

How would you resolve the issues raised by C and D? (1997 Bar Question)

SUGGESTED ANSWER:

The arguments of the accused are untenable. As held in People vs. Acd 232 SCRA
406, the warrantless arrest of accused robbers immediately after their commission of
the crime by police officers sent to look for them on the basis of the information related
by the victims is valid under Section 5(b), Rule 113 of the Rules on Criminal Procedure.
According to People vs. Lamsiiig. 248 SCRA 471, the right to counsel does not extend
to police line-ups, because they are not part of custodial investigations. However,
according to People vs. Macon 238 SCRA 306, after the start of custodial investigation.
if the accused was not assisted by counsel, any identification of the accused in a police
line-up is inadmissible.

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On October 1, 1985, Ramos was arrested by a security guard because he


appeared to be suspicious" and brought to a police precinct where in the course
of the investigation he admitted he was the killer in an unsolved homicide
committed a week earlier. The proceedings of his investigation were put in writing
and dated October 1, 1985, and the only participation of counsel assigned to him
was his mere presence and signature on the statement. The admissibility of the
statement of Ramos was placed in issue but the prosecution claims that the
confession was taken on October 1, 1985 and the 1987 Constitution providing for
the right to counsel of choice and opportunity to retain, took effect only on
February 2, 1987 and cannot be given retroactive effect. Rule on this. (3%) (2000
Bar Question)

SUGGESTED ANSWER:

The confession of Ramos is not admissible, since the counsel assigned to him did not
advise him of his rights. The fact that his confession was taken before the effectivity of
the 1987 Constitution is of no moment. Even prior to the effectivity of the 1987
Constitution, the Supreme Court already laid down strict rules on waiver of the rights
during investigation in the case of People u. Galit, 135 SCRA. 465 (1985).

One day a passenger bus conductor found a man's handbag left in the bus. When
the conductor opened the bag, he found inside a calling card with the owners
name (Dante Galang) and address, a few hundred peso bills, and a small plastic
bag containing a white powdery substance. He brought the powdery substance to
the National Bureau of Investigation for laboratory examination and it was
determined to be methamphetamine hydrochloride or shabu, a prohibited drug.
Dante Galang was subsequently traced and found and brought to the NBI Office
where he admitted ownership of the handbag and its contents. In the course of
the interrogation by NBI agents, and without the presence and assistance of
counsel, Galang was made to sign a receipt for the plastic bag and its shabu
contents. Galang was charged with illegal possession of prohibited drugs and
was convicted.

On appeal he contends that


The receipt he signed is also inadmissible as his rights under custodial
investigation were not observed. (2%)

Decide the case with reasons. (2002 Bar Question)

SUGGESTED ANSWER:

The receipt which Galang signed without the assistance of counsel is not admissible in
evidence. As held in People v. Castro, 274 SCRA 115 (1997), since the receipt is a
document admitting the offense charged, Galang should have been assisted by counsel
as required by Article III, Section 11 of the Constitution

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All persons charged shall, before conviction, be bailable by sufficient sureties,


except those charged with: (2012 BAR EXAMS)

a. offenses punishable by death when evidence of guilt is strong;


b. offenses punishable by life imprisonment when evidence of guilt is strong;
c. offenses punishable by death when evidence of guilt is weak;
d. offenses punishable by reclusion perpetua when evidence of guilt is strong.

SUGGESTED ANSWER:

(D) SECTION 13, ARTICLE III OF CONSTITUTION

Accused was charged with slight illegal detention. On the day set for the trial, the
trial court proceeded as follows:

"Court: to the accused:


Q: "Do you have an attorney or are you going to plead guilty?"
A: "I have no lawyer and i will plead guilty."

Accused was then arraigned, pleaded guilty, was found guilty and sentenced. On
appeal, the Supreme Court reversed. The accused was deprived of his: (2012 BAR
EXAMS)

a. right to cross-examination;
b. right to be presumed innocent;
c. right to counsel;
d. right to production of evidence.

SUGGESTED ANSWER:

(C) PEOPLE VS HOLGADO, 85 PHIL 752

The constitutional right of an accused "to meet the witnesses face to face" is
primarily for the purpose of affording the accused an opportunity to: (2012 BAR
EXAMS)

a. identify the witness;


b. cross-examine the witness;
c. be informed of the witness;
d. be heard.

Criminal trial may proceed, notwithstanding the absence of the accused provided
that he has been duly notified, and his failure to appear is unjustifiable, after:
(2012 BAR EXAMS)

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a. preliminary investigation;
b. arraignment;
c. sentencing;
d. prosecution has rested its case.

SUGGESTED ANSWER:

(B) SECTION 19, ARTICLE III OF CONSTITUTION

The requisites of a valid trial in absentia exclude: (2012 BAR EXAMS)

a. Wherein his/her failure to appear is unjustifiable;


b. Wherein he/she allows himself/herself to be identified by the witness in his/her
absence, without further unqualified admitting that every time a witness mentions
a name by which he/she is known, it shall be understood to refer to him/her;
c. Wherein he/she has been duly notified of the trial;
d. Wherein the accused has already been arraigned.

SUGGESTED ANSWER:

(B) CARREDO VS. PEOPLE, 183 SCRA 373

Q. Writ of habeas corpus

Accused X pleaded not guilty to the charge of homicide against him. Since he
was admitted to bail, they sent him notices to attend the hearings of his case. But
he did not show up, despite notice, in four successive hearings without offering
any justification. The prosecution moved to present evidence in absentia but the
court denied the motion on the ground that the accused has a right to be present
at his trial. Is the court correct? (2011 BAR)

(A) No, the court is mandated to hold trial in absentia when the accused had
been arraigned, had notice, and his absence was unjustified.
(B) Yes, it remains discretionary on the court whether to conduct trial in
absentia even if the accused had been arraigned and had notice and did
not justify his absence.
(C) Yes, it is within the court's discretion to determine how many
postponements it will grant the accused before trying him in absentia.
(D) No, the court may reject trial in absentia only on grounds of fraud,
accident, mistake, or excusable negligence.

A. When may the privilege of the writ of habeas corpus be suspended? (1997 Bar
Question)

B. If validly declared, what would be the full consequences of such suspension?


(1997 Bar Question)

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SUGGESTED ANSWER:

A. Under Section 18, Article VII of the Constitution, the privilege of the writ of habeas
corpus may be suspended when there is an invasion or rebellion and public safety
requires it.

B. According to Section 18. Article VII of the Constitution, the suspension of the
privilege of the writ of habeas corpus shall apply only to persons judicially charged with
rebellion or offenses inherent in or directly connected with invasion. Any person
arrested or detained should be judicially charged within three days. Otherwise, he
should be released. Moreover, under Section 13, Article III of the Constitution, the right
to ball shall not be impaired even when the privilege of the writ of habeas corpus is
suspended.

The privilege of the writ of habeas corpus shall not be suspended except in cases
of: (2012 BAR EXAMS)

a. imminent danger of invasion or rebellion when the public safety requires it;
b. grave danger of invasion or rebellion when the public safety requires it;
c. clear and present danger of invasion or rebellion when the public safety
requires it;
d. invasion or rebellion when the public safety requires it.

SUGGESTED ANSWER:

(D) SECTION 18, ARTICLE VII OF CONSTITUTION

R. Writs of amparo, habeas data, and kalikasan

Conrad is widely known in the neighborhood as a drug addict. He is also


suspected of being a member of the notorious Akyat-Condo Gang that has
previously broken into and looted condominium units in the area. Retired Army
Colonel Sangre who is known as an anti-terrorism fighter who disclaimed
human and constitutional rights and has been nicknamed terror of Mindanao
is now the Head of Security of Capricorn Land Corporation, the owner and
developer of Sagittarius Estates where a series of robberies has recently taken
place.

On March 1, 2013, Conrad informed his mother, Vannie, that uniformed security
guards had invited him for a talk in their office but he refused to come. Later that
day, however, Conrad appeared to have relented; he was seen walking into the
security office flanked by two security guards. Nobody saw him leave the office
afterwards.

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Conrad did not go home that night and was never seen again. The following week
and after a week-long search, Vannie feared the worst because of Col. Sangres
reputation. She thus reported Conrads disappearance to the police. When
nothing concrete resulted from the police investigation, Vannie a the advice of
counsel filed a petition for a writ of amparo to compel Col. Sangre and the
Sagittarius Security Office to produce Conrad and to hold them liable and
responsible for Conrads disappearance.

(A) Did Vannies counsel give the correct legal advice? (6%)
(B) If the petition would prosper, can Col. Sangre be held liable and/or
responsible for Conrads disappearance? (6%) 2013 BAR EXAMS

SUGGESTED ANSWER:

(A) The advice of Vannies counsel that she file a petition for a writ of amparo is not
correct. In order that a writ of amparo can be availed of against a private individual for
the disappearance of someone, the involvement of the government is indispensable.
There is no shoeing of any participation of the government in Conrads disappearance
(Navia v. Pardico, G.R. No. 184467, June 19, 2012, 673 SCRA 618).

(B) No, Col. Sangre cannot be held responsible for the disappearance of Conrad.
Command responsibility has no applicability to an amparo proceeding (Rubrico v.
Macapagal-Arroyo, G.R. No. 183871, February 18, 2010., 613 SCRA 233). It may be
established merely to enable the court to craft the appropriate remedies against the
responsible parties (Balao v. Macapagal-Arroyo, G.R. No. 186050, December 13, 2011,
662 SCRA 312).

ALTERNATIVE ANSWER:

Although the writ of amparo does not pinpoint criminal culpability for a disappearance, it
determines responsibility, for the purpose of imposing the appropriate remedy.
Responsibility refers to the extent the actors have been established to have participated
in an enforced disappearance, as a measure of the remedy, to be crafted, such as the
directive to file the appropriate criminal and civil cases against the responsible parties
(Razon Jr. v. Tagitis, G.R. No. 182498, December 3, 2009, 606 SCRA 598).

What is a Constitutional writ of Amparo and what is the basis for such a remedy
under the Constitution? (1991 Bar Question)

SUGGESTED ANSWER:

The writ of Amparo in Mexican law is an extraordinary remedy whereby an interested


party may seek the invalidation of any executive, legislative or judicial act deemed in
violation of a fundamental right. The adoption of such a remedy in the Philippines may
be based on Article VIII, Sec. 5(5) of the Constitution, which empowers the Supreme
Court to promulgate rules concerning the protection and enforcement of constitutional

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rights.

S. Self-incrimination clause
1. Scope and coverage
a. Foreign laws
2. Application
3. Immunity statutes

The right of the state to prosecute crimes by available evidence must yield to the
right of: 2013 BAR EXAMS
A. the accused against self- incrimination.
B. another state to extradite a fugitive from justice.
C. the state to deport undesirable aliens.
D. the complainant to drop the case against the accused

The right of the accused against self-incrimination will be violated if: (2012 BAR
EXAMS)
a. he is charged with violation of the Anti-Money Laundering Act and he was
required to produce his bank passbook;
b. he is a public officer charged with amassing ill-gotten wealth and his statement
of assets and liabilities will be presented as evidence;
c. his gun was subjected to a ballistics test;
d. a sample of his blood was taken if his blood type matches the blood type found
at the scene of the crime.

As he was entering a bar, Arnold who was holding an unlit cigarette in this
right hand was handed a match box by someone standing near the doorway.
Arnold unthinkingly opened the matchbox to light his cigarette and as he did so,
a sprinkle of dried leaves fell out, which the guard noticed. The guard
immediately frisked Arnold, grabbed the matchbox, and sniffed its contents. After
confirming that the matchbox contained marijuana, he immediately arrested
Arnold and called in the police.

At the police station, the guard narrated to the police that he personally caught
Arnold in possession of dried marijuana leaves. Arnold did not contest the
guards statement; he steadfastly remained silent and refused to give any written
statement. Later in court, the guard testified and narrated the statements he gave
the police over Arnolds counsels objections. While Arnold presented his own
witnesses to prove that his possession and apprehension had been set-up, he
himself did not testify.

The court convicted Arnold, relying largely on his admission of the charge by
silence at the police investigation and during trial.

From the constitutional law perspective, was the court correct in its ruling? (6%)
2013 BAR EXAMS

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SUGGESTED ANSWER:

The court was wrong in relying on the silence of Arnold during the police investigation
and during the trial. Under Article III, Section 12 of the 1987 Constitution, he had the
right to remain silent. His silence cannot be taken as a tacit admission, otherwise, his
right to remain silent would be rendered nugatory. Considering that his right against
self-incrimination protects his right to remain silent, he cannot be penalized for
exercising it (People v. Galvez, G.R. No. 157221, March 30, 2007, 519 SCRA 521).

ALTERNATIVE ANSWER:

The court correctly convicted Arnold. There is no showing that the evidence for the
prosecution was insufficient. When Arnold remained silent, he runs the risk of an
interference of guilt from non-production of evidence in his behalf (People v. Solis G.R.
No. 124127, June 29, 1998, 128 SCRA 217).

Alienmae is a foreign tourist. She was asked certain questions in regard to a


complaint that was filed against her by someone who claimed to have been
defrauded by her. Alienmae answered all the questions asked, except in regard to
some matters in which she invoked her right against self-incrimination. When she
was pressed to elucidate, she said that the questions being asked might tend to
elicit incriminating answers insofar as her home state is concerned. Could
Alienmae invoke the right against selfincrimination if the fear of incrimination is
in regard to her foreign law? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

No. Alienmae cannot invoke her right against self-incrimination even if the fear of
incrimination is in regard to her foreign law. Under the territoriality principle, the general
rule is that a state has jurisdiction over all persons and property within its territory. The
jurisdiction of the nation within its own territory is necessary, exclusive, and absolute.
However, the are a few exceptions on when a state cannot exercise jurisdiction even
within its own territory, to wit: 1) foreign states, head of states, diplomatic
representatives, and consults to a certain degree; 2) foreign state property; 3) acts of
state; 4) foreign merchant vessels exercising rights of innocent passage or arrival under
stress; 5) foreign armies passing through or stationed in its territories with its
permission; and 6) such other persons or property, including organisations like the
United Nations, over which it may, by agreement, waive jurisdiction.

Seeing that the circumstances surrounding Alienmae do not fall under those exceptions,
that she is a foreign tourist who received a complaint for fraud, such principle of
territoriality can be exercised by the State to get the information it needs to proceed with
the case.

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Congress is considering a law against drunken driving. Under the legislation,


police authorities may ask any driver to take a breathalyzer test, wherein the
driver exhales several times into a device which can determine whether he has
been driving under the influence of alcohol. The results of the test can be used, in
any legal proceeding against him. Furthermore, declaring that the issuance of a
driver's license gives rise only to a privilege to drive motor vehicles on public
roads, the law provides that a driver who refuses to take the test shall be
automatically subject to a 90-day suspension of his drivers license.

Cite two (2) possible constitutional objections to this law. Resolve the objections
and explain whether any such infirmities can be cured. (1992 Bar Question)

SUGGESTED ANSWER:

Possible objections to the law are that requiring a driver to take the breathalyzer test will
violate his right against self-incrimination, that providing for the suspension of his
drivers license without any hearing violates due process, and that the proposed law will
violate the right against unreasonable searches and seizures, because it allows police
authorities to require a drive to take the breathalyzer test even if there is no probable
cause.

Requiring a driver to take a breathalyzer test does not violate his right against self-
incrimination, because he is not being compelled to give testimonial evidence.' He is
merely being asked to submit to a physical test. This is not covered by the constitutional
guarantee against self-incrimination. Thus, in South Dakota us. Neville, 459 U.S. 553, it
was held for this reason that requiring a driver to take a blood-alcohol test is valid.

As held in Mackey vs. Montryn, 443 U.S. 1, because of compelling government interest
in safety along the streets, the license of a driver who refuses to take the breathalyzer
test may be suspended immediately pending a post-suspension hearing, but there must
be a provision for a post-suspension hearing. Thus, to save the proposed law from
unconstitutionality on the ground of denial of due process, it should provide for an
immediate hearing upon suspension of the drivers license.

The proposed law violates the right against unreasonable searches and seizures. It will
authorize police authorities to stop any driver and ask him to take the breathalyzer test
even in the absence of a probable

The privilege of self-incrimination must be timely invoked, otherwise it is deemed


waived.

1. In a civil case, the plaintiff called the defendant a hostile witness and
announced that the defendant would be asked incriminating questions in the
direct examination. When should the defendant invoke the privilege against self-
incrimination? (1990)

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2. In a criminal case, the prosecution called the accused to the witness stand as
the first witness in view of certain facts admitted by the accused at the pre-trial.
When should the accused invoke the privilege against self-incrimination? (1990)

3. In an administrative case for malpractice and the cancellation of license to


practice medicine filed against C. the complainant called C to the witness stand.
When should C invoke the privilege against self-incrimination?

Explain your answers to the three questions. (1990 Bar Question)

SUGGESTED ANSWER:

1. As held in Bagadiong v. De Guzman, 94 SCRA 906, the defendant should take the
witness stand and object when a question calling for an incriminating question is
propounded. Unlike in proceedings which are criminal in character in which the accused
can refuse to testify, the defendant must wait until a question calling for an incriminatory
answer is actually asked. (Suarez v. Tongco, 2 SCRA 71)

2. As held in Chavez u. Court of Appeals. 24 SCRA 663, in a criminal case the accused
may altogether refuse to take the witness and refuse to answer any question, because
the purpose of calling him as a witness for the prosecution has no other purpose but to
incriminate him.

3. As in a criminal case, C can refuse to take the witness stand and refuse to answer
any question. In Pascual v. Board of Medical Examiners, 28 SCRA 344, it was held that
an administrative case for malpractice and cancellation of the license to practice
medicine is penal in character, because an unfavorable decision would result in the
revocation of the license of the respondent to practice medicine. Consequently, he can
refuse to take the witness stand.

The right of the State to prosecute crimes by available evidence must yield to the
right of (2011 BAR)
(A) the accused against self-incrimination.
(B) another State to extradite a fugitive from justice.
(C) the State to deport undesirable aliens.
(D) the complainant to drop the case against the accused.

Suppose Congress passed a law to implement the Constitutional principle that a


public office is a public trust, by providing as follows:

"No employee of the Civil Service shall be excused from attending


and testifying or from producing books, records, correspondence,
documents or other evidence in any administrative investigation
concerning the office in which he is employed on the ground that his
testimony or the evidence required of him may tend to incriminate him or

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subject him to a penalty or forfeiture; but his testimony or any evidence


produced by him shall not be used against him in criminal prosecution
based on the transaction, matter or thing concerning which is compelled,
after invoking his privilege against self-incrimination, to testify or produce
evidence. Provided, however, that such individual so testifying shall not be
exempt from prosecution and punishment for perjury committed in so
testifying nor shall he be exempt from demotion or removal from office.
Any employee who refuses to testify or produce any documents under this
Act shall be dismissed from the service."

Suppose further, that Ong, a member of the Professional Regulatory Board, is


required to answer questions in an investigation regarding a LEAKAGE in a
medical examination.

1. Can Ong refuse to answer questions on the ground that he would incriminate
himself? [4%] (1998 Bar Question)

2. Suppose he refuses to answer, and for that reason, is dismissed from the
service, can he argue that the Civil Service Commission has inferred his guilt
from his refusal to answer in violation of the Constitution? (3%) (1998 Bar
Question)

3. Suppose, on the other hand, he answers the question and on the basis of his
answers, he is found guilty and is dismissed. Can he assert that his dismissal is
based on coerced confession? |3%] (1998 Bar Question)

SUGGESTED ANSWER:

1. No, Ong cannot refuse to answer the question on the ground that he would
incriminate himself, since the law grants him immunity and prohibits the use against him
in a criminal prosecution of the testimony or evidence produced by him. As stated by the
United States Supreme Court in Brown vs. Walker, 161 U.S. 591, 597, what the
constitutional prohibition against self-incrimination seeks to prevent is the conviction of
the witness on the basis of testimony elicited from him. The rule is satisfied when he is
granted immunity.

ALTERNATIVE ANSWER:

1. In accordance with Evangelista vs. Jarencio, 68 SCRA 99, 107-108, if Ong is


being cited merely as a witness, he may not refuse to answer. However, if the question
tends to violate his right against self -incrimination, he may object to it. On the other
hand, under the ruling in Chavez vs. Court of Appeals, 24 SCRA 663, 680, if he is a
respondent, Ong may refuse to answer any question because of his right against self-
incrimination.

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SUGGESTED ANSWER:

2. No Ong cannot argue that the Civil Service Commission inferred his guilt
from his refusal to answer. He was not dismissed because of his involvement in the
leakage in the medical examination but for his refusal to answer. This is a violation of
the law. He could be compelled to answer the question on pain of being dismissed in
case of his refusal, because he was granted immunity.

In Lefkowitz vs. Turley, 414 U.S 70, 84, the United States Supreme Court said:

"Furthermore, the accommodation between the interest of the State and the
Fifth Amend-ment requires that the State have means at its disposal to secure
testimony if immunity is supplied and testimony is still refused. This is
recognized by the power of courts to compel testimony, after a grant of
immunity, by use of civil contempt and coerced imprisonment. Shilitani v.
United States, 384 US 364, 16 L Ed 2d 622, 86 5 Ct 1531 (1966). Also, given
adequate immunity the State may plainly insist that employees either answer
questions under oath about the performance of their job or suffer the loss of
employment."

3. Yes, Ong can argue that his dismissal was based on coerced confession. In
Garrity vs. New Jersey, 385 U.S. 493, 500, the United States Supreme Court held:

We now hold the protection of the individual under the Fourteenth Amendment
against coerced statements prohibits use in subsequent criminal proceedings
of statements obtained under threat of removal from office, and that it extends
to all, whether they are policemen or other members of the body politic."

Dr. Juan Sto. Tomas is a practicing dentist in Marikina, Metro Manila. He was
charged with immorality before the Board of Dentistry by a lady patient, who
claims that Dr. Sto. Tomas took liberties with her person and kissed her while she
was under the treatment at the latters clinic.

At the initial hearing of the administrative complaint, the complainants counsel


called the respondent as his first witness. The respondent through counsel,
objected vigorously, claiming his constitutional right to be exempt from being a
witness against himself. The Board noted the objection, but ruled that in the next
scheduled hearing, a month and a half later, the respondent would be called to
testify as a witness, as the right he claims is not available in administrative
investigations, but only in criminal prosecutions.

Dr. Sto. Tomas is decided not to testify. As his lawyer, what would you do? Why?
(1988 Bar Question)

SUGGESTED ANSWER:

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I will file a petition for prohibition with prayer for preliminary injunction with the Regional
Trial Court. The privilege against self-incrimination is available not only in judicial
proceedings but also in administrative investigations. In Pascual v. Board of Medical
Examiners, 28 SCRA 344 (1969), it was held that the revocation of a license as a
medical practitioner can be an even greater deprivation than mere forfeiture of property.
In some aspects it is similar to criminal proceedings and, therefore, the respondent
cannot be made to testify as a witness for the complainant.

A man was shot and killed and his killer fled. Moments after the shooting, an
eyewitness described to the police that the slayer wore white pants, a shirt with
floral design, had boots and was about 70 kilos and 1.65 meters. Borja, who fit the
description given, was seen nearby. He was taken into custody and brought to
the police precinct where his pants, shirt and boots were forcibly taken and he
was weighed, measured, photographed, fingerprinted and subjected to paraffin
testing. At his trial, Borja objected to the admission in evidence of the apparel,
his height and weight, his photographs, fingerprints comparison and the results
of the paraffin test, asserting that these were taken in violation of his right against
self-incrimination. Rule on the objection. (2%) (2000 Bar Question)

SUGGESTED ANSWER:

The objection of Borja is not tenable. As held in People v. Pay nor, 261 SCRA 615
(1996), the rights guaranteed by Section 12, Article III of the Constitution applies only
against testimonial evidence. An accused may be compelled to be photographed or
measured, his garments may be removed, and his body may be examined.

Select the best answer and explain.

An accuseds right against self-incrimination is violated in the following cases:


5% (2006 Bar Question)

A. When he is ordered by the trial court to undergo a paraffin test to prove he is


guilty of murder;

B. When he is compelled to produce his bankbooks to be used as evidence


against his father charged with plunder;

C. When he is ordered to produce a sample of his handwriting to be used as


evidence that he is the author of a letter wherein he agreed to kill the victim;

D. When the president of a corporation is subpoenaed to produce certain


documents as proofs he is guilty of illegal recruitment.

SUGGESTED ANSWER:

The best answer is: (c), ordering the accused to produce a sample of his handwriting to

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be used as evidence to prove that he is the author of a letter in which he agreed to kill
the victim as this will violate his right against self-incrimination. Writing is not a purely
mechanical act, because it requires the application of intelligence and attention.
Producing a sample of his handwriting may identify him as the writer of the letter
(Beltran v. Samson, 53 Phil. 570, [1929]).

A, the wife of an alleged victim of enforced disappearance, applied for the


issuance of a Writ of Amparo before a Regional Trial Court in Tarlac. Upon motion
of A, the court issued inspection and production orders addressed to the AFP
Chief of Staff to allow entry at Camp Aquino and permit the copying of relevant
documents, including the list of detainees, if any. Accompanied by court-
designated Commission on Human Rights (CHR) lawyers, A took photographs
ofa suspected isolation cell where her husband was allegedly seen being held for
three days and tortured before he finally disappeared. The CHR lawyers
requested one Lt. Valdez for a photocopy of the master plan of Camp Aquino and
to confirm in writing that he had custody of the master plan. Lt. Valdez objected
on the ground that it may violate his right against self-incrimination. Decide with
reasons. (4%) (2010 Bar Question)

SUGGESTED ANSWER:

The objection of Lt. Valdez is not valid. The right against self -incrimination refers to
testimonial evidence and does not apply to the production of a photocopy of the master
plan of Camp Aquino, because it is a public record. He cannot object to the request for
him to confirm his custody of the master plan, because he is the public officer who had
custody of it. (Almonte v. Vasquez, 244 SCRA 286 [1995].)

T. Involuntary servitude and political prisoners

Involuntary servitude may be required as (2011 BAR)


(A) part of rehabilitation of one duly charged with a crime.
(B) substitute penalty for one who has been duly tried for a crime.
(C) punishment for a crime where one has been duly convicted.
(D) condition precedent to one's valid arraignment.

Joy, an RTC stenographer, retired at the age of 65. She left unfinished the
transcription of her notes in a criminal case which was on appeal. The Court of
Appeals ordered Joy to transcribe her notes. She refused to comply with the
order reasoning that she was no longer in the government service. The CA
declared Joy in contempt of court and she was incarcerated. Joy filed a petition
for habeas corpus arguing that her incarceration is tantamount to illegal
detention and to require her to work sans compensation would be involuntary
servitude. Decide. (1993 Bar Question)

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SUGGESTED ANSWER:

Joy can be incarcerated for contempt of court for refusing to transcribe her stenographic
notes. As held in Aclaracion v. Gatmaitan, 64 SCRA 132, her incarceration does not
constitute illegal detention. It is lawful, because it is the consequence of her
disobedience of the court order. Neither can she claim that to require her to work
without compensation is tantamount to involuntary servitude. Since courts have the
inherent power to issue such orders as are necessary for the administration of justice,
the Court of Appeals may order her to transcribe her stenographic notes even if she is
no longer in the government service.

U. Excessive fines and cruel and inhuman punishments

The Constitution prohibits cruel and inhuman punishments which involve (2011
BAR)
(A) torture or lingering suffering.
(B) primitive and gross penalties.
(C) unusual penal methods.
(D) degrading and queer penalties.

The death penalty shall not be imposed: (2012 BAR EXAMS)

a. unless for compelling reasons involving death penalty crimes and the
executive hereafter provides for it;
b. unless for compelling reasons involving heinous crimes and a constitutional
amendment provides for it;
c. unless for compelling reasons involving heinous crimes and Congress
hereafter provides for it;
d. unless for compelling reasons involving heinous crimes and the Supreme
Court hereafter upholds it.

SUGGESTED ANSWER:

(c) SECTION(1) ARTICLE III OF CONSTITUTION

V. Non-imprisonment for debts

Sec. 13 of PD 115 (Trust Receipts Law) provides that when the entrustee in a trust
receipt agreement fails to deliver the proceeds of the sale or to return the goods if
not sold to the entrustee-bank, the entrustee is liable for estafa under the RPC.
Does this provision not violate the constitutional right against imprisonment for
non-payment of a debt? Explain. (1993 Bar Question)

SUGGESTED ANSWER:

No, Section 13 of Presidential Decree No. 115 does not violate the constitutional right

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against imprisonment for non-payment of a debt. As held in Lee vs. Rodil, 175 SCRA
100, the criminal liability arises from the violation of the trust receipt, which is separate
and distinct from the loan secured by it. Penalizing such an act is a valid exercise of
police power. (See also People vs. Nitafan, 207 SCRA 730).

W. Double jeopardy
1. Requisites
2. Motions for reconsideration and appeals
3. Dismissal with consent of accused

Butchoy installed a jumper cable. He was prosecuted under a Makati ordinance


penalizing such act. He moved for its dismissal on the ground that the jumper
cable was within the territorial jurisdiction of Mandaluyong and not Makati. The
case was dismissed. The City of Mandaluyong thereafter filed a case against him
for theft under the Revised Penal Code (RCP). Is there double jeopardy? (2012
BAR EXAMS)

a. No. The first jeopardy was terminated with his express consent;
b. Yes. This is double jeopardy of the second kind prosecution for the same act
under an ordinance and a law;
c. Yes. He is prosecuted for the same offense which has already been dismissed
by the City of Makati;
d. No. The second kind of double jeopardy under Section 21, Article III only
contemplates conviction or acquittal which could terminate a first jeopardy.

SUGGESTED ANSWER:

(D) Zapatos Vs People, 411 Scra 148

In which of the following would there be no double jeopardy even if a subsequent


case is filed? (2012 BAR EXAMS)

a. Pot is accused before the RTC of qualified theft. After innumerable


postponements against Pots wishes, he moves for dismissal for denial of the
right to a speedy trial. Prosecutor objected. Dismissal granted;

b. Pot is accused before the RTC of qualified theft. After innumerable


postponements against Pots wishes, the prosecutor moves for dismissal with
the consent of Pot. Granted;

c. Pot is accused before the RTC of qualified theft. After innumerable


postponements against Pots wishes, he moves for dismissal for denial of the
right to a speedy trial. Prosecutor posts no objections. Dismissal granted;

d. Pot is accused before the RTC of qualified theft. After innumerable


postponements against Pots wishes, the prosecutor moves for dismissal over

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the objections of Pot. Granted.

SUGGESTED ANSWER:

(B) SECTION 8, RULE 117 OF THE RULES ON CRIMINAL PROCEDURE

A Pajero driven by Joe sideswiped a motorcycle driven by Nelson resulting in


damage to the motorcycle and injuries to Nelson. Joe sped on without giving
assistance to Nelson. The Fiscal filed two informations against Joe, to wit: (1)
reckless imprudence resulting in damage to property with physical injuries 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 ones victim in the
MTC. He appealed to the RTC. It was only a year later that he was arraigned in the
reckless imprudence charge before the RTC. He pleaded not guilty.

Subsequently, the RTC affirmed the decision of the MTC relative to the
abandonment of ones victim charge. Joe filed a petition for review before the
Court of Appeals, invoking his right to double jeopardy, contending that the
prosecution for abandonment under Art. 275 of the Revised Penal Code is a bar
to the prosecution for negligence under Article 365 of the same Code. Decide.
(1993 Bar Question)

SUGGESTED ANSWER:

Joe cannot claim that his conviction for abandoning his victim in violation of Article 275
of the Revised Penal Code is a bar to his prosecution for negligence under Article 365
of the Revised Penal Code. As held in Lamera v. Court of Appeals, 198 SCRA 186,
there is no double jeopardy, because these two offenses are not identical. Reckless
imprudence is a crime falling under the chapter on criminal negligence, while
abandonment of ones victim is a crime falling under the chapter on crimes against
security. The former is committed by means of culpa, while the latter is committed by
means of dolo. Failure to help ones victim is not an offense by itself nor an element of
reckless imprudence. It merely increases the penalty by one degree.

Charged by Francisco with libel, Pablo was arraigned on January 3,2000. Pre-trial
was dispensed with and continuous trial was set for March 7, 8 and 9, 2000. On
the first setting, the prosecution moved for its postponement and cancellation of
the other settings because its principal and probably only witness, the private
complainant Francisco, suddenly had to go abroad to fulfill a professional
commitment. The judge instead dismissed the case .for failure to prosecute.

A. Would the grant of the motion for postponement have violated the accuseds
right to speedy trial? (2%) (2000 Bar Question)

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B. Would the reversal of the trial court's assailed dismissal of the case place the
accused in double jeopardy? (3%) (2000 Bar Question)

SUGGESTED ANSWER:

A. The grant of the motion for postponement would not have violated the right of the
accused to speedy trial. As held in People v. Leuiste, 255 SCRA 238 (1996), since the
motion for postponement was the first one requested, the need for the offended party to
attend to a professional commitment is a valid reason, no substantial right of the
accused would be prejudiced, and the prosecution should be afforded a fair opportunity
to prosecute its case, the motion should be granted

ALTERNATIVE ANSWER:

A. Since continuous trial of cases is required and since the date of the initial hearing
was set upon agreement of all parties, including the private complainant, the Judge
properly dismissed the case for failure to prosecute.

SUGGESTED ANSWER:

B. Since the postponement of the case would not violate the right of the accused to
speedy trial, the precipitate dismissal of the case is void. The reversal of the dismissal
will not place the accused in double jeopardy.

ALTERNATIVE ANSWER:

B. Since the dismissal of the case is valid, its reversal will place the accused in double
jeopardy.

The Filipino seamen detained at Kota Kinabalu, allegedly fishing in Malaysian


territorial waters, had been acquitted, after trial, by the sessions court in the same
city. They could not be released and returned to the Philippines, because the
prosecution had appealed the judgment of acquittal to the Supreme Court of
Malaysia.

Assume the situations had been reversed and a Malaysian had been apprehended
in Shasi, Sulu, for an alleged offense, charged before the Regional Trial Court and
after trial acquitted. May the Provincial Fiscal of Sulu appeal such judgment of
acquittal to the Supreme Court, like what the Malaysians did in the case of the
Filipino fishermen at Kota Kinabalu? Explain your answer. (1988 Bar Question)

SUGGESTED ANSWER:

No, because it would place the accused in double jeopardy, contrary to art. Ill, sec. 21 of
our Constitution. PD No. 1599 prohibits any person not a citizen to explore or exploit
any of the resources of the exclusive economic zone and makes violation of the

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prohibition a crime punishable by a fine of P2,000.00 to P100,000.00 and/or


imprisonment of not less than 6 months nor more than 10 years. If aliens are arrested
for fishing within this zone but for some reason are acquitted, the decision against them
cannot be appealed to the Court of Appeals because that would place them in double
jeopardy. This is so well established that the Supreme Court turned down many pleas
for reexamination of the doctrine first announced in Kepner v. United States. 11 Phil.
669 (1904). The doctrine is said to be part and parcel not only of settled jurisprudence
but also of constitutional law. Nor does it matter that the accused are aliens. This
guarantee has been applied even to aliens without thought of their citizenship. (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 convicted of
rebellion with murder, arson and robbery).

The Sangguniang Panlungsod of Manila approved an ordinance (No. 1000)


prohibiting the operation in the streets within the city limits of taxicab units over
eight years old (from year of manufacture). The imposable penalty for violation
thereof is a fine of P4,000.00 or imprisonment for one year upon the erring
operator. Thereafter, and while the city ordinance was already in effect, Congress
enacted a law (Republic Act No. 500) prohibiting the operation in the streets of
cities throughout the country of taxicab units beyond ten years old. The
imposable penalty for violation thereof is the same as in Ordinance No. 1000. An
owner/operator of a taxicab unit operating in the City of Manila, was charged with
violation of the city ordinance. Upon arraignment, he pleaded not guilty;
whereupon, trial was set five days thereafter. For failure of the witnesses to
appear at the trial, the City Court dismissed the case against A The City
Prosecutor of Manila forthwith filed another information in the same court
charging A with violation of Republic Act No. 500-for operating the taxicab unit
subject of the information in the first case. The accused moved to dismiss the
second case against him invoking double Jeopardy.

How would you rule on As motion if you were the Judge? (1997 Bar Question)

SUGGESTED ANSWER:

If I were the judge, I would grant the motion. The dismissal of the first case for failure of
the witnesses to appear terminated the first jeopardy. As held in Caes vs. Intermediate
Appellate Court, 179 SCRA 54, the dismissal of a case for failure of the witnesses for
the prosecution to appear constitutes an acquittal. The acquittal of A for violation of
Ordinance No. 1000 bars his prosecution for violation of Republic Act No. 500. Under
Section 21, Article III of the Constitution, if an act is punished by a law and an
ordinance, conviction or acquittal under either bars another prosecution for the same
act.

SUGGESTED ANSWER:

If I were the judge, I would deny the motion. The dismissal of the first case is void and

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does not give rise to double jeopardy. The dismissal of the first case is arbitrary and
denied the prosecution due process of law. The trial was set five days after the
arraignment. There was no sufficient time to subpoena the witnesses and this was the
first time the witnesses failed to appear. As held in People vs. Declaro, 170 SCRA 142,
the dismissal of a case for failure of the witnesses to appear at the initial hearing is
arbitrary and void and does not give rise to double jeopardy.

There is double jeopardy when the dismissal of the first case is (2011 BAR)
(A) made at the instance of the accused invoking his right to fair trial.
(B) made upon motion of the accused without objection from the
prosecution.
(C) made provisionally without objection from the accused.
(D) based on the objection of the accused to the prosecution's motion to
postpone trial.

A. Discuss the right of every accused against double jeopardy? (2%)(1999 Bar
Question)

B. What are the requisites of double jeopardy? (2%) (1999 Bar Question)

C. On October 21, 1986, 17 year old Virginia Sagrado brought a complaint against
Martin Geralde for consented abduction. With the accused pleading not guilty
upon ar-raignment, trial ensued. After trial, a judgment of conviction was
rendered against Geralde. When the case was appealed to it, the Court of Appeals
reversed the judgment of the Trial Court, ratiocinating and ruling as follows:
This is not to say that the appellant did nothing wrong...she was seduced by the
appellant with promises (of marriage) just to accomplish his lewd designs. Years
later, Virginia brought another complaint for Qualified Seduction. Geralde
presented a Motion to Quash on the ground of double jeopardy, which motion
and his subsequent motion for reconsideration were denied: Question: May
Geralde validly invoke double jeopardy in questioning the institution of the case
for Qualified Seduction? He placed reliance principally on the same evidence
test to support his stance. He asserted that the offenses with which he was
charged arose from the same set of facts. Furthermore, he averted that the
complaint for Qualified Seduction is barred by waiver and estoppel on the part of
the complainant, she having opted to consider the case as consented abduction.
Finally, he argued that her delay of more than eight (8) years before filing the
second case against him constituted pardon on the part of the offended party.
How would you resolve Geralds contentions? Explain. (4%) (1999 Bar Question)

SUGGESTED ANSWER:

A. According to Melo v. People, 85 Phil. 766, the rule of double jeopardy means that
when a person was charged with an offense and the case was terminated by acquittal
or conviction or in any other manner without his consent, he cannot again be charged
with the same or identical offense.

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B. As held in Cuison v. Court of Appeals, 289 SCRA 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; and
5. the dismissal or termination of the case without the express consent of
the accused

C. Geralde cannot invoke double jeopardy. According to Perez v. Court of Appeals, 168
SCRA 236, there is no identity between consented abduction and qualified seduction.
Consented abduction requires that the taking away of the offended party must be with
her consent, after solicitation or cajolery from the offender, and the taking away of the
offended party must be with lewd designs. On the other hand, qualified seduction
requires that the crime be committed by abuse of authority, confidence or relationship
and the offender had sexual intercourse with the woman.

The delay in filing the second case does not constitute pardon, according to Article 344
of the Revised Penal Code, to be valid the pardon of the offender by the offended party
must be expressly given.

For the death of Joey, Eming was charged with the crime of homicide before the
Regional Trial Court of Valenzuela. He was arraigned. Due to numerous
postponements of the scheduled hearings at the instance of the prosecution,
particularly based on the ground of unavailability of prosecution witnesses who
could not be found or located, the criminal case was pending trial for a period of
seven years. Upon motion of accused Eming who invoked his right to speedy
trial, the court dismissed the case.

Eventually, the prosecution witnesses surfaced, and a criminal case for homicide,
involving the same incident was filed anew against Eming. Accused Eming
moved for dismissal of the case on the ground of double jeopardy. The
prosecution objected, submitting the reason that it was not able to present the
said witnesses earlier because the latter went into hiding out of fear.

Resolve the motion. (5%) (2001 Bar Question)

SUGGESTED ANSWER:

The motion should be granted. As held in Caes vs. Intermediate Appellate Court ,
179 SCRA 54 (1989), the dismissal of a criminal case predicated on the right of the
accused to a speedy trial amounts to an acquittal for failure of the prosecution to prove

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his guilt and bars his subsequent prosecution for the same offense.

A Tamaraw FX driven by Asiong Cascasero, who was drunk, sideswiped a


pedestrian along EDSA in Makati City, resulting in physical injuries to the latter.
The public prosecutor filed two separate informations against Cascasero, the first
for reckless imprudence resulting in physical injuries under the Revised Penal
Code, and the second for violation of an ordinance of Makati City prohibiting and
penalizing driving under the influence of liquor.

Cascasero was arraigned, tried and convicted for reckless imprudence resulting
in physical injuries under the Revised Penal Code. With regard to the second
case (i.e., violation of the city ordinance), upon being arraigned, he filed a motion
to quash the information invoking his right against double jeopardy. He
contended that, under Art. III, Section 21 of the Constitution, if an act is punished
by a law and an ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act. He argued that the two criminal
charges against him stemmed from the same act of driving allegedly under the
influence of liquor which caused the accident.

Was there double jeopardy? Explain your answer. (5%) (2002 Bar Question)

SUGGESTED ANSWER:

Yes, there is double jeopardy. Under the second sentence of Article III, Section 21 of
the Constitution, If an act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same act. In this case,
the same act is involved in the two cases. The reckless imprudence which resulted in
physical injuries arose from the same act of driving under the influence of liquor. In Yap
v. Lutero, G.R. No. L-12669, April 30,1959, the Supreme Court held that an accused
who was acquitted of driving recklessly in violation of an ordinance could not be
prosecuted for damage to property through reckless imprudence because the two
charges were based on the same act. In People v. Reiova, 148 SCRA 292 (1987), it
was held that when there is identity in the act punished by a law and an ordinance,
conviction or acquittal under either shall bar prosecution under the other.

SUGGESTED ANSWER:

There is no double jeopardy because the act penalized under the Revised Penal Code
is different from the act penalized by the ordinance of Makati City. The Revised Penal
Code penalizes reckless imprudence resulting in physical injuries, while the ordinance
of Makati City penalizes driving under the influence of liquor.

JC, a major in the Armed Forces of the Philippines, is facing prosecution before
the Regional Trial Court of Quezon City for the murder of his neighbor whom he
suspected to have molested his (JCs) 15-year old daughter.

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Assume that upon being arraigned, JC entered a plea of guilty and was allowed to
present evidence to prove mitigating circumstances. JC then testified to the
effect that he stabbed the deceased in self-defense because the latter was
strangling him and that he voluntarily surrendered to the authorities.
Subsequently, the trial court rendered a decision acquitting

JC. Would an appeal by the prosecution from the decision of acquittal violate
JCs right against double jeopardy? Why or why not? (3%) (2008 Bar Question)

SUGGESTED ANSWER:

An appeal by the prosecution from the decision of acquittal will not violate the
right of JC against double jeopardy. When he proved complete self-defense, his
testimony vacated his plea of guilty. The trial court should have required him to
plead again and enter a plea of not guilty. Since this was not done, there was no
standing plea when the court rendered its decision of acquittal (People v.
Balicasan, 17 SCRA 1119 [1966]).

X. Ex post facto laws and bills of attainder

An ex post facto law has been defined as one: (2012 BAR EXAMS)

a. which aggravates a crime or makes it lesser than when it was committed;


b. which mitigates a crime or makes it lesser than when it was committed;
c. which aggravates a crime or makes it greater than when it was committed;
d. which aggravates a crime or makes it non-criminal after it was committed.

SUGGESTED ANSWER:

(C) REPUBLIC VS. EUGENIO, 545 SCRA 384

A bill of attainder is: (2012 BAR EXAMS)


a. an executive act which inflicts punishment without tender;
b. a judicial act which inflicts punishment without tender;
c. a legislative act which inflicts punishment without trial;
d. a legislative act which pardons punishment after tender.

SUGGESTED ANSWER:

(c) PEOPLE VS. FERREWR, 48 SCRA 382

Because of the marked increase in the incidence of labor strikes and of work
stoppages in industrial establishments, Congress intending to help promote
industrial peace, passed, over the objections of militant labor unions, an
amendment to the Labor Code, providing that no person who is or has been a
member of the Communist Party may serve as an officer of any labor organization

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in the country. An association of former NPAs (New Peoples Army) who had
surrendered, availed of amnesty, and are presently leading quiet and peaceful
lives, comes to you asking what could be done against the amendment. What
would you advise the association to do? Explain. (1988 Bar Question)

SUGGESTED ANSWER:

In PAFLU v. Secretary of Labor, 27 SCRA 40 (1969) the Supreme Court upheld the
validity of sec. 23 of the Industrial Peace Act requiring labor unions to submit, within 60
days of the election of its officers, affidavits of the latter that they are not members of
the Communist Party, against the claim that the requirement unduly curtailed freedom of
assembly and association. The Court pointed out that the filing of the affidavits was
merely a condition for the acquisition by a labor organization of legal personality and the
enjoyment of certain rights and privileges which the Constitution does not guarantee.
On the other hand, the requirement constitutes a valid exercise of the States police
power to protect the public against abuse, fraud and impostors.

But the disqualification of members of the CPP and its military arm, the NPA, from being
officers of a labor union would (1) nullify the amnesty granted by the President with the
concurrence, it may be assumed, of the majority of the members of Congress and (2)
permit the condemnation of the former NPA members without judicial trial in a way that
makes it contrary to the prohibition against the enactment of bill of attainder and ex-post
facto law. The amnesty granted to the former NPAs obliterated their offense and
relieved them of the punishment imposed by law. (Barrioquinto v. Fernandez, 82 Phil.
642 (1949)). The amendment would make them guilty of an act, that of having been
former members of the NPA, for which they have already been forgiven by Presidential
amnesty.

For these reasons, I would advise the association to work for the veto of the bill and, if it
is not vetoed but becomes a law, to challenge it in court.

Congress passed a law relating to officials 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
of a department, bureau, office or agency Unfit for continued service in the
government and declared their respective positions vacant.

B. Another provision required all the other officials and employees to take an
oath of loyalty to the flag and government as a condition for their continued
employment.

Are the two provisions valid? Why? (1987 Bar Question)

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SUGGESTED ANSWER:

A. The law is a bill of attainder by which Congress, by assuming judicial magistracy, in


effect declares all officials and employees during martial law (September 21, 1972-
February 25, 1986) as disloyal and, on this basis, removes some while subjecting
others to a loyalty test.

With respect to the provision declaring positions vacant, even the power to reorganize
cannot be invoked because under the Freedom Constitution such power can be
exercised only by the President and only up to February 25, 1987. Since the law under
question was presumably passed after February 25, 1987 and by Congress, it is
unconstitutional.

B. With respect to the provision requiring the loyalty test, loyalty as a general rule is a
relevant consideration in assessing employees fitness. However, the requirement in
this case is not a general requirement but singles out martial law employees and
therefore is administered in a discriminatory manner. Loyalty, therefore, while a relevant
consideration in other circumstances, is being employed in this case for an
unconstitutional purpose.

VIII. Citizenship
A. Who are Filipino citizens

A child born under either the 1973 or the 1987 Constitution, whose father or
mother is a Filipino citizen at the time of his birth, is ________. (1%) 2013 BAR
EXAMS

(A) not a Filipino citizen as his father and mother must both be Filipino citizens at
the time of his birth
(B) not a Filipino citizen if his other is a Filipino citizen but his father is not, at the
time of his birth
(C) a Filipino citizen no matter where he or she may be born
(D) a Filipino citizen provided the child is born in the Philippines
(E) a Filipino citizen if he or she so elects upon reaching the age of 21

SUGGESTED ANSWER:

(C)Article III, Section 1(2) of the 1973 Constitution). (Article IV, Section 1(2) of the 1987
Constitution).

Rosebud is a natural-born Filipino woman who got married to Rockcold, a citizen


of State Frozen. By virtue of the laws of Frozen, any person who marries its
citizens would automatically be deemed its own citizen. After ten years of
marriage, Rosebud, who has split her time between the Philippines and Frozen,
decided to run for Congress. Her opponent sought her disqualification, however,
claiming that she is no longer a natural-born citizen. In any event, she could not

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seek elective position since she never renounced her foreign citizenship
pursuant to the Citizenship Retention and Reacquisition Act (R.A. No. 9225). Is
Rosebud disqualified to run by reason of citizenship? (4%) 2014 BAR EXAMS

SUGGESTED ANSWER:

No, because Rosebud never lost her status as a natural-born citizen by reason of
marriage to a foreigner. In addition to her status as a natural born citizen, she acquired
the citizenship of her husband by operation of law and not by a voluntary act of
acquisition thereof and voluntary renunciation of her former citizenship.

In relation to election protest, what is prohibited is dual allegiance. Allegiance to a


foreign state is acquired through an express and voluntary act of renouncing once
allegiance to the Republic of the Philippines and swearing allegiance to a foreign state
e.g. enlisting in the military services of another state.

ALTERNATIVE ANSWER:

By naturalization according to the Bureau of Immigration of the Philippines is the judicial


act of adopting a foreigner and clothing him with the privileges of a native-born citizen. It
implies an act of renunciation of a former nationality and the fact of entrance into a
similar relation towards a new body politic. Rosebud never renounced her Filipino
citizenship. She acquired it by operation of the law of Frozen Country. R.A. 9225,
applies to those who lost their citizenship by some voluntary act of renunciation.

Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their
act or omission, they are deemed, under the law, to have renounced it.. ex.
Naturalization to another country, service in the military etc. Sec. 3, RA 9225 xxx Any
provision of law to the contrary notwithstanding, natural-born citizenship by reason of
their naturalization as citizens of a foreign country Rosebud was not naturalized but
rather acquired the citizenship of Frozen country by operation of law. In the case of she
became a naturalized Australian citizen owing to her marriage TEODORA SOBEJANA-
CONDON, she became a NATURALIZED CITIZEN owing to her marriage. Hence, the
word Naturalized, means there must be some form of voluntary act of renunciation. In
the case of Rosebud it was by virtue of the laws of Frozen, any person who marries its
citizens would automatically be deemed its own citizen.The case never mentioned any
naturalization process.

Discuss the evolution of the principle of jus sanguinis as basis of Filipino


citizenship under the 1935, 1973, and 1987 Constitutions. (3%)2015 BAR EXAMS

SUGGESTED ANSWER:

In the 1935 Constitution, Filipino citizenship was defined, classified and regulated by
Article IV, which stated that:

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Section 1. The following are citizens of the Philippines


(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution
(2) Those born in the Philippine Islands of foreign parents who, before the adoption
of the Constitution, had been elected to public office in the Philippine Islands
(3) Those whose fathers are citizens of the Philippines
(4) Those whose mothers are citizens of the Philippines, and upon reaching the age
of majority, elect Philippine citizenship
(5) Those who are naturalized in accordance with law.

Section 2. Philippine citizenship may be lost or reacquired in the manner provided by


law.

As can be seen from the previous citizenship laws, the principle of jus sanguinis was not
applicable prior to the 1935 Constitution. Before Section 1, which considered citizens
those whose fathers were Filipino citizens, the prevailing doctrine had been jus soli. By
recognizing the principle of jus sanguinis, it was recognized that a blood relationship
would serve as a better guarantee of loyalty to the country of ones parents than jus
soli.

Section 1(4) contemplated a situation where only the mother was a Filipino citizen, and
gave the child an opportunity to elect Filipino citizenship only when he reached the age
of majority. Prior to his reaching such an age, he at most has an inchoate right to
Filipino citizenship. The provision is also applicable to mothers who were Filipinos
before acquiring the nationality of their foreign spouses. To restrict its interpretation in
such a way that the time of election was considered controlling as to the status when
the mother should be a Filipina would have nullified the particular provision. For
illegitimate children however, this provision would not have been applicable, since the
citizenship of the father would not then be material, since an illegitimate child as a rule
follows the nationality of the mother.

The right to elect is governed by Commonwealth Act No. 652, which states the
requirements and procedure for election, and must be express:

Option to elect Philippine citizenship shall be expressed in a statement to be filed


and sworn to by the party concerned before any officer authorized to administer
oath and shall be filed with the nearest civil registrar. The party elected must
likewise accompany the aforementioned statement with the oath of allegiance to
the Constitution and the Government of the Philippines. Where the party
concerned resides abroad, he must make the statement before any officer of the
government of the Philippines authorized to administer oaths and must forward
such statement together with his oath of allegiance to the civil registrar of Manila.

1973 Constitution

Article III, Section 2 enumerates the following as citizens of the Philippines:

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1. Those who are citizens of the Philippines at the time of the adoption of this
Constitution.
2. Those whose fathers or mothers are citizens of the Philippines
3. Those who elect Philippine citizenship pursuant to the provisions of the
Constitution of nineteen hundred and thirty-five
4. Those who are naturalized in accordance with law.

The purpose of the first paragraph of the provision was to protect the continued
enjoyment of Philippine citizenship to those who already possess the right as of 17
January 1973.

The Section 2(2) followed the principle of jus sanguinis. However, unlike the 1935
Constitution, Filipino mothers were placed by the 1973 Constitution on equal footing
with Filipino fathers as far as the determination of the citizenship of their children was
concerned. The father or mother may be a natural-born Filipino or a Filipino by
naturalization or by election. The only important consideration here was that the mother
must be a Filipino at the time of the birth of the child. It must be reiterated that this rule
applied only to those born of a Filipino mother on or after 17 January 1973.

As the 1973 Constitution followed the doctrine of jus sanguinis, it disregarded the place
of birth of a person. As long as one was born of Filipino parents, he was considered a
Filipino. If he was born in a country where the rule of jus soli was the prevailing
principle, it would be a case of dual citizenship.

1987 Constitution

The 1987 Constitution builds on the previous Constitutions, but modifies provisions
which cannot be found in the 1973 and 1935 Constitution. Those who were citizens
during the adoption of the new Constitution were considered citizens. However, this
does not rectify any defects in the acquisition of such citizenship under the 1935 or
1973 Constitution. If a persons citizenship was subject to judicial challenge under the
old law, it still remains subject to challenge under the new whether or not the judicial
challenge had been commenced prior to the effectivity of the new Constitution.

The principle of jus sanguinis still applies, and in following the lead of the 1973
Constitution, the Filipino woman is placed on the same footing as Filipino men in
matters of citizenship. It is essential, however, that the mother is a Filipina when the
child is born. The principle of parental authority is still applicable in the new Constitution,
so this article only applies to legitimate children, not to adopted or illegitimate ones.
Mothers have parental authority over illegitimate children. Adopted children, on the
other hand, as they are not related by blood, do not follow their adoptive parents
citizenship, despite being under their parental authority.

As for those who were born after the adoption of the 1973 Constitution of Filipino
mothers, the 1987 Constitution still provides the transitory provision that was also in the
1973 Constitution: Those born before 17 January 1973, of Filipino mothers, who elect

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Philippine citizenship upon reaching the age of majority.

A child born in the United States to a Filipino mother and an American father is
(2011 BAR)
(A) a Filipino citizen by election.
(B) a repatriated Filipino citizen.
(C) a dual citizen.
(D) a natural born Filipino citizen.

From mainland China where he was born of Chinese parents, Mr. Nya Tsa Chan
migrated to the Philippines in 1894. As of April 11, 1899. he was already a
permanent resident of the Philippine Islands and continued to reside in this
country until his death. During his lifetime and when he was already in the
Philippines, Mr. Nya Tsa Chan married Charing, a Filipina, with whom he begot
one son, Hap Chan, who was born on October 18. 1897. Hap Chan got married
also to Nimfa, a Filipina, and one of their children was Lacqui Chan who was born
on September 27. 1936. Lacqui Chan finished the course Bachelor of Science in
Commerce and eventually engaged in business.

In the May 1989 election. Lacqui Chan ran for and was elected Representative
(Congressman). His rival candidate, Ramon Deloria, filed a quo warranto or
disqualification case against him on the ground that he was not a Filipino citizen.
It was pointed out in particular, that Lacqui Chan did not elect Philippine
citizenship upon reaching the age of 21.

Decide whether Mr. Lacqui Chan suffers from a disqualification or not. (5%) (2001
Bar Question)

SUGGESTED ANSWER:

Lacqui Chan is a Filipino citizen and need not elect Philippine citizenship. His father,
Hap Chan, was a Spanish subject, was residing in the Philippines on April 11, 1899,
and continued to reside in the Philippines. In accordance with Section 4 of the Philippine
Bill of 1902, he was a Filipino citizen. Hence, in accordance with Section 1(3) of the
1935 Constitution. Lacqui Chan is a natural born Filipino citizen, since his father was a
Filipino citizen.

Miguel Sin was born a year ago in China to a Chinese father and a Filipino
mother. His parents met in Shanghai where they were lawfully married just two
years ago. Is Miguel Sin a Filipino citizen? (2003 Bar Question)

SUGGESTED ANSWER:

Miguel Sin is a Filipino citizen because he is the legitimate child of a Filipino mother.
Under Article IV, Section 4 of the 1987 Constitution, his mother retained her Philippine
citizenship despite her marriage to an alien husband, and according to Article IV,

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Section 1(2) of the 1987 Constitution, children born of a Filipino mother are Filipino
citizens.

Atty. Emily Go. a legitimate daughter of a Chinese father and a Filipino mother,
was born in 1945. At 21, she elected Philippine citizenship and studied law. She
passed the bar examinations and engaged in private practice for many years. The
Judicial and Bar Council nominated her as a candidate for the position of
Associate Justice of the Supreme Court. But her nomination is being 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 be appointed to the
Supreme Court. Is this contention correct? 5% (2006 Bar Question)

SUGGESTED ANSWER:

The contention that Atty. Emily Go is not a natural-born citizen is not correct. She was
born before January 17, 1973 of a Chinese father and a Filipino mother. She elected
Philippine citizenship when she reached twenty-one years of age. Those who elect
Philippine citizenship under Section 1(3), Article IV of the Constitution are natural-born
citizens.

Atty. Richard Chua was born in 1964. He is a legitimate son of a Chinese father
and a Filipino mother. His father became a naturalized Filipino citizen when Atty.
Chua was still a minor. Eventually, he studied law and was allowed by the
Supreme Court to take the bar examinations, subject to his submission to the
Supreme Court proof of his Philippine citizenship. Although he never complied
with such requirement, Atty. Chua practiced law for many years until one Noel
Eugenio filed with the Supreme Court a complaint for disbarment against him on
the ground that he is not a Filipino citizen. He then filed with the Bureau of
Immigration an affidavit electing Philippine citizenship. Noel contested it claiming
it was filed many years after Atty. Chua reached the age of majority. Will Atty.
Chua be disbarred? Explain. 5% (2006 Bar Question)

SUGGESTED ANSWER:

Atty. William Chua should not be disbarred. In accordance with Section 15 of the
Revised Naturalization Act, he became a naturalized Philippine citizen when his father
became a Filipino citizen during his minority. Hence, there was no need for him to elect
Philippine citizenship (Co v. Electoral Tribunal of the House of Representatives, 199
SCRA 692, [1991])

B. Modes of acquiring citizenship

Basic Philippine law, in respect of the modes of acquiring citizenship, follows the
rule(s) of: (2012 BAR EXAMS)
a. jus soli and jus sanguinis;
b. naturalization and provides for jus soli;

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c. jus sanguinis and provides for naturalization;


d. none of the above.

SUGGESTED ANSWER:

A. SECTION 1, ARTICLE IV OF CONSTITUTION

Lily Teh arrived in Manila on one of her regular tours to the Philippines from
Taipeh. She met Peter Go, a naturalized Filipino citizen. After a whirlwind
courtship, Lily and Peter were married at the San Agustin Church. A week after
the wedding, Lily Teh petitioned in administrative proceedings before
immigration authorities to declare her a Filipino citizen stating that she had none
of the disqualifications provided in the Revised Naturalization Law. The jilted
Filipino girlfriend of Peter Go opposed the petition claiming that Lily Teh was still
a minor who had not even celebrated her 21st birthday, who never resided in the
Philippines except during her one-week visit as tourist from Taipeh during the
Chinese New Year, who spoke only Chinese, and who had radical ideas liked
advocating unification of Taiwan with mainland China. Lily Teh, however, swore
that she was renouncing her Chinese allegiance and while she knew no Filipino
customs and traditions as yet, she evinced a sincere desire to learn and embrace
them. Would Lily Teh succeed in becoming a Filipino citizen through her marriage
to Peter Go? Explain. (1989 Bar Question)

SUGGESTED ANSWER:

Yes, Lily Teh ipso facto became a Philippine citizen upon her marriage to Peter Go, who
is a Philippine citizen, provided she possesses none of the disqualifications laid down in
Section 4 of the Revised Naturalization Law. According to to the ruling in Moy Ya Lim
Yao vs. Commissioner of Immigration, 41 SCRA 292, an alien woman who marries a
Filipino husband ipso facto becomes a Filipino citizen without having to possess any of
the qualifications prescribed in Section 2 of the Revised Naturalization Law provided
she possesses none of the disqualifications set forth in Section 4 of the same law. All of
the grounds invoked by the former girlfriend of Peter Go for opposing the petition of Lily
Teh, except for the last one, are qualifications, which Lily Teh need not possess. The
fact that Lily Teh is advocating the unification of Taiwan with mainland China is not a
ground for disqualification under Section 4 of the Revised Naturalization Law.

A child was born to a Japanese father and a Filipina mother. Would he be eligible
to run for the position of Member of the House of Representatives upon reaching
twenty-five years of age? (1989 Bar Question)

SUGGESTED ANSWER:

The child can run for the House of Representatives provided upon reaching the age of
majority he elected Philippine citizenship. Under Section 6, Article VI of the 1987
Constitution, to qualify to be a member of the House of Representatives, one must be a

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natural-born Philippine citizen. According to Section 1 (3), Article IV of the 1987


Constitution, children born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority are Philippine citizens.

Section 2, Article IV of the 1987 Constitution provides: Those who elect Philippine
citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-
born citizens.

On the other hand, if the child was born after January 17, 1973, he would be considered
a natural born citizen without need of election pursuant to Art. IV, Sec. 1(2).

What are the effects of marriages of:

1. A citizen to an alien; (1%) (1999 Bar Question)


2. An alien to a citizen; on their spouses and children? Discuss (1%) (1999 Bar
Question)

SUGGESTED ANSWER:

1.) According to Section 4, Article IV of the Constitution, Filipino citizens who marry
aliens retain their citizenship, unless by their act or omission they are deemed, under
the law, to have renounced it.

2.) According to Mo Ya Lim Yao v. Commissioner of Immigration, 41 SCRA 292, under


Section 15 of the Revised Naturalization Law, a foreign woman who marries a Filipino
citizen becomes a Filipino citizen provided she possesses none of the disqualifications
for naturalization. A foreign man who marries a Filipino citizen does not acquire
Philippine citizenship. However, under Section 3 of the Revised Naturalization Act, in
such a case the residence requirement for naturalization will be reduced from ten (10) to
five (5) years. Under Section 1(2), Article IV of the Constitution, the children of an alien
and a Filipino citizen are citizens of the Philippines.

C. Naturalization and denaturalization

Filipino citizenship may be acquired through judicial naturalization only by an


alien (2011 BAR)
(A) born, raised, and educated in the Philippines who has all the
qualifications and none of the disqualifications to become a Filipino
citizen.
(B) who has all the qualifications and none of the disqualifications to
become a Filipino citizen.
(C) born and raised in the Philippines who has all the qualifications and
none of the disqualifications to become a Filipino citizen.
(D) whose mother or father is a naturalized Filipino and who himself is
qualified to be naturalized.

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The Special Committee on Naturalization is headed by (2011 BAR)


(A) the Secretary of Justice.
(B) the Secretary of Foreign Affairs.
(C) the National Security Adviser.
(D) the Solicitor General.

Enzo, a Chinese national, was granted Philippine citizenship in a decision


rendered by the Court of First Instance of Pampanga on January 10, 1956. He
took his oath of office on June 5, 1959. In 1970, the Solicitor General filed a
petition to cancel his citizenship on the ground that in July 1969 the Court of Tax
Appeals found that Enzo had cheated the government of income taxes for the
years 1956 to 1959. Said decision of the Tax Court was affirmed by the Supreme
Court in 1969. Between 1960 and 1970, Enzo had acquired substantial real
property in the Philippines.

a. Has the action for cancellation of Enzos citizenship prescribed? (1994 Bar
Question)

b. Can Enzo ask for the denial of the petition on the ground that he had availed of
the Tax Amnesty for his tax liabilities?(1994 Bar Question)

c. What is the effect on the petition for cancellation of Enzo's citizenship if Enzo
died during the pendency of the hearing on said petition?(1994 Bar Question)

SUGGESTED ANSWER:

a. No, the action has not prescribed. As held in Republic vs. Li Yao, 214 SCRA 748, a
certificate of naturalization may be cancelled at any time if it was fraudulently obtained
by misleading the court regarding the moral character of the petitioner.

b. No. Enzo cannot ask for the denial of the petition for the cancellation of his certificate
of naturalization on the ground that he had availed of the tax amnesty. In accordance
with the ruling in Republic vs. Li Yao. 224 SCRA 748, the tax amnesty merely removed
all the civil, criminal and administrative liabilities of Enzo. It did not obliterate his lack of
good moral character and irreproachable conduct.

c. On the assumption that he left a family, the death of Enzo does not render the petition
for the cancellation of his certificate of naturalization moot. As held in Republic vs. Li
Yao, 224 SCRA 748, the outcome of the case will affect his wife and children.

D. Dual citizenship and dual allegiance

Dual allegiance by citizen is: (2012 BAR EXAMS)

a. inimical to the national interest and is therefore proscribed by law;


b. inimical to the national interest and is therefore prescribed by law;

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c. inimical to the national interest and therefore shall be dealt with by law;
d. inimical to the national interest and is therefore outside of coverage of
law.

SUGGESTED ANSWER:

A. SECTION 5, ARTICLE IV OF CONSTITUTION

Margarita was born in 1986 to a Filipino mother and Swedish father. She has been
living and continues to live in the US for the last 20 years and has also been
naturalized as a US citizen. She recently reacquired Philippine citizenship under
RA 9225, the Citizenship Retention and Reacquisition Act of 2003. Can Margarita
vote in the next national elections? (2012 BAR EXAMS)

a. Yes. Dual citizens who are not residents may register under the Overseas
Absentee Voting Law.

b. Yes. Margarita is a Filipino citizen and thus may enjoy the right to suffrage like
everyone else without registering as an overseas absentee voter.

c. No. Margarita fails the residency requirement under Section 1, Article V of the
Constitution for Filipinos.

d. No. Dual citizens upon renunciation of their Filipino citizenship and acquisition
of foreign citizenship, have practically and legally abandoned their domicile and
severed their legal ties to their homeland as a consequence.

SUGGESTED ANSWER:

A. Macalintal Vs. Commision On Elections, 405 Scra 614

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%) (2009 Bar
Question)

Dual citizenship is not the same as dual allegiance.

SUGGESTED ANSWER:

True. Dual citizenship arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously considered a national by
those states and is involuntary.

Dual allegiance refers to the situation in which a person simultaneously owes by some
positive and voluntary act, loyalty to two or more states (Mercado v. Manzano, 307
SCRA 630 [1999]).

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E. Loss and re-acquisition of Philippine citizenship

In 1989, Zeny Reyes married Ben Tulog. a national of the State of Kongo. Under
the laws of Kongo, an alien woman marrying a Kongo national automatically
acquires Kongo citizenship. After her marriage, Zeny resided in Kongo and
acquired a Kongo passport. In 1991, Zeny returned to the Philippines to run for
Governor of Sorsogon.

A. Was Zeny qualified to run for Governor? (1994 Bar Question)


B. 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? (1994 Bar Question)

SUGGESTED ANSWER:

A. Under Section 4, Article IV of the Constitution, Zeny retained her Filipino citizenship.
Since she also became a citizen of Kongo, she possesses dual citizenship. Pursuant to
Section 40 (d) of the Local Government Code, she is disqualified to run for governor. In
addition, if Zeny returned to the Philippines, less than a year immediately before the day
of the election, Zeny is not qualified to run for Governor of Sorsogon. Under Section
39(a) of the Local Government Code, a candidate for governor must be a resident in the
province where he intends to run at least one (1) year immediately preceding the day of
the election. By residing in Kongo upon her marriage in 1989, Zeny abandoned her
residence in the Philippines.

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

SUGGESTED ANSWER:

No, Zeny was not qualified to run for Governor. Under the Constitution, citizens of the
Philippines who many aliens shall retain their citizenship, unless by their act or omission
they are deemed, under the law to have renounced it." (Sec. 4, Art. IV, Constitution).
Her residing in Kongo and acquiring a Kongo passport are indicative of her renunciation
of Philippine citizenship, which is a ground for loss of her citizenship which she was
supposed to have retained. When she ran for Governor of Sorsogon, Zeny was no
longer a Philippine citizen and, hence, was disqualified for said position.

B. Although under Section 11(1), Article XVI of the Constitution, mass media must be
wholly owned by Filipino citizens and under Section 2 of the Anti-Dummy Law aliens
may not intervene in the management of any nationalized business activity, Zeny may
be elected 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 their citizenship unless by their act or omission they are deemed, under the law,
to have renounced it. The acts or omission which will result in loss of citizenship are
enumerated in Commonwealth Act No. 63. Zeny is not guilty of any of them. As held in

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Kawakita vs. United. States, 343 U.S. 717, a person who possesses dual citizenship
like Zeny may exercise rights of citizenship in both countries and the use of a passport
pertaining to one country does not result in loss of citizenship in the other country.

SUGGESTED ANSWER:

Neither, was Zeny qualified to hold the position of vice-president of Philippine Bulletin.
Under the Constitution. the ownership and management of mass media shall be limited
to citizens - of the Philippines, or to corporation, cooperatives or associations wholly
owned and managed by such citizens" (Section XI' (lj. Art. XVI). Being a non- Philippine
citizen, Zeny cannot qualify to participate in the management of the Bulletin as Vice-
President thereof.

Cruz, a Filipino by birth, became an American citizen. In his old age he has
returned to the country and wants to become a Filipino again. As his lawyer,
enumerate the ways by which citizenship may be reacquired. (2%) (2000 Bar
Question)

SUGGESTED ANSWER:

Cruz may reacquire Philippine citizenship in the following ways:


a. By naturalization;
b. By repatriation pursuant to Republic Act No. 8171; and
c. By direct act of Congress (Section 2 of Commonwealth Act No. 63).

Julio Hortal was born of Filipino parents. Upon reaching the age of majority, he
became a naturalized citizen in another country. Later, he reacquired Philippine
citizenship. Could Hortal regain his status as natural born Filipino citizen? Would
your answer be the same whether he reacquires his Filipino citizenship by
repatriation or by act of Congress? Explain. (3%) (1999 Bar Question)

SUGGESTED ANSWER:

Julian Hortal can regain his status as a natural born citizen by repatriating. Since
repatriation involves restoration of a person to citizenship previously lost by expatriation
and Julian Hortal was previously a natural born citizen, in case he repatriates he will be
restored to his status as a natural born citizen. If he reacquired his citizenship by an act
of Congress, Julian Hortal will not be a natural born citizen, since he reacquired his
citizenship by legislative naturalization.

SUGGESTED ANSWER:

Julian Hortal cannot regain his status as a natural born citizen by repatriating. He had to
perform an act to acquire his citizenship, i.e., repatriation. Under Section 2, Article IV of
the Constitution, natural born citizens are those who are citizens from birth without
having to perform an act to acquire or perfect their citizenship. If he reacquired his

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citizenship by an act of Congress, Julian Hortal will not be a natural born citizen since
he reacquired his citizenship by legislative naturalization.

Warlito, a natural-born Filipino, took up permanent residence in the United States,


and eventually acquired American citizenship. He then married Shirley, an
American, and sired three children. In August 2009, Warlito decided to visit the
Philippines with his wife and children: Johnny, 23 years of age; Warlito, Jr., 20;
and Luisa, 17.

While in the Philippines, a friend informed him that he could reacquire Philippine
citizenship without necessarily losing U.S. nationality. Thus, he took the oath of
allegiance required under R.A. 9225.

Having reacquired Philippine citizenship, is Warlito a natural-born or a naturalized


Filipino citizen today? Explain your answer. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

Warlito is a natural-born Filipino citizen. Repatriation of Filipinos results in the recovery


of the original nationality. Since Warlito was a natural-born Filipino citizen before he lost
his Philippine citizenship, he was restored to his former status as a natural- born Filipino
citizen (Bengson v. House of Representatives Electoral Tribunal, 357 SCRA 545 [2001];
R.A. 2630).

With Warlito having regained Philippine citizenship, will Shirley also become a
Filipino citizen? If so, why? If not, what would be the most speedy procedure for
Shirley to acquire Philippine citizenship? Explain. (3%) (2009 Bar Question)

SUGGESTED ANSWER:

Shirley will not become a Filipino citizen, because under Republic Act No. 9225,
Warlitos reacquisition of Philippine citizenship did not extend its benefits to Shirley. She
should instead file with the Bureau of Immigration a petition for the cancellation of her
alien certificate of registration on the ground that in accordance with Section 15 of the
Naturalization Law, because of her marriage to Warlito, she should be deemed to have
become a Filipino citizen. She must allege and prove that she possesses none of the
disqualifications to become a naturalized Filipino citizen (Burca v. Republic, 51 SCRA
248 [1973]).

Do the children Johnny, Warlito Jr., and Luisa become Filipino citizens with
their fathers reacquisition of Philippine citizenship? Explain your answer. (3%)
(2009 Bar Question)

SUGGESTED ANSWER:

Under Section 18 of Republic Act No. 9225, only the unmarried children who are below

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eighteen years of age of those who reacquire Philippine citizenship shall be deemed
Filipino citizens. Thus, only Luisa, who is seventeen years old, became a Filipino
citizen.

F. Natural-born citizens and public office

Edwin Nicasio, born in the Philippines of Filipino parents and raised in the
province of Nueva Ecija, ran for Governor of his home province. He won and he
was sworn into office. It was recently revealed, however, that Nicasio is a
naturalized American citizen.

A. Does he still possess Philippine citizenship? (1992 Bar Question)

B. If the second-placer in the gobernatorial elections files a quo warranto suit


against Nicasio and he is found to be disqualified from office, can the second-
placer be sworn into office as governor?

C. If Nicasio was born in the United States, would he still be a citizen of the
Philippines? (1992 Bar Question)

SUGGESTED ANSWER:

A. No, Nicasio no longer possesses Philippine citizenship. As held in Frivaldo vs.


Commission on Elections, 174 SCRA 245, by becoming a naturalized American citizen,
Nicasio lost his Philippine citizenship. Under Section 1(1) of Commonwealth Act No. 63,
Philippine citizenship is lost by naturalization in a foreign country.

B. In accordance with the ruling in Abella vs. Commission on Elections, 201 SCRA 253,
the second placer cannot be sworn to office, because he lost the election. To be entitled
to the office, he must have garnered the majority or plurality of the votes.

C. If Nicasio was born in the United States, he would still be a citizen of the Philippines,
since his parents are Filipinos. Under Section 1(2), those whose fathers or mothers are
citizens of the Philippines are citizens of the Philippines. Nicasio would possess dual
citizenship, since under American Law persons born in the United States are American
citizens. As held in Aznar vs. Commission on Elections, 185 SCRA 703, a person who
possesses both Philippine and American citizenship is still a Filipino and does not lose
his Philippine citizenship unless he renounces it.

In 1964, Ruffa, a Filipina domestic helper working in Hongkong, went to Taipeh


for a vacation, where she met Cheng Sio Pao, whom she married. Under Chinese
Law, Ruffa automatically became a Chinese citizen. The couple resided in
Hongkong, where on May 9, 1965, Ruffa gave birth to a boy named Ernest. Upon
reaching the age of majority, Ernest elected Philippine citizenship. After the EDSA
Revolution, Ernest decided to live permanently in the Philippines, where he
prospered as a businessman. During the May 11, 1993 election, Ernest ran and

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won as a congressman. His opponent, noting Ernest's Chinese ancestry, filed a


petition to disqualify the latter on the following grounds; (1) Ernest Cheng is not a
natural born Filipino; and (2) he is underaged. Decide. (1993 Bar Question)

SUGGESTED ANSWER:

Ernest cannot be disqualified.

Section 1, Article IV of the Constitution provides:

The following are citizens of the Philippines:


xxx xxx xxx
(3) Those born before January 17. 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority;"

Ernest could elect Philippine citizenship since he was born before January 17, 1973 and
his mother 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 to apply, the mother need not be a
Filipino citizen at the time she gave birth to the child in question. It is sufficient that she
was a Filipino citizen at the time of her marriage. Otherwise, the number of persons who
would be benefited by the foregoing provision would be limited.

Having elected Philippine citizenship, Ernest is a natural-born Filipino citizen in


accordance with Section 2, Article IV of the Constitution, which reads:

Those who elect Philippine citizenship in accordance with paragraph (3), Section
1 hereof shall be deemed natural born citizens."

Ernest is not underaged. Having been born on May 9, 1965, he was over twenty-five
years old on the date of the May 11, 1993 election. (Election was held on May 11,
1992). Section 6, Article VI of the Constitution, requires congressmen to be at least
twenty-five years of age on the day of the election.

X was born in the United States of a Filipino father and a Mexican mother. He
returned to the Philippines when he was twenty-six years of age, carrying an
American passport and he was registered as an alien with the Bureau of
Immigration.

Was X qualified to run for membership in the House of Representatives in the


1995 elections? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

Whether or not X was qualified to run for membership in the House of Representatives
in the 1995 election depends on the circumstances.

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If X was an illegitimate child, he is not qualified to run for the House of Representatives.
According to the case of In re Mallare, 59 SCRA 45, an illegitimate child follows the
citizenship of the mother. Since the mother of X is a Mexican, he will be a Mexican
citizen if he is an illegitimate child, even if his father is a Filipino.

If X is a legitimate child, he is a Filipino citizen. Under Section 2(2), Article IV of the


Constitution, those whose fathers are citizens of the Philippines are Filipino citizens.
Since X was born in the United States, which follows jus soli, X is also an American
citizen. In accordance with Aznar vs. Commission on Elections, 185 SCRA 703. the
mere fact a person with dual citizenship registered as an alien with the Commission on
Immigration and Deportation does not necessarily mean that he is renouncing his
Philippine citizenship. Likewise, the mere fact that X used an American passport did not
result in the loss of his Philippine citizenship. As held in Kawakita vs. United States, 343
U.S. 717, since a person with dual citizenship has the rights of citizenship in both
countries, the use of a passport issued by one country is not inconsistent with his
citizenship in the other country.

SUGGESTED ANSWER:

If X has taken an oath of allegiance to the U.S. he will be deemed to have renounced
his Philippine citizenship. Consequently, he is disqualified to run for the House of
Representatives.

A was born in 1951 in the United States of a Chinese father and a Filipina
mother. Under Chinese laws, As mother automatically became a Chinese
national by her marriage.

In 1973, upon reaching the age of majority, A elected to acquire Philippine


citizenship. However, A continued to reside in California and to carry an
American passport. He also paid allegiance to the Taipeh government. In the 1987
Philippine National elections, he was elected Senator. His opponent moved to
disqualify him on the grounds:

1. That he was not a natural-born citizen; and


2. That he had dual allegiance" not only to the United States but also to the
Republic of China.

Decide. (1987 Bar Question)

SUGGESTED ANSWER:

The electoral contest must be dismissed.

1. A is a natural born citizen. Art. IV, Sec. 2 of the 1987 Constitution provides that
those who elect Philippine citizenship in accordance with paragraph (3), Sec. 1 hereof
shall be deemed natural born citizens. The purpose of this provision is to equalize the

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status of those who elected Philippine citizenship before and those who did so after
January 17, 1973 when the previous Constitution took effect.

2. The dual allegiance declared inimical to national interest in Art. IV, Sec. 5 refers to
the dual allegiance of some such as naturalized Filipino citizens (mostly Chinese) who
maintain allegiance to Nationalist China as shown in some cases by their membership
in the legislative Yuan after their naturalization as citizens of the Philippines. The
prohibition does not apply in situations brought about by dual citizenship, such as the
one involved in the problem. Indeed, a Filipino woman can have dual allegiance
resulting from her- marriage to a foreigner under Sec. 4, so long as she does not do or
omit to do an act amounting to renunciation under Commonwealth Act. No. 63, Sec.
1(2). Under this law, express renunciation is different from an act of allegiance to a
foreign power as a ground for loss of Philippine citizenship. Moreover, what constitutes
dual allegiance inimical to national interest is and what the sanctions for such dual
allegiance will be, will still have to be defined by law pending adoption of such
legislation, objection based on dual allegiance will be premature.

Lim Tong Biao, a Chinese citizen applied for and was granted Philippine
citizenship by the court. He took his oath as citizen of the Philippines in July
1963. In 1975, the Office of the Solicitor General filed a petition to cancel his
Philippine citizenship for the reason that in August 1963, the Court of Tax
Appeals found him guilty of tax evasion for deliberately understating his income
taxes for the years 1959-1961.

a. Could Lim Tong Biao raise the defense of prescription of the action for
cancellation of his Filipino citizenship? [3%] (1998 Bar Question)

b. Supposing Lim Tong Biao had availed of the tax amnesty of the government for
his tax liabilities, would this constitute a valid defense to the cancellation of his
Filipino citizenship? [2%] (1998 Bar Question)

SUGGESTED ANSWER:

a. No, Lim Tong Biao cannot raise the defense of prescription. As held in Republic vs.
Go Bon Lee, 1 SCRA 1166, 1170, a decision granting citizenship is not res judicata
and the right of the government to ask for the cancellation of a certificate cancellation is
not barred by the lapse of time.

b. The fact that Lim Tong Biong availed of the tax amnesty is not a valid defense to the
cancellation of his Filipino citizenship.

In Republic vs. Li Yao, 214 SCRA 748, 754, the Supreme Court held:

"In other words, the tax amnesty does not have the effect of obliterating
his lack of good moral character and irreproachable conduct which are grounds
for denaturalization."

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Victor Ahmad was born on December 16, 1972 of a Filipino mother and an alien
father. Under the law of his father's country, his mother did not acquire his
fathers citizenship. Victor consults you on December 21, 1993 and informs you of
his intention to run for Congress in the 1995 elections. Is he qualified to run?
What advice would you give him? Would your answer be the same if he had seen
and consulted you on December 16, 1991 and informed you of his desire to run
for Congress in the 1992 elections? Discuss your answer. (3%) (1999 Bar
Question)

SUGGESTED ANSWER:

No, Victor Ahmad is not qualified to run for Congress in the 1995 elections. Under
Section 6, Article VI of the Constitution, a member of the House of Representatives
must be at least twenty-five (25) years of age on the day of the election. Since he will be
less than twenty-five (25) years of age in 1995, Victor 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 him to elect Philippine citizenship, if he has not yet done so, and to wait until the
1998 elections.

My answer will be the same if he consulted me in 1991 and informed me of his desire
to run in the 1992 elections.

SUGGESTED ANSWER:

Under Section 2, Article IV of the Constitution, Victor Ahmad must have elected
Philippine citizenship upon reaching the age of majority to be considered a natural born
citizen and qualified to run for Congress. Republic Act No. 6809 reduced the majority
age to eighteen (18) years. Cuenco v. Secretary of Justice, 5 SCRA 108 recognized
three (3) years from reaching the age of majority as the reasonable period for electing
Philippine citizenship. Since Republic Act No. 6809 took effect in 1989 and there is no
showing that Victor Ahmad elected Philippine citizenship within three (3) years from the
time he reached the age of majority on December 16, 1990, he is not qualified to run for
Congress.

If he consulted me on December 16, 1991, I would inform him that he should elect
Philippine citizenship so that he can be considered a natural born citizen.

Andres Ang was born of a Chinese father and a Filipino mother in Sorsogon,
Sorsogon on January 20, 1973. In 1988, his father was naturalized as a Filipino
citizen. On May 11, 1998, Andres Ang was elected Representative of the First
District of Sorsogon. Juan Bonto who received the second highest number of
votes, filed a petition for Quo Warranto against Ang. The petition was filed with
the House of Representative Electoral Tribunal (HRET). Bonto contends that Ang

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is not a natural born citizen of the Philippines and therefore is disqualified to be a


member of the House.

The HRET ruled in favor of Ang. Bonto filed a petition for certiorari in the
Supreme Court. The following issues are raised:

A. 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
the election returns and disqualifications of members of the House of
Representatives. [5%] (1998 Bar Question)

B. Whether Ang is a natural born citizen of the Philippines. I5%] (1998 Bar
Question) How should this case be decided?

SUGGESTED ANSWER:

A. The case is justiciable. As stated in Lazatin vs. House Electoral Tribunal. 168 SCRA
391, 404, since judicial power includes the duty to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government, the Supreme Court has the power
to review the decisions of the House of Representatives Electoral Tribunal in case of
grave abuse of discretion on its part.

B. Andres Ang should be considered a natural born citizen of the Philippines. He was
born of a Filipino mother on January 20, 1973. This was after the affectivity of the 1973
Constitution on January 17, 1973. Under Section (1), Article m of the 1973 Constitution,
those whose fathers or mothers are citizens of the Philippines are citizens of the
Philippines. Andres Ang remained a citizen of the Philippines after the effectivity of the
1987 Constitution. Section 1, Article IV of the 1987 Constitution provides:

"The following are citizens of the Philippines:


"(1) Those who are citizens of the Philippines at the time of the adoption of this
Constitution;"

A was born in the Philippines of Filipino parents. When, martial law was declared
in the Philippines on September 21, 1972, he went to the United States and was
naturalized as an American citizen. After the EDSA Revolution, he came home to
the Philippines and later on reacquired Philippine citizenship by repatriation.

Suppose in the May 2004 elections he is elected Member of the House of


Representatives and a case is filed seeking his disqualification on the ground
that he is not a natural-born citizen of the Philippines, how should the case
against him be decided? Explain your answer. (5%) (2002 Bar Question)

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SUGGESTED ANSWER:

The case should be decided in favor of A. As held in Bengson v. House of


Representatives Electoral Tribunal, 357 SCRA 545 (2001), repatriation results in the
recovery of the original nationality. Since A was a natural-born Filipino citizen before he
became a naturalized American citizen, he was restored to his former status as a
natural-born Filipino when he repatriated.

Juan Cruz was born of Filipino parents in 1960 in Pampanga. In 1985, he enlisted
in the U.S. Marine Corps and took an oath of allegiance to the United States of
America. In 1990, he was naturalized as an American citizen. In 1994, he was
repatriated under Republic Act No. 2430. During the 1998 National Elections, he
ran for and was elected representative of the First District of Pampanga where he
resided since his repatriation. Was he qualified to run for the position? Explain.
(2003 Bar Question)

SUGGESTED ANSWER:

Cruz was qualified to run as representative of the First District of Pampanga.


Since his parents were Filipino citizens, he was a natural-born citizen. Although
he became a naturalized American citizen, under the ruling in Benqson v. House of
Representatives Electoral Tribunal, 357 SCRA 545 [2001], by virtue of his
repatriation, Cruz was restored to his original status as a natural-born Filipino
citizen.

TCA, a Filipina medical technologist, left in 1975 to work in ZOZ State. In 1988 she
married ODH, a citizen of ZOZ. Pursuant to ZOZ's law, by taking an oath of
allegiance, she acquired her husbands citizenship.

ODH died in 2001, leaving her financially secured. She returned home in 2002,
and sought elective office in 2004 by running for Mayor of APP, her hometown.
Her opponent sought to have her disqualified because of her ZOZ citizenship.
She replied that although she acquired

ZOZs citizenship because of marriage, she did not lose her Filipino citizenship.
Both her parents, she said, are Filipino citizens.

Is TCA qualified to run for Mayor? (5%) (2004 Bar Question)

SUGGESTED ANSWER:

On the assumption that TCA took an oath of allegiance to ZOZ to acquire the citizenship
of her husband, she is not qualified to run for mayor. She did not become a citizen of
ZOZ merely by virtue of her marriage; she also took an oath of allegiance to ZOZ. By
this act, she lost her Philippine citizenship. (Section 1 [3] , Commonwealth Act No. 63.)

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IX. Law on Public Officers


A. General principles
B. Modes of acquiring title to public office
C. Modes and kinds of appointment
D. Eligibility and qualification requirements
E. Disabilities and inhibitions of public officers
F. Powers and duties of public officers
G. Rights of public officers
H. Liabilities of public officers
1. Preventive suspension and back salaries
2. Illegal dismissal, reinstatement and back salaries
I. Immunity of public of public officers

SALN means: (2012 BAR EXAMS)


a. Summary of assets, liabilities and net worth;
b. Statement of assets in banks, liabilities and net worth;
c. Statement of assets, liabilities and net worth;
d. Statement of personal assets, liabilities and net worth.

SUGGESTED ANSWER:

(c) SECTION 17, ARTICLE XI OF CONSTITUTION

A private person constituted by the court as custodian of property attached to


secure a debt sought to be recovered in a civil proceeding is (2011 BAR)
(A) a private sheriff.
(B) a public officer.
(C) a private warehouseman.
(D) an agent of the party to whom the property will ultimately be awarded.

Pedro Cruz, the City Engineer of Baguio, retired. To fill the vacant position, the
City Mayor appointed Jose Reyes, a civil engineer who formerly worked under
Cruz but had been assigned to the Office of the Mayor for the past five years.

Vicente Estrada, the Assistant City Engineer filed a protest with the Civil Service
Commission claiming that being the officer next in rank he should have been
appointed as City Engineer.

A. Who has a better right to be appointed to the contested position? (1994 Bar
Question)

B. Can the Civil Service Commission revoke an appointment by the appointing


power and direct the appointment of an individual of its choice?(1994 Bar
Question)

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SUGGESTED ANSWER:

On the assumption that Jose Reyes possesses the minimum qualification requirements
prescribed by law for the position, the appointment extended to him is valid.
Consequently, he has a better right than Vicente Estrada.

The claim of Estrada that being the officer next in rank he should have been appointed
as City Engineer is not meritorious. It is a settled rule that the appointing authority is not
limited to promotion in filling up vacancies but may choose to fill them by the
appointment of persons with civil service eligibility appropriate to the position. Even if a
vacancy were to be filled by promotion, the concept of next in rank" does not import
any mandatory requirement that the person next in rank must be appointed to the
vacancy. What the civil service law provides is that if a vacancy is filled by promotion,
the person holding the position next in rank thereto shall be considered for promotion.
Espanol v. Civil Service Commission 206 SCRA 715.

ALTERNATIVE ANSWER:

Neither Jose Reyes nor Vicente Estrada has a better right to be appointed City
Engineer. As held in Barrozo vs. Civil Service Commission 198 SCRA 487, the
appointing authority is not required to appoint the one next-in-rank to fill a vacancy. He
is allowed to fill it also by the transfer of an employee who possesses civil service
eligibility.

According to the ruling in Meddla vs. Sto. Tomas, 208 SCRA 351, the CMl Service
Commission cannot dictate to the appointing power whom to appoint. Its function is
limited to determining whether or not the appointee meets the minimum qualification
requirements prescribed for the position. Otherwise, it would be encroaching upon the
discretion of the appointing power.

In December 1988, while Congress was in recess, A was extended an ad interim


appointment as Brigadier General of the Philippine Army. In February 1989, when
Congress was in session, B was nominated as Brigadier General of the Philippine
Army. Bs nomination was confirmed on August 5, 1989 while As appointment
was confirmed on September 5, 1989.

A. Who is deemed more senior of the two, A or B? (1994 Bar Question)


B. Suppose Congress adjourned without the Commission on Appointments
acting on both appointments, can A and B retain their original ranks of colonel?
(1994 Bar Question)

SUGGESTED ANSWER:

A. A is senior to B. In accordance with the ruling in Summers vs. Ozaeta, 81 Phil. 754,
the ad interim appointment extended to A is permanent and is effective upon his
acceptance although it is subject to confirmation by the Commission on Appointments.

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B. If Congress adjourned without the appointments of A and B having been confirmed


by the Commission on Appointments, A cannot return to his old position. As held in
Summers vs. Ozaeta, 81 Phil. 754, by accepting an ad interim appointment to a new
position, A waived his right to hold his old position. On the other hand, since B did not
assume the new position, he retained his old position.

1. When is an appointment in the civil service permanent? (1994 Bar Question)


2. Distinguish between an appointment in an acting capacity" extended by a
Department Secretary from an ad interim appointment extended by the President.
(1994 Bar Question)
3. Distinguish between a provisional and a temporary appointment. (1994 Bar
Question

SUGGESTED ANSWER:

1. Under Section 25(a) of the Civil Service Decree, an appointment in the civil service is
permanent when issued to a person who meets all the requirements for the position to
which he is being appointed, including the appropriate eligibility prescribed, in
accordance with the provisions of law, rules and standards promulgated in pursuance
thereof.

2. An appointment in an acting capacity extended by a Department Secretary is not


permanent but temporary. Hence. the Department Secretary may terminate the services
of the appointee at any time. On the other hand, an ad interim appointment extended by
the President is an appointment which is subject to confirmation by the Commission on
Appointments and was made during the recess of Congress. As held in Summers vs.
Ozaeta, 81 Phil. 754, an ad interim appointment is permanent.

3. In Section 24 (d) of the Civil Service Act of 1959, a temporary appointment is one
issued to a person to a position needed only for a limited period not exceeding six
months. Under Section 25(b) of the Civil Service Decree, a temporary appointment is
one issued to a person who meets all the requirements for the position to which he is
being appointed except the appropriate civil service eligibility because of the absence of
appropriate eligible and it is necessary in the public interest to fill the vacancy. On the
other hand. Section 24(e) of the Civil Service Act of 1959 defined a provisional
appointment as one Issued upon the prior authorization of the Civil Service Commission
in accordance with its provisions and the rules and standards promulgated in pursuance
thereto to a person who has not qualified in an appropriate examination but who
otherwise meets the requirements for appointment to a regular position In the
competitive service, whenever a vacancy occurs and the filling thereof is necessary in
the interest of the service and there is no appropriate register of eligible at the time of
appointment.

Provisional appointments in general have already been abolished by Republic Act 6040.
However, it still applies with regard to teachers under the Magna Carta for Public School

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Teachers.

SUGGESTED ANSWER:

The case of Regis vs. Osmena, 197 SCRA 308, laid down the distinction between a
provisional and a temporary appointment.

A provisional appointment is extended to a person who has not qualified in an


appropriate examination but who otherwise meets the requirements for appointment to
a regular position in the competitive service whenever a vacancy occurs and the filling
thereof is necessary in the interest of the service and there is no appropriate register of
eligible at the time of the appointment. On the other hand, a temporary appointment
given to a non-civil service eligible is without a definite tenure and is dependent on the
pleasure of the appointing power.

A provisional appointment is good only until replacement by a civil service eligible and in
no case beyond 30 days from date of receipt by the appointing officer of the certificate
of eligibility. (Sec. 24 [c]. Republic Act 2260)

A provisional appointment contemplates a different situation from that of a temporary


appointment. Whereas a temporary appointment is designed to fill a position needed
only for a limited period not exceeding six (6) months, a provisional appointment, on the
other hand, is intended for the contingency that a vacancy occurs and the filling thereof
is necessary in the interest of the service and there is no appropriate register of eligible
at the time of the appointment."

In other words, the reason for extending a provisional appointment is not because there
is an occasional work to be done and is expected to be finished in not more than six
months but because the interest of the service requires that certain work be done by a
regular employee, only that no one with appropriate eligibility can be appointed to it.
Hence, any other eligible may be appointed to do such work in the meantime that a
suitable eligible does not qualify for the position.

To be more precise, a provisional appointment may be extended only to a person who


has not qualified in an appropriate examination but who otherwise meets the
requirements for appointment to a regular position in the competitive service, meaning
one who must anyway be a civil service eligible.

In the case of a temporary appointment, all that the law enjoins is that preference in
filling such position be given to persons on appropriate eligible lists." Merely giving
preference presupposes that even a non-eligible maybe appointed. Under the law, even
if the appointee has the required civil service eligibility, his appointment is still temporary
simply because such is the nature of the work to be done.

NOTE: Since provisional appointments have already been abolished examinees should
be given full credit for whatever answer they may or may not give.

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A temporary appointee to a public office who becomes a civil service eligible


during his tenure (2011 BAR)
(A) loses his temporary appointment without prejudice to his re-
appointment as permanent.
(B) has the right to demand conversion of his appointment to permanent.
(C) automatically becomes a permanent appointee.
(D) retains his temporary appointment.

What is the nature of an acting appointment" to a government office? Does such


an appointment give the appointee the right to claim that the appointment will, in
time, ripen into a permanent one? Explain. (2003 Bar Question)

SUGGESTED ANSWER:

According to Sevilla v. Court of Appeals, 209 SCRA 637 [1992], an acting


appointment is merely temporary. As held in Marohombsar v. Alonto. 194 SCRA 390
[1991], a temporary appointment cannot become a permanent appointment, unless a
new appointment which is permanent is made. This holds true unless the acting
appointment was made because of a temporary vacancy. In such a case, the temporary
appointee holds office until the assumption of office by the permanent appointee.

The rule on nepotism does not apply to designations made in favor of a relative of
the authority making a designation. (0.5%) (2009 Bar Question)

SUGGESTED ANSWER:

The statement that the rule on nepotism does not apply to designations made in favor of
a relative if the authority making the designation is false. Designation accomplishes the
same purpose as appointment. (Laurel v. Civil Service Commission, 203 SCRA195
[1991].)

The School Principal of Ramon Magsaysay High School designated Maria, her
daughter, as public school teacher in her school. The designation was assailed
on ground of nepotism. Is such designation valid? (2011 BAR)
(A) No, because the law prohibits relatives from working within the same
government unit.
(B) Yes, because Marias position does not fall within the prohibition.
(C) No, because her mother is not the designating authority.
(D) No, because Maria is related to the supervising authority within the
prohibited degree of consanguinity.

A City Mayor in Metro Manila was designated as Member of the Local Amnesty
Board (LAB) as allowed under the Rules and Regulations Implementing Amnesty
Proclamation Nos. 347 and 348, as amended by Proclamation No. 377. The LAB is
entrusted with the functions of receiving and processing applications for

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amnesty and recommending to the National Amnesty Commission approval or


denial of the applications. The term of the Commission and, necessarily, the
Local Amnesty Boards under it expires upon the completion of its assigned tasks
as may be determined by the President.

May the City Mayor accept his designation without forfeiting his elective position
in the light of the provision of Sec. 7, 1st par., Art. IX-B of the 1987 Constitution
which pertinently states that (N)o elective official shall be eligible for
appointment or designation in any capacity to any public office or position during
his tenure?"

Discuss fully. (1995 Bar Question)

SUGGESTED ANSWER:

No, the City Mayor may not accept his designation without forfeiting his elective
positions. As stated in Flores vs. Drilon 223 SCRA 568, it is the intention of Section 7,
Article X-B of the 1987 Constitution that local elective officials should devote their full
time to their constituents. While second paragraph of Section 7, Article IX-B of the 1987
Constitution allows appointive officials to hold other offices when allowed by law or by
the primary functions of their positions, no such exception is made in the first paragraph,
which deals with elective officials. It is the intention of the 1987 Constitution to be more
stringent with elective local officials.

SUGGESTED ANSWER:

Yes, he may accept such designation without forfeiting his mayorship. The
Constitutional provision being cited contemplates a public office or position". It is
believed that the Local Amnesty Board is not such an office since it is merely an ad hoc
body. Besides, it is believed that its functions are not sovereign" in character which is
one of the elements of a public office.

X was elected provincial governor for a term of three years. He was subsequently
appointed by the President of the Philippines serving at her pleasure, as
concurrent Presidential Assistant for Political Affairs in the Office of the
President, without additional compensation.

Is Xs appointment valid? (5%) (2002 Bar Question)

SUGGESTED ANSWER:

The appointment of X is not valid, because the position of Presidential Assistant for
Political Affairs is a public office. Article IX- B Section 7 of the Constitution provides that
no elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure. As held in Flores v. Drilon, 223 SCRA 563
(1993), since an elective official is ineligible for an appointive position, his appointment

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is not valid.

M is the Secretary of the Department of Finance. He is also an ex-officio member


of the Monetary Board of the Bangko Sentral ng Pilipinas from which he receives
an additional compensation for every Board meeting attended.

N, a taxpayer, filed a suit in court to declare Secretary Ms membership in the


Monetary Board and his receipt of additional compensation illegal and in violation
of the Constitution. N invoked Article VII, Section 13 of the Constitution which
provides that the President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in the Constitution,
hold any other office or employment during their tenure. N also cited Article IX-B,
Section 8 of the Constitution, which provides that no elective or appointive public
officer or employee shall receive additional, double, or indirect compensation,
unless specifically authorized by law.

If you were the judge, how would you decide the following:

a. the issue regarding the holding of multiple positions? (3%)


b. the issue on the payment of additional or double compensation?(2%)

Explain your answers fully. (2002)

SUGGESTED ANSWER:

a. If I were the judge, I would uphold the validity of the designation of Secretary M as ex
officio member of the Monetary Board. As stated in Civil Liberties Union v. Executive
Secretary, 194 SCRA 317 (1991), the prohibition against the holding of multiple
positions by Cabinet Members in Article VII, Section 13 of the Constitution does not
apply to positions occupied in an ex officio capacity as provided by law and as required
by the primary functions of their office.

b. If I were the judge, I would rule that Secretary M cannot receive any additional
compensation. As stated in Civil Liberties Union v. Executive Secretary, 194 SCRA
317 (1991), a Cabinet Member holding an ex-officio position has no right to receive
additional compensation, for his services in that position are already paid for by the
compensation attached to his principal office.

During his campaign sortie in Barangay Salamanca, Mayor Galicia was arrested
at a PNP checkpoint for carrying high-powered firearms in his car. He was
charged and convicted for violation of the COMELEC gun ban. He did not appeal
his conviction and instead applied for executive clemency. Action on the
favorable recommendation of the Board of Pardons and Parole, the President
granted him pardon. Is he eligible to run again for an elective position? Explain
briefly. (5%) (2010 Bar Question)

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SUGGESTED ANSWER:

Mayor Galicia can run again for an elective office but not immediately. Under Section 40
of the Local Government Code, he cannot run for an elective local office within two (2)
years after serving sentence. Under Section 12 of the Omnibus Election Code, he can
run for and elective national office after the expiration of five (5) years from his service
of sentence. The pardon granted to him is not valid. The offense involved a violation of
the Omnibus Election Code and the pardon was granted without the favorable
recommendation of the Commission on elections. (Section 5, Article IX-C of the
Constitution.)

A discretionary duty of a public officer is never delegable. (0.5%) (2009 Bar


Question)

SUGGESTED ANSWER:

The statement that a discretionary duty of a public officer can never be delegated is
false. It can be delegated, if the delegation is authorized (Mechem, A Treatise on the
Law of Public Offices and Officers, p. 368.)

Define:
Principle of holdover (1%) (2009 Bar Question)

SUGGESTED ANSWER:

The principle of holdover means that in the absence of an express or implied


constitutional of statutory provision to the contrary, an officer is entitled to hold his office
until his successor is appointed or chosen and has been qualified. (Topacio Nueno v.
Angeles, 76 Phil. 12 [1946].)

Amor sued for annulment of a deed of sale of Lot 1. While the case was ongoing,
Baltazar, an interested buyer, got a Certification from Atty. Crispin, the Clerk of
Court, that Lot 1 was not involved in any pending case before the court. Acting on
the certification, the Register of Deeds canceled the notice of lis pendens
annotated on Lot 1s title. Amor filed a damage suit against Atty. Crispin but the
latter invoked good faith and immunity from suit for acts relating to his official
duty, claiming he was not yet the Clerk of Court when Amor filed his action.
Decide. (2011 BAR)
(A) Atty. Crispin is immune from suit since he enjoys the presumption of
regularity of performance of public duty.
(B) Atty. Crispin's defense is invalid since he issued his certification
recklessly without checking the facts.
(C) Atty. Crispin's defense is valid since he was unaware of the pendency
of the case.
(D) As Clerk of Court, Atty. Crispin enjoys absolute immunity from suit for
acts relating to his work.

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Mario, a Bureau of Customs examiner, was administratively charged with grave


misconduct and preventively suspended pending investigation. The head of
office found him guilty as charged and ordered his dismissal. The decision
against him was executed pending appeal. The Civil Service Commission (CSC)
subsequently found him guilty and after considering a number of mitigating
circumstances, reduced his penalty to only one month suspension. Is Mario
entitled to back salaries?
(A) Yes, the reduction of the penalty means restoration of his right to back
salaries.
(B) No, the penalty of one month suspension carries with it the forfeiture of
back salaries.
(C) No, he is still guilty of grave misconduct, only the penalty was reduced.
(D) Yes, corresponding to the period of his suspension pending appeal less
one month.

In 1986, F, then the officer-in-charge of Botolan, Zambales was accused of having


violated the Anti-Graft and Corrupt Practices Act before the Sandiganbayan.
Before he could be arraigned, he was elected Governor of Zambales. After his
arraignment, he was put under preventive suspension by the Sandiganbayan for
the duration of the trial".

(1) Can F successfully challenge the legality of his preventive suspension on the
ground that the criminal case against him involved acts committed during his
term as officer-in-charge and not during his term as Governor? (1990 Bar
Question)

(2) Can F validly object to the aforestated duration of his suspension? (1990 Bar
Question)

SUGGESTED ANSWER:

1. No. F cannot successfully challenge the legality of his preventive suspension on the
ground that the criminal case against him involve acts committed during his term as OIC
and not during his term as governor because suspension from office under Republic Act
3019 refers to any office that the respondent is presently holding and not necessarily to
the one which he hold when he committed the crime with which he is charged. This was
the ruling in Deloso v. Sandiganbayan, 173 SCRA 409.

2. Yes, F can validly object to the duration of the suspension. In Deloso v.


Sandiganbayan, 173 SCRA 409, it was held that the imposition of preventive
suspension for an indefinite period of time is unreasonable and violates the right of the
accused to due process. The people who elected the governor to office would be
deprived of his services for an indefinite period, and his right to hold office would be
nullified. Moreover, since under Section 42 of the Civil Service Decree the duration of
preventive suspension should be limited to ninety (90) days, equal protection demands

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that the duration of preventive suspension under the Anti-Graft and Corrupt Practices
Act be also limited to ninety (90) days.

Maximino, an employee of the Department of Education, is administratively


charged with dishonesty and gross misconduct. During the formal investigation
of the charges, the Secretary of Education preventively suspended him for a
period of sixty (60) days. On the 60th day of the preventive suspension, the
Secretary rendered a verdict, finding Maximino guilty, and ordered his immediate
dismissal from the service.

Maximino appealed to the Civil Service Commission (CSC), which affirmed the
Secretarys decision. Maximino then elevated the matter to the Court of Appeals
(CA). The CA reversed the CSC decision, exonerating Maximino. The Secretary Of
Education then petitions the Supreme Court (SC) for the review of the CA
decision.

Is the Secretary of Education a proper party to seek the review of the CA decision
exonerating Maximino? Reasons. (2%) (2010 Bar Question)

SUGGESTED ANSWER:

The Secretary of Education is not the proper party to seek a review of the decision of
the Court of Appeals, because he is the one who heard the case and imposed the
penalty. Being the disciplinary authority, the Secretary of Education should be impartial
and should not actively participate in prosecuting Maximino (National Appellate Board of
the National Police Commission v. Mamauag, 466 SCRA 624 [2005]).

If the SC affirms the CA decision, is Maximino entitled to recover back salaries


corresponding to the entire period he was out of the service? ^ Explain your
answer. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

Maximino cannot recover back salaries during his preventive suspension. The law does
not provide for it. Preventive suspension is not a penalty. During the preventive
suspension, he was not yet out of the service. However, he is entitled to back wages
from the time of his dismissal until his reinstatement. The enforcement of the dismissal
pending appeal was punitive, and he was exonerated (Gloria v. Court of Appeals, 306
SCRA 287 [1999])

Exercising power he claims had been granted him by the Executive Order on the
reorganization of the government, the Commissioner of Customs summarily
dismissed two hundred sixty-five officials and employees of the Bureau of
Customs. Most of the ousted employees appealed to the Civil Service
Commission claiming their ouster illegal. The Civil Service Commission, after
hearing, later ordered the Commissioner of Customs to reinstate most of those

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dismissed. Instead of following the order of the Civil Service Commission,


Commissioner Mison intends to bring for review before the Supreme Court, the
same decision of the Commission.

A. If you were the counsel for the Commissioner of Customs, how would you
justify his dismissal of customs officials and employees? (1988 Bar Question)

B. If on the other hand, you were a counsel for the dismissed officials and
employees, how would you sustain the order of the Civil Service Commission
reinstating most of them? State your reasons. (1988 Bar Question)

SUGGESTED ANSWER:

A. I would invoke the resolution in Jose v. Arroyo, G. R. No. 78435, Aug. 11, 1987, in
which the Supreme Court held that under Art. XVIII, sec. 16 of the Constitution, career
service employees may be removed not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following
the ratification of this Constitution. By virtue of this provision, it was held that the
reorganization of the Bureau of Customs under Executive Order No. 127 may continue
even after the ratification of the Constitution, and career service employees may be
separated from the service without cause as a result of such reorganization.

B. I would argue that art. XVIII, sec. 16 does not really authorize the removal of career
service employees but simply provides for the payment of separation, retirement, and
other benefits accruing to them under the applicable laws. The reference to career
service employees separated as a result of the... reorganization following the
ratification of this Constitution is only to those separated as a result of reorganization of
the structure and functions of government (e.g., as a result of abolition of offices) as
distinguished from the reorganization of personnel which is what is referred to therein as
the reorganization pursuant to Proclamation No. 3 dated March 25, 1986. For the
power of the government to terminate the employment of elective and appointive
officials pursuant to Art. Ill, sec. 2 of Proclamation No. 3 (otherwise known as the
Provisional Constitution), through the appointment or designation of their successors
has been repeatedly held to have ended on February 2, 1987, when the new
Constitution took effect. (De Leon v. Esguerra, 153 SCRA 602 (1987); Reyes v. Ferrer
G.R. No. 77801, Dec. 11, 1987; Osias v. Ferrer, G.R. No. 77049, March 28, 1988).
Moreover, such replacement of incumbents can only be for cause as prescribed by
Executive Order No. 17, dated May 28, 1986. Since the summary dismissals in question
are not for cause, the removal of the Bureau of Customs officials violates art. IX, B, sec.
2(3) of the Constitution.

J. De facto officer

Rafael questioned the qualifications of Carlos as congressman of the Third


District of Manila on the ground that Carlos is a citizen of the USA. The decision
disqualifying Carlos for being a US citizen came only in March 2010, i.e., after the

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adjournment of the session of Congress on the 3rd year of the positions three-
year term.

What was Carlos status during his incumbency as congressman? 2013 BAR
EXAMS

(A) He was a de jure officer, having been duly elected and proclaimed.
(B) He was not a public officer because he effectively was not entitled to be a
congressman.
(C) He was a de jure officer since he completed the service of his term before he
was disqualified.
(D) He was a de facto officer since he had served and was only disqualified later.
(E) He neither possesses de jure nor de facto status as such determination is
pointless.

SUGGESTED ANSWER:

(D)(Rodriguez v. Tan, G.R. No. L-3913, August 7, 1952, 91 Phil. 724).

Van sought to disqualify Manresa as congresswoman of the third district of


Manila on the ground that the latter is a greencard holder. By the time the case
was decided against Manresa, she had already served her full term as
congresswoman. What was Manresa's status during her incumbency as
congresswoman? (2011 BAR)
(A) She was a de jure officer, having been duly elected.
(B) She was not a public officer because she had no valid existing public
office.
(C) She was a de jure officer since she completed her term before she was
disqualified.
(D) She was a de facto officer since she was elected, served, and her
disqualification only came later.

A government that actually exercises power and control as opposed to the true
and lawful government is in terms of legitimacy (2011 BAR)
(A) a government of force.
(B) an interim government.
(C) a de facto government.
(D) an illegitimate government.

AVE ran for Congressman of QU province. However, his opponent, BART, was
the one proclaimed and seated as the winner of the election by the COMELEC.
AVE filed seasonably a protest before HRET (House of Representatives Electoral
Tribunal). After two years, HRET reversed the COMELECs decision and AVE was
proclaimed finally as the duly elected Congressman. Thus, he had only one year
to serve in Congress.

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Can AVE collect salaries and allowances from the government for the first two
years of his term as Congressman?

Should BART refund to the government the salaries and allowances he had
received as Congressman?

What will happen to the bills that BART alone authored and were approved by the
House of Representatives while he was seated as Congressman? Reason and
explain briefly. (5%) (2004 Bar Question)

SUGGESTED ANSWER:

AVE cannot collect salaries and allowances from the government for the first two years
of his term, because in the meanwhile BART collected the salaries and allowances.
BART was a de facto officer while he was in possession of the office. To allow AVE to
collect the salaries and allowances will result in making the government pay a second
time. (Mechem, A Treatise on the Law of Public Offices and Public Officers, [1890] pp.
222-223.)

BART is not required to refund to the government the salaries and allowances he
received. As a de facto officer, he is entitled to the salaries and allowances because he
rendered services during his incumbency. (Rodriguez v. Tan, 91 Phil. 724 [1952]).

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%) (2009 Bar
Question)

A de facto public officer is, by right, entitled to receive the salaries and
emoluments attached to the public office he holds.

SUGGESTED ANSWER:

True. De facto officers are entitled to emoluments attached to the office for actual
services rendered Civil Liberties Union v. Executive Secretary, 194 SCRA 317 [1991]).

Mayor Lucia of Casidsid filed her certificate of candidacy for congresswoman of


the district covering Casidsid. Still, she continued to act as mayor of Casidsid
without collecting her salaries as such. When she lost the election and a new
mayor assumed office, she filed an action to collect the salaries she did not get
while serving as mayor even when she ran for congresswoman. Is her action
correct? (2011 BAR)
(A) No, salaries can be waived and she waived them.
(B) No, because her acts as de facto officer are void insofar as she is
concerned.
(C) Yes, public policy demands that a de facto officer enjoy the same rights
of a de jure officer.

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(D) Yes, it is but just that she be paid for the service she rendered.

True or False. A person who occupies an office that is defectively created is a de


facto officer. (0.5%) (2009 Bar Question)

SUGGESTED ANSWER:

The statement that a person who occupies an office that is defectively created is a de
facto officer is false. For him to be a de facto officer, the office must be validly created.
(Tuanda v. Sandiganbayan, 249 SCRA 342 [1995].)

SUGGESTED ANSWER:

The statement that a person who occupies in office that is defectively created is a de
facto officer is true. The person appointed or elected pursuant to an unconstitutional law
is a de facto officer, before the law is declared to be such. (State v. Caroll, 38 Conn.
[1871].)

K. Termination of official relation

How may the following be removed from office: (1993 Bar Question)
A. Senators & Congressmen
B. Judges of lower courts
C. Officers and employees in the Civil Service

SUGGESTED ANSWER:

A. In accordance with Art. Ill, section 16(3), of the Constitution, Senators and
Congressmen may be removed by their expulsion for disorderly behavior, with the
concurrence of at least two-thirds of all the members of the House to which they belong.
In addition, they may also be removed in consequence of an election contest filed with
the Senate or House of Representatives Electoral Tribunal.

B. Under Art. VIII, sec. 11 of the Constitution, judges of lower courts may be removed
by dismissal by the Supreme by a vote of a majority of the Members who actually took
part in the deliberation on the issues in the case and voted thereon.

C. Under Art. IX, B. Sec. 2(3) of the Constitution, officers and employees in the Civil
Service may only be removed for cause as provided by law and after observance of due
process.

Their removal must be effected by the appropriate disciplinary authority in accordance


with Ch. 7 secs. 47-48 of Book V of the Administrative Code of 1987 and the Civil
Service Rules and Regulations.

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A, an employee of the National Treasurer, retired on January 10, 1996. Before she
could collect her retirement benefits, the National Treasurer discovered that A
had been negligent in the encashment of falsified treasury warrants. It appears,
however, that A had received all money and property clearances from the
National Treasurer before her retirement.

Can the National Treasurer withhold the retirement of A pending determination of


her negligence in the encashment of the falsified treasury warrants? Explain.
(1996 Bar Question)

SUGGESTED ANSWER:

In accordance with Tantuico vs. Domingo. 230 SCRA 391 and Cruz vs. Tantuico. 166
SCRA 670. the National Treasurer cannot withhold the payment of the retirement
benefits of A pending determination of her liability for negli-gence in the encashment of
the falsified treasury warrants, because her retirement benefits are exempt from
execution.

L. The Civil Service


1. Scope
2. Appointments to the civil service
3. Personnel actions

Where A is set for promotion to Administrative Assistant III and B to the post of
Administrative Assistant II vacated by A, the appointing authority must (2011
BAR)
(A) submit to the CSC the two promotional appointments together for
approval.
(B) not appoint B until the CSC has approved As appointment.
(C) submit to the Civil Service Commission (CSC) the second appointment
after its approval of the first.
(D) simultaneously issue the appointments of A and B.

When the Civil Service Commission (CSC) approves the appointment of the
Executive Director of the Land Transportation Franchising and Regulatory Board
who possesses all the prescribed qualifications, the CSC performs (2011 BAR)
(A) a discretionary duty.
(B) a mix discretionary and ministerial duty.
(C) a ministerial duty.
(D) a rule-making duty.

The rule requiring Congress to provide for the standardization of compensation


of government officials and employees. [2%] (1998 Bar Question)

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SUGGESTED ANSWER:

Section 5, Article IX-B of the Constitution, which provides for the standardization of the
compen-sation of government officials and employees, distinguishes between
government corporations and their subsidiaries, for the provision applies only to
government corporations with original charters.

What characterizes the career service and what are included in the career
service? (2%) (1999 Bar Question)

SUGGESTED ANSWER:

According to Section 7, Chapter 2, Title I, Book V of the Administrative Code of 1987,


the career service is characterized by (1) entrance based on merit and fitness to be
determined as far as practicable by competitive examination or based on highly
technical qualifications; (2) opportunity for advancement to higher career positions; and
(3) security of tenure.

The career service include:


1. Open career positions for appointment to which prior qualifications in an
appropriate examination is required;
2. Closed career positions which are scientific or highly technical in nature;
3. Positions in the career executive service;
4. Career officers other than those in the career executive service, who are
appointed by the President;
5. Commissioned officers and enlisted men of the Armed Forces;
6. Personnel of government - owned or controlled corporations, whether
performing governmental or proprietary functions, who do not fall under
the non-career service; and
7. Permanent laborers, whether skilled, semiskilled, or unskilled.

Alfonso Beit, a supply officer in the Department of Science and Technology


(DOST), was charged administratively. Pending investigation, he was preventively
suspended for 90 days. The DOST Secretary found him guilty and meted him the
penalty of removal from office. He appealed to the Civil Service Commission
(CSC). In the meantime, the decision was executed pending appeal. The CSC
rendered a decision which modified the appealed decision by imposing only a
penalty of reprimand, and which decision became final.

A. Can Alfonso Belt claim salary for the period that his case was pending
investigation? Why? (3%) (2001 Bar Question)

B. Can he claim salary for the period that his case was pending appeal? Why?
(2%) (2001 Bar Question)

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SUGGESTED ANSWER:

(a) Alfonso Beit cannot claim any salary for the period of his preventive suspension
during the pendency of the investigation. As held in Gloria vs. Court of Appeals, 306
SCRA 287 (1997), under Section 52 of the Civil Service Law, the provision for payment
of salaries during the period of preventive suspension during the pendency of the
investigation has been deleted. The preventive suspension was not a penalty. Its
imposition was lawful, since it was authorized by law.

(b.) If the penalty was modified because Alfonso Beit was exonerated of the charge that
was the basis for the decision ordering his dismissal, he is entitled to back wages,
otherwise, this would be tantamount to punishing him after exoneration from the charge
which caused his dismissal. [Gloria vs. Court of Appeals, 306 SCRA 287 (1997)]. If he
was reprimanded for the same charge which was the basis of the decision ordering his
dismissal, Alfonso Beit is not entitled to back wages, because he was found guilty, and
the penalty was merely commuted. [Dela Cruz vs. Court of Appeals, 305 SCRA 303
(1998)].

A corporation, a holder of a certificate of registration issued by the Securities and


Exchange Commission, is owned and controlled by the Republic of the
Philippines. The Civil Service Commission (CSC), in a memorandum-order,
directs the corporation to comply with Civil Service Rules in the appointment of
all of its officers and employees. The memorandum-order of the CSC is assailed
by the corporation, as well as by its officers and employees, before the court.
How should the case be resolved? (2003 Bar Question)

SUGGESTED ANSWER:

The memorandum-order of the Civil Service Commission should be declared void. As


held in Gamoqamo v. PNOC Shipping and Transit Corporation, 381 SCRA 742
[2002], under Article IX-B, Section 2(1) of the 1987 Constitution government- owned or
controlled corporations organized under the Corporation Code are not covered by the
Civil Service Law but by the Labor Code, because only government-owned or controlled
corporations with original charters are covered by the Civil Service.

The Mayor of San Jose City appointed his wife, Amelia, as City Treasurer from
among three (3) employees of the city considered for the said position. Prior to
said promotion, Amelia had been an Assistant City Treasurer for ten (10) years,
that is, even before she married the City Mayor. Should the Civil Service
Commission approve the promotional appointment of Amelia? Why or why not?
(6%) (2008 Bar Question)

SUGGESTED ANSWER:

The Civil Service Commission should disapprove the promotional appointment of


Amelia. Section 59 (1), Chapter 7, Title I, Subsection A, Book V of the Administrative

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Code prohibits all appointments in the cities of a relative of the appointing authority
within the third degree of consanguinity or affinity. The prohibition applies to all
appointments, whether original or promotional (Debulgado v. Civil Service Commission,
237 SCRA 184 [1994]).

Acquisition of civil service eligibility during tenure of a temporary appointee does


not automatically translate to a permanent appointment. (0.5%) (2009 Bar
Question)

SUGGESTED ANSWER:

The statement that the acquisition of civil service eligibility during the tenure of a
temporary appointee does not automatically translate to a permanent appointment is
true. A new appointment which is permanent is necessary. (Province of Camarines Sur
v. Court of AppeaIs, 246 SCRA281 [1995].)

The new Commissioner of Immigration, Mr. Suarez, issued an Office Order


directing the top immigration officials to tender courtesy resignation to give him a
free hand in reorganizing the agency. In compliance, Director Sison of the
Administrative Department tendered his resignation in writing which Mr. Suarez
immediately accepted. Director Sison went to court, assailing the validity of his
courtesy resignation and Mr. Suarezs acceptance of the same. Will the action
prosper? (2011 BAR)
(A) No, Director Sison tendered his resignation and it was accepted.
(B) No, estoppel precludes Director Sison from disclaiming the resignation
he freely tendered.
(C) Yes,for so long as no one has yet been appointed to replace him,
Director Sison may still withdraw his resignation.
(D) Yes, Director Sison merely complied with the order of the head of office;
the element of clear intention to relinguish office is lacking.

The Solicitor General declines to institute a civil action on behalf of a government


agency due to his strained relation with its head, insisting that the agencys
lawyers can file the action. Is the Solicitor General correct? (2011 BAR)
(A) Yes, when he deems he cannot harmoniously and effectively work with
the requesting agency.
(B) No, he must, in choosing whether to prosecute an action, exercise his
discretion according to law and the best interest of the State.
(C) Yes, as in any lawyer-client relationship, he has the right to choose
whom to serve and represent.
(D) No, the Solicitor General's duty to represent the government, its offices
and officers is mandatory and absolute.

X, an administrative officer in the Department of Justice, was charged with grave


misconduct and preventively suspended for 90 days pending investigation.
Based on the evidence, the Secretary of Justice found X guilty as charged and

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dismissed him from the service. Pending appeal, X's dismissal was executed.
Subsequently, the Civil Service Commission (CSC) reversed the Secretarys
decision and the reversal became final and executory. What is the effect of X's
exoneration? (2011 BAR)
(A) X is entitled to reinstatement and back salaries both during his 90 day
preventive suspension and his suspension pending appeal.
(B) X is entitled to reinstatement and back salaries corresponding only to
the period of delay caused by those prosecuting the case against him.
(C) X is entitled to reinstatement but not to back salaries on ground of
"damnum absque injuria."
(D) X is entitled to reinstatement and back salaries during his suspension
pending appeal.

M. Accountability of public officers


1. Impeachment

Cite at least two (2) grounds for impeachment and explain why you chose them.
(6%)

SUGGESTED ANSWER:

The President can be impeached for culpable violation of the Constitution and betrayal
of public trust. The Supreme Court has already ruled that the provision in Article XVIII,
Section 25 of the Constitution requires a treaty even for the mere temporary presence of
foreign troops in the Philippines (Bayan v. Zamora, G.R. No. 138570, October 10, 2000,
342 SCRA 499). The President cannot claim, therefore, that he acted in good faith.
(Report of the Special Committee in the Impeachment of President Quirino,
Congressional Record of the House of President Quirino, Congressional Record of the
House of Representatives, Vol. IV, p. 1553). Betrayal of public trust includes violation of
the oath of the office of the President (Record of the Constitutional Commission, Vol. II,
p. 272). In his oath of office, the President swore to preserve and defend the
Constitution (Article VII, Section 5 of the 1987 Constitution).

ALTERNATIVE ANSWER:

The President can be impeached for culpable violation of the Constitution and graft and
corruption (Article XI, Section 2). By entering into the executive agreement, the
President violated Section 3 of the Anti-Graft and corrupt Practices act because of the
undue injury to the republic of the Philippines.

A verified impeachment complaint was filed by two hundred (200) Members of the
House of Representatives against Madam Chief Justice Blue. The complaint was
immediately transmitted to the Senate for trial.

a. Madam Chief Justice Blue challenges such immediate transmittal to the Senate
because the verified complaint 1) not included in the order of business of the

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House, 2) was not referred to the House Committee on Justice for hearing and
consideration for sufficiency in form and substance, and 3) was not submitted to
the House Plenary for consideration as enumerated in Paragraph (2), Section 3,
Article XI of the 1987 Constitution. Decide with reasons. (5%)

b. What is the purpose of Impeachment? Does conviction prevent further


prosecution and punishment? Explain. (3%)

c. Enumerate the grounds for impeachment. Is graft and corruption a ground for
impeachment? (2%)(2012 BAR EXAMS)

SUGGESTED ANSWER:
a. since the verified complaint was filed by 200 members of the house of
representatives and they constituted at least one third of its Members, it need not
undergo the procedure in paragraph 2, section 3, article XI of the Constitution. The
verified complaint constitutes the article of impeachment, and the trial by the senate
should proceed forthwith. (section 3 (4), Article XI of the constitution.

b. the purpose of impeachment is not to punish but only to remove a public officer to
secure the people against gross political misdemeanors.( bernas, the 1987 constitution
of the Philippines, A commentary, 2009 ed., p. 1150) Conviction does not prevent
further prosecution and punishment. The person convicted is subject to prosecution and
punishment according to law. (section 3(7), article of the Constitution.)

c. the following are the grounds for Impeachment:


1. culpable violation of the constitution
2. Treason
3. Bribery
4. Graft and Corruption
5. Other high crimes; and
6. betrayal of public trust

Which one is NOT among the Constitutionally mandated grounds for


impeachment of impeachable officials: (2012 BAR EXAMS)
a. culpable violation of the Constitution;
b. treason, bribery, graft and corruption and other high crimes;
c. betrayal of public trust;
d. culpable violation of the duty to be at all times accountable to the people.

SUGGESTED ANSWER:

(D) SECTION 2, ARTICLE XI OF CONSTITUTION

Which is NOT an impeachable public officer: (2012 BAR EXAMS)


a. a justice of the Supreme Court;
b. a commissioner of the Comelec;

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c. the administrator of the Supreme Court;


d. the Ombudsman.

SUGGESTED ANSWER:

(D) SECTION 2, ARTICLE XI OF CONSTITUTION

Which has the exclusive power to initiate all cases of impeachment: (2012 BAR
EXAMS)

a. the Senate;
b. the House of Representatives;
c. the Senate President;
d. the Speaker of the House of Representatives

SUGGESTED ANSWER:

Section 3(1), Article of Constitution

At least one-third of all the members of the House of Representatives may file
articles of impeachment by: (2012 BAR EXAMS)
a. verified bill and resolution;
b. verified complaint and resolution;
c. verified notice and resolution;
d. verified complaint and notice.

SUGGESTED ANSWER:

(B) SECTION 3(1), ARTICLE XI OF CONSTITUTION

A public officer impeached and removed from office shall: (2012 BAR EXAMS)
a. nevertheless be immune from prosecution, trial and punishment according to
law;
b. nevertheless be liable and subject to prosecution, trial and punishment under
the Anti-Graft and Corrupt Practices Act;
c. nevertheless be liable and subject to prosecution, trial and punishment
according to law;
d. nevertheless be liable and subject to prosecution, trial and punishment only for
criminal acts under the law.

SUGGESTED ANSWER:

(c) SECTION 3(7), ARTICLE XI OF CONSTITUTION

As a leading member of the Lapiang Mandirigma in the House of Representatives,


you were tasked by the party to initiate the moves to impeach the President

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because he entered into an executive agreement with the US Ambassador for the
use of the former Subic Naval Base by the US Navy, for free, i.e., without need to
pay rent nor any kind of fees as a show of goodwill to the U.S. because of the
continuing harmonious RPUS relations. Cite at least two (2) grounds for
impeachment and explain why you chose them. (6%) 2013 BAR EXAMS

SUGGESTED ANSWER:

The President can be impeached for culpable violation of the Constitution and betrayal
of public trust. The Supreme Court has already ruled that the provision in Article XVIII,
Section 25 of the Constitution requires a treaty even for the mere temporary presence of
foreign troops in the Philippines (Bayan v. Zamora, G.R. No. 138570, October 10, 2000,
342 SCRA 499). The President cannot claim, therefore, that he acted in good faith.
(Report of the Special Committee in the Impeachment of President Quirino,
Congressional Record of the House of President Quirino, Congressional Record of the
House of Representatives, Vol. IV, p. 1553). Betrayal of public trust includes violation of
the oath of the office of the President (Record of the Constitutional Commission, Vol. II,
p. 272). In his oath of office, the President swore to preserve and defend the
Constitution (Article VII, Section 5 of the 1987 Constitution).

ALTERNATIVE ANSWER:

The President can be impeached for culpable violation of the Constitution and graft and
corruption (Article XI, Section 2). By entering into the executive agreement, the
President violated Section 3 of the Anti-Graft and corrupt Practices act because of the
undue injury to the republic of the Philippines.

The one-year-bar rule in impeachment proceedings is to be reckoned from the


time the (1%)2014 BAR EXAMS

(A) first impeachment complaint is filed


(B) impeachment complaint is referred to the Committee on Justice
(C) House of Representatives vote on the impeachment complaint
(D) House of Representatives endorses the Articles of Impeachment to the Senate

Upon endorsement from the Senate where it was first mistakenly filed, the House
of Representatives Committee on Justice found the verified complaint for
impeachment against the President sufficient in form but insufficient in
substance. Within the same year, another impeachment suit was filed against the
President who questioned the same for being violative of the Constitution. Is the
President correct? (2011 BAR)
(A) No, "initiated" means the Articles of Impeachment have been actually
filed with the Senate for trial; this did not yet happen.
(B) No, the first complaint was not deemed initiated because it was
originally filed with the Senate.

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(C) Yes, the dismissal of the first impeachment proceeding bars the
initiation of another during the same term of the President.
(D) Yes, no impeachment proceeding can be filed against the President
more than once within a year.

2. Ombudsman (Sections 5 to 14, Article XI of the 1987 Constitution, in


Relation to R.A. No. 6770, or otherwise known as "The Ombudsman
Act of 1989.")
a. Functions
b. Judicial review in administrative proceedings
c. Judicial review in penal proceedings

Judge Red is the Executive Judge of Green City. Red is known to have corrupt
tendencies and has a reputation widely known among practicing lawyers for
accepting bribes. Ombudsman Grey, wishing to "clean up" the government from
errant public officials, initiated an investigation on the alleged irregularities in the
performance of duties of Judge Red.

a. Judge Red refused to recognize the authority of the Office of the Ombudsman
over him because according to him, any administrative action against him or any
court official or employee falls under the exclusive jurisdiction of the Supreme
Court. Decide with reasons. (5%)

b. Does the Ombudsman have authority to conduct investigation over crimes or


offenses committed by public officials that are NOT in connection or related at all
to the officials discharge of his duties and functions? Explain. (3%)

c. Who are required by the Constitution to submit a declaration under oath of his
assets, liabilities, and net worth? (2%) (2012 BAR EXAMS)

SUGGESTED ANSWER:

A. Since the complaint refers to the performance of the duties of judge red, ombudsman
grey should not act on it and should not act on it and should refer it to the supreme
court. His investigation will encroach upon the exclusive power of administrative
supervision of the supreme court over all courts. (Maceda vs. Vasquez, 221 scra 464)

B. The ombudsman can investigate crime or offenses committed by public officers


which are not connected with the performance of their duties. Under section 13(1)
article xi of the constitution, the ombudsman can investigate any act or omission of a
public official which is illegal. (Deloso vs. Domingo, 191 scra 545.)

C. All public officers and employees are required to submit a declaration under oath of
their assets, liabilities and net worth. (section 17 article xi of the constitution)

The Ombudsman and his deputies are appointed by the President from a

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list prepared by: (2012 BAR EXAMS)


a. the Integrated Bar of the Philippines;
b. the Commission on Appointments;
c. the Judicial and Bar Council;
d. the Supreme Court.

SUGGESTED ANSWER:

(C) SECTION 9, ARTICLE XI OF CONSTITUTION

The Office of the Special Prosecutor may file an information against a public
officer for graft (2011 BAR)
(A) on its own initiative subject to withdrawal of the information by the
Ombudsman.
(B) independently of the Ombudsman, except in plunder cases.
(C) only when authorized by the Ombudsman.
(D) independently of the Ombudsman.

CTD, a Commissioner of the National Labor Relations Commission (NLRC),


sports a No. 10 car plate. A disgruntled litigant filed a complaint against him for
violation of the Anti-Graft and Corrupt Practices Act before the Ombudsman. CTD
now seeks to enjoin the Ombudsman in a petition for prohibition, alleging that he
could be investigated only by the Supreme Court under its power of supervision
granted in the Constitution. He contends that under the law creating the NLRC, he
has the rank of a Justice of the Court of Appeals, and entitled to the
corresponding privileges. Hence, the OMB has no jurisdiction over the complaint
against him.

Should CTD's petition be granted or dismissed? Reason briefly. (15%) (2004 Bar
Question)

SUGGESTED ANSWER:

The petition of CTD should be dismissed. Section 21 of the Ombudsman Act vests the
Office of the Ombudsman with disciplinary authority over all elective and appointive
officials of the government, except officials who may be removed only by impeachment,
Members of Congress, and the Judiciary. While CTD has the rank of a Justice of the
Court of Appeals, he does not belong to the Judiciary but to the Executive Department.
This simply means that he has the same compensation and privileges as a Justice of
the Court of Appeals. If the Supreme Court were to investigate CTD, it would be
performing a non-judicial function. This will violate the principle of separation of powers.
(Noblejas v. Teehankee, 23 SCRA 405 [1968]).

When a witness is granted transactional immunity in exchange for his testimony


on how his immediate superior induced him to destroy public records to cover up

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the latter's act of malversation of public funds, the witness may NOT be
prosecuted for (2011 BAR)
(A) direct contempt.
(B) infidelity in the custody of public records.
(C) falsification of public documents.
(D) false testimony.

An administrative complaint for violation of the Anti-Graft and Corrupt Practices


Act against X was filed with the Ombudsman. Immediately after taking
cognizance of the case and the affidavits submitted to him, the Ombudsman
ordered the preventive suspension of X pending preliminary investigation. X
questioned the suspension order, contending that the Ombudsman can only
suspend preventively subordinate employees in his own office.

Is X correct? Explain. (1996 Bar Question)

SUGGESTED ANSWER:

No, X is not correct. As held in Buenaseda vs. Flavier, 226 SCRA 645, under Section 24
of Republic Act No. 6770, the Ombudsman can place under preventive suspension any
officer under his disciplinary authority pending an investigation. The moment a
complaint is filed with the Ombudsman, the respondent is under his authority. Congress
intended to empower the Ombudsman to suspend all officers, even if they are employed
in other offices in the Government. The words
subordinate" and in his bureau do not appear in the grant of such power to the
Ombudsman.

Director WOW failed the lifestyle check conducted by the Ombudsmans Office
because WOWS assets were grossly disproportionate to his salary and
allowances. Moreover, some assets were not included in his Statement of Assets
and Liabilities. He was charged of graft and corrupt practices and pending the
completion of investigations, he was suspended from office for six months.

Aggrieved, WOW petitioned the Court of Appeals to annul the preventive


suspension order on the ground that the Ombudsman could only recommend but
not impose the suspension. Moreover, according to WOW, the suspension was
imposed without any notice or hearing, in violation of due process.

Is the petitioners contention meritorious? Discuss briefly. (5%) (2004 Bar


Question)

SUGGESTED ANSWER:

The contention of Director WOW is not meritorious. The suspension meted out to him is
preventive and not punitive. Section 24 of Republic Act No. 6770 grants the
Ombudsman the power to impose preventive suspension up to six months. Preventive

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suspension may be imposed without any notice or hearing. It is merely a preliminary


step in an administrative investigation and is not the final determination of the guilt of
the officer concerned. (Garcia v. Mojica, 314 SCRA 207 (1999J).

For his part, the Ombudsman moved to dismiss WOWs petition. According to the
Ombudsman the evidence of guilt of WOW is strong, and petitioner failed to
exhaust administrative remedies. WOW admitted he filed no motion for
reconsideration, but only because the order suspending him was immediately
executory.

Should the motion to dismiss be granted or not? Discuss briefly. (5%) (2004 Bar
Question)

SUGGESTED ANSWER:

The motion to dismiss should be denied. Since the suspension of Director WOW was
immediately executory, he would have suffered irreparable injury had he tried to
exhaust administrative remedies before filing a petition in court (University of the
Philippines Board of Regents v. Rasul, 200 SCRA 685 [199 ID- Besides, the
question involved is purely legal. (Azarcon v. Bunagan, 399 SCRA 365 [2003]).

Pedro Masipag filed with the Ombudsman a complaint against RTC Judge Jose
Palacpac with violation of Article 204 of the Revised Penal Code for knowingly
rendering an unjust judgment in Criminal Case No. 617. Judge Palacpac filed a
motion with the Ombudsman to refer the complaint to the Supreme Court to
determine whether an administrative aspect was involved in the said case. The
Ombudsman denied the motion on the ground that no administrative case against
Judge Palacpac relative to the decision in Criminal Case No. 617was filed and
pending in his office.

State with reasons whether the Ombudsman's ruling is correct. (4%) (2005 Bar
Question)

SUGGESTED ANSWER:

The ruling of the Ombudsman is not correct. The criminal complaint against Judge
Palacpac for knowingly rendering an unjust decision arises from his administrative
duties. The Ombudsman cannot investigate the complaint, because it will encroach
upon the power of the Supreme Court of administrative supervision over all courts and
their personnel. [Art. VIII, Sec. 6, Constitution; Maceda v. Vasquez, 221 SCRA 464
(1993)]

TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement
is false. Explain your answer in not more than two (2) sentences. (5%) (2009 Bar
Question)

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Decisions of the Ombudsman imposing penalties in administrative disciplinary


cases are merely recommendatory.

SUGGESTED ANSWER:

False. Under Section 15(3] of the Ombudsman Act, the Ombudsman has the power to
ensure compliance with the imposition of penalty on public officers it finds at fault by
virtue of its disciplinary authority (Office of the Ombudsman v. Madriaga, 503 SCRA 631
[2006]).

3. Sandiganbayan

Simeon Valera was formerly a Provincial Governor who ran and won as a Member
of the House of Representatives for the Second Congressional District of Iloilo.
For violation of Section 3 of the Anti-Graft and Corrupt Practices Act (R.A.
No.3019), as amended, allegedly committed when he was still a Provincial
Governor, a criminal complaint was filed against him before the Office of the
Ombudsman for which, upon a finding of probable cause, a criminal case was
filed with the Sandiganbayan. During the course of trial, the Sandiganbayan
issued an order of preventive suspension for 90 days against him.

Representative Valera questioned the validity of the Sandiganbayan order on the


ground that, under Article VI, Section 16(3) of the Constitution, he can be
suspended only by the House of Representatives and that the criminal case
against him did not arise from his actuations as a member of the Ho