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1982 Bar Examination Questions

Question No. 1

What form of government do we have at present? Explain briefly its nature and and characteristics?

Answer

The government of the Philippines at the present time has been described as essentially presidential in
character. In De La Llana vs Alba G.R No. 57883, the Supreme Court describing the nature and characteristics of the of
the Government, stated: “the amended Constitution adheres even more clearly to the long-established tradition of a
strong executive that antedated the 1935 Charter… The 1935 Constitution., stated, provided for and ‘Executive power,
which subject to the fiscalization of the Assembly and of the public opinion, will not only know how to govern, but will
actually govern, with a firm and steady hand, unembarrassed by vexatious interferences by other departments or by
unholy alliances with this and that social group.’ The above excerpt was cited by Justice Laurel in Planas vs. Gil. 61 Phil.
62. The 1981 amendments embody the same philosophy, this notwithstanding that once again the principles of
separation of powers, to quote from… Angara vs Electoral Commission 63 Phil 139, ‘obtains not through express
provision but by actual division.’ The president under Article VII shall be ‘ the head of the State and the chief executive of
the Republic of the Philippines. Moreover, all the powers he possessed under the 1935 constitution are vested in him
anew unless the Batasang Pambansa provides otherwise.’

As originally framed, the 1973 Constitution created the position of President as the symbolic head of the State
(Article VII, Section 1, 1973 Constitution, original form). In addition there was a provision for prime Minister as the heads
of the government to exercise the executive power with the assistance of the Cabinet. Clearly a modified Parliamentary
system was established. In the light of the 1981 amendments though, this court in Free telephone Workers Union vs.
Minister of Labor 108 SCRA 757 could state: The adoption of certain aspects of a parliamentary system in the amended
Constitution does not alter its essentially presidential character. The retention, however, of the provision for the Prime
Minister with the Cabinet, a majority of the members of which shall come from the regional representatives of the
Batsang Pambansa and the creation of the Executive Committee composed of the prime Minister as Chairman and not
more than 14 other members at least half of whom shall be members of the Batasang Pambansa, clearly indicate the
evolving system of government that is not operative. What is equally apparent is that the strongest ties bind the
executive and legislative departments. It is likewise undeniable that the Batasang Pambansa retains its full authority to
enact whatever legislation may be necessary to carry out national policy as usually formulated in a caucus of the majority
party.

Question No. 2

On May 10, 1981, P filed in the City Court an action for damages against D. After trial, the court rendered
judgement in favor of P and against D. on appeal to the Court of First Instance, Assemblyman X ( a member of the
Btasang Pambansa) entered his appearance as counsel for D. P challenges X’s appearance on the ground that under the
Constitution he is barred from appearing before Courts Of First Instance

Resolve P’s challenge.

Answer

P’s challenge should be dismissed. Assemblyman X is not disqualified from appearing as counsel for D in the Court of
First Instance considering that the case is there pending in exercise of the Court’s appellate jurisdiction. In Villegas v.
Legaspi, L-53869 & L-51982, it was held that the disqualification of the Assemblymen in Art. VIII, Sec. 11 of the
Constitution (1973) is intended to remove any possibility of undue influence upon the administration of justice, to
eliminate the possible use of office for personal gain, to ensure impartiality in trials and thus preserve the independence
of the Judiciary. The possible influence of an Assemblyman on a single judge of the Court of First Instance is definitely
diminished where the courts acts in the exercise of its appellate, instead of original jurisdiction. The upper hand that the
party represented by an Assemblyman by virtue of his office possesses is more felt and could be more feared in original
cases because the decision appealed from in the latter situation has already a presumption not only of regularity but also
of correctness in its favor.

Question No. 3

In the local election of January 30 1980, A, the official candidate for the KBL for the position of mayor of X municipality,
was proclaimed the winner of the municipal board of canvassers. Three days later, B, the Nacionalista Party candidate for
the same office filed a petition with the COMELEC to declare null and void the elections due to alleged large scale
terrorism. After due hearing, After due hearing, the COMELEC finding that the teachers-members of the Citizens Election
Committee had been threatened and coerced in making false election returns and that the ballot boxes had been forced
open and the contents thereof substituted with pre-prepared ballots, issued a resolution with he dispositive portion
which reads:

WHEREFORE, the Commission hereby orders the following: 1) the annulment of the election last January 30,
1980 of the local government officials in X municipality, consequently, the annulment and setting aside of the
proclamation of respondent A and other municipal officials thereat; and 2) to certify to the President/Prime Minister and
the Batasang Pambansa the failure of election in X municipality so that remedial legislation may be enacted and that
pending such enactment, the President/prime Minister may appoint the municipal officials of X municipality.

B moved for the reconsideration of that portion of the resolution which certified to the president/prime Minister and the
Batasang Pambansa the election in said municipality and prayed instead that special elections be held. A ikewise filed a
motion for reconsideration, praying that he be proclaimed the winner on the basis of the undisputed returns. A
contended that the COMELEC has no authority to annul the entire municipal election because the Constitution grants it
only the power to enforce and administer all the laws relative to the conduct of elections.

Based in the foregoing facts: 1) does the COMELEC have the power to annul an entire municipal election based on the
ground of post-election terrorism?; 2) Does the COMELEC have the power to call for special election? Explain your
answers.

Answer

The answer to both questions should be in the affirmative in accordance with the ruling in Sanchez vs COMELEC L-55513
& L-55642, 1) the COMELEC has the power to annul the election. Under Article XII, C, Sec. 2 (1) of the Constitution it is
charged with the function to “enforce and administer all laws relative to the conduct of election.” The rejection of
returns and annulment of elections were in exercise of this function. Under the 1935 Constitution it was held in Abes vs
COMELEC 21 SCRA 1252 , that the power to enforce election laws did not include the power to annul an election, but it
was also held that this was a power which pertained to the Senate and the House Electoral Tribunals and the Courts,
because the powers of the COMELEC were preventive rather thatn remedial. But under Art. XII, C, Sec 2(2) of the present
Constitution the COMELEC now has the power of the Electoral Tribunals and the courts of deciding contests related to
elections, disqualification, and return of members of the BP and of elective provincial and city officials so that the power
to set aside elections must now be deemed a power of the COMELEC.

2) the COMELEC can also call for a a special election. It is true that in Ututtalum vs COMELEC, 15 SCRA 465, it was held
that the calling of a special election is a legislative function, unless it is delegated to some agency of government, as in
the case of Section 21(2) of the former Election Code which authorized the President to call special election in the event
election for the for local elective office is not held on the said date fixed by law. It is likewise true that, at present,
pursuant to section 5 of BP 52, the COMELEC is authorized to call a special election only where because of violence,
terrorism, force majeure, and the like, the election for local office fails to take place on the date set by law, or is
suspended, or results in a failure to elect. While in the case at bar, there was free, orderly, and honest election in January
30, 1980, the terrorism took place after and not during the voting. However, in practical effect, there is no difference
between the failure to elect because of terrorism committed during the voting and the failure to ascertain the result of
an election because of fraud and terrorism after the voting, in the preparation of election returns. Since under Section 8
of the 1978 Election Code the COMELEC has the power to call special election in the event of failure to elect due to
terrorism, etc., committed during voting, it must also have the same power, when if the voting was regular, the process
of counting is irregular.

Question No. 4

In what capacity and on what basis can a state bring suits to protect the rights of the people, enforce charities of a public
nature, and defend the interest of the helpless infants and lunatics?

Answer

The State acting as Parens Patriae, may bring suits to protect the rights of the its citizens,, to enforce charities of public
nature, and to defend the interests of those who because of age and mental incapacity and physical incapacity are
incapable of protecting their protecting their rights and interests.

Question No. 5

Charged with the crime of murder, A entered a plea of not guilty. He was thereupon granted bail. Due to his failure to
appear at the trial, despite due notice, the court proceeded with the reception of the prosecution’s evidence and
thereafter rendered a judgement of conviction. On appeal, A sought to set aside the judgement of conviction on the
ground, among others, that while the crime charged was a capital offense, the trial was conducted and terminated by the
court in his absence. Is A’s contention tenable? Reason.

Answer

A’s contention is untenable. The Constitution specifically states in Art. IV, Sec 19 that “after arraignment, trial may
proceed notwithstanding the absence of the accused provided he has been duly notified and his failure to appear is
unjustified.” In the case at bar, A was arraigned and duly notified of the trial but without any justifiable reason, he failed
to appear. He thereby waived the right to be present, and the court was justified in conducting a trial in absentia. Indeed,
the constitutional provision makes no distinction whether the offense charged is capital or otherwise. While the rule
before was that a person in custody or charged with a capital offense must be present as a matter of duty during trial, it
was modified in Aquino vs Military Commission 63 SCRA 546 except where this is required for purposes of enabling
witnesses to identify him.

Question No. 6

A, a taxpayer, a voter, and a member, of the Bar, filed a petition against the COMELEC to enjoin the latter from enforcing
Section 4, Batas Blg. 52 which provides for the disqualification as candidate for any other person convicted of subversion
insurrection, rebellion, or other similar offenses. Said law further provides that the filing of charges for such crimes
before a civil or military tribunal after preliminary investigation shall be prima facie evidence of such fact. A maintains
that the above quoted provision is unconstitutional because it contravenes the presumption of innocence guaranteed by
the Constitution. Is the contention tenable?

Answer

A’s contention should be sustained. In Dumlao vs COMELEC, Igot vs COMELEC, 95 SCRA 39, the Supreme Court
invalidated the provision of BP Blg. 52 section 4 involved in this problem on the ground that it contravenes the
presumption of innocence in Art. IV, Sec. 19. The Supreme Court held: “this proviso contravenes the presumption of
innocence, as a candidate is disqualified for public office on the ground alone that charges have been filed against him
before a civil or military tribunals. Such person is virtually placed in the same category as a person already convicted of a
crie punishable by arresto which carries with it the accessory penalty of suspension to hold public office. Although the
presumption is rebuttable, time and constraints may prevent one from offering contrary proof. Above all, it is best that
evidence of disloyalty be passed upon by courts rather than an administrative body like the COMELEC.