SUGGESTED ANSWERS to 2017 BAR EXAMINATION QUESTIONS Eduardo A. Labitag Editor U.P. LAW COMPLEX Bocobo Hall, Dilliman, Quezon City 2018Copyright 2018 by the U.P. Law Complex ISBN No. 971-15-0493.9 blished by: INFORMATION ai ND Pr UP. Law Compler VBMICATION Division sted by: UE Law Complex Printing Oe FOREWORD In response to public demand, the U.P. Law Complex is pleased to publish this latest edition of ANSWERS TO BAR EXAMINATION QUESTIONS which covers all subjects in the Bar examinations. ‘The previous edition had been of great assistance to the bar examinees, law students, law practitioners, and law professors, alike by ‘making readily available questions asked in the bar examinations every ‘year and the suggested answers thereto. ‘The answers in each bar subject were discussed and prepared by a select group of law professors and practitioners who are experts and authorities in each subject. After the answers were finalized by each group or committee, the suggested answers were transmitted to the Chairman of the Supreme Court Bar Examinations Committee and who in turn furnished copies to the examiners. tis our hope that this publication will guide bar reviewees and Jaw students in formulating their answers to bar examination questions, and bar examiners in evaluating the answers of examinees. EDUARDO A. LABITAG Head, Training & Convention Divisi U.P. Law Center iii1 Danilo L. Concepcion f Carlo L. Cruz Enrique V. dela Cruz Bartolome Femandez Rene B. Gorospe f Eduardo A. Labitag Victoria V. Loanzon Ewin R. Sandoval f. Anthony Charlemagne C. Yu BOR LAW Prof. Patricia R.S. Daway, Chairman Dean Antonio H. Abad, J. Prof. E. (Leo) D. Battad Alty, Pearlito B. Campanitla ‘uty. Ismael G. Khan, Jr. | Prof. Eduardo A. Labitag Prof. Oswald B. Lorenzo ‘Atty. Marcial Galahad T. Makasiar Atty. Antonio C. Dean Salvador A. Poquiz Prof. Francis V. Sobrevifias Atty. Rigoberto Santiago, Jt RESOURCE PERSONS CIVILLAW Justice Jose C. Vitug, Chairman Dean Danilo L. Concepcion, Co-Chairman Justice Oswald D. Agcaoili Dean Cynthia R. del Castitlo Justice Hector L. Hofilenia Prof, Eduardo A. Labitag Prof. Vietoria V. Loanzon Prof. Solomon F. Lumba Dean Merlin M. Magallona Prof. Ryan P. Oliva, Prof. Elmer T. Rabuya Prof. Carla E, Santamaria-Senta Prof. Crisostomo A. Uribe TAXATION Prof. Edwin R. Abella, Chairman Justice Emesto D. Acosta Justice Lovell R. Bautista Justice Japar B, Dimaan Prof. Carlo G. Baniqued Prof. Othello C. Carag Prof. Abelardo T. Domondon Prof, Eduardo A. Labitag Prof. Virginia Jeannie P. Lim Prof. Serafin U. Salvador, Jr|ERCANTILE LAW van Nilo T. Divina, Chairman van Eduardo J.F. Abella of. Erickson H. Balmes an Bartolome S. Carale ‘an Danilo L. Concepcion ‘an Cynthia R. del Castillo tive Japar B, Dimaampao £. Gwen G, de Vera Jacinto D. Jimenez £ Eduardo A. Labitag Rafael A. Morales £ Vietoria V. Loanzon ‘ Rowena E.V. Daroy-Morales 1 Willard B. Riano MINAL LAW ce Edilberto G. Sandoval, Chairman « Philip A. Aguinaldo 2e Apolinario D. Bruselas Bartolome 8. Carale Maro B. Campania Ramon S. Esguerra ¢ Roland B, Jurado Bduardo A. Labitag «© Rodolfo G. Palattao © Manuel R. Pamaran Oscar B. Pimentel Demis Vill-Ignacio REMEDIAL LAW Prof. Ramon S. Esguerra, Chairman Prof. Aloysius C, Alday Prof. Henedino M, Brondial Justice Apolinario D: Bruselas Dean Danilo L. Concepeion Prof. Rowena E.V. Daroy-Morales Justice Zenaida T. Galapate-Laguilles Prof. Eduardo A, Labitag Justice Rodolfo G. Palattao Justice Manuel R. Pamaran Dean Willard B. Riano Justice Edilberto G, Sandoval Prof. Christian G. Villasis LEGALETHICS Justice Hector L. Hofilefia, Chairman Dean Eduardo J.F. Abella Judge Philip A. Aguinaldo Prof. Erickson H. Balmes Prof. E. (Leo) D. Battad Prof. Rosa Maria J. Bautista Prof. Abelardo t. Domondon Prof. Rene B. Gorospe Prof. Concepeion L. Jardeleza Prof. Eduardo A. Labitag Prof: Victoria V. Loanzon Prof. Dennis C. Pangan FOREWORD CONTENTS ANSWERS TO BAR EXAMINATION QUESTIONS. Political Law . Labor Law Civil Law ‘Taxation . Commercial Law . 12 Criminal Law Remedial Law soe 167 Legal Ethics. viiPOLITICAL LAW ‘A priority thrust ofthe Administration isthe change of the form of ent from unitary o federal, The change can be effected only through ‘onstitutional amendment or revision. (2) What are the methods of amending the Constitution? Ex ‘plain briefly each method. (3%) SUGGESTED ANSWER (a) The Constitution may be amended or revised by the _Yote of at least three-fourths of all the Members of Congress, acting as a “Constituent Assembly, by way of a proposal (Article XVII, Sec. 1(1) of the - 1987 Constitution). ‘Any amendment or revision under this provision shall be valid 1pon ratification by a majority of the votes cast in a plebiscite which shall be held not earlier than 60 days or later than 90 days after the approval of amendment or revision (Article XVII, Sec. 4 ofthe 1987 Constitution). The Constitution may also be amended. or revised by a tutional Convention. Congress may, by the vote of at least two- Of all its members, call a Constitutional Convention, or by @ jority vote of all its Members subject (o the electorate the calling of a titutional Convention (Article XVII, Sec. 3 of the 1987 Constitution). ‘the same [Article XVII, Sec. 1(1 ofthe 1987 Constitution. yendments to the Constitution may be directly proposed by the “people through initiative upon petition of atleast 12% of the registered “Yoters, and at least 3% of the registered voters in every leisative district2 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN POLITICAL LAW. ‘The People cannot propose revisions and may propose only. peapia nents. The petition must be signed by the required number ey Any amendment under Article XVI, Sec. 2 of the 1987 Constitution, shall be valid when ratified by a majority of the votes cacetg a plebisei (©) Cite atleast tree provisions ofthe Constitution thet need to be canner revised to effect the change from unitary to federal, and biel explain why? (3%) SUGGESTED ANSWER (>) Examples of provi revised to effect the change from ui Article X, Sec. 3 must be omitted because the legislature fine the scope of the powers of the government. 2. ____ Article X, See. 4 will have to be omitted. The President ‘willno longer have the power of supervision over loca! government, 3 homers Tiisle Xs See. § must be omitted. Congress will no Jonger be allowed to impose limitations on the power of taxation of local governments, {Note: "The panel wishes to recommend liberality in favor of the examinee for this question, a answers can be gleaned from many articles and provisions of the Constitution, among them Articles VI, Vil, and X DANSWERS TO THE 2017 BAR EXAMINATION 3 IN POLITICAL LAW " A sud ie of munity fo at, he Seca be Hiscoacn How my ine rte be gen by te Sta? Explain ee eae itten waiver of immunity from suit in mate (United Ss Gun, Cat No. N60, ET, SOUS : February 26, 1990, 182 SCRA 664); Republic v. Feliciano, G.R. 70853, March 12, 1987, 148 SCRA 120, ¥ wietary function (Philippine Tourism Authority v. Philippi B. i State extends to ‘The doctrine of immunity from suit in favor of the ic officials in the performance of their official duties. May such officials ior to undo their oppressive or illegal acts, or to Public officials may be sued ifthey acted oppressive regal _ in the performance of their duties. A suit against a public officer who Acted illegally is not a suit against the state (Aberca v. Ver, G.R. No. 69866, __ April 15, 1988, 160 SCRA 590).SUGGESTED ANSWERS TO THE 2017 BAR EXAMINA ‘QUESTIONS IN POLITICAL LAW. nisner ptt, DUI ocr is by lw net immune age ihe personal capacity for ets dane n bad fat nhc bag se a oe Pate authority, are no longer protected by the mantle of ik for official actions (Vinzons-Chato v. Fo 1 corp, GE No. 141308, June 19, 2007,5258CRa une Thaeeo Corn, GR, é Do government-owned or - Int othe Sate how ole coperaton als enjoy them lain your answer. (3%) SUGGESTED ANSWER A government-owned or controlled corporation may be sued. A r : tion may be sued. ‘suit against it is not a suit against the State, because has a separate ju idical personality (Social Securit curity Some Cor 14129, February 211983, 120 Sewanee Gok Xa ©) May Sate now na fese wey with tate BY Explain your ant (a96) on ua ANSWERS TO THE 2017 BAR EXAMINATION {IN POLITICAL LAW State A may unilaterally withdraw from the mutu: State B committed a material breach of the treaty by failing to the aid of State A (Art. 60 () of the Vienna Convention on the Treaties; Kolb, The Law of Treaties, p. 220; Aust, Modern Treaty 1d Practice, pp. 236-237). (&) Whats the difference between the prin ‘and rebus sic stantibus in international law? (2.5%) ESTED ANSWER (>) acta sunt servanda means that every treaty in force is jing upon the States who are parties to it, and States must perform ‘obligation in good faith (Deutsche Bank AG Manila Branch v. Com- ier of Internal Revenue, 1. 188550, August 19, 2013, 704 216). © Rebus sic stantibus means that & fundamental ehange of cireum- mnces, which occurred with regard (o those existing at the time of the ‘conclusion of a treaty and which was not foreseen by the parties may not invoked for withdrawing from a treaty unless their existence const ‘an essential basis of the consent of the parties and their effect is {to radically transform the extent of the obligations still to be performed (Article 62 of the Vienna Convention on the Law of Treaties), (©) Arethe principles of pacta sunt servanda and rebus si Stantibus relevant in the treaty relations between State A and State B? What about in the treaty relations between State B and State C? Explain your answer. 25%) SUGGESTED ANSWER (©) Yes. Pacta sunt servanda was what bound State A and State B to comply with their obligations under their mutual defense treaty, despite the existing trade agreements between State Band State C. Article 62 of the Vienna Convention on the Law of Treaties, which enunciates the doctrine of rebus sic stantibus, on the other hand, can be invoked by State B as6 SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN POLITICA LAN Bitarnon uw pardon from amnesty. (4%) D ANSWER only after final conviction; amnesty can be Pardon can be given only me and even before the filing of a criminal case. - given any time and Pardon looks forward; amnesty looks backward, as ifthe accused ever committed a crime. A ‘What is the pardoning power of the President under Art, VIII, Sec, 19 of the Constitution? Is the exercise ofthe power absolute? (4%) Pardon is given to individuals, Amnesty is given to a class of persons. Pardon is given for all criminal offenses. Amnesty is given for political offenses. SUGGESTED ANSWER Except in cases of impeachment, or as otherwise provided in this Sianstitution, the President may graut reprieves, commutations and par. fans and remit fines and forfeitures, after conviction by final judgment, He shall also have the power to grant amnesty with the concurrenee of ¢ alority of all the Members of the Congress (Article VII, See. 19 of the 1987 Constitution), No pardon, amnesty, parole, or suspension of sentence for vi tion of election laws, rules, and regulations shall be granted by the Pre Fext without the favorable recommendation of the Commission (Article IX-C, See. 5 of the 1987 Constitution). The only instances in which the President may not extend pardon eran {0 bein: (1) impeachment cases; (2) cases that have not yet result, Pardon does not require the concurrence of Congress. Amnesty requires the concurrence of Congress. Pardon must be proven, because an sed act; amnesty v. (2) What isthe right of legation, and how is it undertaken between :? Explain your answer. (2%) SUGGESTED ANSWER ior operate to delimit the pardoning power of the President (Risos-Vidal Ee nem (a) The right of legation is the right accorded to a State to ent in another be represented by an ambassador or diplomatic agent Sint (Cogui and. Defensor Santag, International Law and World Organizations, p. 289).8 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION QUESTIONS IN POLITICAL LAW. (b) Under this right, may a country like Malaysia insist thatthe Philippines establishes a consulate in Sabah to look after the welfare of the Filipino migrants in the area? Explain your answer. (236) SUGGESTED ANSWER (b) ___ Malaysia cannot insist that the Philippines establish a consulate in Sabah. Article 2 of the Diplomatic Convention provides: “t) hhe establishment of diplomatic mission takes place by mutual consent”, A State may conduct its diplomatic relations with another State without establishing a diplomatic mission (Magallona, Fundamentals of Pul International Law, p. 91). vl A. The President appoints the Vice President as his Administration’s Housing Czar, a position that requires the appointee to sit in the Cabinet, Al. though the appointment of the members of the Cabinet requires confirmation by the Commission on Appointment (CA), the Office ofthe President does not submit the appointment to the CA. May the Vice President validly sit in the Cabiner? (2.5%) SUGGESTED ANSWER ‘The Vice President may validly sit in the Cabinet even if he was ‘not confirmed by the Com ‘on Appointments. Under Article VII, ‘Sec. 3 of the Constitution, the appointment of the Vice President as cabi- net member requires no confirmation (Araullo Aquino III, G.R. No. 209287, July 1, 2014, 728 SCRA 1). {SWERS TO THE 2017 BAR EXAMINATION 9 IN POLITICAL LAW B. Depart ial savings from ve Department has accumulated substantial savings He ve Needing P3,000,000.00 forthe conduct of a plebiscite for fof anew city but has no funds appropriated soon by the Congress Sie, the COMELEC requests the President to transfer funds from ‘Department in order to avoid a delay in the [May the Pre wer under he 1987 Con- President vail exrie his power un : stom sexing of he cave Departed _ ‘border transfer of P3,000,000.00 to the COMELEC by way of rt yn? Is your answer the same if the transfer is treated as aid to the 27 Explain your answer. (4%) ESTED ANSWER. resi ings to the Commision on Jen may not tranir savings 10 vat Te const prion aint he roa vor Costitnnal Comm inst olher branches of government pl for whatever enon Civulo = quina H, GR. No, 209287 1, 2014, 728 SCRA 1). vir Give the limitations on the power of the Congress to enact the Gen- \ppropriations Act? Explain your answer. (5%) ESTED ANSWER Sections 24 and 25 of Article VI provide the limitations on the er of Congress to enact General Appropriations Acts. i All appropriation, revenue or tariff bills bill: authorizing in- of the public debt, bills of local application, and private bills shal10 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN POLITICAL LAW. prutnate exclusively in the House of Representatives, but the Senate may Propose or concur with amendments (Article VI, Sec, 24 ofthe 1987 Cor. stitution). ‘The Congress may not increase the appropriations recommend. Gi by the President for the operation of the Government as specified in {he budget. The form, content, and manner of preparation of the budget shall be prescribed by law. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some par- ticular appropriation therein. Any such provision or enactment shall be {imited in its operation to the appropriation to which it relates. The prez cedure in approving appropriations for the Congress shall strictly follow {he procedure for approving appropriations for other departments and agencies. A special approp: shall specify the purpose for which itis intended, and shall be supported by funds actually available as certi. tional Treasurer, or o be raised by a corresponding revenue (Article V1, Sec. 25 of the 1987 Constitution), No law shall be passed authorizing any transfer of appropria- tions; 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 tem in the general appropriations law for their respec- offices from savings in other items of their respective approps (Article V1, Sec. 25 of the 1987 Constitution). Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate Fouchers and subject to such guidelines as may be prescribed by law, If by the end of any fiscal year, the Congress shall have failed (o pass {he general appropriations bill for the ensuing fiscal year, the general ap. Propriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill 's passed by the Congress (Article VI, Sec. 25 of the 1987 Constitution). TO THE 2017 BAR EXAMINATION " vin Sheen originally registered under the Torrens system in 1922 to exploration, occupation and purchase andthe land in whi fees except agricultural lands. Sec. 2, Art. XII of the 1987 Constitution Doctrine. May the Government, on the basis of the Regalian Doctrine ated inte constinional provision, deny the banks rght 8 woe ‘mineral resources underneath the surface of its property as recognizes the Philippine Bill of 1902? Explain your answer. (5%) ESTED ANSWER ‘The government cannot deny the bank its right as owner of the I resourees underneath the surface of the property. The mining Hights acquired under Philippine Bill of 1902 before the effectivity o 1935 Constitution were vested rights that cannot be impaired by Government (Yinku Bicol Mining Corporation ». Trans-Asia Oil and gy Development Corporation, G.R. No. 207942, January 12, 2015, 745 154),12 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN POLITICAL LAW % A Ambassador Robert of State Alpha committed a very serious crime while he headed his foreign mission in the Philippines. Is he subject to arrest by Philippine authorities? Explain your answer. (3%) SUGGESTED ANSWER In accordance with the Convention on the Protection and Punishment of Crimes Against International Protected Persons Including, Diplomatic Agents, the Philippines has the obligation to either extradite or prosecute Ambassador Robert of State Alpha (Magallona, Fundamentals of Public International Law, p. 68). B. Extradition isthe process pursuant toa treaty between two State par- ties for the surrender by the requested State to the custody of the requesting State of a fugitive criminal residing in the former, However, extradition de- pends on the application of two principles -- the principle of specialty and the ual criminality principle. Explain these principles. (4%) SUGGESTED ANSWER ‘The principle of specialty means that the State requesting extradition from another State is required to specify the crime as provided in the extradition treaty for which the fugitive or the accused is to be ‘extradited and to be tried only for the offense specified in the extradition treaty (Magallona, Fundamentals of Public International Law, p. $72). ‘The principle of dual criminality requires that the crime for which extradition is sought must be recognized as a crime by both the ‘requiring State and the State to which the fugitives or the accused has fled (Magallona, Fundamentals of Public International Law, p. $78). ANSWERS TO THE 2017 BAR EXAMINATION 13 (SIN POLITICAL LAW c. President ih is ome ia ae De real ‘each country’s nationals ovary invelving reciprocity i he weatment of i yer, Hower, ds nt subi the arene athe ‘Senate for concurrence, ‘Sec. 21, Art. VIL of the temational agreement shall be v jgns an agreement Constitution provides tht no Healy 0° «Gand effective without such eoneurence ite the ask of sstheageement signed bythe President etv despite he ack ‘senate concurrence? Explain your answer. (4%) SUGGESTED ANSWER, re even ifthe ‘he arsment spt y the Peet ecve en Sena ie ngeement sin th aatre oF aloeryaopear i Senate for concurrence in its s encand ned not be smite to the Se cin sae a ang Ochoa, GA. Nos 124268 212844, Sansa rae fh aoe, 179 SCRA28. x A tect bat louses of Congress that the bill was: Scents ct rim ie Speaker of bill doctrine and patie eye Senne sient dep hes consider arena and ee? 9)14 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN POLITICAL LAW SUGGESTED ANSWER (®) ‘The Senate President may withdraw his signata th il since twas not actualy the il that was approved fe Congeen so there was no enrolled bill to speak of (Astorga ¥. Villegas, G.R. No. ‘L-23475, April 30, 1974, 56 SCRA 714). ita (b) May the President thereafter withdraw his signature? plain your answer, (2.5%) emit: SUGGESTED ANSWER () Yes, he can because of th i 1 prior withdrawal of the sig- nature of Senate President and Speaker: accordingly there cold ete “enrolled bill” that could have been validly approved (Ast Villegas, roved (Astorga ¥. Vil G.RLNo, 123475, April 30, 1976, 56SCRA 719) " 5. Is there an exception to the provision? Explain your answer. (3%) SUGGESTED ANSWER The exception 10 this provision is when the Presid . is when the President cert to the necessity of its immediate enactment to meet a public cs aly oF eset (Arte VI, See 27() of the 1987 Phillpine Constitutions ad Tolentino v. Secretary of Finance, G.R. No. Base iy of Finance, G.R. No. 115455, August 25, 1994, 235 1-STED ANSWERS TO THE 2017 BAR EXAMINATION 1 SIONS IN POLITICAL LAM x1 See. 17, Art. VI of the Constitution establishes an Electoral Tribunal for each of the Flouses of Congress, and makes each Electoral Tribunal “the -gole judge of all contests relating to the election, returns, and qualifications of their respective Members.” On the other hand, Sec. 2(1), C (Commission on Blections), Art. IX of the Constitution grants to the COMELEC the power to ‘enforce and administer al laws and regulations “relative to the conduct of an ‘lection, plebiscite, initiative, referendum, and recall.” ‘Considering that there is no concurrence of jurisdiction between the Blectoral Tribunals and the COMELEC, state when the jurisdiction of the Electoral Tribunals begins, and the COMELEC’s jurisdiction ends. Explain your answer. (4%) SUGGESTED ANSWER E To be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office (Reyes ». COMELEC, GR. No. 207264, October 22, 2013, 699 SCRA 522). Once a ‘winning candidate has been proctalmed and taken his oath, and assumed office as a Member of the House of Representatives, the jurisdiction ‘of the Commission on Elections over the election contest ends, and the jurisdiction of the House of Representatives Electoral Tribunal begins (Vinzons-Chato v, COMELEC, G.R. No, i72i31, Aprit 2, 2007). xi ‘The Congress establishes by law Philippine Funds, Inc. a private corporation, to receive foreign donations coming from abroad during national and local calamities and disasters, and to enable the unhampered and speedy isbursements of the donations through the mere action of its Board of Directors. Thereby, delays in the release ofthe donated funds occasioned by the stringent rules of procurement would be avoided, Also, the releases would not come under the jurisdiction ofthe Commission on Audit (COA),16 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN POLITICAL LAW. (0) isthe law exbisingPipine Fu, te Explain your answer. (3%) ot ~ te SUGGESTED ANSWER (a) The establishment of Philippine Funds, Inc. is i 5, Ine. is valid. It was created to enable the speedy disbursements of donations for calami- ties and disasters. Public purpose is no longer restricted to traditional government functions (Petitioner-Organization v. Executive Secretary, GAR. Nos, 147036-37 & 147811, April 10, 2012, 269 SCRA 49). (0) CantheCongresspassthe a that would exempt aw that would exempt freign rans rom the juradtion ofthe COA? Explain your answer 5) SUGGESTED ANSWER (©) Congress f foreign grants from the jurisdiction of the Commission on Audit. Its jurisdiction extends to all government-owned oF controlled corporations, including those funded by onatons through the Government (Art IX-D, Set. 3 of the 1987 Pr pine Constitution; and Petitioner-Corporation ». Executive Secretary, G.R. Nos. 147036-37 & 147811, April 10, 2012, 269 SCRA 49). ie xuIl Command responsibility pertains othe responsi of command: ex forties commited by sutrdnas members of ihe amed rcs othe persons bet their contol in nteratonal ars or emetic oni. The Soetine has now found aplication in ei acon fr human right ahune and in proeetings seeking the privilege ofthe wrt of ampere (@) What are the elements to be established 10 be est in order to hhold the superior or commander liable under the doctrine of command ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION. 7 (QUESTIONS IN POLITICAL LAW SUGGESTED ANSWER (@) The doctrine of command responsibil to determine the author who is accountable for, and has the duty to address the disappearance and harassment complained of to enable the courts to devise remedial measures that may be appropriate under the premises to protect their rights covered by the writ of amparo, To hhold someone liable under the doctrine of command responsibility, he following elements must obtain: (1) the existence of a superiorsubordinate relationship be- ‘tween the accused as superior and the perpetrator of the crime as his subordinate; (2) the superior knew or had reason to know that the crime ‘was about to be or had been committed; and (3) __ the superior failed to take the necessary and reasonable ‘measures to prevent the criminal acts or punish the per~ potrators thereof (Rodrigue: . Macapagal-Arroyo, GR. No. 191808, November 15, 2011, 660 SCRA 843). (&) May the doctrine of command responsibility apply to the President for the abuses ofthe armed forces (AFP and PNP) given his unique role as the commander-in-chief of all the armed forces? Explain your answer: (4%) SUGGESTED ANSWER (>) The president, being the commander-in-chief of all armed forces, necessarily possesses control over the military that quali- fies him as a superior within the purview of the command responsibility doctrine. The incumbent President Is immune from suit during his in- ‘cumbency. The immunity, however, exists only during the incumbency of the President. Once his or her term has ended, he or she may be held ac- countable under this doctrine (Rodriguez v. Macapagal-Arroyo, G.R. No. 191805, November 15, 2011, 660 SCRA 843).18 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN POLITICAL LAW. xiv ‘To fulfill a campaign promise to the poor folk in a far-flung area in Mindanao, the President requested his friend, Pastor Roy, to devote his ‘ministry to them. The President would pay Pastor Roy a monthly stipend of 50,000.00 from his discretionary fund, and would also erect a modest house ‘of worship in the locality in an area of the latter's choice. Does the President thereby violate any provisions of the Constitu- tion? Explain your answer, (3%) SUGGESTED ANSWER ‘The President violated Sec. 29 (2), Article VI of the Constitution, Public money can be given to Pastor Roy only when he is assigned to the armed forces, a penal institution, or government orphanage or lepro. ‘sarium, No public money can be given for the benefit of the church for the construction of a house of worship. ALTERNATIVE ANSWER ‘The President violated Sec. 5 of Article III of the Constitution, also known as the non-establishment clause, which states that no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious pro- fession and worship, without discrimination or preference, shall forever be allowed. Such payment of a monthly stipend and the erection of the house is a preference which falls under this prohibition, sTED ANSWERS TO THE 2017 BAR EXAMINATION 19 (SIN POLITICAL LAW xv A According to Sec. 3, Art. VIII of the Constitution, the Judiciary shall soy fiscal autonomy. What does the term fiscal autonomy signify? Explain ‘your answer. (3%) SUGGESTED ANSWER ‘The fiseal autonomy of the Judiciary means that the appropri n for the Judiciary may not be reduced by Congress below the amount ‘appropriated for the previous year, and after approval, shall be automatt- lly and regularly released (Article VIII, Sec. 3 of the 1987 Constitution). Fiscal autonomy authorizes the Supreme Court to levy, assess ‘and collect fees, and to determine how its funds should be utilized (Beng- ‘ton ». Drilon, G.R. No.103524, April 15, 1992, 208 SCRA 133). B. May a complaint for disbarment against the Ombudsman prosper during her incumbency? Explain your answer. (3%) SUGGESTED ANSWER ‘A complaint for disbarment cannot be filed against the Ombuds- ‘man during her incumbency. Article X1, Sec. 8 of the 1987 Philippine Constitution imposes membership of the Philippine Bar 2s a qualification to be an Ombudsman, The Ombudsman is removable only by impeach- ment, If the Ombudsman were to be disbarred, he would be removed from office without undergoing impeachment (Article XI, Section 2 of the 1987 Philippine Constitution).20 SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION. Sasa anon : Sec. 3 LABOR & SOCIAL LEGISLATION period of one year. I What constitutes initiation of impeachment proceedings under the provision? (3%) A What are the accepted tests to determine the existence of an employer- SUGGESTED ANSWER oye relationship? (5%) |GESTED ANSWER ‘The accepted tests to determine the existence of an employer- ployee relationship are: oe November 10, 2003. 415 SCRA 44). oem CR. Nn egg A) Four-fold Test: 1. The selection and engagement of the employees; oe 2. The payment of wages 3. The power of dismissal; and 4. The power to control the employees? conduct (The ‘Manila Hotel Corp. ¥. NLRC, G.R. No. 154591, March 5, 2007, 343 SCRA 1). ‘The most important testis the element of control, which has been defined as the “right to control not only the end (o be Achieved but also the means {0 be used in reaching such end” (LUN Pictures v. Philippine Musicians Guild, G.R. No. L-12582, danuary 28, 1961, | SCRA 132).22 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION. B) Economic reality Test: The Supreme Court has also used the economic reality fest, where the economic realities prevailing within the act or between the parties ure examined, taking into consideration the totality of circumstances surrounding the true nature of the relationship between the parties (Orozco Court of Appeats, GAR. No, 155207, August 13, 2008, 562 SCRA 36). B Applying the tests to determine the existence of an.employer- employee relationship, is a jeepney driver operating under the boundary fustem an employee of his jeepney operator or a mere lessee ofthe jeepney? Explain your answer. (3%) SUGGESTED ANSWER The jeepney driver operating under the boundary system is an employee of the jeepney operator, not a mere lessee. ‘The jeepney operator exercises supervision and control over the jeepney driver, ‘The Jeepney operator, as holder of the certificate of public convenience. must see fo it that the jeepney driver follows the route prescribed by the Fanchising authority and the rules promulgated as regards its operation. Moreover; jeepney drivers perform activites which are usually necessary or desirable in the usual business or trade of the jeepney operator (Jardin, eral». NERC, GR. No. 119268, February 23, 2000, 326 SCRA 299), ANSWERS TO THE 2017 BAR EXAMINATION 23 {SIN LABOR AND SOCIAL LEGISLATION " Procopio was dismissed from employment for stealing his co- jee Raul’s watch. Procopio filed a complaint for illegal dismissal. The ‘Arbiter ruled in Procopio’s favor on the ground that Raul’s testimony doubtful, and, therefore, the doubt should be resolved in favor of Procopio. ‘appeal, the NLRC reversed the ruling because Article 4 of the Labor — which states that all doubts in the interpretation and implementation ‘the provisions of the Labor Code, including the implementing rules and ions, shall be resolved in favor of labor — applied only when the doubt jolved the “implementation and interpretation” of the Labor Code; hence, doubt, which involved the application of the rules on evidence, not the Code, could not necessarily be resolved in favor of Procopio, Was the correct? Explain your answer. (3%) IGGESTED ANSWER “The reversal is not correct. It is a time-honored rule that in itroversies between a laborer and his master, doubts reasonably arising the evidence, or in the interpretation of agreement and writings, ld be resolved in the former's favor (Lepanto Consolidated Mining ny x Dumapis, G.R. No. 163210, August 13, 2008, 62 SCRA 3}. There appears to be serious doubts in the evidence on record as to factual basis of the charges against Procopio. These doubts should resolved in his favor in line with the policy under the Labor Code to {afford protection to labor and construe doubts in favor of labor (Asuncion * NLRC, GR. No, 129329, July 31, 2001, 362 SCRA 56). STERNATIVE ANSWER 7 ‘The reversal is not correct. Article 227 (221) of the Labor Code learly provides that “the rules of evidence prevailing in courts of law shall not be controlling” in any proceeding before the NLRC or the Arbiters. Moreover, the NLRC/Labor Arbiters are mandated 0 Use every and all reasonable means to ascertain the facts speedily and objectively and without regard to technicalities of aw or procedure, alin the interest of due process.24 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION. UL A ‘Andrew Manning Agency (AMA) recruited Feliciano for ‘employment by Invictus Shipping, its foreign principal. Meantime, AMA and Invietus Shipping terminated their agency agreement. Upon his repatriation following his premature termination, Feliciano claimed from AMA. and Invictus Shipping the payment of his salaries and benefits for the unserved portion ofthe contract. AMA denied liability on the ground that it no longer had an agency agreement with Invictus Shipping, Is AMA correct? Explain your answer. (39%) SUGGESTED ANSWER, AMA is not correct. The liability of the principal/employer and. the recruitment/placement agency is joint and several. Such liability shall continue during the entire period or duration of the employment contract and shall not be affected by any substitution, amendment or modification. ‘made locally or in a foreign country of the said contract (Section 10, Rep. Act No, 8042, as amended by Section 7 of Rep. Act No, 10022). ‘The fact that AMA and its foreign principal have already terminated their agency agreement does not relieve the former of its liability, because the obligations covenanted in the agency agreement between the loca! agent and its foreign principal are not coterminous with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the ‘same extends up to and until the expiration of the employment contracts Of the employees recruited and employed pursuant to said recruitment agreement; otherwise, this will render nugatory the very purpose which the law governing the employment of workers for foreign jobs abroad was enacted (Catan NLRC, G.R. No. 77279, April 15, 1988, 160 SCRA 691). | ANSWERS TO THE 2017 BAR EXAMINATION 25 IN LABOR AND SOCIAL LEGISLATION B ‘As a rule, direct hiring of migrant workers isnot allowed. What are exceptions? Explain your answer. (2.5*/0) SUGGESTED ANSWER ‘The exceptions are: direct hiring by members of the diplomatic ‘organizations, international organizations, heads of state and government ‘officials with the rank of at least deputy minister, and such other employers. ‘as may be allowed by the Seeretary of Labor (Book I, Title I, Chapter 1, Article 18, Labor Code). The reasons for the ban on direct hiring are: a) A worker hired directly by # foreign employer without ‘government intervention may not be assured of the best Possible terms and conditions of employment. b) A foreign employer must also be protected. Without government intervention, a foreign employer may be ‘entering into a contract with a Filipino who is not qualified to do the job. ©) The mandatory requirement for remittance to the Philippines of a portion of the worker's foreign exchange ‘earnings can easily be evaded by the worker. c Phil, a resident alien, sought employment in the Philippines. ‘The ‘employer, noticing that Phil was a foreigner, demanded that he first secures an ‘employment permit from the DOLE. Is the employer correct? Explain your answer. (2.5%) SUGGESTED ANSWER No, the employer is not correct. Only non-resident aliens seeking ‘Admission to the Philippines are required to obtain an employment permit {rom the Department of Labor and Employment (Article 40, Labor Code).26 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION. ALTERNATIVE ANSWER ‘The employer is not correct, Under DOLE Department Order No. 75-06, resident foreign nationals are exempted from securing an employment permi W. The Regional Tripartite Wages and Productivity Board (RTWPB) for Region 3 issued a wage order on November 2, 2017 fixing the minimum ‘wages for all industries throughout Region 3, (a) __ Is the wage order subject to the approval of the National ‘Wages and Productivity Commission before it takes effect? (29%) suGGi ‘STED ANSWER, (a) No, because the NWPC exercises only technical and administrative supervision over the RTWPB (Article 121(g), Labor Code). ALTERNATIVE ANSWER (2) No, the Wage Order becomes effective fifteen (15) days after its publication in at least one (1) newspaper of general circulation in ‘the region pursuant to the Rules of Procedure in Minimum Wage ANOTHER ALTERNATIVE ANSWER (a) Yes. In NWPC », Alliance of Progressive Labor (G.R. No. 150326, March 12, 2014), it was ruled that “(jhe very fact that the validity of the assailed sections of Wage Order No. NCR-07 had been iready passed upon and upheld by the NWPC meant that the NWPC had already given the wage order its necessary legal imprimatur. Accordingly, the requisite approval or review was complied with.” ANSWERS TO THE 2017 BAR EXAMINATION 27 {SIN LABOR AND SOCIAL LEGISLATION (©) The law mandates that no petition for wage increase shall be jined within a period of 12 months from the effectivity ofthe wage order. ‘what circumstances may the Kilusang Walang Takot, a federation of ‘organizations that publicly and openly assails the wage order as blatantly sitiate the review of the wage increases under the wage order without for the end of the 12-month period? Explain your answer. (3%) ;GESTED ANSWER (>) The federation may initiate a review of the wage jer even before the expiration of the 12 month period when there supervening conditions, such as extraordinary increase in prices of leum products and basic goods/services which demand a review of jinimum wage rates as determined by the Board and confirmed by the mmission. A. Percival was a mechanic of Pacific Airlines. He enjayed a meal break ‘one hour. However, during meal breaks, he was required to be on stand-by for emergency work. During emergencies, he was made to forego his meals or tohurry up eating. He demanded payment of overtime for work done during his meal periods. Is Percival correct? Explain your answer, (3%) SUGGESTED ANSWER Percival is correct. Under Article 85 of the Labor Code and Book MIL, Rule 1, Section 7 of the Ruies, it shall be the duty of every employer {0 give his employees not tess than sixty (60) minutes time-off for their ‘regular meals. But where during the meal break, the workers are required to stand by for emergency work, such period is considered overtime (Pan American World Airways System (Phil) v. Pan American Employees Association, G.R. No. L-1627, February 23, 1961, | SCRA 527).28 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINAT ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION ALTERNATIVE ANSWER Percival is correct. All the time during which an employee is required to be on duty or to be at the employer's premises or to be at a prescribed work place, and all time during which an employee suffered or permitted to work is considered compensable hours. Given {that Percival’s meal break was not one of complete rest, as he did not have the freedom to devote such period for his personal needs, the same should be considered as compensable hours of work. B. Distinguish a learner from an apprentice. (49%) SUGGESTED ANSWER AAs to nature: a learner trains in a semi-skilled job; whereas, an apprentice trains in a highly technical job, 1 As to period: a learneris for three months; whereas, an apprentice is not less than three months but not more than six months, as a rule. As tocommitmentto employ: Fora learner, there isa commitment to employ the learner, as regular employees if he so desire, upon completion of the learnership; whereas, for an apprentice, there is no such commitment, 3 As to necessity of TESDA approval: For a learner, TESDA approval is not necessary, only TESDA inspection is required; ‘whereas, for an apprentice, prior approval by TESDA is required. ‘4 Astodeductibilty of expenses: Fora learner, theres no provision for deductibility of expenses; whereas, for an apprentice, expenses of training are deductible from income tax. As to compensation: a learner has compensation; whereas, an apprentice has none if DOLE authorizes, as when OJT is required by the school, | ANSWERS TO THE 2017 BAR EXAMINATION 29 {SIN LABOR AND SOCIAL LEGISLATION ©. ‘Are there differences between a househelper and a homeworker? in your answer. (4%) {ESTED ANSWER Houschelper refers to any person, whether male or female, who services in and about the employer's home and which services usually necessary or desirable for the maintenance and enjoyment reof, and ministers exclusively to the personal comfort and enjoyment ‘employer's family (Rule XIII, Section 1(b), Book 3, Labor Code; ‘Mining Company, Inc. v. NLRC, G:R. No. 94951, Aprit 22, 1991, 196 .251), homeworker, on the other hand, is one who works in a system Jjuction under an employer or contractor whose job is carried out at home, the materials of which may or may not be furnished by the loyer or contractor (Department Order No, 005-92). ‘The houschelper is covered by the Kasambahay Luw; whereas, homeworker is subject to the provisions of Book 111 of the Labor The househelper works in another person's home; whereas, the ‘orker does his job in the confines of his own homie, The househelper definite employer while the homeworker has none, The househelper security of tenure, which the homeworker does not have. VL A One of Pacific Airline’s policies was to hire only single applicants as attendants, and considered the moment they got married 5%) IGGESTED ANSWER ipulations against marriage, “It shall be unlawful for an employer to require as a con30 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION. n of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate, or otherwise prejudice a woman employee merely by reason of her marriage.” B. ‘Tarcisio was employed as operations manager and received a monthly salary of P25,000.00 through his payroll account with DB Bank. He obtained ‘loan from Roberto to purchase a car. Tarcisio failed to pay Roberto when the loan fell due. Roberto sued to collect, and moved to garish Tarcisio's payroll account. The latter vigorously objected and argued that salaries were exempt from gamishment. Is Tarcisio correct? Explain your answer. (3%) SUGGESTED ANSWER. No, Tarcisio is not correct. Case law exempts wages of rank: and-file employees from garnishment. Tarcisio, however as operations manager, is 1 managerial employee. Since the rule covers only rank-and- file employees, therefore, Tarcisio’s salary is not exempt from garnishment (Gaa ¥. Court of Appeals, G.R. No. L-44169, December 3, 1985, 140 SCRA 304). ALTERNATIVE ANSWER Yes, Tarcisio is correct. Under Article 1708 of the Civil Code, “(t) he laborer’s wages shall not be subject to execution or attachment, except for debts incurred for food, shelter, clothing and medical attendance.” ‘The indebtedness of Tarcisio was due to a purchase of a car which is not ‘one of the exceptions under the said law. ANOTHER ALTERNATIVE ANSWER Garnishment, which is a species of attachment requires that the debtor (Tarecisio) is insolvent, | ANSWERS TO THE 2017 BAR EXAMINATION 31 IN LABOR AND SOCIAL LEGISLATION vil Dr. Crisostomo entered into a retainer agreement with AB Hotel and whereby he would provide medical services tothe guestsand employees "AB Hoteland Resort, which, in turn, would provide the clinic premises and ical supplies. He received a monthly retainer fee of P60,000.00, plus a share in the service charges from AB Hoteland Resor'’s guests availing The clinic employed nurses and allied f, whose salaries, SSS contributions and other benefits he undertook to {AB Hotel and Resort issued directives giving instructions to him on ‘the replenishment of emergency kits and forbidding the clinic staff from iving cash payments from the guess. Intime, the nurses and the clinic staff claimed entitlement to rights as “regular employees of AB Hoteland Reson, but the laiter refused on the ground Dr. Crisostomo, who was their employer, was an independent contractor. Rule, with reasons. (4%) SUGGESTED ANSWER I will rule in favor of AB Hoteland Resort. Applying the Four Fold Test will readily show that the real employer of the nurses and the clinic staff is Dr. Crisostomo and not AB Hoteland Resort, viz: (1) the " selection and engagement of the nurses and clinic staff were made by Dr. Grisostomo; (2) their wages were paid by Dr. Crisostomo. As a matter fof fact, SSS contributions were paid by him which, by self, i already an indication that he is the employer. Although he did not exercise the Power of dismissal, it ean be said that as the doctor, he has the controt Of his employees? conduct in the dispensing of medical services to the guests and personnel of the resort. The fact that AB Hoteland Resort gave instructions to him regarding replenishment of emergency kits and forbidding his staff from receiving cash payments from guests is of no consequence. They are nothing more but guidelines which will not create ‘an employer-employee relationship Insular Life Co., Lid. . NLRC, G.R. No, 84484, November 15, 1989, 179 SCRA 459).32 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION. ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION ALTERNATIVE ANSWER . I will rule in favor of the employees. In the case of Samonte v. La Salle Greenhills, Inc. (G.R. No. 199683, February 10, 2016), the Court held that “Time and again, we have held that the power of control refers to the existence of the power and not necessarily to the actual exercise thereof, nor is it essential for the employer to actually supervise the performance of duties ofthe employee. Itis enough that the employer has the right to wield that power” Such power is present in the hands of AB Hoteland Resort, vi Marciano was hired as Chief Engineer on board the vessel M/V Australia. His contract of employment was for nine months. After nine ‘months, he was re-hired. He was hired a third time after another nine months. He now claims entitlement fo the benefits of a regular employee based on his having performed tasks usually necessary and desirable tothe employer's business fora continuous period of more than one year. te Marciano’: claim tenable? Explain your answer. (3%) SUGGESTED ANSWER 'No, Mareiano’s claim is not tenable. Seafarers are contractual employees for a fixed term, governed by the contracts they sign, We should not depart from the rulings of the Supreme Court in Brent School, Inc. ». Zamora (G.R. No. L-48494, February §, 1990, 181 SCRA 702); Coyoca v. NLRC (G.R. No. 113658, March 31, 1995, 243 SCRA 190); and Millares v. NERC (G.R. No. 110524, July 29, 2002, 385 SCRA 306), which constitute stare decisis with respect to the employment status of seafarers as contractual employees, not regular employees, notwithstanding performance of usually necessary and desirable functions which exceed ‘one year or continuous rehiring. | ANSWERS TO THE 2017 BAR EXAMINATION 33 {SIN LABOR AND SOCIAL LEGISLATION 1x Section 255 (245) of the Labor Code recognizes three categories of ployees, namely: managerial, supervisory, and rank-and-file. (a) Give the characteristics of each category of employees, and ‘whether the employees in each category may organize and form unions. lain your answer. (5%) ‘SUGGESTED ANSWER (a) Managerial employees ~ those vested with powers or prerogatives to lay down and execute management policies and/or to hhire, transfer, suspend, lay-off, recall employees (Article 219 [212), par. Labor Code) Managerial employees cannot join, assist or form unions (Article 255 [245], Labor Code). Supervisory employees - those who, in the interest of management, effectively recommend such managerial actions if the ‘exercise of such authority is not merely routine or clerical in nature, but requires use of independent judgment (Article 219 [212], par. m, Labor Code). Supervisory employees are not eligible for membership in a labor organization of rank-and-file employees but may join, assist, or form fe labor organizations of their own (Art. 28 [245], Labor Code), Rank-and-file employees ~ all other employees not falling within ‘the definition of “managerial” or “supervisory” employees are considered, rank-and-file employees (Article 219 (212), pat. m, Labor Code). Rank- and-file employees have the right to form, join or assist unions of their ‘own choosing (Art. 253 243], Labor Code).34 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION. (6) May confidential employees. who assist manageri ‘employees, and who act in a confidential capacity or have access to confident ‘matters being handled by persons exercising managerial functions in the field of labor relations form, or assist, or join labor unions? Explain your answer, ase SUGGESTED ANSWER (b) No, these confidentiat employees cannot form, assist, ‘or join labor unions. The exclusion from bargaining units of employees ‘who, in the general course of their duties, become aware of management policies relating to labor relations is founded upon the “confidential ‘employee rule”. The rationale behind this rule is that employees should not be placed in a position involving a potential conflict of interests. Management should not be required to handle labor relation matters through employees who are represented by the union with which the ‘company is required to deal and who in the normal performance of their duties may obtain advance information of the company’s position with regard to contract negotiations, the disposition of grievances ur other labor relations matters (San Miguel Corporation Supervisor and Exempt :mployees Union v, Laguesma, G.R. No. 110399, August 15, 1997, 277 SCRA 370). ALTERNATIVE ANSWER (b) No Under the doctrine of necessary implication, the same reason for the disqualification of managerial employees applies to confidential employees (Pepsi-Cola Products Phil, Inc. v. Sec. of Labor, GR. Nos, 96693 and 103300, August 10, 1999, 312 SCRA 104). {ESTED ANSWERS TO THE 2017 BAR EXAMINATION 35 IN LABOR AND SOGIAL LEGISLATION os A ‘The labor sector has been loudly agitating for the end of labor-only ing, as distinguished from job contracting. Explain these two kinds Jabor contracting, and give the effect of a finding that one is a labor-only tor, Explain your answers. (4% |GGESTED ANSWER ‘There is labor-only contracting where: (1) the person supplying ers to an employer does not have substantial capital or investment in form of tools, equipment, machineries, work premises, among others; (2) the workers recruited and placed by such person are performing ities which are directly related to the principal business of such ployer (Baguio ». NLRC, G.R. Nos. 79004-08, October 4, 1991, 202 465; Art. 106, Labor Code). é ‘There is job contracting where: (1) the contractor carries um fan independent business and undertakes the contract work on his own “account under his own responsibility according to his own manner and method, free from the control and direction of his principal in all matters jected with the performance of the work except as to the results eof; and (2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other terials which are necessary in the conduct of his business (Baguio ¥. NLRC, G.R. Nos. 79004-108, October 4, 1991, 202 SCRA 465). ‘A finding that a contractor isa labor-only contractor is equivalent a declaration that there is an employer-employee relationship between principal and the employees of the Iabor-only contractor (Industrial “Timber Corp. v. NLRC, G.R. No. 83616, January 20, 1989, 169 SCRA 341). Tn such a case, the person or intermediary shall be considered merely fs an agent of the employer, who shall be responsibie tothe workers in the manner and extent as ifthe latter were directly employed by him (andoval Shipyards, Inc. x. Prisco Pepto, G.R. No. 43428, June 25, 2001, $9 SCRA S55), The liability of the principal vis-a-vis the employees of| ‘the labor-only contractor is comprehensive, i.e., not only for unpaid ‘Wages but for all claims under the Labor Code and ancillary laws (San Miguel Corporaion s. MAERC Integrated Services, Inc, G.R. No. |44672, uly 10, 2003, 405 SCRAS79).36 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION. B What are the grounds for validly terminating the services of an ‘employee based on a just cause? (5%) SUGGESTED ANSWER Article 296 of the Labor Code (formerly Article 282) provides for the termination of the services of an employee for just causes. ‘An employer may terminate an employment for any of the following causes: (@) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (6) Gross and habitual neglect by the employee of his duties; (© Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representatives (@) Commission of acrime or offense by theemployee against the person of his employer or any immediate member of his family or his duly authorized representatives; and (©) Other causes analogous to the foregoing. c. Give the procedure to be observed for validly terminating the services ‘of an employee based on a just cause? (4%) SUGGESTED ANSWER Procedural due process mandates that the twin requirements of Notice and Hearing should be present. The two notices are as follows: 1" notice: Notice of appraisal, which is a written notice served on the employee specifying the ground or grounds of termination, and giving the employee reasonable opportunity within which to explain his side. sTED ANSWERS TO THE 2017 BAR EXAMINATION 37 {SIN LABOR AND SOCIAL LEGISLATION 2 notice: Notice of termination, which is a written notice t termination served upon the employee, indicating that upon due ration of all the circumstances, grounds have been established to his termination. 1, The first notice should contain a detailed narration of facts and circumstances that will serve as basis for the charge or specific causes or ground for termination against the employee, and a directive that the employee given the opportunity to submit his written explanation within a reasonable period (Unilever Phil. v. Maria Ruby Rivera, G.R. No. 201701, June 3, 2013, 697 SCRA 136). This is to enable the employee to intelligently prepare his explanation and defenses. 2 A general description of the charge will not suffice. The notice should specifically mention which company rules, if any, are violated (King of Kings Transport, Inc. ‘Mamac, G.R. No. 166208, June 29, 2007, 526 SCRA 116), and that the employer secks his dismissal for the act ‘or omission charged against him; otherwise, the notice does not comply with the rules (Magro Placement and General Services v. Hernandez, G.R. No. 156964, July 4, 2007, 526 SCRA 408; see also Mercury Drug Corporation », Serrano, G.R. No. 160809, March 10, 2006, 484 SCRA 434; citing Maquiling ». Philippine Tuberculosis Society, Inc., G.R. No, 143384, February 4, 2005, 450 SCRA 465). “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management ‘must accord to the employee to enable him to prepare adequately for his defense. This should be construed as 4 period of at least five (5) calendar days from receipt of the notice to give the employee an opportunity to study the accusation against him, consult a union official or lawyer, gather data and evidence, and decide on the defenses he will raise against the complaint (King of Kings Transport, Inc. v. Mamac, G.R. No. 166208, June 29, 2007, $26 SCRA 116).‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION, ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION After receiving the first notice apprising him of the charges against him, the employee may submit a written, explanation (which may ‘be in the form of a letter, memorandum, affidavit or position paper) and offer evidence in support thereof, like relevant company records (such as his 201 file and daily time records) and, the sworn statements of his witnesses. For this purpose, he may prepare his explanation personally or with the assistance ofa representative ‘or counsel. He may also ask the employer to provide him copy of records material to his defense. His written explanation may also include a request that a formal hearing or conference be held. b. In such a ease, the conduct of a formal hearing or conference becomes mandatory, as where there exist substantial evidentiary disputes or where ‘company rules or practice requires an actual hearing as part of employment pre-termination. procedure (Perez ». Philippine Telegraph and Telephone Company, G.R. No. 152048, April 7, 2009, 584 SCRA 110). | ANSWERS TO THE 2017 BAR EXAMINATION 39 {SIN LABOR AND SOCIAL LEGISLATION xl A ‘The modes of determining the exclusive bargaining agent of the es. in a business are: (a) voluntary recognition; (b) certification and (¢) consent election. Explain how they differ from one another. ESTED ANSWER Voluntary Recognition: An employer may voluntarily recognize the representation status of a labor union if the establishment is ‘unorganized and has only one legitimate labor organization. Such voluntary recognition, accompanied by supporting documents, should be submitted to the Regional Office, which issued the labor union’s certifieate of registration. Certification Election: This is the process by which a legitimate labor organization or the employer may file a petition for certification election (o determine the choice of an exclusive collective bargaining agent of the employees. A med-arbiter shall automatically order a certification election by secret ballot when 4 petition is filed (1) in an unorganized establishment or (2) in an organized establishment where the petition is supported by at least 25% of all employees in the bargaining unit. To have a valid certification election, at least a majority ofall etigible votes in the bargaining unit must have cast their votes. The labor union iving the majority of the valid votes cast shall be certified as, the exclusive bargaining agent of all employees in the unit. Consent Election: Similar to a certification election proceeding, ‘consent election is the process of determining through secret ballot the sole and exclusive bargaining agent of employees in an appropriate collective bargaining unit for purposes of collective bargaining or negotiations. This process, however, differs from certification election as this is voluntarily agreed upon by the parties, with or without the DOLE’s intervention. In such acase, the med-arbiter need not issue a formal order calling for such an lection. The minutes of the agreement and records of the case are forwarded to the Regional Director for implementation of the consent election.40 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION, B. Marcel was the Vice President for Finance and Administration and ‘a member of the Board of Directors of Mercedes Corporation, He brought ‘a. complaint for illegal suspension and illegal dismissal against Mercedes ‘Corporation, which moved to dismiss the complaint on the ground that the ‘complaint pertained tothe jurisdiction of the RTC due to the controversy being intracorporate based on his positions in the corporation. Marcel countered that hhe had only been removed as Vice President for Finance and Administration, not as a member of the Board of Directors. He also argued that his position ‘was not listed as among the corporate offices in Mercedes Corporation’s by= laws. Is the argument of Marcel correct? Explain your answer (2.5%) SUGGESTED ANSWER Yes, Mareel’s argument is correct. The question is whether the ‘complaint for legal dismissal filed by Marcel is intra-corporate and thus icdiction af the Labor Arbiter. Marcel as the Vice-President for Finance and Administration is not a corporate official. Although he a member of the Board of Directors, he was not removed as suc was removed only from his position as Vice-President. Inasmuch as the core issue is his termination as a non-corporate official, then Marcel's ‘complaint for illegal dismissal is not an intra-corporate controversy (Real ®. Sangu Philippines, Inc. et al, G.R. No. 168787, January 19, 2011, 640 SCRA 67). ALTERNATIVE ANSWER Yes, Mareel’s argument is correct. Only corporate officers such as the president, secretary, treasurer, and such other officers as may be provided in the by-laws of the corporation are subject to the jurisdic of the RTC. Corporate officers are those whose position is a creation of {the corporate charter or by laws and whose election is by virtue of the acts of the Board of Directors (Cosare ». Broadcom Asia, Inc., G.R. No. 201298, February 5, 2014, 715 SCRA 534). STED ANSWERS TO THE 2017 BAR EXAMINATION a {SIN LABOR AND SOCIAL LEGISLATION c ‘State the jurisdiction of the Voluntary Arbitrator, or Panel of Voluntary in labor disputes? (4%) ESTED ANSWER, ‘The jurisdiction of the Voluntary Arbitrator, or Panel of wntary Arbitrators in labor disputes is provided in Article 274 jerly Article 261) of the Labor Code, viz: the Voluntary Arbitrator panel of Voluntary Arbitrators shall have original and exclusive on to hear and decide all unresolved grievances arising from the pretation or implementation of the Collective Bargaining Agreement those arising from the interpretation or enforcement of company nel policies referred (o in the immediately preceding article. yrdingly, violations of a Collective Bargaining Agreement, except ‘which are gross in character, shall no longer be treated as unfair ir practice and shall be resolved as grievances under the Collective ing Agreement. For purposes of this article, gross violations of lective Bargaining Agreement shall mean flagrant and/or malicious fusal to comply with the economic provisions of such agreement. STERNATIVE ANSWER ; Under Articles 274 and 275 of the Labor Code, as re-numbered, the jurisdiction of Voluntary Arbitrators or Panel of Voluntary Arbitrators original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agrecment (Article 274); (b) those arising from the interpretation or enforcement of company personnel policies (Id.); (©) upon agreement of the parties, jurisdiction to hear and decide all other labor disputes including unfair tabor practices and bargaining deadlocks (Article 275).42 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION xi A Juanito initiated a case for illegal dismissal against Mandarin ‘Company. The Labor Arbiter decided in his favor and ordered his immediate reinstatement with full backwages and without loss of seniority and other benefits. Mandarin Company did not like to allow him back in its premises to prevent him from influencing his co-workers to move against the interest ‘of the company; henee, it directed his payroll reinstatement and paid his full backwages and other benefits even as it appealed to the NLRC. ‘A few months later, the NLRC reversed the ruling of the Labor Arbiter and declared that Juanito’s dismissal was valid. The reversal ultimately became final May Mandarin Company recover the backwages and other benefits| paid to Juanito pursuant to the decision of the Labor Arbiter in view of the reversal by the NLRC? Rule, with reasons. (2.5%) SUGGESTED ANSWER Mandarin cannot recover the backwages and other benefits paid to Juanito. The decision of the Labor Arbiter insofar as the reinstatement aspect is concerned, is immediately executory pending appeal (Felix Enertech Systems Industries Inc. G.R. No. 192007, March 28, 2001, 355 SCRA 680). In fact, in the case of Pioneer Texturizing Corp. v. NERC (G.R. No. 118651, October 16, 1997, 280 SCRA 806), it was held that the order of the Labor Arbiter is self-executory; hence, itis the obligation of ‘Mandarin to immediately admit Juanito back to work or reinstate him in the payroll. When Mandarin appealed the Labor Arbiter’s decision to the NERC, the employer-employee relationship between the former and Juanito never ceased; and his employment status remained uncertain until the NLRC reversed the decision, which became final. ‘Thus, the reinstatement salaries due to Juanito were, by their nature, payment of unworked backwages. These were salaries due to him because he was prevented from working despite the finding of the Labor Arbiter that he had been illegally dismissed (Wenphil Corp. x. Abing and Tuason, G.R. No. 207983, April 7, 2014, 721 SCRA 126). STED ANSWERS TO THE 2017 BAR EXAMINATION STIONS IN LABOR AND SOCIAL LEGISLATION, 43 B Gene is a married regular employee of Matibay Corporation. The ‘employees and Matibay Corporation had an existing CBA that provided “funeral or bereavement aid of P15,000.00 in case of the death of a legal dent of a regular employee. His widowed mother, who had been living ith him and his family for many years, died; hence, he claimed the funeral , Matibay Corporation denied the claim on the basis that she had not been his legal dependent as the term legal dependent was defined by the Social ‘Security Law. (@ __ Whomay be the legal dependents of Gene under the Social ‘Security Law? (2.5%) (b) Is Gene entitled to the funeral ywed mother? Explain your answer. (2%) aid for the death of his SUG GESTED ANSWER (@) Pursuant to Section 8(¢) of Rep. Act No. 1161, the legal dependents of Gene under the Social Security Law are the legitimate, Jegitimated or legally adopted child who is unmarried, not gainfully iployed and not over twenty-one years of age, or over twenty-one years fof age provided that he is congenitally incapacitated and incapable of self-support, physically or mentally; the legitimate spouse dependent for ‘Support upon the employee; and the legitimate parents wivolly dependent upon the covered employee for regular support. (©) Gene would be entitied to the funeral aid under the CBA for the death of his widowed mother because the latter is a legitimate Parent wholly dependent upon him for regular support for many years. [As held in a case, the coverage of the term “legal dependent” in a Stipulation in a CBA granting funeral or bereavement benefits to a regular ‘employee for the death of a legal dependent, ifthe CBA is to be construed as similar to the meaning that contemporaneous soci legisiation have set. This is because the terms of such social legislation are deemed incorporated in or adopted by the CBA (Philippines Journalists, Inc. x. Journal Employees Union, etal, G.R. No. 192601, June 3, 2013, 697 SCRA 103),44 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION, ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION. c Rosa was granted vacation leave by her employer to spend three: weeks in Africa with her family. Prior to her departure, the General Manager of the company requested her to visit the plant of a client of the company in Zimbabwe in order to derive best manafacturing practices useful to the company. She accepted the request because the errand would be important to the company and Zimbabwe was anyway in her itinerary. It appears that she Contracted a serious disease during the trip. Upon her return, she filed a claim, for compensation, insisting that she had contracted the disease while serving the interest of her employer. Under the Labor Code, the sickness or death of an employee, to be compensable, must have resulted from an illness either definitely accepted as an occupational disease by the Employees’ Compensation Commission, of caused by employment subject to proof that the risk of contracting the same is increased by working conditions. Is the serious disease Rosa contracted during her trip to Aftica compensable? Explain your answer. (2.5%) SUGGESTED ANSWER For sickness and the resulting disability to be compensable, the sickness must be the result of an occupational disease listed under Annex A of the Amended Rules on Employees’ Compensation with the condition set therein satisfied; otherwise, proof must be shown that the risk of contracting the disease is increased by the working condition. ‘The burden of proof is upon Rosa. No proof was presented by Rosa to substantiate the foregoing. Moreover, itis required that the sickness and the resulting injury must have arisen out of or in the course of employment. In the Present case, Rosa contracted the disease while on vacation leave. ‘Consequently, the disease contracted by her in Africa during her vacation leaye is not compensable (Hoilo Dock & Engineering Co. \. Workmen's Compensation Commission et al, G.R. No. L-26341, November 27, 1968, 26 SCRA 102). ERNATIVE ANSWER Yes, although Rosa's leave of absence was approved, she was ‘on & partial vacation due to the business assignment that her loyer gave her to visit the plant of a client in Zimbabwe to derive best facturing practices useful to the company; thus, she had to go and to her employer in the performance of ‘assigned task. As she contracted the disease during her trip, the same ‘be construed as work-related. A Given that the liability for an illegal strike is individual, not tive, state when the participating union officers and members may be inated from employment because of the illegal strike. Explain your nswer. (4%) |GGESTED ANSWER When a strike is declared illegal because of non-compliance with ‘statutory or contractual requirements or because of the use of unlawful ans, the consequence is loss of employment status ofthe officers of the inion who knowingly participated in the illegal strike. Ordinary union members will lose their employment status only ‘fthey participated in the commission of illegal acts during the strike, thus, Imere union membership does not result in automatic loss of employment 85 a result of an illegal strike (Article 263-264 [now Articles 278-279] of Labor Code; Pepsi-Cola Labor Union v. NLRC, G.R. No. L-S8341, Sune 29, 1982, 1i4 SCRA 930; Solidbunk Corp. ». Solidoank Union, G.R. No. 159461, November 15, 2010, 634 SCRA 554).46 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION. ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION B A sympathetic strike is stoppage of work to make common cause with other strikers in another establishment or business. Is the sympathetic strike valid? Explain. your answer. (1%) SUGGESTED ANSWER A sympathetic strike is not valid. It is illegal because the strikers have no direct grievance against their own employer; that is, no labor ispute exists between the strikers and the employer. . Due to business recession, Ballistic Company retrenched a part of” its workforce. Opposing the retrenchment, some of the affected employees staged a strike. Eventually, the retrenchment was found to be justified, and the strike was declared illegal, ence, the leaders of the strike, including the retrenched employees, were declared to have lost their employment status. Are the striking retrenched employees still entitled to separation pay under Sec, 298 (283) of the Labor Code despite the illegality of their strike? Explain your answer. (2%) SUGGESTED ANSWER No. The Supreme Court has ruled if the strike staged by the union is declared illegal, the union officers and members are considered validly dismissed from employment for committing illegal acts during the iMegal strike, The striking retrenched union officials and members who ‘were found guilty of having staged an illegal strike, which constituted serious misconduct, will not be entitled to separation pay (C. Aleantara & Sons, Inc. ». Court of Appeals, G.R. No. 155109, March 14, 2012, 631 SCRA 486; citing Toyota Motors Phils. Corp. Workers Association w. NLRC, G.R. No, 158786 & 158789, October 19, 2007, 537 SCRA 171). -D ANSWERS TO THE 2017 BAR EXAMINATION 47 STIONS IN LABOR AND SOCIAL LEGISLATION. ERNATIVE ANSWER Yes. Article 298 (283) of the Labor Code requires an employer without qualification, separation pay in cases of retrenchment. does not make a mn as to which among the retrenched iployees are entitled to receive separation pay; thus, the striking nched employees are still entitled to separation pay despite the lity of their strike. XIV. Pursuant to his power under Sec. 278(g) (263(g)) of the Labor the Secretary of Labor assumed jurisdiction over the 3-day old strike in 10 Steel Plates, Inc. one ofthe country’s bigger manufacturers of steel , and ordered all the striking employees to return to work. The king employees ignored the order to return to work. (a) What conditions may justify the Secretary of Labor to jume jurisdiction? (2.5%) {GESTED ANSWER (a) The conditions that may justify the Secretary of Labor assume jurisdiction are found in Article 278(g) (formerly Article 263 ), viz: “When, in his opinion, there exists a labor dispute causing or ly to cause a strike or lockout in an industry indispensable to the Rational interest, the Secretary of Labor and Employment may assume liction over the dispute and decide it or certify the same to the imission for compulsory arbitration. xxx”48 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION, (e) What are the consequences of the assumption of jurisdiction by the Secretary of Labor, and of the disobedience to the retum to work? Explain your answer. (2.5%) SUGGESTED ANSWER (b) The assumption of jurisdiction by the Secretary of Labor automatically results in a return-to-work ofall striking workers (fone has already taken place) or enjoins the taking place of a strike, whether or not a corresponding order had been issued by the Secretary ‘of Labor (Union of Filipro Employees v. Nestle Philippines, Inc., G.R. Nos. 88710-13, December 19, 1990, 192 SCRA 396). ‘When jurisdiction overa labor disputeisassumed by the Secretary of Labor, such comprehensive jurisdition includes all incidental issues tnd cases which otherwise would be under the original and exclusive jurisdiction of the labor arbiters (International Pharmaceuticals, Ine % Secretary of Labor, G.R. Nos. 2981-83, January 9, 1992, 205 SCRA $8) 'A disobedience or defiance of the return-to-work order of the Secretary of Labor results ina loss of employment status (Allied Banking Corporation ¥: NLRC, G.R. No. 116128, July 12, 1996, 258 SCRA 724), ‘QUESTIONS IN LABOR AND SOCIAL LEGISLATION CIVIL LAW State whether the following marital unions are valid, void, or void- ‘and give the corresponding justifications for your answer: (@) __Adorand Becky's marriage wherein Ador was afflicted with prior to the marriage, (2%) ESTED ANSWER (@) The marriage is voidable, because Ador was afflicted fa serious and incurable sexually-transmitted disease at the time of ge to be annulled under Article 45(6), the sexual- 1) existing at the time of marriage; 2) id to be serious and incurable; and 3) unknown to the other part e Ador was afflicted with AIDS, which is a serious and incurable di ‘and the condition existed at the time of marriage, the marriage is provided that such illness was not known to Becky. (b) Carlos’ marriage to Dina which took place after Dina poisoned her previous husband Edu in order to free herself from any iment in order to live with Carlos. (29%) IGGESTED ANSWER _(b) The marriage of Curios to Dina is void for reasons of bli policy. Artie 389) of the Family Code provides that marriage be- 8 parties where one, withthe intention to marry the other, killed that ler Person’s spouse or his oF her own spouse is void from the beginning Feasons of public policy.50 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN CIVIL LAW. (©) _Bli and Fely’s marriage solemnized seven years after the disappearance of Chona, Eli's previous spouse, after the plane she had boarded crashed in the West Philippine Sea. (2%) SUGGESTED ANSWERS (©) The marriage is void under Article 35(4) in relation to Article 41 of the Family Code. The requisites of a valid marriage under Article 41 are as follows: 1) the prior spouse had been absent for four con- secutive years, except when the disappearance is in danger of death which onily requires two years; 2) the present spouse had a well-founded belief that the absent spouse was already dead; and 3) the spouse present must. institute a summary proceeding for declaration of presumptive death, There is nothing in the facts that suggest that Eli instituted a summary ing for declaration of presumptive death of her previous spouse cannot be presumed. Thus, the exception under Article 35(4) is inapplicable and the subsequent marriage is void. ALTERNATIVE ANSWER ©) If the marriage was celebrated under the New Code, the marriage would be valid, as no declaration of presumptive death is necessary under Article 391 of the said Code, (@ David who married Lina immediately the day after obtaining a judicial decree annulling his prior marriage to Elisa. (2%) ‘SUGGESTED ANSWERS (@)_‘Themarriage is valid as there were no facts showing that David and Elisa have properties and children, which would render the marriage void under Article $3 of the Family Code in relation to Article ‘52, In addition, David and Lina have no impediment to marry. | ANSWERS TO THE 2017 BAR EXAMINATION JESTIONS IN CIVIL LAW 51 STERNATIVE ANSWER (@) If the spouses have properties and children, the mar- riage is void under Article 53 of the Family Code in relation to Article 52, For a marriage subsequent to a judgment of annulment of a previous ‘marriage to be valid, the properties of the spouses must have been parti- tioned and distributed, the presumptive ly ny, must hhave been delivered, and the aforementioned facts must be recorded in the civil registry and registries of property. The marriage was entered into the day after the obtaining of a judicial decree of annulment and it ‘would have been impossible for David to comply with the requirements in such a short time. Therefore, the marriage is void. (©) Marriage of Zoren and Carmina who did not secure a mar- riage license prior to their wedding, but lived together as husband and wife for 10 years without any legal impediment to marry. (2%) SUGGESTED ANSWER, (©) If Zoren and Carmina lived together as husband and wife for 10 years prior to their marriage, then the marriage is valid, de- spite the absence of the marriage license. An exception to the rule that a marriage shall be void if solemnized without license under Article 35(3) is that provided for under Article 34 of the Family Code. When a man and ‘woman have lived together as husband and wife for at least 5 years and ‘without any legal impediment to marry each other, they may celebrate the marriage without securing a marriage license, u In 1960, Rigor and Mike occupied two separate but adjacent tracts of land in Mindoro, Rigor’s tract was classified as timber land while Mike's ‘was classified as agricultural land, Each of them fenced and cultivated his own, ‘tract continuously for 30 years. In 1991, the Government declared the land oc- cupied by Mike as alienable and disposable, and the one cultivated by Rigor no longer intended for public use or publie service.52 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN CIVIL LAW Rigor and Mike now come to you today for legal advice in asserting their ight of ownership oftheir respective lands based on their long posses and occupation since 1960. (a) What are the legal consequences of the 1991 declarations of ‘the Government respecting the lands? Explain your answer. (2%) SUGGESTED ANSWER (@) Aso the land occupied by Mike, the same remains a property of the public dominion. According to jurisprudence, the clas- sification of the property as alienable and disposable land of the pul domain does not change its status as property of the public dominion. ‘There must be an express declaration by the State that the public domin- ion property is no longer intended for public service or the development of the national wealth or that the property has been converted into pat- rimonial, Without such express declaration, the property, even if classi fied as alienable or disposable, remains property of the public dominion (Heirs of Mario Matabanan ¥. Republic,G-R. No. 179987, Aprit 29, 2009 and September 3, 2013). ‘As to the land occupied by Rigor, the declaration that it is no longer intended for public use or public service converted the same into patrimonial property provided that such express declaration was in the form of a law duly enacted by Congress or in a Presidential Proclama- tion in cases where the President was duly authorized by law. According to jurisprudence, when public land is no longer intended for public use, publie service or for the development of the national wealth it is thereby effectively removed from the ambit of public dominion and converted into patrimonial provided that the declaration of such conversion must be ‘made in the form of a law duly enacted by Congress or by a Presidentis proclamation in cases where the President is duly authorized by law to that effect (Heirs of Mario Malabanan ¥. Republic, G.R. No. 179987, April 29, 2009 and September 3, 2013). SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION QUESTIONS IN CIVIL LAW: BS ©) Given tat, accoding o Section 44) of Commonweath ‘Act No. 141, in relation to Section 14(1) of Presidential Decree No. 1529, the open, continuous, exclusive, and notorious possession and occupation of alienable and disposable lands of the public domain as basis for judicial con- firmation of imperfect title must be from June 12, 1945, or earlier, may Mike nevertheless validly base his assertion of the right of ownership on prescrip- tion under the Civil Code? Explain your answer. (4%) SUGGESTED ANSWER () No, because the land remains property of public dominion and, therefore, not susceptible to acquisition by prescription. According to jurisprudence, the classification of the subject property as alienable and disposable land of the public domain does not change ~ ts status as property of the public dominion. In order to convert the property into palrimonia there must bean express declaration by the State tha the publ dominion property wo lnger intended for puble sevice or thedevlopment ofthe nations wealth otha he proper) Bas been conver oto prion, Without such express declaration, the propery even if lasied a alenble o disposable, remain proper ofthe publi dominin, and thus incapable of sequin by preser ets of Mara Malebanan Repl, GA. Nas 19987, Ape 29,2009 tnd September 3, 2013, Her, the declaration ofthepropety into alenableand dispose tad ofthe public domain in 991 dno conver the property ft patrimonil in the absence of an express Jclaration of sh com erion ito patrimonal inte form ofa law duly enacted by Congres or by 2 President proclamation Incase where he Presiden duly atheracd bylaw to that fect,54 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION ‘QUESTIONS IN CIVIL LAW, (©) _ Does Rigor have legal basis for his appliéation for judicial confirmation of imperfect ttle based on prescription as defined by the Civil Code given that, like Mike, his open, continuous, exclusive, and notorious possession and occupation was not since June 12, 1945, or earlier, and his tract of land was timber land until the declaration in 1991. Explain your answer, 4%) SUGGESTED ANSWER (©) None, because Rigor’s possession was short of the period required by the Civil Code for purposes of acquisitive prescription which, requires ten (10) years of continuous possession, if possession was in good faith and with a just title, or thirty years, in any event. While property may be considered converted into patrimonia! because of the 1991 declaration that it is no fonger intended for public use or public service (provided that the declaration be in the form of a law duly enacted by Congress or by a Presidential proclamation in cases where the President is duly authorized by law to that effect), Rigor to complete the 30-year period required by law in case of extraordinary prescription. Since the property was converted into patrimonial only in 1991, the period of prescription commenced to run beginning that year only. Rigor’s possession prior to the conversion of the property into patrimonial cannot be counted for the purpose of completing the prescriptive period because prescription did not operate against the State at that time, the property then being public dominion property (Helrs of Mario Malabanan x. Republic, G.R. No. 179987 April 29, 2009 and September 3, 2013). Rigor may not likewise ‘acquire ownership by virtue of the shorter 10-year ordinary prescription because his possession was not in good faith and without just ttle. accessi JGGESTED ANSWERS TO THE 2017 BAR EXAMINATION 55 mu. Josef owns a piece of land in Pampanga. The National Housing Au- thority (NHA) sought to expropriate the property for its socialized housing, project. The trial court fixed the just compensation for the property at P50 mil- fion. The NHA immediately deposited the same at the authorized depository and filed a motion for the issuance of a writ of possession with the trial court. Unfortunately, there was delay in the resolution of the motion, Mean- while, the amount deposited eared interest. When Josef sought the release of the amount deposited NHA argued that Josef should only be entitled to P50 million, ‘Who owns the interest eared? (39%) SUGGESTED ANSWER erest earned. In Republic ». Holy Trinity Realty Development Carp., (G.R. No. 172410, April 14, 2008), the Supreme Court hhas declared that upon deposit by the appropriator of theamount fixed for Just compensation, the owner whose property is sought to be expropriated becomes the owner of the deposited amount. Any interest, therefore, that accrues to such deposit belongs to the owner by right of accession. In the ease at bar, Josef became the owner of the amount deposited by NHAj ‘thus, any interest that accrues therefrom pertains to Josef by right of [Note: In the case of NPC » Heirs of Ramoran, G.R. No. 193455, June 13, 2016, the Supreme Cour ruled that the imposable rate of imterest is 122% per Anum from the time of the taking until June 30, 2013, and 6% per annum from July 1, 2013 until full payment56 ‘SUGGESTED ANSWERS TO THE 2017 BAR EXAMINATION. ‘QUESTIONS IN CIVIL LAW. Vv (@) Distinguish antichresis from usufruet. (3%) SUGGESTED ANSWER (a) (1) Antichresis is a real security transaction wherein the creditor acquires the right to receive the fruits of an immovable of his debtor, and the obligation to apply them ¢o the payment of the interest, if owing, and thereafter to the principal of his credit (Article 2132, NCC). On the other hand, a usufruet is a real right which authorizes its holder to enjoy the property of another with the obligation of preserving its form and substance, unless otherwise provided. (2) Antichresis is always ereated by contract, while usufruct need not arise from contract, because it may also be constituted by law or by other acts inter vivo, such as donation, or in a last will and testament, or by prescription. (3) The subject matter of antichresis is always a real prop- erty while the subject matter of usufruet may either be real property or personal property. (4) Both create real rights, but antichresis is an accessory tract, while usufruct when created by contract is a principal contract. (5) During the usufruct, the fruits belong to the usufructury not the naked owner, while the antichretic creditor has the right to receive the fruits with the obligation to apply the fruits to the interest, if owing, and thereafter to the prineipal of the eredit (Art. 2132, NCC). (6) Inantichresis the amount of the principal and the inter~ est charge must be in writing in order to be valid (Article 2134, NCC) while there is no particular form required to constitute a valid usufruct, {TED ANSWERS TO THE 2017 BAR EXAMINATION INCIMILLAW ? er (b) Distinguish commodatum from mutuum. (3%) |GGESTED ANSWER (>) (1) In commodatum, the creditor or bailor delivers to debtor or bailee consumable or non-consumable property so that the sr may use the same for a certain time and must return the same thing. ticle 1933, NCC). In mutuun, the creditor delivers to the debtor money other consumable thing upon the condition that the same amount of -same kind and quality is paid (Article 1933, NCC). 2) The subject matter of commodatum maybe a movable immovable thing, which is ordinarily non-consumable (if the thing jrrowed is consumable, itis merely for display or exhibition), while the ject matter of mutuum is either money or consumable. = GB) Commodatum is essentially gratuitous, while muruum ay be gratuitous or with a stipulation to pay interest. (8) In commodatum, there is no transmission of ownership. the thing borrowed then while in mutuum, the borrower acquires ership of the thing loaned. (S) In commodatum, the same thing borrowed is required to returned while in mutuum, the borrower discharges hs obligation not returning the identical thing loaned, but by paying its equivalent in I, quality, and quantity, TNote: It is suggested that any three (3) of the above should merit full points} 7 Jacob has owned a farm land in Ramos, Tarlac, In 2012, Liz. su Spitously entered and cultivated the propery. In 2014, Jacob discovered presence in and eulivation of the propery. Due to is being busy at ling to his business in Cebu, he tolerated Liz's cultivation ofthe property. ently, in December 2016, Jacob wanted to regain possession of the ety; hence, he ent a letterto Liz demanding that she vacate the property. did not vacate despite the demand. : Jacob comes to enlist your legal assistance to bring an action against to recover the possession of the property