1-2021 QuAMTO-POLI - PIL

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2021 Quamto Political Law
Accounting (Mindanao State University)
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University of Santo Tomas

Faculty of Civil Law

POLITICAL LAW

Questions Asked More Than Once
QuAMTO 2021

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QuAMTO is a compilation of past bar questions with answers as suggested by the UPLC
and other distinct luminaries in the academe, and updated by the UST Academics
Committee to fit for the 2021 Bar Exams.

Bar questions are arranged per topic in accordance with the bar syllabus released by the
Supreme Court and were selected based on their occurrence on past bar examinations
from 1987 to 2019.

ACADEMICS COMMITTEE

MARIA FRANCES FAYE R. GUTIERREZ SECRETARY GENERAL

JOHN EDWARD F. FRONDA
ANGEL ISAH M. ROMERO
KIRBY ANNE C. RENIA EXECUTIVE COMMITTEE
KAREN ABBIE C. ASPIRAS
JOSE CHRISTIAN ANTHONY I. PINZON
NATHAN RAPHAEL D.L. AGUSTIN

MARIA FRANCES FAYE R. GUTIERREZ LAYOUT AND DESIGN

QuAMTO COMMITTEE MEMBERS

MARIA CRISANTA M. PALOMA
MICHAEL GINO D. AZURIN
POTENCIANO CLARITO C. CHAVEZ
FRANCINE BLAISE M. LOJA
KATHERINE S. POLICARPIO

ATTY. AL CONRAD B. ESPALDON
ADVISER

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OUR DEEPEST APPRECIATION TO OUR

MENTORS AND INSPIRATION

JUSTICE AMY LAZARO-JAVIER ATTY. MAURICIO C. ULEP

JUSTICE OSWALDO D. ATTY. AL CONRAD B.
AGCAOILI ESPALDON

JUDGE CHARITO M. SAWALI JUDGE RIGOR R. PASCUAL

ATTY. CARLO L. CRUZ DEAN ANTONIO G. M. LA VIÑA

ATTY. ENRIQUE V. DELA CRUZ DEAN LOPE FEBLE

ATTY. RENE B. GOROSPE ATTY. JEDRICK NG

ATTY. VICTORIA V. LOANZON JUDGE PHILIP AGUINALDO

ATTY. RAFAELITO M. ATTY. SHERIFF ABAS
GARAYBLAS (+)
ATTY. ALLAN B. GEPTY
ATTY. ANICIA C. MARQUEZ
ATTY. REY ALEJANDRINO
ATTY. EDWIN R. SANDOVAL

For being our guideposts in understanding
the intricate sphere of Political Law.
-Academics Committee 2021

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QuAMTO (1987-2019)
A: There is no third way of proposing revisions to the
Constitution; however, the people through initiative
POLITICAL LAW QuAMTO upon petition of at least twelve per cent of the total
number of registered voters, of which every
legislative district must be represented by at least
three per cent of the registered voters in it may
THE PHILIPPINE CONSTITUTION directly propose amendments to the Constitution. This
right is not operative without an implementing law.
(Section 2, Article XVI of the 1987 Constitution)

AMENDMENTS AND REVISIONS
Q: A priority thrust of the Administration is the

change of the form of government from unitary to
Q: State the various modes of and steps in
federal. The change can be effected only through
revising or amending the Philippine
constitutional amendment or revision.
Constitution. (1997, 2017 BAR)

Cite at least three provisions of the Constitution
A: There are three modes of amending the
that need to be amended or revised to effect the
Constitution and two modes for revising the
change from unitary to federal, and briefly explain
Constitution.
why? (2017 BAR)

1. Under Section 1. Article XVIII of the A:
Constitution. Congress may by three- fourths 1. Article X, Sec. 3 must be omitted because the
vote of all its Members propose any legislature will no longer define the scope of the
amendment to or revision of the Constitution. powers of the government.
This method is also known as an amendment 2. Article X Sec, 4 will have to be omitted. The
or revision by the Congress acting as a President will no longer have the power of
Constituent Assembly. supervision over local governments.
2. Under the same provision, a constitutional 3. Article X, Sec.5 must be omitted. Congress will no
convention may propose any amendment to or longer be allowed to impose limitations on the
revision of the Constitution. According to power of taxation of local governments.
Section 3 Article XVII of the Constitution,
Congress may, by a two- thirds vote of all its NOTE: The panel wishes to recommend liberality in
Members, call a constitutional convention or favor of the examinee for this question, as answers can
by a majority vote of all its members submit be gleaned from many articles and provisions of the
the question of calling such a convention to the Constitution, among them Articles VI, VII, and X.
electorate.
3. Under Section 2, Article XVII of the Q: A proposal to change a provision of the 1987
Constitution, the people may directly propose Constitution has been put forth as follows:
amendments to the Constitution through
initiative upon a petition of at least twelve per Original Text: "The Philippines is a democratic and
cent of the total number of registered voters, of republican State. Sovereignty resides in the people
which every legislative district must be and all government authority emanates from
represented by at least three per cent of the them"
registered voters therein. Proposed text: "The Philippines is a democratic
and socialist State. Sovereignty resides in the party
It should be noted that under the 3rd and all government authority emanates from it."
aforementioned method of initiative, the people (2019 BAR)
may propose only amendments, not a revision.
(a) Is this an amendment or revision? Explain.
According to Section 4 Article XVII of the
Constitution, to be valid any amendment to or A: The proposal is a revision. Using the qualitative test
revision of the Constitution, must be ratified by a provided in the case of Lambino v. COMELEC, the main
majority of the votes cast in a plebiscite. inquiry is whether the change will "accomplish such
far reaching changes in the nature of our basic
There are two steps involved in the amendment or governmental plan as to amount to a revision." In this
revision of the Constitution. The first is the case, the proposal to change where the sovereignty
proposal and the second is the ratification. (Cruz, resides—from the people to the party—definitely
2014) alters the nature of the Philippine government, thus
satisfying the test. (Lambino v. COMELEC, G.R. No.
Q: An amendment to or a revision of the present 174153, October 25, 2006)
Constitution maybe proposed by a
Constitutional Convention or by the Congress (b) Briefly explain the process to revise the
upon a vote of three-fourths of all its members. 1987 Constitution.
Is there a third way of proposing revisions of or
A: Any revision of the Constitution may be proposed
amendments to the Constitution? If so, how?
by:
(2004 BAR)

1
U N I V E R S I T Y O F S A N T O T O M A S U S T
2 0 2 1 A C A D E M I C S C O M M I T T E E B A R O P E R A T I O N S

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Political Law
1. The Congress, upon a vote of three-fourths baselines for the purposes of preventing or punishing
of all its Members; or violations of customs, fiscal, immigration or sanitary
2. A constitutional convention. (and thus residual national security) legislation.

The Congress may, by a vote of two-thirds of all its (b) Exclusive economic zone
Members, call a constitutional convention, or by a
majority vote of all its Members, submit to the A: Under the EEZ, the coastal state retains exclusive
electorate the question of calling such a sovereignty over exploring, exploiting and conserving
convention. all natural resources. Under Article 60 of the United
The revision shall be valid when ratified by a Nations Convention on the Law of the Sea (UNCLOS). It
majority of the votes cast in a plebiscite which shall also has the right to construct and authorize and
be held not earlier than sixty days nor later than regulate the construction, operation and use of
ninety days after the approval of such amendment artificial islands, installations and structures for the
or revision. [Art XVII, Sec 1, 3 & 4, Const.] purposes provided for in Article 56 and other
economic purposes, installations and structures which
may interfere with the exercise of the rights of the

NATIONAL TERRITORY coastal State in the zone; it shall also have the
exclusive jurisdiction over such artificial islands,

installations, and structures, including jurisdiction

with regard to customs, fiscal, health, safety, and
Q: William, a private American citizen, a
immigration laws and regulations.
university graduate and frequent visitor to the

Philippines, was inside the U.S. embassy when ARCHIPELAGIC DOCTRINE
he got into a heated argument with a private
Filipino citizen. Then, in front of many shocked Q: What do you understand by the archipelagic
witnesses, he killed the person he was arguing doctrine? Is this reflected in the 1987
with. The police came, and brought him to the Constitution? (1989 BAR)
nearest police station. Upon reaching the
station, the police investigator, in halting A: The archipelagic doctrine emphasizes the unity of
English, informed William of his Miranda rights, land and waters by defining an archipelago either as a
and assigned him an independent local counsel. group of islands surrounded by waters or a body of
William refused the services of the lawyer, and waters studded with islands. For this purpose, it
insisted that he be assisted by a Filipino lawyer requires that baselines be drawn by connecting the
currently based in the U.S. The request was appropriate points of the outermost islands to encircle
denied, and the counsel assigned by the police the islands within the archipelago. The waters on the
stayed for the duration of the investigation. landward side of the baselines regardless of breadth
William protested his arrest. or dimensions are merely internal waters. The entire
archipelago is regarded as one integrated unit instead
He argued that since the incident took place of being fragmented into so many thousand islands
inside the U.S. embassy, Philippine courts have
no jurisdiction because the U.S. embassy Yes, the archipelagic doctrine is reflected in the 1987
grounds are not part of Philippine territory; Constitution. Article I, Section 1 provides that the
thus, technically, no crime under Philippine law national territory of the Philippines includes the
was committed. Is William correct? Explain Philippine archipelago, with all the islands and waters
your answer. (2009 BAR) embraced therein; and the waters around, between,
and connecting the islands of the archipelago,
A: William is not correct. The premises occupied regardless of their breadth and dimensions, form part
by the United States Embassy do not constitute of the internal waters of the Philippines.
territory of the United States but of the Philippines.
Crimes committed within them are subject to the Q: TRUE or FALSE. Explain your answer in not
territorial jurisdiction of the Philippines. Since more than two (2) sentences: Under the
William has no diplomatic immunity, the archipelago doctrine, the waters around, between,
Philippines can prosecute him if it acquires and connecting the islands of the archipelago form
custody over him. (Reagan v. Commissioner of part of the territorial sea of the archipelagic state.
Internal Revenue, 30 SCRA 968) (2009 BAR)

Q: Under the United Nations Convention on the A: False. Under Article I of the Constitution, the water
Law of the Sea (UNCLOS), what are the rights of around, between and connecting the islands ofthe
the Philippines within the following areas: Philippines form part of its internal waters. Under
(2019 BAR) Article 49 (1) of the U.N. Convention on the Law of the
Sea, these waters do not form part of the territorial sea
(a) Contiguous zone but are described as archipelagic waters.
A: The Contiguous Zone is an intermediary zone
between the territorial sea and the high seas Q: What is the basis of the Philippines’ claim to a
extending enforcement jurisdiction of the coastal part of the Spratly Islands? (2000 BAR)
state to a maximum of 24 nautical miles from

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QuAMTO (1987-2019)
A: The basis of the Philippine claim is effective Convention on the Law of the Sea (UNCLOS) to
occupation of a territory not subject to the which the Philippines is a signatory. Congressman
sovereignty of another state. The Japanese forces Pat Rio Tek questioned the constitutionality of the
occupied the Spratly Island group during the bill on the ground that the provisions of UNCLOS
Second World War. However, under the San are violative of the provisions of the Constitution
Francisco Peace Treaty of 1951 Japan formally defining the Philippine internal waters and
renounced all right and claim to the Spratlys. The territorial sea. Do you agree or not with the said
San Francisco Treaty or any other international objection? Explain. (2015 BAR)
agreement, however, did not designate any
beneficiary state following the Japanese A: The objection of Congressman Pat Rio Tek does not
renunciation of right. Subsequently, the Spratlys hold water. UNCLOS does not define the internal and
became terra nullius and was occupied by the territorial waters of states but merely "prescribes the
Philippines in the title of sovereignty. Philippine water-land ratio, length, and contour of baselies of
sovereignty was displayed by open and public archipelagic States like the Philippines. Whether
occupation of a number of islands by stationing of referred to as Philippine internal waters or as
military forces. By organizing a local government archipelagic waters under UNCLOS, the Philippines
unit, and by awarding petroleum drilling rights, exercises sovereignty over the body of water lying
among other political and administrative acts. In landward of the baselines, including the air space over
1978, it confirmed its sovereign title by the it and the submarine areas underneath.
promulgation of Presidential Decree No. 1596,
which declared the Kalayaan Island Group part of Q: Define the archipelagic doctrine of national
Philippine territory. territory, state its rationale and explain how it is
implemented through the straight baseline
Q. Congress passed Republic Act No. 7711 to method (2016 BAR)
comply with the United Nations Convention on
the Law of the Sea. In a petition filed with the A: By the term “archipelagic doctrine of national
Supreme Court, Anak Ti Ilocos, an association of territory” is meant that the islands and waters of the
Ilocano professionals, argued that Republic Act Philippine Archipelago are unified in sovereignty,
No. 7711 discarded the definition of the together with “all the territories over which the
Philippine territory under the Treaty of Paris Philippines has sovereignty or jurisdiction.”
and in related treaties; excluded the Kalayaan
Islands and the Scarborough Shoals from the This archipelagic doctrine, so described under Article
Philippine Archipelagic baselines; and 1 of the Constitution, draws its rationale from the
converted internal waters into archipelagic status of the whole archipelago in sovereignty by
waters. Is the petition meritorious? (2013 BAR) which under Part IV of the UNCLOS the Philippines is
defined as an Archipelagic State in Article 46, thus:
A: NO, the petition is not meritorious. The United
Nations Convention on the law of the Sea plays no a. “archipelagic state” means a State
role in the acquisition, enlargement or, as constituted wholly by one or more
petitioners claim, diminution of territory. Under archipelagos and may include other islands;
traditional international law typology, States b. “archipelago” means a group of islands
acquire (or conversely, lose) territory through including parts of islands
occupation, accretion, cession and prescription, not interconnecting waters and other natural
by executing multilateral treaties on the features which are so closely interrelated that
regulations of sea-use rights or enacting statutes to such islands waters and other natural features
comply with the treatys terms to delimit maritime form an intrinsic geographic, economic and
zones and continental shelves. Territorial claims to political entity, or which historically have
land features are outside UNCLOS III, and are been regarded as such.
instead governed by the rules on general
international law. As an archipelagic state, the national territory is
The Kalayaan Islands and the Scarborough Shoals implemented by drawing its “straight archipelagic
are located at an appreciable distance from the baselines” pursuant to Art. 47 of the UNCLOS which
nearest shoreline of the Philippine Archipelago. A prescribes among its main elements, as follows:
straight baseline loped around them from the
nearest baseline will violate Article 47(3) and 1. By “joining the outermost points of the outermost
Article 47(2) of the United Nations Convention on islands and drying reefs of the archipelago”,
the law of the Sea III. Whether the bodies of water including the main islands and an area in which
lying landward of the baselines of the Philippines the ration of the area of the water to the land,
are internal waters or archipelagic waters, the including atolls, is between 1 to 1 and 9 to 1.
Philippines retains jurisdiction over them 2. Mainly, the length of such baselines “shall not
(Magallona v. Ermita, 655 SCRA 476). exceed 100 nautical miles…”
3. “The drawing of such baselines shall not depart to
Q: A bill was introduced in the House of any appreciable extent from the general
Representatives in order to implement configuration of the archipelago.”
faithfully the provisions of the United Nations
3

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Political Law
Q: Section 2 of RA 9522 declared the Kalayaan territorial sea, exclusive economic zone and
Island Group (KIG) and Scarborough Shoal as continental shelf, whereas rocks have no exclusive
“Regime of Islands.” Professor Agaton contends economic zone and continental shelf.
that since the law did not enclose said islands,
the Philippines lost its sovereignty and This is the difference by which RA 9522 introduced
jurisdiction over them. Is his contention into the KIG and separately Panatag or Scarborough
correct? Explain. (2016 BAR) Shoal is an island.

A: This line of argument is negated by RA 9522 “Regime of Islands”, has no relevance to acquisition or
itself. Section 2 of the law commits to text the loss of sovereignty. RA 9522 has the effect of possibly
Philippines continued claim of sovereignty and dividing the area in question into island and rocks,
jurisdiction over the KIG and the Scarborough apparently to make clear for each the maritime zones
Shoal: involved in the definition of island or of rocks.

SEC. 2. The baselines in the following areas over STATE IMMUNITY
which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as Q: It is said that "waiver of immunity by the State
Regime of Islands under the Republic of the does not mean a concession of its liability". What
Philippines consistent with Article 121 of the are the implications of this phrase? (1997 BAR)
United Nations Convention on the Law of the Sea
(UNCLOS): A: The phrase that waiver of immunity by the State
does not mean a concession of liability means that by
a. The Kalayaan Island Group as constituted consenting to be sued, the State does not necessarily
under Presidential Decree No. 1596 and admit it is liable. As stated in Philippine Rock
b. Bajo de Masinloc, also Industries, Inc. v. Board of Liquidators, 180 SCRA 171,
known as Scarborough Shoal. in such a case the State is merely giving the plaintiff a
chance to prove that the State is liable but the State
Although the Philippines has consistently claimed retains the right to raise all lawful defenses.
sovereignty over the KIG and the Scarborough
Shoal for several decades, these outlying areas are Q:
located at an appreciable distance from the nearest a. What do you understand by state immunity
shoreline of the Philippine archipelago, such that from suit? Explain.
any straight baseline loped around them from the b. How may consent of the state to be sued be
nearest basepoint will inevitably depart to an given? Explain. (1999, 2017 BAR)
appreciable extent from the general configuration
of the archipelago. A:
a. STATE IMMUNITY FROM SUIT means that the
Hence, far from surrendering the Philippines claim State cannot be sued without its consent. A
over the KIG and the Scarborough Shoal, Congress’ corollary of such principle is that properties used
decision to classify the KIG and the Scarborough by the State in the performance of its
Shoal as Regime[s] of Islands under the Republic of governmental functions cannot be subject to
the Philippines consistent with Article 121 of judicial execution.
UNCLOS III manifests the Philippine States b. Consent of the State to be sued may be made
responsible observance of its pacta sunt servanda expressly as in the case of a specific, express
obligation under UNCLOS III. Under Article 121 of provision of law as waiver of State immunity from
UNCLOS III, any naturally formed area of land, suit is not inferred lightly (e.g. C.A. 327 as
surrounded by water, which is above water at high amended by PD 1445) or impliedly as when the
tide, such as portions of the KIG, qualifies under the State engages in proprietary functions (U.S. v.
category of regime of islands, whose islands Ruiz, U.S. v. Guinto) or when it files a suit in which
generate their own applicable maritime zone case the adverse party may file a counterclaim
(Magallona v. Ermita, 655 SCRA 476). (Froilan v. Pan Oriental Shipping) or when the
doctrine would in effect be used to perpetuate an
ALTERNATIVE ANSWER: injustice (Amigable v. Cuenca, 43 SCRA 360).
Prof. Agaton’s contention is erroneous
Q: The employees of the Philippine Tobacco
Under Art. 121 of the UNCLOS, “Regime of islands” Administration (PTA) sued to recover overtime
is a definition of the island as “a naturally formed pay. In resisting such claim, the PTA theorized that
area of land, surrounded by water which is above it is performing governmental functions. Decide
water at high tide.” and explain. (1999 BAR)

On the other hand, this provision, is differentiated A: As held in Philippine Virginia Tobacco
from “rocks” which cannot sustain human Administration v. Court of Industrial Relations, 65
habitation of their own. SCRA 416, the Philippine Tobacco Administration is
not liable for overtime pay, since it is performing
The importance of the difference between natural governmental functions. Among its purposes are to
island and rock is that an island is provided with promote the effective merchandising of tobacco so

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QuAMTO (1987-2019)
that those engaged in the tobacco industry will acknowledged diplomatic title and is not performing
have economic security, to stabilize the price of duties of a diplomatic nature.
tobacco, and to improve the living and economic
conditions of those engaged in the tobacco However, the suit against him is a suit against XX
industry. without its consent. YZ was acting as an agent of XX
and was performing his officialfunctions when he
Q: The Republic of the Philippines, through the conducted surveillance on drug exporters and
Department of Public Works and Highways informed the local police officerswho arrested MBC.
(DPWH), constructed a new highway linking He was performing such duties with the consent of the
Metro Manila and Quezon province, and which Philippine government,therefore, the suit against YZ is
major thoroughfare traversed the land owned a suit against XX without its consent. (Minucher v.
by Mang Pandoy. The government neither filed CA,397 SCRA 244, 1992)
any expropriation proceedings nor paid any
compensation to Mang Pandoy for the land thus Q: Adams and Baker are American citizens
taken and used as a public road. residing in the Philippines. Adams befriended
Baker and became a frequent visitor at his house.
Mang Pandoy filed a suit against the One day, Adams arrived with 30 members of the
government to compel payment for the value of Philippine National Police, armed with a Search
his land. The DPWH filed a motion to dismiss Warrant authorizing the search of Baker’s house
the case on the ground that the State is immune and its premises for dangerous drugs being
from suit. Mang Pandoy filed an opposition. trafficked to the United States of America.
Resolve the motion. (2001 BAR)
The search purportedly yielded positive results,
A: The motion to dismiss should be denied. As held and Baker was charged with violation of the
in Amigable v. Cuenca, 43 SCRA 300 (1972), when Dangerous Drugs Act. Adams was the
the Government expropriates private property prosecution’s principal witness. However, for
without paying compensation, it is deemed to have failure to prove his guilt beyond reasonable doubt,
waived its immunity from suit. Otherwise, the Baker was acquitted.
constitutional guarantee that private property shall
not be taken for public use without payment of just Baker then sued Adams for damages for filing
compensation will be rendered nugatory. trumped-up charges against him. Among the
defenses raised by Adams is that he has diplomatic
Q: MBC, an alien businessman dealing in immunity, conformably with the Vienna
carpets and caviar, filed a suit against Convention on Diplomatic Relations. He presented
policemen and YZ, an attaché of XX Embassy, Diplomatic Notes from the American Embassy
for damages because of malicious prosecution. stating that he is an agent of the United States Drug
MBC alleged that YZ concocted false and Enforcement Agency tasked with “conducting
malicious charges that he was engaged in drug surveillance operations’’ on suspected drug
trafficking, whereupon narcotics policemen dealers in the Philippines believed to be the
conducted a “buy-bust" operation and without source of prohibited drugs being shipped to the
warrant arrested him, searched his house, and U.S. It was also stated that after having ascertained
seize his money and jewelry, then detained and the target, Adams would then inform the
tortured him in violation of his civil and human Philippine narcotic agents to make the actual
rights as well as causing him, his family and arrest.
business serious damages amounting to two
million pesos. MBC added that the trial court a. As counsel of plaintiff Baker, argue why his
acquitted him of the drug charges. complaint should not be dismissed on the
ground of defendant Adams’ diplomatic
Assailing the court’s jurisdiction, YZ now moves immunity from suit.
to dismiss the complaint, on the ground that (1) b. As counsel of defendant Adams, argue for the
he is an embassy officer entitled to diplomatic dismissal of the complaint. (2005 BAR)
immunity; and that (2) the suit is really a suit
against his home state without its consent. He A:
presents diplomatic notes from XX Embassy
certifying that he is an accredited embassy a. As counsel of Baker, I shall argue that Baker has no
officer recognized by the Philippine diplomatic immunity, because he is not performing
government. He performs official duties, he diplomatic functions.
says, on a mission to conduct surveillance of
drug experts and then inform local police ALTERNATIVE ANSWER: As counsel for Baker, I will
officers who make the actual arrest of suspects. argue that Adam's diplomatic immunity cannot be
Are the two grounds cited by YZ to dismiss the accepted as the sole basis for dismissal of the damage
suit tenable? (2004 BAR) suit, by mere presentation of Diplomatic Notes stating
that he is an agent of the US Drug Enforcement Agency.
A: The claim of diplomatic immunity of YZ is not His diplomatic status was a matter of serious doubt on
tenable, because he does not possess an account of his failure to disclose it when he appeared
5

lOMoARcPSD|5832152
Political Law
as principal witness in the earlier criminal(drug) Q: The Ambassador of the Republic of Kafirista
case against Baker, considering that as a matter of referred to you for handling, the case of the
diplomatic practice a diplomatic agent maybe Embassy’s Maintenance Agreement with CBM, a
allowed or authorized to give evidence as a witness private domestic company engaged in
by the sending state. Thus, his diplomatic status maintenance work. The Agreement binds CBM, for
was not sufficiently established. a defined fee, to maintain the Embassy’s elevators,
air- conditioning units and electrical facilities.
b. As counsel of Adams, I shall argue that since he Section 10 of the Agreement provides that the
was acting within his assigned functions with the Agreement shall be governed by Philippine laws
consent of the Philippines, the suit against him is a and that any legal action shall be brought before
suit against the United States without its consent the proper court of Makati. Kafiristan terminated
and is barred by state immunity from suit. the Agreement because CBM allegedly did not
(Minucher v. CA, 397 SCRA244, 2003) comply with their agreed maintenance standards.

Q: Italy, through its Ambassador, entered into a CBM contested the termination and filed a
contract with Abad for the maintenance and complaint against Kafiristan before the Regional
repair of specified equipment at its Embassy Trial Court of Makati. The Ambassador wants you
and Ambassador’s Residence, such as air to file a motion to dismiss on the ground of state
conditioning units, generator sets, electrical immunity from suit and to oppose the position that
facilities, water heaters, and water motor under Section 10 of the Agreement, Kafiristan
pumps. It was stipulated that the agreement expressly waives its immunity from suit. Under
shall be effective for a period of four years and these facts, can the Embassy successfully invoke
automatically renewed unless cancelled. immunity from suit? (2013 BAR)
Further, it provided that any suit arising from
the contract shall be filed with the proper A: YES, the Embassy can invoke immunity from suit.
courts in the City of Manila. Section 10 of the Maintenance Agreement is not
necessarily a waiver of sovereign immunity from suit.
Claiming that the Maintenance Contract was It was meant to apply in case the Republic of Kafiristan
unilaterally, baselessly and arbitrarily elects to sue in the local courts or waives its immunity
terminated, Abad sued the State of Italy and its by a subsequent act. The establishment of a diplomatic
Ambassador before a court in the City of Manila. mission is a sovereign function. This encompasses its
Among the defenses they raised were maintenance and upkeep. The Maintenance
“sovereign immunity” and “diplomatic Agreement was in pursuit of a sovereign activity.
immunity". (Republic of the Indonesia v. Vinzon, G.R. No. 154705,
June 26, 2003, 405 SCRA 126)
As counsel of Abad, refute the defenses of
“sovereign immunity” and “diplomatic Q: Ambassador Robert of State Alpha committed a
immunity” raised by the State of Italy and its very serious crime while he headed his foreign
Ambassador. At any rate, what should be the mission in the Philippines. Is he subject to arrest
court's ruling on the said defenses? (2005 BAR) by Philippine authorities? Explain your answer
(2017 BAR)
A: As counsel of Abad, I shall argue that the
contract is not a sovereign function and that the A: NO, he is not subject to arrest by Philippines
stipulation that any suit arising under the contract authorities. Under the Vienna Convention on
shall be filed with the proper courts of the City of Diplomatic Relations (VCDR), a diplomatic agent shall
Manila is a waiver of the sovereign immunity from enjoy immunity from the criminal jurisdiction of the
suit of Italy. I shall also argue that the ambassador receiving State. As a consequence, Article 29 of the
does not enjoy diplomatic immunity, because the Vienna Convention on Diplomatic Relations provides:
suit relates to a commercial activity. “The person of a diplomatic agent shall be inviolable.
He shall not be liable to any form of arrest or
The court should reject the defenses. Since the detention
establishment of a diplomatic mission requires the
maintenance and upkeep of the embassy and the Q: In the last quarter of 2012, about 5,000
residence of the ambassador, Italy was acting in container vans of imported goods intended for the
pursuit of a sovereign activity when it entered into Christmas Season were seized by agents of the
the contract. The provision in the contract Bureau of Customs. The imported goods were
regarding the venue of lawsuits is not necessarily a released only on January 10, 2013. A group of
waiver of sovereign immunity from suit. It should importers got together and filed an action for
be interpreted to apply only where Italy elects to damages before the Regional Trial Court of Manila
sue in the Philippine courts or waives its immunity against the Department of Finance and Bureau of
by a subsequent act. The contract does not involve Customs.
a commercial activity of the ambassador, because it
is connected with his official functions. (Republic of The Bureau of Customs raised the defense of
Indonesia v. Vinzon, 405 SCRA 126, 2003) immunity from suit and, alternatively, that liability
should lie with XYZ Corp. which the Bureau had
contracted for the lease of 10 high powered van

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cranes but delivered only 5 of these cranes, illegally is not a suit against the state. (Aberca v. Ver,
thus causing the delay in its cargo-handling G.R. No. 69866, April 15, 1988, 160 SCRA 590)
operations. It appears that the Bureau, despite
demand, did not pay XYZ Corp the P 1 Million A public official may be compelled to act through a
deposit and advance rental required under writ of mandamus. The main objective of mandamus is
their contract. (2013 BAR) to compel the performance of a ministerial duty on the
part of the respondent official; however, the writ does
a. Will the action by the group of importers not issue to control or review the exercise of
prosper? discretion or to compel a course of conduct. The writ
of prohibition can also be availed of, as it is an
A: NO. The action by the group of importers will extraordinary writ which can be directed against a-
not prosper. The primary function of the Bureau of public officer ordering said officer to desist from
Customs is governmental, that of assessing and further proceedings when said proceedings are
collecting lawful revenues from imported articles without or in excess of said officer’s jurisdiction, or are
and all other tariff and customs duties, fees, accompanied with grave abuse of discretion. (Rule 65,
charges, fines and penalties. (Mobil Philippines Revised Rules of Court)
Exploration, Inc. v. Customs Arrastre Service, 18
SCRA 120) Lastly, a public officer is by law not immune from
damages in his/her personal capacity for acts done in
b. Can XYZ Corp. sue the Bureau of Customs to bad faith which, being outside the scope of his
collect rentals for the delivered cranes? authority, are no longer protected by the mantle of
immunity for official actions. (Vinzons-Chuto v. Fortune
A: NO. XYZ Corporation cannot sue the Bureau of Tobacco Corp., G.R. No. 141309, June 19, 2007, 525 SCRA
Customs to collect rentals for the delivered cranes. 11)
The contract was a necessary incident to the
performance of its governmental function. To
properly collect the revenues and customs duties, Q: Do government-owned or -controlled
the Bureau of Customs must check to determine if corporations also enjoy the immunity of the State
the declaration of the importers tallies with the from suit? Explain your answer. (3%) (2017 BAR)
landed merchandise. The cranes are needed to haul
the landed merchandise to a suitable place for A: A government-owned or controlled corporation
inspection. (Mobil Philippines Exploration v. may be sued. suit against it is not a suit against the
Customs Arrastre Service, supra) State, because it has a separate juridical personality.
(Social Security Systems v. Court of Appeals, GiR. No. L-
ALTERNATIVE ANSWER: NO. XYZ Corporation 41299, February 21, 1983, 120 SORA 707)
cannot sue the Bureau of Customs because it has no
juridical personality separate from that of the Q: Annika sued the Republic of the Philippines,
Republic of the Philippines. (MobilPhilippines represented by the Director of the Bureau of Plant
Exploration v. Customs Arrastre Service, supra) Industry, and asked for the revocation of a deed of
donation executed by her in favor of said Bureau.
ANOTHER ALTERNATIVE ANSWER: YES. XYZ She alleged that, contrary to the terms of the
Corporation may sue the Bureau of Customs donation, the donee failed to install lighting
because the contact isconnected with a propriety facilities and a water system on the property
function, the operation of the arrastre service. donated, and to build an office building and
(Philippine Refining Company v. CA, 256 SCRA 667) parking lot thereon, which should have been
constructed and made ready for occupancy on or
Besides, XYZ Corporation leased its van cranes, before the date fixed in the deed of donation.
because the Bureau of Customs undertook to pay
its rentals. Justice and equity demand that the The Republic invoked state immunity and moved
bureau ofCustoms should not be allowed to invoke for the dismissal of the case on the ground that it
state immunity from suit. (Republic v.Unimex-Micro had not consented to be sued. Should the
Electonics GmBH, 518 SCRA 19) Republic's motion be granted? (2018 BAR)

Q: The doctrine of immunity from suit in favor A: The motion of the Republic should be granted.
of the State extends to public officials in the There appears to be no consent on the part of the State
performance of their official duties. May such to be sued.
officials be sued nonetheless to prevent or to
undo their oppressive or illegal acts, or to In Section 3, Article XVI of the Constitution it is
compel them to act? Explain your answer. provided that: “The State shall not be sued without its
(2017 BAR) consent.”

A: Public officials may be sued if they acted That no consent was given by the Republic is shown
oppressively or illegally in the performance of their by the fact that the Bureau or the Government did
duties. A suit against a public officer who acted seem to have complied with the demands of the deed
7

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of donation. Compliance with the state immunity is A: I will rule in favor of the concerned citizens. Section
essential for two reasons: 25, Article XVII of the Constitution prohibits in the
absence of a treaty the stationing of troops and
1. It is required as a provision of the Constitution; facilities of foreign countries in the Philippines. The
and Supreme Court has already ruled that the provision in
2. Immunity is an essential element of state Article XVIII, Section 25 of the Constitution requires a
sovereignty. treaty even for the mere temporary presence of
foreign troops in the Philippines. (Bayan v. Zamora,
ALTERNATIVE ANSWER: G.R. No. 138570, October 10, 2000, 342 SCRA 499)

The motion should be denied. Q: The Philippines and the Republic of Kroi Sha
established diplomatic relations and immediately
The doctrine of governmental immunity from suit their respective Presidents signed the following:
cannot serve as an instrument for perpetrating an
injustice on a citizen. Here, the alleged failure to (1) Executive Agreement allowing the
abide by the conditions under which a donation Republic of Kroi Sha to establish its embassy and
was given should not prove an insuperable consular offices within Metro Manila; and (2)
obstacle to a civil action, the consent likewise being Executive Agreement allowing the Republic of Kroi
presumed when the State entered into a contract. Sha to bring to the Philippines its military
Under the circumstances, the fundamental complement, warships, and armaments from time
postulate of non-suability of the state cannot stand to time for a period not exceeding one month for
in the way. (Santiago vs. Republic, G.R. No. L-48214, the purpose of training exercises with the
December 19, 1978) Philippine military forces and exempting from
Philippine criminal jurisdiction acts committed in
GENERAL PRINCIPLES AND STATE POLICIES the line of duty by foreign military personnel, and
from paying custom duties on all the goods
Q: The Philippines has become a member of the brought by said foreign forces into Philippine
World Trade Organization (WTO) and territory in connection with the holding of the
resultantly agreed that it "shall ensure the activities authorized under the said Executive
conformity of its laws, regulations and Agreement. Senator Maagap questioned the
administrative procedures with its obligations constitutionality of the said Executive Agreements
as provided in the annexed Agreements." This and demanded that the Executive Agreements be
is assailed as unconstitutional because this submitted to the Senate for ratification pursuant
undertaking unduly limits, restricts and to the Philippine Constitution. Is Senator Maagap
impairs Philippine sovereignty and means correct? Explain. (2015 BAR)
among others that Congress could not pass
legislation that will be good for our national A: Senator Maagap is partly correct. The Executive
interest and general welfare if such legislation Agreement allowing the Republic of Kroi Sha to
will not conform with the WTO Agreements. establish its embassy and consular offices within
Refute this argument. (2000 BAR) Metro Manila is valid without the need of submitting it
to the Senate for ratification as differed from a treaty.
A: According to Tanada v. Angara, the sovereignty However, the second Executive Agreement which
of the Philippines is subject to restriction by its allows the Republic of Kroi Sha to bring to the
membership in the family of nations and the Philippines its military complement, warships, and
limitations imposed of treaty limitations. Section 2, armaments for a certain period is subject to the
Article II of the Constitution adopts the generally provisions of Section 25 of Article XVIII of the
accepted principles of international law as part of Constitution, which provides that “foreign bases,
the law of the land. One of such principles is pacta troops or facilities shall not be allowed in the
sunt servanda. The Constitution did not envision a Philippines except under a treaty duly concurred in by
hermit-like isolation of the country from the rest of the Senate and, when the Congress so requires, ratified
the world. by a majority of the votes cast by the people in a
national referendum held for that purpose, and
Q: Under the executive agreement entered into recognized as a treaty by the of the contracting state.”
between the Philippines and the other Under the same provision, a treaty duly concurred in
members of the ASEAN, the other members will by the Senate is required even for the temporary
each send a battalion-size unit of their presence of foreign troops.
respective armed forces to conduct a combined
military exercise in the Subic Bay area. A group Right of Parents to Rear their Children
of concerned citizens sought to enjoin the entry
of foreign troops as violative of the 1987 Q: The unabated rise of criminality and the
Constitution that prohibited the stationing of reported identification of delinquent children
foreign troops and the use by them, of local loitering in the wee hours of the night prompted
facilities. As the Judge, decide the case. Explain. City Z to implement a curfew ordinance. Minors
(1996 BAR) unaccompanied or unsupervised on the streets by
their parents or guardians between 10:00 P.M. to
5:00 A.M. may be apprehended by law enforcers

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QuAMTO (1987-2019)
subject to certain exclusive exceptions. These A: The grant of authority to the Oversight Committee
exceptions are: 1. minors running lawful to screen beneficiaries is unconstitutional. Itviolates
errands, such as buying of medicines, using of the principle of separation of powers. By being
telecommunications facilities for emergency involved in the implementation of the law,the
purposes and the like; 2. night school students; Oversight Committee will be exercising executive
and 3. Minors working at night. power. (Abakada Guro Party List v. Purisima,562 SCRA
251, 2008)
Minors apprehended for violation of the curfew
ordinance shall be required to undergo Q: Senator Fleur De Lis is charged with plunder
counseling, accompanied by their before the Sandiganbayan. After finding the
parents/guardians. (2019 BAR) existence of probable cause, the court issues a
warrant for the Senator's arrest. The prosecution
(a) Does the curfew ordinance violative the files a motion to suspend the Senator relying on
primary right and duty of parents to Section 5 of the Plunder Law. According to the
rear their children? Explain. prosecution, the suspension should last until the
termination of the case. Senator Lis vigorously
A: NO, the curfew ordinance does not violate the opposes the motion contending that only the
primary right and duty of parents to rear their Senate can discipline its members; and that to
children. The principle of parens patriae states that allow his suspension by the Court would violate
the State has the duty of protecting the rights of the principle of separation of powers. Is Senator
persons or individual who because of age or Lis's contention tenable? Explain. (2015 BAR)
incapacity are in an unfavorable position. Thus,
while parents have the primary role in child- A: The contention of the Senator is not tenable. The
rearing, it should be stressed that when actions power of each House of Congress to “punish its
concerning the child have a relation to the public Members for disorderly behavior,” and “suspend or
welfare or the well-being of the child, the State may expel a Member” by a vote of two- thirds of all its
act to promote these legitimate interests in the Members subject to the qualification that the penalty
exercise of its police power. (SPARK v. Quezon City, of suspension, when imposed, should not exceed sixty
G.R. No. 225442, August 08, 2017) days” under Section 6 (3), Article VI of the Constitution
is “distinct” from the suspension under the Plunder
(b) Does the curfew ordinance infringe any Law“ which is not a penalty but a preliminary,
of the minors’ fundamental rights? preventive measure prescinding from the fact that the
Explain. latter is not being imposed on petitioner for
A: YES, the curfew infringes on the minors’ misbehavior as a Member of the House of
fundamental rights. The court in SPARK v Quezon Representatives.” The doctrine of separation of
City observed that the two ordinances are not powers cannot be deemed to have excluded Members
narrowly drawn because the exceptions mentioned of Congress from the application of the Plunder Law.
in the ordinances are inadequate insofar as it does The law itself does not exclude Members of Congress
not provide an exception for the right to from its coverage. The Sandiganbayan did not err in
association, free exercise of religion, rights to issuing the preventive suspension order. (Ceferino
peaceably assemble, and of free expression among Paredes, Jr. v. Sandiganbayan, G.R. No. 118364, 08
others. Thus, it can run the risk of overly restricting August 1995, cited in Santiago v. Sandiganbayan, G.R.
minors’ fundamental freedoms. (SPARK v. Quezon No. 128055, April 18, 2001)
City, G.R. No. 225442, August 08, 2017)
Q: Several concerned residents of the areas
SEPARATION OF POWERS fronting Manila Bay, among them a group of
students who are minors, filed a suit against the
Q: The “Poverty Alleviation and Assistance Act Metro Manila Development · Authority (MMDA),
"was passed to enhance the capacity of the most the Department of Environment and Natural
marginalized families nationwide. A financial Resources (DENR), the Department of Health
assistance scheme called “conditional cash (DOH), the Department of Agriculture (DA), the
transfers" was initially funded 500 million Department of Education (DepEd), the Department
pesos by Congress. One of the provisions of the of Interior and Local Government (DILG), and a
law gave the Join t- Congressional Oversight number of other executive agencies, asking the
Committee authority to screen the list of court to order them to perform their duties
beneficiary families initially determined by the relating to the cleanup, rehabilitation and
Secretary of Department of Social Welfare and protection of Manila Bay. The complaint alleges
Development pursuant to the Department that the continued neglect by defendants and their
implementing rules. failure to prevent and abate pollution in Manila
Bay constitute a violation of the petitioners'
Mang Pandoy, a resident of Smokey Mountain in constitutional right to life, health and a balanced
Tondo, questioned the authority of the ecology.
Committee. Is the grant of authority to the
Oversight Committee to screen beneficiaries (a) If the defendants assert that the
constitutional? (2009 BAR) students/petitioners who are minors do not
9

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Political Law
have locus standi to file the action, is the provision because, after all, the power to
assertion correct? Explain your answer. appropriate belongs to Congress. (2019 BAR)
(b) In its decision which attained finality, the
Court ordered the defendants to clean up, (a) Rule on the arguments of the parties.
rehabilitate and sanitize Manila Bay within
eighteen (18) months, and to submit to the A: I will rule in favor of Mr. Z. The provision is
Court periodic reports of their unconstitutional for being violative of the separation
accomplishment, so that the Court can of powers.
monitor and oversee the activities
undertaken by the agencies in compliance The enforcement of the national budget, as primarily
with the Court's directives. Subsequently, a contained in the GAA, is indisputably a function both
resolution was issued extending the time constitutionally assigned and properly entrusted to
periods within which the agencies should the Executive branch of government.
comply with the directives covered by the
final decision. A view was raised that the Any post-enactment congressional measure x x x
Court's continued intervention after the should be limited to scrutiny and investigation. In
case has been decided violates the particular, congressional oversight must be confined
doctrine of separation of powers to the following:
considering that the government agencies
all belong to the Executive Department (1) scrutiny based primarily on Congress‘ power of
and are under the control of the President. appropriation and the budget hearings conducted
Is this contention correct? Why or why in connection with it, its power to ask heads of
not? (2016 BAR) departments to appear before and be heard by
either of its Houses on any matter pertaining to
A: their departments and its power of confirmation;
(a) The contention that the minors have no locus and
standi is unmeritorious. In the landmark case (2) investigation and monitoring of the
of Oposa v. Factoran, the Court held that basis implementation of laws pursuant to the power of
for the minors to have locus standi is Congress to conduct inquiries in aid of legislation.
intergenerational responsibility. It is pursuant (c) Any action or step beyond that will undermine the
to the obligation of the State under Section 16, separation of powers guaranteed by the
Article II of the Constitution to protect and Constitution (Belgica v. Ochoa, G.R. 208566, Nov.
advance the right of the people to a balanced 19, 2013)
and healthful ecology in accord with the
rhythm and harmony of nature. (b) Assuming that the provision is declared
unconstitutional, should the
(b) The order of the Supreme Court to the disbursements made pursuant thereto be
defendant to clean up, rehabilitate and sanitize returned in light of the doctrine of
the Manila Bay is an exercise of judicial power, operative fact? Explain.
because the execution of its decision is an A: NO, the disbursements need not be returned, as the
integral part of its adjudicative function. Since doctrine of operative fact applies.
the submission of periodic reports is needed to
fully implement the decision, the Supreme The doctrine of operative fact recognizes the existence
Court can issue a continuing writ of mandamus of the law or executive act prior to the determination
to the MMDA until full compliance with its of its unconstitutionality as an operative fact that
order is shown. (Metropolitan Manila produced consequences that cannot always be erased,
Development Authority v. Concerned Residents ignored or disregarded. In short, it nullifies the void
of Manila Bay, G.R. Nos. 171947-48) law or executive act but sustains its effects. It provides
an exception to the general rule that a void or
Q: In 2014, Congress enacted an appropriation unconstitutional law produces no effect.
law containing a provision that gives individual
legislators the discretion to determine, post- In the case of Araullo v Aquino (G.R. No. 29287, July 1
enactment, how much funds would go to a 2014), the Court found the doctrine of operative fact
specific project or beneficiary which they applicable to the adoption and implementation of the
themselves also determine. Consequently, DAP. “Its application to the DAP proceeds from equity
disbursements were made in the interim and fair play. The consequences resulting from the
pursuant thereto. DAP and its related issuances could not be ignored or
could no longer be undone.”
Eventually, Mr. Z filed a petition questioning the
constitutionality of the statutory provision on DELEGATION OF POWERS
the grounds that it violates the separation of
powers principle. Q: Suppose that Congress passed a law creating a
Department of Human Habitat and authorizing the
On the other hand, certain Congressman argued Department Secretary to promulgate
that there was nothing wrong with the implementing rules and regulations. Suppose
further that the law declared that violation of the
10

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QuAMTO (1987-2019)
implementing rules and regulations so issued A: Under the COMPLETENESS TEST, The law must be
would be punishable as a crime and authorized complete in all essential terms and conditions when it
the Department Secretary to prescribe the leaves the legislature so that there will be nothing left
penalty for such violation. If the law defines for the delegate to do when it reaches him except to
certain acts as violations of the law and makes enforce it. A law is complete when it sets forth therein
them punishable, for example, with the policy to be executed, carried out or implemented
imprisonment of three (3) years or a fine in the by the delegate. (Cruz, 2014)
amount of P10,000.00 or both such
imprisonment and fine, in the discretion of the Under the SUFFICIENCY OF STANDARDS TEST, the
court, can it be provided in the implementing statute must not only define a fundamental legislative
rules and regulations promulgated by the policy, mark its limits and boundaries, and specify the
Department Secretary that their violation will public agency to exercise the legislative power. It must
also be subject to the same penalties as those also indicate the circumstances under which the
provided in the law itself? Explain your answer legislative command is to be effected. To avoid the
fully. (2002 BAR) taint of unlawful delegation, there must be a standard,
which implies at the very least that the legislature
A: The rules and regulations promulgated by the itself determines matters of principle and lays down
Secretary of Human Habitat cannot provide that fundamental policy (Free Telephone Workers Union v.
the penalties for their violation will be the same as Minister of Labor, G.R. No. L-58184, October 30, 1981).
the penalties for the violation of the law. As held in It fixes a standard, the limits of which are sufficiently
United States v. Barrias (11 Phil. 327), the fixing of determinate or at least determinable to which the
the penalty for criminal offenses involves the delegate must conform in the performance of his
exercise of legislative power and cannot be functions.
delegated. The law itself must prescribe the
penalty. Q: Section 8 of P.D. No. 910, entitled "Creating an
Energy Development Board, defining its powers
Q: Section 32 of Republic Act No. 4670 (The and functions, providing funds therefor and for
Magna Carta for Public School Teachers) reads: other purposes," provides that: "All fees, revenues
Sec. 32. Penal Provision — A person who shall and receipts of the Board from any and all sources
willfully interfere with, restrain or coerce any x x x shall form part of a Special Fund to be used to
teacher in the exercise of his rights guaranteed finance energy resource development and
by this Act or who shall in any other manner exploitation programs and projects of the
commit any act to defeat any of the provisions government and for such other purposes as may
of this Act shall, upon conviction, be punished be hereafter directed by the President."
by a fine of not less than one hundred pesos nor
more than one thousand pesos, or by The Malampaya NGO contends that the provision
imprisonment, in the discretion of the court. Is constitutes an undue delegation of legislative
the proviso granting the court the authority to power since the phrase "and for such other
impose a penalty or imprisonment in its purposes as may be hereafter directed by the
discretion constitutional? Explain briefly. (2005 President" gives the President unbridled
BAR) discretion to determine the purpose for which the
funds will be used. On the other hand, the
A: The proviso is unconstitutional. Section 32 of government urges the application of ejusdem
R.A. No. 4670 provides for an indeterminable generis.
period of imprisonment, with neither a
minimum nor a maximum duration having been set Does the assailed portion of section 8 of PD 910
by the legislative authority. The courts are thus hurdle the two (2) tests [Completeness test and
given wide latitude of discretion to fix the term of Sufficient Standard Test]? (2016 BAR)
imprisonment, without even the benefit of any
sufficient standard, such that the duration thereof A: The assailed portion of the Presidential Decree No.
may range, in the words of respondent judge, from 910 does not satisfy the two tests. The phrase “and for
one minute to the life span of the accused. This such other purposes as may be hereafter directed by
cannot be allowed. It vests in the courts a power the President” gives the President unbridled
and a duty essentially legislative in nature and discretion to determine the purpose for the funds will
which, as applied to this case, does violence to the be used. An infrastructure is any basic facility needed
rules on separation of powers as well as the non- by society. The power to determine what kind of
delegability of legislative powers. (People v. Judge infrastructure to prioritize and fund is the power to
Dacuycuy, G.R. No. L-45127, May 5, 1989) determine the purpose of the appropriation and is an
undue delegation of the power to appropriate.
Q: The two accepted tests to determine whether
or not there is a valid delegation of legislative The assailed provision does not fall under the
power are the Completeness Test and the principle of ejusdem generis. First, the phrase “energy
Sufficient Standard Test. Explain each. (2005, resource development and exploitation programs and
2016 BAR) projects of the government states” a singular and
general class. Second, it exhausts the class it
11

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Political Law
represents. (Belgica v. Ochoa, Jr., GR. No. 208566, Q: What are the essential elements of a valid
November 19, 2013) petition for a people’s initiative to amend the
1987 Constitution? Discuss. (2010 BAR)

LEGISLATIVE DEPARTMENT A: The elements of a valid petition for a people’s
initiative are the following:

WHO MAY EXERCISE LEGISLATIVE POWER 1. At least twelve per cent (12%) of the registered
voters, of which every legislative district must be
Q: Are the following bills filed in Congress represented by at least three per cent (3%) of the
constitutional? registered voters in it, should directly sign the
entire proposal; and
1. A bill originating from the Senate, which 2. The draft of the proposed amendment must be
provides for the creation of the Public embodied in the petition. (Lambino v. COMELEC,
Utility Commission to regulate public 505 SCRA 160, 2006)
service companies and appropriating the
initial funds needed to establish the same. However, as of the present, there is no enabling law
Explain. for an initiative to propose amendments on the
2. A bill creating a joint legislative- executive Constitution.
commission to give, on behalf of the Senate,
its advice, consent and concurrence to Q: Several citizens, unhappy with the proliferation
treaties entered into by the President. The of families dominating the political landscape,
bill contains the guidelines to be followed decided to take matters into their own hands. They
by the commission in the discharge of its proposed to come up with a people’s initiative
functions. Explain. (1996 BAR) defining political dynasties. They started a
signature campaign for the purpose of coming up
A: with a petition for that purpose. Some others
expressed misgivings about a people’s initiative
1. A bill providing for the creation of the Public for the purpose of proposing amendments to the
Utility Commission to regulate public service Constitution, however. They cited the Court’s
companies and appropriating funds needed to decision in Santiago v. Commission on Elections,
establish it may originate from the Senate. It is 270 SCRA 106 (1997), as authority for their
not an appropriation bill, because the position that there is yet no enabling law for such
appropriation of public funds is not the purpose. On the other hand, there are also those
principal purpose of the bill. In Association of who claim that the individual votes of the justices
Small Landowners of the Philippines, Inc. v. in Lambino v. Commission on Elections, 505 SCRA
Secretary of Agrarian Reform 175 SCRA 343, it 160 (2006), mean that Santiago’s pronouncement
was held that a law is not an appropriate has effectively been abandoned. If you were
measure if the appropriation of public funds is consulted by those behind the new attempt at a
not its principal purpose and the appropriation people’s initiative, how would you advise them?
is only incidental to some other objective. (2014 BAR)
2. A bill creating a joint legislative-executive
commission to give, on behalf of the Senate, its A: I shall advise those starting a people’s initiative that
advice, consent and concurrence to treaties initiative to pass a law defining political dynasties may
entered into by the President. The Senate proceed as their proposal is to enact a law only and
cannot delegate this function to such a not to amend the constitution. The decision in
commission, because under Section 21, Article Santiago v. COMELEC, which has not been reversed,
VII of the Constitution, the concurrence of at upheld the adequacy of the provisions in Republic Act
least two-thirds of the Senate itself is required 6735 on initiative to enact a law. (270 SCRA 106, 1997)
for the ratification of treaties.
ALTERNATIVE ANSWER: I shall advise those starting
Initiative and referendum a people’s initiative that the ruling in Santiago vs.
Commission on Election that there is as yet no
Q: The present Constitution introduced the enabling law for an initiative has not been reversed.
concepts and processes of Initiative and According to Section 4(3), Article VIII of the
Referendum. Compare and differentiate one Constitution, a doctrine of law laid down in a decision
from the other. (2005 BAR) rendered by the Supreme Court en banc may not be
reversed except if it is acting en banc. The majority
A: Initiative is the power of the people to propose opinion in Lambino v. COMELEC (505 SCRA 160, 2006)
amendments to the Constitution or to propose refused to re- examine the ruling in Santiago v.
andenact legislations through an election called for COMELEC (270 SCRA 106, 1997) because it was not
the purpose [Section 3(a), R.A. No. 6735]. necessary for deciding the case. The Justices who
Referendum is the power of the electorate to voted to reverse the ruling constituted the minority.
approve or reject a legislation through an election
called for the purpose [Section 3(c), R.A. No. 6735]. Powers of Congress

12

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QuAMTO (1987-2019)
Q: A committee of the Senate invited Mr. X and (b) The power to allow small-scale utilization
Mr. Y, the Secretary of Foreign Affairs and of natural resources by Filipino citizens, as
Secretary of Energy, respectively, as resource well as cooperative fish farming, with
speakers for an inquiry in aid legislation. Mr. X priority to subsistence fishermen and
refused to attend, arguing that the Senate, not fishworkers in rivers, lakes, bays, and
its committee, has the power to compel lagoons.
attendance. Meanwhile, Mr. Y attended the
committee hearing but upon being asked about A: The Congress, by virtue of a special law. [Section 2,
discussions made during a closed-door cabinet par. 3, Article XII, 1987 CONST.]
meeting, he refused to answer invoking
executive privilege. The committee members (c) The authority to provide for the
insisted that Mr. Y answer the question standardization of compensation of
pursuant to the right of Congress to information government officials and employees.
from the executive branch. (2019 BAR) A: The Civil Service Commission. [Section 5, Article IX-
B, 1987 CONST.]
(a) Based on his argument, is Mr. X’s non-
appearance permissible? Explain. (d) The sole power to declare the existence of
A: NO. Article VI, Section 21 of the 1987 state of war.
Constitution specifically provides that “the Senate A: The Congress, by a vote of two-thirds of both
or the House of Representatives or any of its Houses in joint session assembled, voting separately.
respective committees may conduct inquiries in aid [Section 4, par. 1, Article VI, 1987 CONST.]
of legislation in accordance with its duly published
rules of procedure.” (e) The power to ratify treaties and
international agreements.
(b) Is Mr. Y’s refusal to answer based on
executive privilege valid? Explain. A: The President. [Bayan v. Zamora, G.R. No. 138570,
October 10, 2000]
A: YES, Mr. Y’s refusal is valid. The privilege
includes “presidential conversations, ALTERNATIVE ANSWER:
correspondences, or discussions during closed-
door Cabinet meetings." The intention of the The Senate [Art. VII Sec. 21, based on jurisprudence,
President to prevent leakage of information to the Saguisag v Ochoa, G.R. No. 212426, Jan. 12, 2016;
public is crystal clear because the discussions were Pimentel Jr. v Executive Secretary, G.R. No. 158088, Jul 6,
made in a “closed-door meeting.” (Sereno v. 2005]
Committee on Trade and Related Matters, G.R. No.
175210, February 01, 2016) Q: The Congress establishes by law Philippine
Funds, Inc., a private corporation, to receive
ALTERNATIVE ANSWER: foreign donations coming from abroad during
national and local calamities and disasters, and to
NO. Only the President or the Executive Secretary enable the unhampered and speedy
by order of the President can invoke executive disbursements of the donations through the mere
privilege. (Senate of the Philippines v. Ermita, G.R. action of its Board of Directors. Thereby, delays in
No. 169777, April 20, 2006) Though executive the release of the donated funds occasioned by the
privilege may be extended through the Executive stringent rules of procurement would be avoided.
Secretary via an order, absent such formal Also, the releases would not come under the
extension of privilege in favor of Mr. Y, the cabinet jurisdiction of the Commission on Audit (COA).
secretary could not on his own authority invoke (2017 BAR)
the privilege. (In all instances, there exists a (a) Is the law establishing Philippine Funds,
presumption that inclines heavily against executive Inc. constitutional? Explain your answer.
secrecy and in favor of disclosure.) (Neri v. Senate
Committee on Accountability, G.R. No. 180643, A: The establishment of Philippine Funds, Inc. is valid.
September 4, 2008) It was created to enable the speedy disbursements of
donations for calamities and disasters, Public purpose
Q: Under the 1987 Constitution, to whom does is no longer restricted to traditional government
each duty / power / privilege / prohibition/ functions. (Petitioner-Organization v. Executive
disqualification apply: (2019 BAR) Secretary, G.R. Nos, 147036-37 & 147811, April 10,
2012, 269 SCRA 49)
(a) The authority to keep the general
accounts of the Government and for (b) Can the Congress pass the law that would
such period provided by law, preserve exempt the foreign grants from the
the vouchers and other supporting jurisdiction of the COA? Explain your
documents pertaining thereto. answer.
A: The Commission on Audit. [Section 2(1), Article A: Congress cannot exempt the foreign grants from the
IX-D, 1987 CONST.] jurisdiction of the Commission on Audit. Its
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jurisdiction extends to all government-owned or SENATE

controlled corporations, including those funded by
donations through the Government. (Art IX-D, Sec. 3 Q: A few months before the end of the present
of the 1987 Philippine Constitution; and Petitioner Congress, Strongwill was invited by the Senate to
Corporation v. Executive Secretary, G.R. Nos. shed light in an inquiry relative to the alleged
147036-37 & 147811, April 10, 2012, 269 SCRA 49) siphoning and diverting of the pork barrel of
members of Congress to non- existent or fictitious
Voting in Congress projects. Strongwill has been identified in the
news as the principal actor responsible for the
Q: What and whose vote is required for the scandal, the leader of a nongovernmental
following acts: (2018 BAR) organization which ostensibly funnelled the funds
to certain local government projects which existed
(a) the repeal of a tax exemption law; only on paper. At the start of the hearings before
the Senate, Strongwill refused at once to
A: The Constitution is silent on the voting cooperate. The Senate cited him in contempt and
requirement for repealing a tax exemption. sent him to jail until he would have seen the light.
However, it could be considered that the voting The Congress, thereafter, adjourned sine die
requirement to grant is also the voting requirement preparatory to theassumption to office of the
to repeal; hence, the required vote is the majority newly-elected members. In the meantime,
of all the members of Congress. Strongwill languished behind bars and the
remaining senators refused to have him released,
ALTERNATIVE ANSWER: claiming that the Senate is a continuing body and,
therefore, he can be detained indefinitely. Are the
The granting of tax exemptions requires the senators right? (2014 BAR)
majority of all members of the Congress, because
granting such will impair the lifeblood of the A: The Senators are right. The Senate is to be
government. Repealing such tax exemption, considered as a continuing body of purposes of its
however, is not inimical to such lifeblood and a exercise of its power punish for contempt.
simple majority is needed instead of a qualified Accordingly, the continuing validity of its orders
majority. punishing for contempt should not be affected by its
sine die adjournment. (Arnault v. Nazareno, 87 Phil. 29,
(b) a declaration of the existence of a state 1950)
of war;
A: Two-thirds of all members of Congress, voting ALTERNATIVE ANSWER: The Senators are right.
separately (Article VI, Section 23(1)) While the Senate as an institution is continuing in the
conduct of its day to day business, the Senate of each
(c) the amendment of a constitutional Congress acts separately from the Senate of the
provision through a constituent Congress before it. All pending matters terminate
assembly; upon expiration of each Congress. (Neri v. Senate
Committee on Accountability of Public Officers and
A: The proposal for the amendment shall be valid, Investigation, 564 SCRA 152, 2008)
upon a vote of three-fourths of all its Members
(Article XVII, Section 1, 1). For the effectivity of the HOUSE OF REPRESENTATIVES
amendment; however, the vote needed is the
majority of all those who voted (Article XVII, District representatives and questions of
Section 4) apportionment

NOTE: Any of these two answers should be Q: With the passage of time, the members of the
acceptable as the question is not clear on whether House of Representatives increased with the
it is asking for the voting requirement for the creation of new legislative districts and the
validity of the proposal or the effectivity of the corresponding adjustments in the number of
amendment. partylist representatives. At a time when the
House membership was already 290, a great
(d) the resolution of a tie in a presidential number of the members decided that it was time
election; and to propose amendments to the Constitution. The
Senators, however, were cool to the idea. But the
A: A majority of all the members of both Houses of members of the House insisted. They accordingly
Congress, voting separately. (Article VII, Section 4) convened Congress into a constituent assembly in
spite of the opposition of the majority of the
(e) the extension of the period for the members of the Senate. When the votes were
suspension of the privilege of the writ counted, 275 members of the House of
of habeas corpus? Representatives approved the proposed
A: The Congress, voting jointly, by a vote of at least amendments. Only 10 Senators supported such
a majority of all its Members in regular or special proposals. The proponents now claim that the
session. (Article VII, Section 18) proposals were validly made, since more than the
required three-fourths vote of Congress has been
14

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obtained. The 14 Senators who voted against of the House of Representatives, including those
the proposals claim that the proposals needed elected under the party list;
not three-fourths vote of the entire Congress b. The two percent threshold - only those parties
but each house. Since the required number of garnering a minimum of two percent of the total
votes in the Senate was not obtained, then there valid votes cast for the party-list system are
could be no valid proposals, so argued the “qualified” to have a seat in the House of
Senators. Were the proposals validly adopted Representatives;
by Congress? (2014 BAR) c. The three-seat limit - each qualified party,
regardless of the number of votes it actually
A: The proposal were not validly adopted, because obtained, is entitled to a maximum of three seats;
the ten (10) Senators who voted in favor of the that is, one ‘qualifying’ and two additional seats;
proposed amendmentsconstituted less than three-
fourths of all the Members of theSenate. Although For each of these rules, state the constitutional or
Section 1, Article XVII of the Constitution did legal basis, if any, and the purpose. (2007 BAR)
notexpressly provide that the Senate and the House
ofRepresentatives must vote separately, when the A:
Legislature consistof two (2) houses, the
determination of one house is to besubmitted to a. The party-list congressmen should not exceed
the separate determination of the other house. twenty per cent of the total membership of the
(Miller v.Mardo, 2 SCRA 898, 1961) House of Representatives, because this is the
maximum number of party-list congressmen
Q: On August 15, 2015, Congresswoman Dina (1987 Const., Art. VI, sec 5[3]; Veterans Foundation
Tatalo filed and sponsored House Bill No. 5432, Party v. COMELEC, 342 SCRA 244, 2000)
entitled "An Act Providing for the
Apportionment of the Lone District of the City b. Under Section 11 (b) of Republic Act 7941, only
of Pangarap." The bill eventually became a law, the parties which received at least two per cent of
R.A. No. 1234. It mandated that the lone the total votes cast for the party- list are entitled
legislative district of the City of Pangarap would to have a seat in the House of Representatives. To
now consist of two (2) districts. For the 2016 have meaningful representation, the elected
elections, the voters of the City of Pangarap party-list representative must have the mandate
would be classified as belonging to either the of a sufficient number of people. (Veterans
first or second district, depending on their Federation Party v. COMELEC, supra.)
place of residence. The constituents of each
district would elect their own representative to c. Section 11(b) of Republic Act 7941 allows
Congress as well as eight (8) members of the qualified parties to have a maximum of three (3)
Sangguniang Panglungsod. R.A. No. 1234 seats in the House of Representatives so that no
apportioned the City's barangays. The single group will dominate the party-list seats.
COMELEC thereafter promulgated Resolution (Veterans Federation Party v. COMELEC, supra.)
No. 2170 implementing R.A. No. 1234. Piolo
Cruz assails the COMELEC Resolution as d. Additional seats to which a qualified party is
unconstitutional. According to him, R.A. No. entitled are determined by the proportion of the
1234 cannot be implemented without total number of votes it obtained in relation to the
conducting a plebiscite because the total number of votes obtained by the party with
apportionment under the law falls within the the highest number of votes, to maintain
meaning of creation, division, merger, abolition proportional representation. This is because while
or substantial alteration of boundaries of cities representation in the party-list system is
under Section 10, Article X of the 1987 proportional, a party is entitled to a maximum of
Constitution. Is the claim correct? Explain. three seats regardless of the number of votes it
(2015 BAR) actually obtained. (Veterans Federation Party v.
COMELEC, supra.)
A: The claim is erroneous. The constitution does
not require a plebiscite for the creation of a new Q: Greenpeas is an ideology-based political party
legislative district by a legislative reapportionment. fighting for environmental causes. It decided to
It is required only for the creation of new local participate under the party-list system. When the
government units. (Bagabuyo v. COMELEC, 2008) election results came in, it only obtained 1.99
percent of the votes cast under the party-list
Party-list system (R.A. No. 7941) system. Bluebean, a political observer, claimed
that Greenpeas is not entitled to any seat since it
Q: The Supreme Court has provided a formula failed to obtain at least 2% of the votes. Moreover,
for allocating seats for party-list since it does not represent any of the marginalized
representatives. and underrepresented sectors of society,
Greenpeas is not entitled to participate under the
a. The twenty percent allocation - the combined party-list system. How valid are the observations
number of all party-list congressmen shall not of Bluebean? (2014 BAR)
exceed twenty percent of the total membership
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A: The claim of Bluebean that Greenpeas is not Q: Victor Ahmad was born on December 16, 1972
entitled to a seal under theparty-list-system of a Filipino mother and an alien father. Under the
because it obtained only 1.99 percent of the votes law of his father's country, his mother did not
castunder the party-list-system is not correct. The acquire his father's citizenship.
provision in Section5(2) Article VI of the
Constitution provides that the party-list Victor consults you on December 21, 1993 and
representatives shallconstitute twenty percent informs you of his intention to run for Congress in
(20%) of the total number of the members of the 1995 elections. Is he qualified to run? What
theHouse of Representatives is mandatory, after advice would you give him? Would your answer be
the parties receiving at least two percent (2%) of the same if he had seen and consulted you on
the total votes case for the party-list system have December 16, 1991 and informed you of his desire
been allocated one seat, the remaining seats should to run for Congress in the 1992 elections? Discuss
be allocated among the parties by the proportional your answer. (1999 BAR)
percentage of the votes received by each party as
against the total party-list votes. (Barangay A: NO, Victor Ahmad is not qualified to run for
Association for National Advancement and Congress in the 1995 elections. Under Section 6,
Transparency v. COMELEC, 586 SCRA 211, 2009) Article VI of the Constitution, a member of the House
of Representatives must be at least twenty-five (25)
The claim of Bluebean that Greenpeas is not years of age on the day of the election. Since he will be
entitled to participate in the party-list elections less than twenty-five (25) years of age in 1995, Victor
because it does not represent any marginalized and Ahmad is not qualified to run.
underrepresented sectors of society is not correct.
It is enough that its principal advocacy pertains to Under Section 2, Article IV of the Constitution, to be
the special interest of its sector. (Atong Panglaum, deemed a natural-born citizen, Victor Ahmad must
Inc. v. COMELEC, 694 SCRA 477, 2013) elect Philippine citizenship upon reaching the age of
majority. I shall advise him to elect Philippine
Q: The Partido ng Mapagkakatiwalaang Pilipino citizenship, if he has not yet done so, and to wait until
(PMP) is a major political party which has the 1998 elections. My answer will be the same if he
participated in every election since the consulted me in 1991 and informed me of his desire to
enactment of the 1987 Constitution. It has run in the 1992 elections.
fielded candidates mostly for legislative district
elections. In fact, a number of its members were ALTERNATIVE ANSWER: Under Section 2, Article IV
elected, and are actually serving, in the House of the Constitution, Victor Ahmad must have elected
of Representatives. In the coming 2016 Philippine citizenship upon reaching the age of
elections, the PMP leadership intends to join majority to be considered a natural born citizen and
the party-list system. Can PMP join the party- qualified to run for Congress. Republic Act No. 6809
list system without violating the Constitution reduced the majority age to eighteen (18) years.
and Republic Act (R.A.) No. 7941? (2015 BAR) Cuenco v. Secretary of Justice, 5 SCRA 108 recognized
three (3) years from reaching the age of majority as
A: YES. As for political parties, they may participate the reasonable period for electing Philippine
in the party-list race by registering under the citizenship. Since Republic Act No. 6809 took effect in
party-list system and no longer field congressional 1989 and there is no showing that Victor Ahmad
candidates. These parties, if they field elected Philippine citizenship within three (3) years
congressional candidates, however, are not barred from the time he reached the age of majority on
from participating in the party-list elections; what December 16, 199C, he is not qualified to run for
they need to do is register their sectoral wing or Congress.
party under the party-list system.
If he consulted me on December 16, 1991, I would
This sectoral wing shall be considered an inform him that he should elect Philippine citizenship
“independent sectoral party” linked to a political so that he can be considered a natural born citizen.
party through a coalition. (Atong Paglaum vs
COMELEC, April 2, 2013) Q: During his third term, "A", a Member of the
House of Representatives, was suspended from
Q: State the rule making it incompatible for office for a period of 60 days by his colleagues
members of Congress to hold offices or upon a vote of two- thirds of all the Members of the
employment in the government. (1998 BAR) House. In the next succeeding election, he filed his
certificate of candidacy for the same position. "B",
A: Section 13, Article VII of the Constitution, which the opposing candidate, filed an action for
prohibits Members of Congress from holding disqualification of "A" on the ground that the
another office during their term without forfeiting latter's, candidacy violated Section 7. Article VI of
their seat, does not distinguish between the Constitution which provides that no Member of
government corporations with original charters the House of Representatives shall serve for more
and their subsidiaries, because the prohibition than three consecutive terms. "A" answered that
applies to both. he was not barred from running again for that
position because his service was interrupted by
his 60-day suspension which was involuntary. Can
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'A', legally continue with his candidacy or is he A: The law is constitutional. Sec. 12, Article VI of the
already barred? Why? (2001 BAR) Constitution does not prohibit the enactmentof a law
which will benefit the business interests of a member
A: "A" cannot legally continue with his candidacy. of the Senate or the House of Representatives. It only
He was elected as Member of the House of requires that if the member of Congress whose
Representatives for a third term. This term should business interests will bebenefited by the law is the
be included in the computation of the term limits, one who will file the bill, he should notify the House
even if "A" did not serve for a full term. (Record of concerned of the potential conflict of interest.
the Constitutional Commission, Vol. n, p. 592.) He
remained a Member of the House of Q: In the May 2013 elections, the Allied Workers’
Representatives even if he was suspended. Group of the Philippines (AWGP), representing
land-based and sea-based workers in the
Q: JAR faces a dilemma: should he accept a Philippines and overseas, won in the party list
Cabinet appointment now or run later for congressional elections. Atty. Abling, a labor
Senator? Having succeeded in law practice as lawyer, is its nominee.
well as prospered in private business where he
and his wife have substantial investments, he As part of the party’s advocacy and services,
now contemplates public service but without Congressman Abling engages in labor counseling,
losing the flexibility to engage in corporate particularly for local workers with claims against
affairs or participate in professional activities their employers and for those who need
within ethical bounds. Taking into account the representation in collective bargaining
prohibitions and inhibitions of public office negotiations with employers. When labor cases
whether as Senator or Secretary, he turns to arise, AWGP enters its appearance in
you for advice to resolve his dilemma. What is representation of the workers and the
your advice? Explain briefly. (2004 BAR) Congressman makes it a point to be there to
accompany the workers, although a retained
A: I shall advise JAR to run for Senator. As Senator, counsel also formally enters his appearance and is
he can retain his investments in his business, invariably there. Congressman Abling largely
although he must make a full disclosure of his takes a passive role in the proceedings although he
business and financial interests and notify the occasionally speaks to supplement the retained
Senate of a potential conflict of interest if he counsel’s statements. It is otherwise in CBA
authors a bill. (Section 12, Article VI of the 1987 negotiations where he actively participates.
Constitution.) He can continue practicing law, but
he cannot personally appear as counsel before any Management lawyers, feeling aggrieved that a
court of justice, the Electoral Tribunals, or quasi- congressman should not actively participate
judicial and other administrative bodies. (Sec. 14, before labor tribunals and before employers
Article VI of the 1987 Constitution) because of the influence a congressman can wield,
filed a disbarment case against the Congressman
As a member of the Cabinet, JAR cannot directly or before the Supreme Court for his violation of the
indirectly practice law or participate in any Code of Professional Responsibility and for breach
business. He will have to divest himself of his of trust, in relation particularly with the
investments in his business (Section 13, Article VII prohibitions on legislators under the Constitution.
of the 1987 Constitution). In fact, the Constitutional Is the cited ground for disbarment meritorious?
prohibition imposed on members of the Cabinet (2013 BAR)
covers both public and private office or
employment. (Civil Liberties Union v. Executive A: Being a congressman, Atty. Abling is disqualified
Secretary, 194 SCRA 317, 199I) under Article VI, Section 14 of the 1987 Constitution
from personally appearing as counsel before quasi-
Q: Congresswoman A is a co-owner of an judicial and other administrative bodies handling
industrial estate in Sta. Rosa, Laguna which she labor cases constitutes personal appearance before
had declared in her Statement of Assets and them (Puyat v. De Guzman, G.R. No. L-5122, 1982, 1135
Liabilities. A member of her political party SCRA 33). His involvement in collective bargaining,
authored a bill which would provide a 5-year negotiations also involves practice of law, because he
development plan for all industrial estates in is making use of his legal knowledge for the benefit of
the Southern Tagalog Region to attract others (Cayetano v. Monsod, G.R. No. 100113,
investors. The plan included an appropriation September 3, 1991, 201 SCRA 210). The Bureau of
of 2 billion pesos for construction of roads Labor Relations is involved in collective bargaining
around the estates. When the bill finally negotiations. (Article 250 of Labor Code)
became law, a civil society watchdog
questioned the constitutionality of the law as it Atty. Abling should not be disbarred but should be
obviously benefitted Congresswoman A's merely suspended from the practice of law.
industrial estate. Decide' with reasons. (2009 Suspension is the appropriate penalty for involvement
BAR) in the unlawful practice of law (Tapay v. Bancolo, A.C.
No. 9604, March 20, 2013, 694 SCRA 1)

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ALTERNATIVE ANSWER: NO. Congressman Abling removal on the ground that he voted on the basis
cannot be disbarred. A retained counsel formally of the evidence presented and contended that he
appears for AWGP. His role is largely passive and had security of tenure as a HRET Member and that
cannot be considered as personal appearance. His he cannot be removed except for a valid cause.
participation in the collective brgaining With whose contention do you agree, that of the
negotiations does not entail personal appearance Federal Party or that of Representative X? Why?
before an administrative bode. (Article VI, Section (2002 BAR)
13 of the 1987 Constitution)
A: I agree with the contention of Representative X. As
DISCIPLINE OF MEMBERS held in Bondoc v. Pineda, 201 SCRA 792, the members
of the House of Representatives Electoral Tribunal are
Q: Simeon Valera was formerly a Provincial entitled to security of tenure like members of the
Governor who ran and won as a Member of the judiciary. Membership in it may not be terminated
House of Representatives for the Second except for a just cause. Disloyalty to party is not a valid
Congressional District of lloilo. For violation of ground for the expulsion of a member of the House of
Section 3 of the Anti-Graft and Corrupt Representatives Electoral Tribunal. Its members must
Practices Act (R.A. No.3019), as amended, discharge their functions with impartiality and
allegedly committed when he was still a independence from the political party to which they
Provincial Governor, a criminal complaint was belong.
filed against him before the Office of the
Ombudsman for which, upon a finding of Q: AVE ran for Congressman of QU province.
probable cause, a criminal case was filed with However, his opponent, BART, was the one
the Sandiganbayan. During the course of trial, proclaimed and seated as the winner of the
the Sandiganbayan issued an order of election by the COMELEC. AVE filed seasonably a
preventive suspension for 90 days against him. protest before HRET (House of Representatives
Electoral Tribunal). After two years, HRET
Representative Valera questioned the validity reversed the COMELEC's decision and AVE was
of the Sandiganbayan order on the ground that, proclaimed finally as the duly elected
under Article VI, Section 16(3) of the Congressman. Thus, he had only one year to serve
Constitution, he can be suspended only by the in Congress. Can AVE collect salaries and
House of Representatives and that the criminal allowances from the government for the first two
case against him did not arise from his years of his term as Congressman? Should BART
actuations as a member of the House of refund to the government the salaries and
Representatives. Is Representative Valera's allowances he had received as Congressman?
contention correct? Why? (2002 BAR) What will happen to the bills that BART alone
authored and were approved by the House of
A: The contention of Representative Valera is not Representatives while he was seated as
correct As held in Santiago v. Sandiganbayan, 356 Congressman? Reason and explain briefly. (2004
SCRA 636, the suspension contemplated in Article BAR)
VI, Section 16(3) of the Constitution is a
punishment that is imposed by the Senate or House A: AVE cannot collect salaries and allowances from the
of Representatives upon an erring member, it is government for the first two years of his term, because
distinct from the suspension under Section 13 of in the meanwhile BART collected the salaries and
the Anti-Graft and Corrupt Practices Act, which is allowances. BART was a de facto officer while he was
not a penalty but a preventive measure. Since in possession of the office. To allow AVE to collect the
Section 13 of the Anti-Graft and Corruption salaries and allowances will result in making the
Practices Act does not state that the public officer government pay a second time (Mechem, A Treatise on
must be suspended only in the office where he is the Law of Public Offices and Public Officers, [1890] pp.
alleged to have committed the acts which he has 222-223). BART is not required to refund to the
been charged, it applies to any office which he may government the salaries and allowances he received.
be holding. As a de facto officer, he is entitled to the salaries and
allowances because he rendered services during his
Q: In an election case, the House of incumbency (Rodriguez v. Tan, 91 Phil. 724). The bills
Representatives Electoral Tribunal rendered a which BART alone authored and were approved by the
decision upholding the election protest of House of Representatives are valid because he was a
protestant A, a member of the Freedom Party, de facto officer during his incumbency. The acts of a de
against protestee B, a member of the Federal facto officer are valid insofar as the public is
Party. The deciding vote in favor of A was cast concerned. (People v. Garcia, 313 SCRA 279)
by Representative X, a member of the Federal
Party. Q: Suppose there, are 202 members in the House of
Representatives. Of this number, 185 belong to the
For having voted against his party mate, Progressive Party of the Philippines or PPP, while
Representative X was removed by Resolution of 17 belong to the Citizens Party or CP. How would
the House of Representatives, at the instance of you answer the following questions regarding the
his party (the Federal Party), from membership representation of the House in the Commission on
in the HRET. Representative X protested his Appointments?
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A. How many seats would the PPP be House of Representatives shall each-have an Electoral
entitled to have in the Commission on Tribunal which shall be the sole judge of all contests
Appointments? Explain your answer relating to the election, returns, and qualifications of
fully. their respective Members."
B. Suppose 15 of the CP representatives,
while maintaining their party Q: What is the function of the Senate Electoral
affiliation, entered into a political Tribunal and the House of Representatives
alliance with the PPP in order to form Electoral Tribunal? (2006 BAR)
the “Rainbow Coalition” in the House.
What effect, if any, would this have on A: The function of the Senate Electoral Tribunal and
the right of the CP to have a seat or the House of Representatives Electoral Tribunal is to
seats in the Commission on be the sole judge of all contests relating to the election,
Appointments? Explain your answer returns and qualifications of Senators
fully. (2002 BAR) andCongressmen, respectively. (Section 17, Article VI
of the Constitution)
A:
A. The 185 members of the Progressive Party of Q :What is the composition of each? (2006 BAR)
the Philippines represent 91.58 percent of the
202 members of the House of Representatives, A: The Senate Electoral Tribunal and the House of
in accordance with Article VI, Section 18 of the Representatives Electoral Tribunal arecomposed of
Constitution, it is entitled to have ten of the nine members, three of whom are Justices of the
twelve seats in the Commission on Supreme Court designated by the ChiefJustice, and the
Appointments. Although the 185 members of remaining six members are Senators and
Progressive Party of the Philippines represent Congressmen, respectively, chosen on the basis of
10.98 seats in the Commission on proportional representation from the political parties
Appointments, under the ruling in Guingona v. as well as the parties registered under the party-list
Gonzales, 214 SCRA 789 (1992), a fractional system represented in the House of Representatives,
membership cannot be rounded off to full in the case of the latter. (Section 17, Article VI of the
membership because it will result in Constitution)
overrepresentation of that political party and
under-representation of the other political Q: Beauty was proclaimed as the winning
parties. candidate for the position of Representative in the
House of Representatives three (3) days after the
B. The political alliance formed by the 15 elections in May. She then immediately took her
members of the Citizens Party with the oath of office. However, there was a pending
Progressive Party of the Philippines will not disqualification case against her, which case was
result in the diminution of the number of seats eventually decided by the COMELEC against her 10
in the Commission on Appointments to which days after the election. Since she has already been
the Citizens Party is entitled. As held in proclaimed, she ignored that decision and did not
Cunanan v. Tan, 5SCRA 1 (1962), a temporary bother appealing it. The COMELEC then declared in
alliance between the members of one political the first week of June that its decision holding that
party and another political party does not Beauty was not validly elected had become final.
authorize a change in the membership of the Beauty then went to the Supreme Court
Commission on Appointments. Otherwise, the questioning the jurisdiction of the COMELEC
Commission on Appointments will have to be claiming that since she had already been
reorganized as often as votes shift from one proclaimed and had taken her oath of office, such
side to another in the House of election body had no more right to come up with a
Representatives. decision – that the jurisdiction had already been
transferred to the House of Representatives
Powers Electoral Tribunal. How defensible is the argument
of Beauty? (2014 BAR)
Q: Y was elected Senator in the May 1987
national elections. He was born out of wedlock A: The House of Representatives Electoral Tribunal
in 1949 of an American father and a naturalized has acquired exclusive jurisdiction over the case of
Filipina mother. Y never elected Philippine Beauty, since she has already been proclaimed. The
citizenship upon reaching the age of majority. proclamation of the winning candidate is the operative
Before what body should T, the losing fact that triggers the exclusive jurisdiction of the
candidate, question the election of Y? State the House of Representatives Electoral Tribunal over
reasons for your answer. election contests relating to the election, returns and
qualifications of the winning candidate,. The
A: T, the losing candidate, should question the proclamation divests the Commission on Elections of
election of Y before the Senate Electoral Tribunal, jurisdiction over the question of disqualifications
because the issue involved is the qualification of Y pending before it at the time of the proclamation. Any
to be a Senator. Section 17, Article VI of the 1987 case pertaining to questions over the qualifications of
Constitution provides that. The Senate and the a winning candidate should be raised before the House
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of Representative Electoral Tribunal. (Limkaichong aid of legislation, in order to prevent the

v. COMELEC, 583 SCRA 1; Jalosjos, Jr. v. recurrence of any similar fraudulent activity.
COMELEC, 674 SCRA 530)
The HCGG immediately scheduled a hearing and
ALTERNATIVE ANSWER: The argument of Beauty invited the responsible officials of IUB, the
is untenable. For the House of Representatives Chairman and Commissioners of the Securities and
Electoral Tribunal to acquire jurisdiction over the Exchange Commission (SEC), and the Governor of
disqualification case, she must be a Member of the the Bangko Sentral ng Pilipinas (BSP). On the date
House of Representatives. Although she had been set for the hearing, only the SEC Commissioners
proclaimed and had taken her oath of office, she appeared, prompting Congressman Nonoy to move
had not yet assumed office. The term of office of the for the issuance of the appropriate subpoena
Members of the House of Representatives begins ad testificandum to compel the attendance of the
at noon of the thirtieth day of June next following invited resource persons.
their election. (Reyes v. COMLELEC, 699 SCRA 522)
The IUB officials filed suit to prohibit HCGG from
Q: Sec. 17, Art. VI of the Constitution establishes proceeding with the inquiry and to quash the
an Electoral Tribunal for each of the Houses of subpoena, raising the following arguments:
Congress, and makes each Electoral Tribunal
"the sole judge of all contests relating to the a. The subject of the legislative investigation is
election, returns, and qualifications of their also the subject of criminal and civil actions
respective Members." On the other hand, Sec. pending before the courts and the prosecutor's
2(1), C (Commission on Elections), Art. IX of the office; thus, the legislative inquiry would
Constitution grants to the COMELEC the power preempt judicial action;
to enforce and administer all laws and
regulations "relative to the conduct of an A: The argument is not tenable; since this is an
election, plebiscite, initiative, referendum, and essential component of legislative power, it cannot be
recall." made subordinate to criminal and civil actions.
Otherwise, it would be very easy to subvert any
Considering that there is no concurrence of investigation in aid of legislation through convenient
jurisdiction between the Electoral Tribunals ploy of instituting criminal and civil actions. (Standard
and the COMELEC, state when the jurisdiction of Chartered Bank [Philippine Branch] v. Senate
the Electoral Tribunals begins, and the Committee in Banks, Financial Institutions and
COMELEC's jurisdiction ends. Explain your Currencies, 541 SCRA 456)
answer. (2017 BAR)
b. Compelling the IUB officials, who are also
A: It is well-entrenched in a long line of cases respondents in the criminal and civil cases in
decided by the Supreme Court that the jurisdiction court, to testify at the inquiry would
of the Electoral Tribunal begins once a winning violate their constitutional right against
candidate has been proclaimed, taken his oath, and self- incrimination. Are the foregoing
assumed office. It is only after the occurrence of arguments tenable? Reasons.
these events that a candidate can be considered as
either a Member of the House of Representatives A: The argument is untenable. Since the IUB officials
or a Senator. were not being subjected to a criminal penalty, they
cannot invoke their right against self-incrimination
The practical application of these rulings, at least unless a question calling for an incriminating answer
insofar as the HRET is concerned, has been that it is propounded. (Standard Chartered Bank [Philippine
commences to exercise such jurisdiction, to the Branch] v. Senate Committee in Banks, Financial
exclusion of the COMELEC, which has initial Institutions and Currencies, 541 SCRA 456)
jurisdiction over said matters, upon the
proclamation of the winning candidate. (Cruz, c. May the Governor of the BSP validly invoke
2014) executive privilege and, thus, refuse to attend
the legislative inquiry? Why or why not? (2009
POWERS OF CONGRESS BAR)

Legislative inquiries and the oversight A: NO, because the power to invoke executive
functions privilege is limited to the President (Senate v. Ermita
488 SCRA 1)
Q: Congressman Nonoy delivered a privilege
speech charging the Intercontinental Universal Q: The House Committee on Appropriations
Bank (IUB) with the sale of unregistered conducted an inquiry in aid of legislation into
foreign securities, in violation of R.A. 8799. He alleged irregular and anomalous disbursements of
then filed, and the House of Representatives the Countrywide Development Fund (CDF) and
unanimously approved, a Resolution directing Congressional Initiative Allocation (CIA) of
the House Committee on Good Government Congressmen as exposed by X, a Division Chief of
(HCGG) to conduct an inquiry on the matter, in the Department of Budget and Management
(DBM). Implicated in the questionable
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disbursements are high officials of the Palace. A: Under Section 5, Article XVI of the Constitution, the
The House Committee summoned X and the President is the Commander- in-Chief of the Armed
DBM Secretary to appear and testify. X refused Forces of the Philippines. By virtue of this power, the
to appear, while the Secretary appeared but President can prevent the Brigadier General Matapang
refused to testify invoking executive privilege. and Liutenant Colonel Makatwiran from appearing
May X be compelled to appear and testify? If before the Senate to testify before a legislative
yes, what sanction may be imposed on him? investigation. (Guidani v. Senga, 2006)

A: X may be compelled to appear and testify. Only The provision in the Executive Order which authorized
the President or the Executive Secretary by the Department Secretaries to invoke executive privilege
order of the President can invoke executive in case senior officials in their departments are asked
privilege (Senate v. Ermita, 488 SCRA 13). He can to appear in a legislative investigation is
be cited for contempt and ordered to be arrested unconstitutional. It is upon the President that
(De la Paz v. Senate Committee on Foreign executive power is vested. Only the President can
Relations, 579 SCRA 521). make use of Executive Privilege. (Senate v. Ermita,
2006)
a. Is the Budget Secretary shielded by
executive privilege from responding to the Limitations on legislative power
inquiries of the House Committee? Explain
briefly. If the answer is no, is there any Q: In 1963, congress passed a law creating a
sanction that may be imposed upon him? government-owned corporation named Manila
(2010 BAR) War Memorial Commission (MWMC), with the
primary function of overseeing the construction of
A: The Secretary of Budget and Management is not a massive memorial in the heart of Manila to
shielded by executive privilege from responding to commemorate victim of the 1945 Battle of Manila.
the inquiries of the House Committee on The MWMC charter provided an initial
Appropriations, because the inquiry is in aid of appropriation of P1,000,000, empowered the
legislation and neither the President nor the corporation to raise funds in its own name, and set
Executive Secretary by the order of the President aside a parcel of land in Malate for the memorial
invoked executive privilege. (Senate v. Ermita, site. The charter set the corporate life of MWMC at
supra.) For refusing to testify, he may be cited for 50 years with a proviso that Congress may not
contempt and ordered to be arrested (De la Paz v. abolish MWMC until after the completion of the
Senate Committee on Foreign Relations, supra.) memorial. Forty-five (45) years later, the
memorial was only 1/3 complete and the
Q: Several senior officers of the Armed Forces of memorial site itself had long been overrun by
the Philippines received invitations from the squatters. Congress enacted a law abolishing the
Chairperson of the Senate Committees on MWMC and requiring that the funds raised by it be
National Defense and Security for them to remitted to the National Treasury. The MWMC
appear as resource persons in scheduled public challenged the validity of the law, arguing that
hearings regarding a wide range of subjects. under its charter its mandate is to complete the
The invitations state that these public hearings memorial no matter how long it takes. Decide with
were triggered by the privilege speeches of the reason. (2008 BAR)
Senators that there was massive electoral fraud
during the last national elections. The invitees A: The contention of MWMC is untenable. An implied
Brigadier General Matapang and Lieutenant limitation on legislative power is the prohibition
Coronel Makatuwiran, who were among those against the passage of irrepealable laws. Such laws
tasked to maintain peace and order during the deprive succeeding legislatures of the authority to
last election, refused to attend because of an craft laws appropriate to the milieu (City of Davao v.
Executive Order banning all public officials Regional Trial Court 467 SCRA 280)
enumerated in paragraph 3 thereof from
appearing before either house of Congress Limitations on revenue, appropriations and tariff
without prior approval of the President to measures
ensure adherence to the rule of executive
privilege. Among those included in the Q: Suppose the President submits a budget which
enumeration are "senior officials of executive does not contain provisions for CDF (Countrywide
departments who, in the judgment of the Development Funds), popularly known as the
department heads, are covered by executive pork barrel, and because of this Congress does not
privilege." Several individuals and groups pass the budget.
challenge the constitutionality of the subject
executive order because it frustrates the power a. Will that mean paralization of government
of the Congress to conduct inquiries in aid of operations in the next fiscal year for lack of an
legislation under Section 21, Article VI of the appropriation law?
1987 Constitution. Decide the case. (2015 BAR) b. Suppose in the same budget, there is a special
provision in the appropriations for the Armed
Forces authorizing the Chief of Staff, AFP,
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subject to the approval of the Secretary of 3. Congress may not increase appropriations
National Defense, to use savings in the recommended by the President for the operations
appropriations provided thereto to cover of the government;
up whatever financial losses suffered by the 4. Form, content and manner of preparation of
AFP Retirement and Separation Benefits budget shall be provided by law;
System (RSBS) in the last five (5) years due 5. No provision or enactment shall be embraced in
to alleged bad business judgment. the bill unless it releases specifically to some
particular appropriations therein;
Would you question the constitutionality 6. Procedure for approving appropriations for
validity of the special provision? (1998 BAR) Congress shall be the same as that of other
departments in order to prevent sub rosa
A: appropriations by Congress; and
7. Prohibition against transfer of appropriations
a. NO, the failure of Congress to pass the budget from one branch (judiciary, legislative, and
will not paralyze the operations of the executive) to another.
Government. Section 25(7), Article VI of the
Constitution provides: "If, by the end of any Q: What are the limitations/restrictions provided
fiscal year, the Congress shall have failed to by the Constitution on the power of Congress to
pass the general appropriations bill for the authorize the President to fix tariff rates, import
ensuing fiscal year, the general appropriations and export quotas, tonnage and wharfage dues.
law for the preceding fiscal year shall be Explain. (1999 BAR)
deemed reenacted and shall remain in force
and effect until the general appropriations bill A: According to Section 28(2), Article VI of the
is passed by the Congress. Constitution, Congress may, by law, authorize the
President to fix within specified limits, and subject to
b. Yes, the provision authorizing the Chief of Staff, such limitations and restrictions it may impose, tariff
with the approval of the Secretary of National rates, import and export quotas, tonnage and
Defense, to use savings to cover the losses wharfage dues and other duties or imposts within the
suffered by the AFP Retirement and Separation framework of the national development program of
Benefits System is unconstitutional. Section the Government.
25(5], Article VI of the Constitution provides:
"No law shall be passed authorizing any Q: Suppose that the forthcoming General
transfer of appropriations; however, the Appropriations Law for Year 2002, in the portion
President, the President of the Senate, the pertaining to the Department of Education, Culture
Speaker of the House of Representatives, the and Sports, will contain a provision to the effect
Chief Justice of the Supreme Court, and the that the Reserve Officers Training Course (ROTC)
heads of Constitutional Commissions may, by in all colleges and universities is hereby abolished,
law, be authorized to augment any item in the and in lieu thereof all male college students shall
general appropriation law for their respective be required to plant ten (10) trees every year for
offices from savings in other Items of their two (2) years in areas to be designated by the
respective appropriations." Department of Environment and Natural
Resources in coordination with the Department of
In Philippine Constitution v. Enriquez, 235 SCRA Education, Culture and Sports and the local
506, 544, the Supreme Court held that a provision government unit concerned. It further provides
in the General Appropriation Act authorizing the that the same provision shall be incorporated in
Chief of Staff to use savings to augment the funds of future General Appropriations Acts. There is no
the AFP Retirement and Separation Benefits specific item of appropriation of funds for the
Systems was unconstitutional. "While Section purpose. Comment on the constitutionality of said
25(5) allows as an exception the realignment of provision. (2001 BAR)
savings to augment items in the general
appropriations law for the executive branch, such A: The provision is unconstitutional, because it is a
right must and can be exercised only by the rider. Section 25(2), Article VI of the Constitution
President pursuant to a specific law." provides, "No provision or enactment shall be
embraced in the general appropriations bill unless it
Q: Give the limitations on the power of the relates specifically to some particular appropriation
Congress to enact the General Appropriations therein." The abolition of the Reserve Officers Training
Act? Explain your answer (2017 BAR) Course involves a policy matter. As held in Philippine
Constitution Association v. Enriquez, 235 SCRA 506,
A: The following are the limitations on the power of this cannot be incorporated in the General
Congress to enact the GAA: Appropriations Act but must be embodied in a
separate law.
1. It must be devoted to a public purpose;
2. The sum authorized to be released must be Presidential veto and Congressional override
determinate or at least determinable;
Q: The President signs into law the Appropriations
Act passed by Congress but she vetoes separate
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items therein, among which is a provision of all the members of both the Senate and the
stating that the President may not increase an House of Representatives and If the President
item of appropriation by transfer of savings failed to communicate his veto to the House from
from other items. which the bill originated, within thirty days after
the date of receipt of the bill by the President.
The House of Representatives chooses not to b. As held in Tanada v. Tuvera (146 SCRA 446), a law
override this veto. The Senate, however, must be published as a condition for its effectivity
proceeds to consider two options: (1) to and in accordance with Article 2 of the Civil Code,
override the veto and (2) to challenge the it shall take effect fifteen days following the
constitutionality of the veto before the Supreme completion of its publication in the Official Gazette
Court. or in a newspaper of general circulation unless it
is otherwise provided. (Executive Order No. 292,
(1) Is option (1) viable? If so, what is the Revised Administrative Code of 1989)
vote required to override the veto?
(2) Is option (2) viable? If not. why not? If Q: Under the enrolled bill doctrine, the signing of a
viable, how should the Court decide the bill by both the Speaker of the House of
case? (1991 BAR) Representatives and the President of the Senate
and the certification by the secretaries of both
A: Houses of Congress that the bill was passed on a
(1) Option 1 is not viable in as much as the House certain date are conclusive on the bill's due
of Representatives, from which the enactment. Assuming there is a conflict between
Appropriations Act originated and to which the the enrolled bill and the legislative journal, to the
President must have returned the law, is effect that the enrolled bill signed by the Senate
unwilling to override the presidential veto. President and eventually approved by the
There is, therefore, no basis for the Senate to President turned out to be different from what the
even consider the possibility of overriding the Senate actually passed as reflected in the
President's veto. Under the Constitution the legislative journal.
vote of two-third of all the members of the
House of Representatives and the Senate, a. May the Senate President disregard the
voting separately, will be needed to override enrolled bill doctrine and consider his
the presidential veto. signature as invalid and of no effect?
b. May the President thereafter withdraw his
(2) It is not feasible to question the signature? Explain your answer. (2017 BAR)
constitutionality of the veto before the
Supreme Court. In Gonzales v. Macaraig, 191 A:
SCRA 152, the Supreme Court upheld the a. YES. As held by the Court in Astorga v. Villegas
constitutionality of a similar veto. Under (G.R. No. L-23475 April 30, 1974), conclusive
Article VI, Sec. 27(2) of the Constitution, a proof of a bill's due enactment, required, it is said,
distinct and severable part of the General by the respect due to a coequal department of
Appropriations act may be the subject of a the government, is neutralized in this case by the
separate veto. Moreover, the vetoed provision fact that the Senate President declared his
does not relate to any particular appropriation signature on the bill to be invalid and issued a
and is more an expression of a congressional subsequent clarification that the invalidation of
policy in respect of augmentation from savings his signature meant that the bill he had signed had
than a budgetary provision. It is therefore an never been approved by the Senate. Obviously this
inappropriate provision and it should be declaration should be accorded even greater
treated as an item for purposes of the veto respect than the attestation it invalidated, which it
power of the President. The Supreme Court did for a reason that is undisputed in fact and
should uphold the validity of the veto in the indisputable in logic. As far as Congress itself is
event the question is brought before it. concerned, there is nothing sacrosanct in the
certification made by the presiding officers. It is
Q: Ernest Cheng, a businessman, has no merely a mode of authentication. The lawmaking
knowledge of legislative procedure. Cheng process in Congress ends when the bill is
retains you as his legal adviser and asks approved by both Houses, and the certification
enlightenment on the following matters: does not add to the validity of the bill or cure any
defect already present upon its passage.
a. When does a bill become a law even
without the signature of the President? b. YES. The President can withdraw his signature.
b. When does the law take effect? (1993 BAR) The journal of the proceedings of each House of
Congress is no ordinary record. The Constitution
A: requires it. The Court is not asked to incorporate
a. Under Section 27(1), Article VI of the such amendments into the alleged law, which
Constitution, a bill becomes a law even without admittedly is a risky undertaking, but to declare
the signature of the President if he vetoed it that the bill was not duly enacted and therefore
but his veto was overridden by two-thirds vote did not become law. In the face of the manifest
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error committed and subsequently rectified by In Francisco v. The House of Representatives, the
the President of the Senate and by the Chief Supreme Court clarified that the “term ‘to inititate’
Executive, for the Court to perpetuate that refers to the filing of the impeachment complaint
error by disregarding such rectification and coupled with Congress’ taking initial action of said
holding that the erroneous bill has become law complaint.”
would be to sacrifice truth to fiction and bring
about mischievous consequences not intended Q: As a leading member of the Lapiang Mandirigma
by the law-making body. (Astorga v. Villegas) in the House of Representatives, you were tasked
by the party to initiate the moves to impeach the
Q: Sec. 26(2), Art. VI of the Constitution President because he entered into an executive
provides that no bill passed by either House of agreement with the US Ambassador for the use of
Congress shall become a law unless it has the former Subic Naval Base by the US Navy, for
passed three readings on separate days and free, i.e., without need to pay rent nor any kind of
printed copies of it in its final form have been fees as a show of goodwill to the U.S. because of the
distributed to the Members of the House three continuing harmonious RPUS relations. Cite at
days before its passage. Is there an exception to least two (2) grounds for impeachment and
the provision? Explain your answer. (2017 explain why you chose them. (2013 BAR)
BAR)
A: The President can be impeached for culpable
A: If a bill is certified as urgent by the President as violation of the Constitution and betrayal of public
to the necessity of its immediate enactment to meet trust. The Supreme Court has already ruled that the
a public calamity or emergency, the 3 readings can provision in Article XVIII, Section 25 of the
be held on the same day. [1987 Constitution, Art. Constitution requires a treaty even for the mere
VI, Sec. 26(2)] temporary presence of foreign troops in the
Philippines. (Bayan v. Zamora, G.R. No. 138570, October
Power of impeachment 10, 2000, 342 SCRA 499)

Q: What are the grounds for impeachment? The President cannot claim, therefore, that he acted in
Explain. (1999 BAR) good faith. (Report of the Special Committee in the
Impeachment of President Quirino, Congressional
A: Under Section 2, Article XI of the Constitution, Record of the House of President Quirino, Congressional
the grounds for impeachment are culpable Record of the House of Representatives, Vol. IV, p. 1553).
violation of the Constitution, treason, bribery, graft Betrayal of public trust includes violation of the oath
and corruption, other high crimes, and betrayal of of the office of the President (Record of the
public trust. Constitutional Commission, Vol. II, p. 272). In his oath of
office, the President swore to preserve and defend the
Q: Is cronyism a legal ground for the Constitution. (Article VII, Section 5 of the 1987
impeachment of the President? Explain. (2000 Constitution)
BAR)

A: YES, cronyism is a legal ground for the EXECUTIVE DEPARTMENT
impeachment of the President. Under Section 2,
Article XI of the Constitution, betrayal of public
trust is one of the grounds for Impeachment. This PRIVILEGES, INHIBITIONS AND
refers to violation of the oath of office and includes DISQUALIFICATIONS
cronyism which involves unduly favoring a crony
to the prejudice of public interest. (Record of the Presidential immunity
Constitutional Commission, Vol. II, p. 272)
Q: Upon complaint of the incumbent President of
Q: Sec. 3, Art. XI of the Constitution states that the Republic, "A" was charged with libel before the
"no impeachment proceedings shall be initiated Regional Trial Court. “A" moved to dismiss the
against the same official more than once within information on the ground that the Court had no
a period of one year." What constitutes jurisdiction over the offense charged because the
initiation of impeachment proceedings under President, being immune from suit, should also be
the provision? (2017 BAR) disqualified from filing a case against “A" in court.
Resolve the motion. (2010 BAR)
A: It is initiated by the filing of a verified complaint
by any member of the House of Representatives or A: The motion should be denied according to Soliven
any citizen upon resolution of endorsement by any vs. Makasiar, 167 SCRA 393, the immunity of the
member thereof. If the verified complaint is filed by President from suit is personal to the President. It may
at least 1/3 of all its members of the House of be invoked by the President only and not by any other
Representatives, the same shall constitute the person.
Articles of Impeachment, and trial by the Senate
shall forthwith proceed. [1987 Constitution, Art. XI, Principle of Command Responsibility
Sec. 3 (4)]

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Q: Command responsibility pertains to the Q: Distinguish "presidential communications

responsibility of commanders for crimes privilege" from "deliberative process privilege."
committed by subordinate members of the (2010 BAR)
armed forces or other persons subject to their
control in international wars or domestic A: Presidential communications privilege applies to
conflicts. The doctrine has now found decision-making of the President. The deliberative
application in civil actions for human rights process privilege applies to decision-making of
abuses, and in proceedings seeking the executive officials. Unlike the "deliberative process
privilege of the writ of amparo. privilege, “the presidential communications privilege"
applies to documents in their entirety and covers final
(a) What are the elements to be established and post decisional matters, as well as pre-
in order to hold the superior or commander deliberative ones. The deliberative process privilege
liable under the doctrine of command includes advisory opinions, recommendations and
responsibility? deliberations comprising part of a process by which
(b) May the doctrine of command governmental decisions and policies are formulated.
responsibility apply to the President for the (Neri v. Senate Committee on Accountability of Public
abuses of the armed forces (AFP and PNP) given Officers and Investigations, 549 SCRA77, 2008)
his unique role as the commander-in- chief of
all the armed forces? Explain your answer. POWERS
(2017 BAR)
Executive and administrative powers in general
A:
(a) The elements to be established in order to Q: The President abolished the Office of the
hold the superior liable under the doctrine of Presidential Spokesman in Malacañang Palace and
command responsibility are as follows: a long-standing Bureau under the Department of
Interior and Local Governments. The employees of
- The existence of a superior-subordinate both offices assailed the action of the President for
relationship between the accused as being an encroachment of legislative powers and
superior and the perpetrator of the crime thereby void. Was the contention of the employees
as his subordinate; correct? Explain. (2003 BAR)
- The superior knew or had reason to know
that the crime was about to be or had been A: The contention of the employees is not correct. As
committed; held in Buklod ng Kawaning EIIB v. Zamora (360 SCRA
- The superior failed to take the necessary 718, 2001), Section 31, Book III of the Administrative
and reasonable measures to prevent the Code of 1987 has delegated to the President
criminal acts or punish the perpetrators continuing authority to reorganize the administrative
thereof (Rodriguez v. GMA, G.R. Nos. 191805 structure of the Office of the President to achieve
& 193160, November 15, 2011) simplicity, economy and efficiency. Since this includes
the power to abolish offices, the President can abolish
(b) YES. The President may be held accountable the Office of the Presidential Spokesman, provided it is
under the principle of command responsibility. done in good faith. The President can also abolish the
Being the commander-in-chief of all armed Bureau in the Department of Interior and Local
forces, he necessarily possesses control over Governments, provided it is done in good faith because
the military that qualifies him as a superior the President has been granted continuing authority
within the purview of the command to reorganize the administrative structure of the
responsibility doctrine. National Government to effect economy and promote
efficiency, and the powers include the abolition of
On the issue of knowledge, it must be pointed out government offices. (Presidential Decree No. 1416, as
that although international tribunals apply a strict amended by Presidential Decree No. 1772; Larin v. The
standard of knowledge, i.e. actual knowledge, the Executive Secretary. 280 SCRA 713, I997)
same may nonetheless be established through
circumstantial evidence. In the Philippines, a more Q: To give the much needed help to the Province of
liberal view is adopted and superiors may be Aurora which was devastated by typhoons and
charged with constructive knowledge. torrential rains, the President declared it in a
"state of calamity." Give at least four (4) legal
As to the issue of failure to prevent or punish, it is effects of such declaration. (2005 BAR)
important to note that as the commander-in- chief
of the armed forces, the President has the power to A: Declaration of a state of calamity produces, inter
effectively command, control and discipline the alia, these legal effects within the Province of Aurora:
military. (Rodriguez v. GMA, G.R. Nos. 191805 &
193160, Nov. 15, 2011) 1. Automatic Price Control — under R.A. No. 7581,
The Price Act;
Presidential privilege 2. Authorization for the importation of rice under
R.A. No. 8178, The Agricultural Tarrification Act;
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3. Automatic appropriation under R.A. No. 7160 still functional – should be scrapped. Does the
is available for unforeseen expenditures President have such authority? (2014 BAR)
arising from the occurrence of calamities in
areas declared to be in a state of calamity; A: The President has the authority to withhold the
4. Local government units may enact a release of the funds under a Special Appropriation Act
supplemental budget for supplies and for a project which he considered unnecessary. The
materials or payment of services to prevent faithful execution of the laws requires the President to
danger to or loss of life or property, under R.A. desist from implementing a law if by doing so will
No. 7160; prejudice public interest. It is folly to require the
5. Entitlement to hazard allowance for Public President to spend the entire amounts appropriated in
Health Workers (under R.A. No. 7305, Magna the law in such a case. (Philippine Constitution
Carta for Public Health Workers), who shall be Association v. Enriquez, 235 SCRA 506)
compensated hazard allowances equivalent to
at least twenty- five percent (25%) of the ALTERNATIVE ANSWER: The President does not
monthly basic salary of health workers possess the authority to scrap the Special
receiving salary grade 19 and below, and five Appropriations Act for the construction of the new
percent (5%) for health workers with salary bridge. His refusal to spend the funds appropriated for
grade 20 and above; the purpose is unlawful. The President is expected to
6. Entitlement to hazard allowance for science faithfully implement the purpose for which Congress
and technological personnel of the government appropriated funds. Generally, he cannot replace
under R.A. No. 8439; and 7. A crime committed legislative discretion with his own personal judgment
during the state of calamity will be considered as to the wisdom of a law. (Araullo v. Aquino, G.R. No.
aggravated under Art. 14, par. 7 of the Revised 209287, July 1, 2014)
Penal Code.
Power of appointment
Q: On February 24, 2006, President Gloria
Macapagal-Arroyo issued Proclamation No. Q: When is an appointment in the civil service
1017 declaring a state of national emergency. Is permanent? Distinguish between an "appointment
this Proclamation constitutional? Explain. in an acting capacity" extended by a Department
(2006 BAR) Secretary from an ad interim appointment
extended by the President. Distinguish between a
A: The proclamation is constitutional insofar as it provisional and a temporary appointment. (1994
constitutes a call by the President for the AFP to BAR)
prevent or suppress lawless violence. This is just
pursuant to the President’s calling-out power A:
under Section 18, Article VII of the Constitution. 1. Under Section 25(a) of the Civil Service Decree, an
appointment in the civil service is PERMANENT
However, PP 1017's provisions giving the when issued to a person who meets all the
President express or implied power (1) to issue requirements for the position to which he is being
decrees; (2) to direct the AFP to enforce obedience appointed, including the appropriate eligibility
to all laws even those not related to lawless prescribed, in accordance with the provisions of
violence as well as decrees promulgated by the law, rules and standards promulgated in
President; and (3) to impose standards on media or pursuance thereof.
any form of prior restraint on the press, are ultra 2. An appointment in an ACTING CAPACITY
vires and unconstitutional. Likewise, under Section extended by a Department Secretary is not
17, Article XII of the Constitution, the President, in permanent but temporary. Hence, the Department
the absence of legislation, cannot take over Secretary may terminate the services of the
privately-owned public utilities and businesses appointee at any time. On the other hand, an AD
affected with the public interest. (David v. Arroyo, INTERIM APPOINTMENT extended by the
G.R. No. 171396, May 3, 2006) President is an appointment which is subject to
confirmation by the Commission on Appointments
Q: The President, concerned about persistent and was made during the recess of Congress. As
reports of widespread irregularities and held in Summers v. Qzaeta, 81 Phil. 754, an ad
shenanigans related to the alleged ghost interim appointment is permanent.
projects with which the pork barrel funds of 3. In Section 24 (d) of the Civil Service Act of 1959, a
members of Congress had been associated, TEMPORARY APPOINTMENT is one issued to a
decided not to release the funds authorized person to a position needed only for a limited
under a Special Appropriations Act for the period not exceeding six months. Under Section
construction of a new bridge. The Chief 25(b) of the Civil Service Decree, a temporary
Executive explained that, to properly conserve appointment is one issued to a person who meets
and preserve the limited funds of the all the requirements for the position to which he is
government, as well as to avoid further being appointed except the appropriate civil
mistrust by the people, such a project – which service eligibility because of the absence of
he considered unnecessary since there was an appropriate eligibles and it is necessary in the
old bridge near the proposed bridge which was public Interest to fill the vacancy. On the other
hand. Section 24(e) of the Civil Service Act of 1959
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defined a PROVISIONAL APPOINTMENT as one appointment and subsequent assumption of

issued upon the prior authorization of the Civil office to the same position violations of the
Service Commission in accordance with its prohibition on reappointment under Section 1
provisions and the rules and standards (2), Article IX-C of the Constitution? (2005
promulgated in pursuance thereto to a person BAR)
who has not qualified in an appropriate
examination but who otherwise meets the A:
requirements for appointment to a regular a. The assumption of office by Santos on the basis of
position in the competitive service, whenever a the ad interim appointment issued bythe
vacancy occurs and the filling thereof is President does not amount to a temporary
necessary in the interest of the service and appointment. An ad interim appointment is
there is no appropriate register of eligibles at apermanent appointment, because it takes effect
the time of appointment. Provisional immediately and can no longer be withdrawn by
appointments in general have already been thePresident once the appointee has qualified into
abolished by Republic Act 6040. However, it office[Art. VII. Sec. 16, second paragraph of the
still applies with regard to teachers under the Constitution; Matibag v. Benipayo, 380 SCRA
Magna Carta for Public School Teachers. 49(2002)].
b. The second ad interim appointment of Santos
Q: What is the nature of an "acting does not violate the prohibition against
appointment" to a government office? Does reappointment under Section 1(2) Article IX-C of
such an appointment give the appointee the the Constitution. The prohibition does not apply to
right to claim that the appointment will, in time, a by-passed ad interim appointment, because it
ripen into a permanent one? Explain. (2003 has not been finally disapproved by the
BAR) Commission on Appointments [Matibag v.
Benipayo, 380 SCRA 49 (2002)]. The prohibition
A: According to Sevilla v. Court of Appeals. 209 against reappointment in the Constitution
SCRA 637, an acting appointment is merely presupposes the end of the term. After the end of
temporary. As held in Marohombsar v. Alonto, 194 the term, he cannot be reappointed.
SCRA 390, a temporary appointment cannot
become a permanent appointment, unless a new Q: While Congress was in session, the President
appointment which is permanent is made. This appointed eight acting Secretaries. A group of
holds true unless the acting appointment was made Senators from the minority bloc questioned the
because of a temporary vacancy. In such a case, the validity of the appointments in a petition before
temporary appointee holds office until the the Supreme Court on the ground that while
assumption of office by the permanent appointee. Congress is in session, no appointment that
requires confirmation by the Commission on
Q: In March 2001, while Congress was Appointments, can be made without the latter's
adjourned, the President appointed Santos as consent, and that an undersecretary should
Chairman of the Commission on Elections. instead be designated as Acting Secretary. Should
Santos immediately took his oath and assumed the petition be granted? (2013 BAR)
office. While his appointment was promptly
submitted to the Commission on Appointments A: No, the petition should not be granted. The
for confirmation, it was not acted upon and Department Head is an alter ego of the President and
Congress again adjourned. In June 2001, the must enjoy his confidence even if the appointment will
President extended a second ad interim be merely temporary. The Senators cannot require the
appointment to Santos for the same position President to designate an Undersecretary to be the
with the same term, and this appointment was temporary alter ego of the President. (Pimentel v.
again submitted to the Commission on Ermita, 472 SCRA 587)
Appointments for confirmation. Santos took his
oath anew and performed the functions of his Q: Margie has been in the judiciary for a long time,
office. starting from the lowest court. Twenty (20) years
from her first year in the judiciary, she was
Reyes, a political rival, filed a suit assailing nominated as a Justice in the Court of Appeals.
certain orders issued by Santos. He also Margie also happens to be a first-degree cousin of
questioned the validity of Santos' appointment. the President. The Judicial and Bar Council
Resolve the following issues: included her in the short-list submitted to the
President whose term of office was about to end –
a. Does Santos' assumption of office on the it was a month before the next presidential
basis of the ad interim appointments issued elections. Can the President still make
by the President amount to a temporary appointments to the judiciary during the so-called
appointment which is prohibited by Section midnight appointment ban period? Assuming that
1 (2), Article IX-C of the Constitution? he can still make appointments, could he appoint
b. Assuming the legality of the first ad interim Margie, his cousin? (2014 BAR)
appointment and assumption of office by
Santos, were his second ad interim
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A: NO, the President cannot make appointments to appointment of Marikit as COMELEC Chairperson
the Court of Appeals. The President can make is unconstitutional for the following reasons: (1)
appointments only to the Supreme Court two The appointment of Marikit as COMELEC
months before a presidential election until the end Chairperson constituted a reappointment which is
of his term, but not to the rest of the Judiciary like proscribed by Section 1 (2), Article IX of the 1987
the Court of Appeals. Under Section 4(1), Article Constitution; and (2) the term of office expressly
VIII of the Constitution, vacancies in the Supreme stated in the appointment papers of Marikit
Court shall be filed within ninety (90) days from likewise contravenes the aforementioned
the occurrence of the vacancy. Under Section 9, constitutional provision. Will the constitutional
Article VIII of the Constitution, vacancies in the challenge succeed? Explain. (2015 BAR)
lower courts shall be filled within ninety (90) days
from submission of the list of nominees. These A: The first argument is untenable since Commissioner
appointments are screened by the Judicial and Bar Marikit was not reappointed but actually was a
Council, and the process necessarily precludes or promotional appointment as she had not yet fully
prevents the President from making purely served her term. What the Constitution prohibits is a
political appointments to the courts, which is what reappointment of a COMELEC Commissioner after
is sought to be prevented by the prohibition. (De serving the seven-year term. On the second argument,
Castro v. Judicial and Bar Council, G.R. No. 191002, the limitation of the term of Commissioner Marikit as
April 20, 2010) chairman until expiration of her original term on June
2, 2021 is valid only until June 8, 2018, that is, the
Assuming that he can still make appointments, the unexpired portion of the last chairman’s term but
President may appoint his first cousin as Justice of invalid if until 2021 as it exceeds the limitation. A
the Court of Appeals. The prohibition in Section 13, promotional apportionment is allowed provided that
Article VII of the Constitution against appointment the aggregate period of the term of the appointee will
by the President of relatives within the fourth not exceed seven years and that the rotational scheme
degree by consanguinity or affinity does not extend of staggering terms of the commission membership is
to appointments to the Judiciary. maintained. (Funa v. Ermita, 2012)

Q: A was a career Ambassador when he Q: While Congress was not in session, the
accepted an ad interim appointment as cabinet President appointed Antero as Secretary of the
Member. The Commission on Appointment Department of Tourism (DOT), Benito as
bypassed his ad interim appointment, however, Commissioner of the Bureau of Immigration (BI),
and he was not reappointed. Can he re-assume Clodualdo as Chairman of the Civil Service
his position as career Ambassador? (2010 BAR) Commission (CSC), Dexter as Chairman of the
Commission on Human Rights (CHR), and
A: The career Ambassador cannot re-assume his Emmanuel as Philippine Ambassador to
position as career Ambassador. His ad Cameroon. The following day, all the appointees
interimappointment as Cabinet Member was a took their oath before the President, and
permanent appointment. (Summers v. Ozaeta, 81 commenced to perform the functions of their
Phil. 754, 1948) He abandoned his position as respective offices.
Ambassador when he accepted his appointment as
Cabinet Member because as Cabinet Member, he (a) Characterize the appointments, whether
could not hold any other office during his tenure. permanent or temporary; and whether regular or
(Section13, Article VII, Constitution) interim, with reasons.

Q: The President appointed Dexter I. Ty as (b) A civil society group, the Volunteers Against
Chairperson of the COMELEC on June 14, 2011 Misguided Politics (VAMP), files suit, contesting
for a term of seven (7) years pursuant to the the legality of the acts of the appointees and
1987 Constitution. His term of office started on claiming that the appointees should not have
June 2, 2011 to end on June 2, 2018. entered into the performance of the functions of
Subsequently, the President appointed Ms. their respective offices, because their
Marikit as the third member of the COMELEC appointments had not yet been confirmed by the
for a term of seven (7) years starting June 2, Commission on Appointments. Is this claim of
2014 until June 2, 2021. On June 2, 2015, VAMP correct? Why or why not? (2016 BAR)
Chairperson Ty retired optionally after having
served the government for thirty (30) years. A:
The President then appointed Commissioner (a) The appointment of Antero as Secretary of
Marikit as COMELEC Chairperson. The Tourism is ad interim because it is subject to
Commission on Appointments confirmed her confirmation of the Commission on Appointments and
appointment. The appointment papers was made while Congress was not in session. He can
expressly indicate that Marikit will serve as start performing his duties upon his acceptance,
COMELEC Chairperson "until the expiration of because it is permanent and cannot be withdrawn
the original term of her office as COMELEC after its acceptance. (Matibag v. Benipayo, 380 SCRA
Commissioner or on June 2, 2021." Matalino, a 49, 2002)
tax payer, files a petition for certiorari before
the Supreme Court asserting that the
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1. The appointment of Benito as Commissioner of implement a new organizational structure, staffing

the Bureau of Immigration is regular and pattern, a position classification system, and a new
permanent. It is not required to be confirmed set of qualification standards. After the
by the Commission on Appointments. He can implementation of the Resolution, Atty. Dipasupil
start performing his duties upon acceptance of questioned the legality of the Resolution alleging
the appointment. (Section 16, Art. VII, 1987 that the BOD has no authority to do so. The BOD
Constitution) claims otherwise arguing that the doctrine of
2. The appointment of Clodualdo as Chairman of qualified political agency applies to the case. It
the Civil Service Commission is ad interim contends that since its agency is attached to the
because it is subject to confirmation by the Department of Finance, whose head, the Secretary
Commission on Appointments and was made of Finance, is an alter ego of the President, the
while Congress was not in session. He can start BOD's acts were also the acts of the President. Is
performing his duties upon his acceptance of the invocation of the doctrine by the BOD proper?
the appointment, because it is permanent and Explain. (2015 BAR)
cannot be withdrawn.
3. The appointment of Dexter as Chairman of the A: The invocation by the Board of directors of the
Commission on Human Rights is regular and doctrine of qualified political agency is not proper.
permanent upon his acceptance. It is not
required to be confirmed by the Commission “The doctrine of qualified political agency essentially
on Appointments. He can start performing his postulates that the heads of the various executive
duties upon his acceptance. (Bautista v. departments are the alter egos of the President, and,
Salonga 172 SCRA 160, 1989) thus, the actions taken by such heads in the
4. The appointment of Emmanuel as ambassador performance of their official duties are deemed the
to Cameroon is ad interim because it is subject acts of the President unless the President himself
to confirmation by the Commission on should disapprove such acts. This doctrine is in
Appointment. (Section 16, Article VII of the recognition of the fact that in our presidential form of
1987 Constitution) government, all executive organizations are adjuncts
of a single Chief executive; that the heads of the
(b) The claim of VAMP is not correct. The executive Departments are assistants and agents of
Commission of Investigation and the Commission the Chief Executive; and that the multiple executive
on Human Rights can immediately start performing functions of the president as the Chief Executive are
their functions upon acceptance since they are not performed through the Executive Departments. The
required to be confirmed. The Secretary of the doctrine has been adopted here out of practical
Department of Tourism and the Chairman of the necessity, considering that the President cannot be
Civil Service Commission, disbursements of their expected to personally perform the multifarious
salaries and emoluments are valid. functions of the executive office.

Q: The President appoints the Vice President as The Cabinet Members sat on the Board of Directors ex
his Administration's Housing Czar, a position officio, or by reason of their office or function, “not
that requires the appointee to sit in the Cabinet. because of their direct appointment to the Board by
Although the appointment of the members of the president. Evidently, it was the law, not the
the Cabinet requires confirmation by the President, that sat them in the Board.”
Commission on Appointment (CA), the Office of
the President does not submit the appointment “Under the circumstances, when the members of the
to the CA. May the Vice President validly sit in Board of Directors effected the assailed...
the Cabinet? reorganization, thet were acting as the responsible
members of the Board of Directors” constituted
A: Yes. Under Sec. 3 Art. VII of the 1987 pursuant to the law,” not as the alter egos of the
Constitution, “The Vice-President may be President.” (Trade and Investment Development
appointed as a Member of the Cabinet. Such Corporation of the Philippines v. Manalang-Demigillo,
appointment requires no confirmation.” G.R. No. 185571, March 5, 2013; Manalang-Demigillo v.
Trade and Investment Development Corporation of the
Doctrine of qualified political agency Philippines, G.R. No. 168613, March 5, 2013)

Q: A law provides that the Secretaries of the Military powers
Departments of Finance and Trade and
Industry, the Governor of the Central Bank, the Q: Declaring a rebellion, hostile groups have
Director General of the National Economic opened and maintained armed conflicts on the
Development Authority, and the Chairperson of Islands of Sulu and Basilan.
the Philippine Overseas Construction Board
shall sit as ex- officio members of the Board of a. To quell this, can the President place under
Directors (BOD) of a government owned and martial law the islands of Sulu and Basilan?
controlled corporation (GOCC). The other four Give your reasons?
(4) members shall come from the private b. What are the constitutional safeguards on the
sector. The BOD issues a resolution to exercise of the President's power to proclaim
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martial law? (2000 BAR) petition questioning the validity of Proclamation

No. 1018.
A:
a. If public safety requires it, the President can a. Does Robert have a standing to challenge
place Sulu and Basilan under martial law since Proclamation No. 1018? Explain.
there is an actual rebellion. Under Section 18, b. In the same suit, the Solicitor General
Article VII of the Constitution, the President contends that under the Constitution, the
can place any part of the Philippines under President as Commander-in-Chief,
martial law in case of rebellion, when public determines whether the exigency has arisen
safety requires it. requiring the exercise of his power to declare
b. The following are the constitutional safeguards Martial Law and that his determination is
on the exercise of the power of the President to conclusive upon the courts. How should the
proclaim martial law: Supreme Court rule?
c. The Solicitor General argues that, in any
i. There must be actual invasion or event, the determination of whether the
rebellion; rebellion poses danger to public safety
ii. The duration of the proclamation shall involves a question of fact and the Supreme
not exceed sixty days; Court is not a trier of facts. What should be
iii. Within forty-eight hours, the President the ruling of the Court?
shall report his action to Congress. If d. Finally, the Solicitor General maintains that
Congress is not in session, it must the President reported to Congress such
convene within twenty-four hours; proclamation of Martial Law, but Congress
iv. Congress may by majority vote of all its did not revoke the proclamation. What is the
members voting Jointly revoke the effect of the inaction of Congress on the suit
proclamation, and the President cannot brought by Robert to the Supreme Court?
set aside the revocation; (2006 BAR)
v. By the same vote and in the same
manner, upon Initiative of the A:
President, Congress may extend the a. YES, Robert has standing. Under Article VIII,
proclamation If the invasion or Section 17 of the 1987 Constitution, the
rebellion continues and public safety Supreme Court may review, in an appropriate
requires the extension; proceeding filed by any citizen, the sufficiency of
vi. he Supreme Court may review the the factual basis of the proclamation of martial
factual sufficiency of the proclamation, law. As citizen therefore, Robert may file the
and the Supreme Court must decide the petition questioning Proclamation No. 1018.
case within thirty days from the time it b. The Supreme Court should rule that his
was filed; determination is not conclusive upon the courts.
vii. Martial law does not automatically The 1987 Constitution allows a citizen, in an
suspend the privilege of the writ of appropriate proceeding, to file a petition
habeas corpus or the operation of the questioning the sufficiency of the factual basis of
Constitution. said proclamation. Moreover, the power to
viii. It does not supplant the functioning of suspend the privilege of the writ of habeas
the civil courts and of Congress. corpus and the power to impose martial law
Military courts have no Jurisdiction involve the curtailment and suppression of
over civilians where civil courts are certain basic civil rights and individual
able to function. (Cruz, Philippine freedoms, and thus necessitate safeguards by
Political Law, 1995 ed., pp. 213- 214) Congress and review by the Supreme Court. (IBP
v. Zamora, G.R. No. 141284, August 15, 2000)
Q: What do you mean by the “Calling-out c. Judicial power includes the duty of the courts of
Power” of the President under Section 18, justice to settle actual controversies involving
Article VII of the Constitution? (2006 BAR) rights which are legally demandable and
enforceable, and to determine whether or not
A: The calling-out power of the President refers to there has been a grave abuse of discretion
the power of the President to order the armed amounting to lack or excess of jurisdiction on
forces, whenever it becomes necessary, to suppress the part of any branch or instrumentality of the
lawless violence, invasion or rebellion. (David v. Government (Art. Vin, Sec. 1, par. 2,1987
Macapagal- Arroyo, G.R. No. 171396, May 3, 2006) Constitution). When the grant of power is
qualified, conditional or subject to limitations,
Q: The President issued a Proclamation No. the issue of whether the prescribed
1018 placing the Philippines under Martial Law qualifications or conditions have been met or the
on the ground that a rebellion staged by lawless limitations respected, is justiciable — the
elements is endangering the public safety. problem being one of legality or validity, not its
Pursuant to the Proclamation, suspected rebels wisdom. Article VII, Section 18 of the 1987
were arrested and detained and military Constitution specifically grants the Supreme
tribunals were set up to try them. Robert dela Court the power to review, in an appropriate
Cruz, a citizen, filed with the Supreme Court a proceeding filed by any citizen, the sufficiency of
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the factual basis of the proclamation of of the Armed Forces of the Philippines, to set up
martial law. Thus, in the matter of such checkpoints and chokepoints, conduct general
declaration, two conditions must concur: (1) searches and seizures including arrests, and other
there must be an actual invasion or rebellion; actions necessary to ensure public safety. Was the
and (2) public safety must require it. The action of the provincial governor proper? Explain.
Supreme Court cannot renege on its (2015 BAR)
constitutional duty to determine whether or
not the said factual conditions exist (IBP v. A: NO, the provincial governor is not endowed withthe
Zamora, supra.) power to call upon the armed forces at his own
d. The inaction of Congress has no effect on the bidding. In issuing theassailed proclamation, Governor
suit brought by Robert to the Supreme Court Tan exceeded his authority when hedeclared a state of
as Article VIII, Section 18 provides for checks emergency and called upon the Armed Forces and
on the President's power to declare martial thepolice. The calling-out powers contemplated under
law to be exercised separately by Congress the Constitution isexclusive to the President. An
and the Supreme Court. Under said provision, exercise by another official, even if he is thelocal chief
the duration of martial law shall not exceed executive, is ultra vires, and may not be justified by
sixty days but Congress has the power to theinvocation of Section 465 of the Local Government
revoke the proclamation or extend the Code since said provision only refers to calamities and
period. On the other hand, the Supreme Court disasters only and not of looting as in the instant case
has the power to review the said (Kulayan vs Tan, July 3, 2012)
proclamation and promulgate its decision
thereon within thirty days from its filing. Q: The continuing threat to the security of the State
(Article VIII, Section 18) in various parts of the country prompted the
National Security Adviser of the President to adopt
Q: Distinguish the President's authority to a "Comprehensive National Security Strategy
declare a state of rebellion from the authority (CNSS)" with the following components:
to proclaim a state of national emergency.
(2015 BAR) Component 1: During a state of emergency, the
President, in the exercise of his power of general
A: The power of the President to declare a state of supervision, may delegate to the heads of local
rebellion is based on the power of the President as government units (LGUs), through an
chief executive and commander-in- chief of the administrative issuance, the power to call-out the
Armed Forces of the Philippines to suppress it. It is Armed Forces of the Philippines (AFP) for a more
not necessary for the President to declare a state of effective and immediate response to the ground
rebellion before calling out the Armed forces of the situation; and
Philippines to suppress it. The proclamation only
gives notice to the nation that such a state exists Component 2: In declaring Martial Law, the
and that the Armed Forces of the Philippines may President, in a preemptive action and without
be called upon to suppress it. (Sanlakas v. Executive waiting for the recommendation of the Secretary
Secretary, 421 SCRA 656 [2004]) On the other hand, of National Defense and the AFP, may rely upon
a proclamation of a state of national emergency, any intelligence information he may have gathered
the President is already calling out the Armed through other sources.
Forces of the Philippines to suppress not only
rebellion but also lawless violence. (David v. Arroyo, Disturbed by the strategy’s supposed infirmities, a
489 SCRA 162[2006]) concerned citizens’ organization raised the
constitutionality of the two (2) components of the
Q: Typhoon Bangis devastated the Province of CNSS before the Supreme Court. (2019 BAR)
Sinagtala. Roads and bridges were destroyed
which impeded the entry of vehicles into the (a) Is component 1 of the CNSS constitutional?
area. This caused food shortage resulting in Explain.
massive looting of grocery stores and malls.
There is power outage also in the area. For A: NO, component 1 of the CNSS is not constitutional.
these reasons, the governor of the province Inside the 1987 Constitution is a well-entrenched
declares a state of emergency in their province constitutional precept that One President means that
through Proclamation No. 1. He also invoked there are certain acts which, by their very nature, may
Section 465 of the Local Government Code of only be performed by the president as the Head of
1991 (R.A. No. 7160) which vests on the State. One of the acts is one inherent in the
provincial governor the power to carryout Commander-in-Chief powers of the president which is
emergency measures during man-made and the calling out powers. This power is vested upon the
natural disasters and calamities, and to call President alone as an act of lesser gravity with the act
upon the appropriate national law enforcement of declaring martial law. As cited in Villena, there are
agencies to suppress disorder and lawless constitutional powers and prerogatives of the Chief
violence. In the same proclamation, the Executive of the Nation which cannot be used by any
governor called upon the members of the other person either through ratification or approval
Philippine National Police, with the assistance
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because it must be exercised by him in person. No pardon, amnesty, parole, or suspension of sentence
(Kulayan v. Gov. Tan, G.R. No. 187298, July 03, for violation of election laws, rules and regulations
2012) shall be granted by the President without the
favorable recommendation of the Commission. (Article
(b) Is component 2 of the CNSS constitutional? IX-C, Sec. S of the 1987 Constitution)
Explain.
The only instances in which the President may not
A: YES component 2 of the CNSS is constitutional. A extend pardon remain to be in:
plain reading of Section 18, Article VII of the
Constitution shows that the President's power to 1. Impeachment cases;
declare martial law is not subject to any condition 2. Cases that have not yet resulted in a final
except for the requirements of actual invasion or conviction; and
rebellion and that public safety requires it. In 3. Cases involving violations of election laws,
Lagman v Medialdea the court ruled that even the rules and regulations in which there was no
recommendation of, or consultation with, the favorable recommendation coming from the
Secretary of National Defense, or other high- COMELEC.
ranking military officials, is not a condition for the
President to declare martial law. Therefore, it is Any act of Congress by way of statute can not operate
only on the President and no other that the to delimit the pardoning power of the President.
exercise of the powers of the Commander-in-Chief (Risos-Vidal v. COMELEC, G.R. No. 206666, January 21,
under Section 18, Article VII of the Constitution is 2015)
bestowed. (Lagman v. Medialdea, G.R. No. 231658,
July 4, 2017) Q: A while serving imprisonment for estafa upon
recommendation of the Board of Pardons and
Pardoning power Parole, was granted pardon by the President on
condition that he should not again violate any
Q: What is the pardoning power of the penal law of the land. Later, the Board of Pardons
President under Art. VIII, Sec. 19 of the and Parole recommended to the President the
Constitution? Is the exercise of the power cancellation of the pardon granted him because A
absolute? (2017 BAR) had been charged with estafa on 20 counts and
was convicted of the offense charged although he
A: The pardoning power, as embodied in Sec. 19 of took an appeal therefrom which was still pending.
Art VII, is as follows: “Except in cases of As recommended, the President canceled the
impeachment, or as otherwise provided in this pardon he had granted to A. A was thus arrested
Constitution, the President may grant reprieves, and imprisoned to serve the balance of his
commutations, and pardons, and remit fines and sentence in the first case. A claimed in his petition
forfeitures, after conviction by final judgment. for habeas corpus filed in court that his detention
He shall also have the power to grant amnesty with was illegal because he had not yet been convicted
the concurrence of a majority of all the Members of by final judgment and was not given a chance to be
the Congress.” heard before he was recommitted to prison. Is A's
argument valid? (1997 BAR)
The exercise of the pardoning power is not
absolute. The following are the limitations on the A: The argument of A is not valid. As held in Torres v.
pardoning power of the President: Gonzales, 152 SCRA 272, a judicial pronouncement that
a convict who was granted a pardon subject to the
1. it can be granted only after conviction by condition that he should not again violate any penal
Final judgment, except in cases of amnesty; law is not necessary before he can be declared to have
2. it cannot be granted in cases of civil or violated the condition of his pardon. Moreover, a
legislative contempt; hearing is not necessary before A can be recommitted
3. it cannot absolve convict of civil liability; to prison. By accepting the conditional pardon, A,
4. it cannot be granted in cases of agreed that the determination by the President that he
impeachment; violated the condition of his pardon shall be
5. it cannot be granted for violations of conclusive upon him and an order for his arrest should
election laws without favorable at once issue.
recommendations of the COMELEC; and
6. it cannot restore public offices forfeited. Q: Governor A was charged administratively with
oppression and was placed under preventive
Except in cases of impeachment, or as otherwise suspension from office during the pendency of his
provided in this Constitution, the President may case. Found guilty of the charge, the President
grant reprieves, commutations and pardons, and suspended him from office for ninety days. Later,
remit fines and forfeitures, after conviction by final the President granted him clemency by reducing
judgment. He shall also have the power to grant the period of his suspension to the period he has
amnesty with the concurrence of a majority of all already served. The Vice Governor questioned the
the Members of the Congress (Article VII, Sec. 19 of validity of the exercise of executive clemency on
the 1987 Constitution) the ground that it could be granted only in
criminal, not administrative, cases. How should
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the question be resolved? (1997 BAR) while amnesty may be granted at any time;
and
A: The argument of the Vice Governor should be f. Pardon looks forward and relieves the
rejected. As held in Llamas v. Orbos, 202 SCRA 844, offender from the consequences of his
the power of executive clemency extends to offense, while amnesty looks backward and
administrative cases. In granting the power of the person granted it stands before the law
executive clemency upon the President, Section 19, as though he had committed no offense.
Article VII of the Constitution does not distinguish
between criminal and Pardon can be given only after final convictions;
administrative cases. Section 19, Article VII of the amnesty can be given at any time and even before the
Constitution excludes impeachment cases, which filing of a criminal case. Pardon looks forward;
are not criminal cases, from the scope of the power amnesty looks backward, as if the accused never
of executive clemency. If this power may be committed & crime. Pardon is given to individuals.
exercised only in criminal cases, it would have been Amnesty is given to a class of persons. Pardon is given
unnecessary to exclude impeachment cases from for all criminal offenses. Amnesty is given for political
this scope. If the President can grant pardons in offenses. Pardon does not require the concurrence of
criminal cases, with more reason he can grant Congress. Amnesty requires the concurrence of
executive clemency in administrative cases, which Congress. Pardon must be proven, because it is a
are less serious. private act; amnesty need not be proven, because it is
a public act. (Barriequinto K Ferrandez, G.R. No. L-1278,
Q: January 21, 1949, 82 Phils. 642)
1. What are the constitutional limitations on
the pardoning power of the President? Q: Bruno still had several years to serve on his
(1999, 2015 BAR) sentence when he was conditionally pardoned by
2. Distinguish between pardon and amnesty. the President. Among the conditions imposed was
(1999, 2017 BAR) that he would "not again violate any of the penal
laws of the Philippines." Bruno accepted all of the
A: conditions and was released. Shortly thereafter,
1. The following are the limitations on the Bruno was charged with 2 counts of estafa. He was
pardoning power of the President: then incarcerated to serve the expired portion of
his sentence following the revocation by the
a. It cannot be granted in cases of President of the pardon.
impeachment;
b. Reprieves, commutations, pardon, and Bruno's family filed a petition for habeas corpus,
remission of fines and forfeitures can be alleging that it was error to have him recommitted
granted only after conviction by final as the charges were false, in fact, half of them were
judgment. already dismissed. Resolve the petition with
c. Amnesty requires the concurrence of the reasons. (2005 BAR)
majority of all members of Congress
d. The favorable recommendation of the A: The petition should not be given due course. The
COMELEC is required for violation of grant of pardon and the determination of the terms
election laws, rules and regulations. and conditions of a conditional pardon are PURELY
e. The President cannot pardon members EXECUTIVE ACTS which are not subject to judicial
and employees of the Judiciary found scrutiny. The acceptance thereof by the convict or
guilty by the Supreme Court in prisoner carried with it the authority or power of the
administrative cases Executive to determine whether a condition or
conditions of the pardon has or have been violated.
2. According to Barrioquinto v. Fernandez (82 Where the President opts to revoke the conditional
Phil. 642), the following are the distinctions pardon given, no judicial pronouncement of guilt of a
between pardon and amnesty: subsequent crime is necessary, much less conviction
therefor by final judgment of a court, in order that a
a. Pardon is a private act and must be convict may be recommended for the violation of his
pleaded and proved by the person conditional pardon. The determination of the
pardoned; while amnesty is a public act occurrence of a breach of a condition of a pardon, and
of which courts take judicial notice; the proper consequences of such breach, is a purely
b. Pardon does not require the concurrence executive act, not subject to judicial scrutiny. (Torres v.
of Congress, while amnesty requires the Gonzales, G.R. No. 76872, July 23, 1987)
concurrence of Congress;
c. Pardon is granted to individuals, while Q: ST, a Regional Trial Court judge who falsified his
amnesty is granted to classes of persons Certificate of Service, was found liable by the
or communities; Supreme Court for serious misconduct and
d. Pardon may be granted for any offense, inefficiency, and meted the penalty of suspension
while amnesty is granted for political form office for 6 months. Subsequently, ST filed a
offenses; petition for executive clemency with the Office of
e. Pardon is granted after final conviction, the President. The Executive Secretary, acting on
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said petition issued a resolution granting ST the Republic of the Philippines? Explain. (1999
executive clemency. Is the grant of executive BAR)
clemency valid? Why or why not? (2008 BAR)
A: Under Section 20, Article VII of the Constitution,
A: The grant of executive clemency is not valid. the power of the President to contract or guarantee
First, in this case, the power of executive clemency loans on behalf of the Republic of the Philippines is
cannot be delegated for it was not signed by the subject to the prior concurrence of the Monetary
President himself but by the Executive Secretary Board and subject to such limitations as may be
and second, the power of executive clemency prescribed by law.
cannot extend to administrative cases in the
Judiciary, because it will violate the principle of Q: The Philippine Government is negotiating a
separation of powers and impair the power of the new security treaty with the United States which
Supreme Court under Section 6, Article VIII of the could involve engagement in joint military
Constitution of administrative supervision over all operations of the two countries' armed forces. A
courts. (Petition for Judicial Clemency of Romillo, loose organization of Filipinos, the Kabataan at
G.R. No. 97091, December 9, 1997) Matatandang Makabansa (KMM) wrote the
Department of Foreign Affairs (DFA) and the
Forms of executive clemency Department of National Defense (DND)
demanding disclosure of the details of the
Q: The first paragraph of Section 19 of Article negotiations, as well as copies of the minutes of
VII of the Constitution providing for the the meetings. The DFA and the DND refused,
pardoning power of the President, mentions contending that premature disclosure of the
reprieve, commutation, and pardon. Please offers and counter-offers between the parties
define the three of them, and differentiate one could jeopardize on-going negotiations with
from the others. (1988 BAR) another country. KMM filed suit to compel
disclosure of the negotiation details, and be
A: The terms were defined and distinguished from granted access to the records of the meetings,
one another in People v. Vera, 65 Phil. 56, 111-112, invoking the constitutional right of the people to
as follows: information on matters of public concern.

1. REPRIEVE is a postponement of the a. Decide with reasons.
execution of a sentence to a day certain,
2. COMMUTATION is a remission of a part of the A: The petition of KMM must be denied. Diplomatic
punishment, a substitution of less penalty for negotiations are privileged in order to encourage a
the one originally imposed. frank exchange of exploratory ideas between the
3. A PARDON, on the other hand, is an parties by shielding the negotiations from the public
act of grace, proceeding from the power view. (Akbayan Citizens Action Party v. Aquino 558
entrusted with the execution of the laws SCRA 468)
which exempts the individual on whom it is
bestowed from the punishment the law b. Will your answer be the same if the
inflicts for a crime he has committed. information sought by KMM pertains to
contracts entered into by the
Diplomatic power Government in its proprietary or
commercial capacity? Why or why not?
Q: Can the House of Representatives take active (2009 BAR)
part in the conduct of foreign relations,
particularly in entering into treaties and A: KMM is entitled to have access to information
international agreements? Explain. (1996 BAR) pertaining to government contracts entered into by
the Government in the exercise of its proprietary or
A: NO, the House of Representatives cannot take commercial capacity, the right to information under
active part in the conduct of foreign relations, the Constitution does not exclude contracts of public
particularly in entering into treaties and interest and are not privileged. (Section 7, Article III
international agreements. As held in United States of the Constitution; Valmonte v. Belmonte, 179 SCRA
v. Curtiss-Wright Export Corporation (299 U.S. 304), 256)
the President alone is the representative of the
nation in the conduct of foreign affairs. Although Q: Under the 1987 Constitution, to whom does
the Senate has the power to concur in treaties, the each duty/ power/ privilege/ prohibition/
President alone negotiates treaties and Congress is disqualification apply:
powerless to intrude into this. However, if the
matter involves a treaty or an executive agreement, The power to ratify treaties and international
the House of Representatives may pass a resolution agreements. (2019 BAR)
expressing its views on the matter.
A: The President. [Bayan v. Zamora, G.R. No. 138570,
Q: What are the restrictions prescribed by the October 10, 2000]
Constitution on the power of the President to
contract or guarantee foreign loans on behalf of ALTERNATIVE ANSWER:
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The Senate [Art. VII Sec. 21, based on jurisprudence, relating to the election returns and
Saguisag v Ochoa, G.R. No. 212426, Jan. 12, 2016; disqualifications of members of the House of
Pimentel Jr. v Executive Secretary, G.R. No. 158088, Representatives. How should this case be
Jul 6, 2005] decided? (1998 BAR)

DELEGATED POWERS A: The case is justiciable. As stated in Lazatin v. House
of Electoral Tribunal, 168 SCRA 391, 404, since judicial
Q: What are the limitations/restrictions power includes the duty to determine whether or not
provided by the Constitution on the power of there has been a grave abuse of discretion amounting
Congress to authorize the President to fix to lack or excess of jurisdiction on the part of any
tariff rates, import and export quotas, tonnage branch or instrumentality of the Government, the
and wharfage dues. Explain. (1999 BAR) Supreme Court has the power to review the decisions
of the House of Representatives Electoral Tribunal in
A: According to Section 28(2), Article VI of the case of grave abuse of discretion on its part.
Constitution, Congress may, by law, authorize the
President to fix within specified limits, and subject Q: What is the difference, if any, between the scope
to such limitations and restrictions it may impose, of judicial power under the 1987 Constitution on
tariff rates, import and export quotas, tonnage and one hand, and the 1935 and the 1973
wharfage dues and other duties or imposts within Constitutions on the other? (1994 BAR)
the framework of the national development
program of the Government. A: The scope of judicial power under the 1987
Constitution is broader than its scope under the 1935
VETO POWERS and 1973 Constitution because of the second
paragraph of Section 1, Article VIII of the 1987
Q: Distinguish between “pocket veto” and “item Constitution, which states that it includes the duty to
veto.” (2009 BAR) determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
A: A pocket veto is when the President is jurisdiction on the part of any branch or
considered to have rejected a bill submitted to him instrumentality of the Government. As held in Marcos
for his approval when Congress adjourns during v. Manglapus (177 SCRA 668), this provision limits
the period given to the President to approve or resort to the political question doctrine and broadens
reject a bill. the scope of juridical inquiry into areas which the
courts under the 1935 and the 1973 Constitutions
On the other hand, an item veto, or partial veto, is would normally have left to the political departments
the power of a President to nullify or cancel to decide.
specific provisions of a bill, usually a budget
appropriations bill, without vetoing the entire ALTERNATIVE ANSWER: Under the 1935 and the
legislative package. 1973 Constitutions, there was no provision defining
the scope of judicial power as vested in the judiciary.
While these Constitutions, both provided for vesture
JUDICIAL DEPARTMENT of judicial power “in one Supreme Court and in such
inferior courts as may be established by law,” they
were silent as to the scope of such power.
JUDICIAL POWER
The 1987 Constitution on the other hand, re- wrote
Q: Andres Ang was born of a Chinese father and the provisions on the vesture of judicial powers
a Filipino mother in Sorsogon, Sorsogon on originally appearing in the 1935 and 1973
January 20, 1973. In 1988, his father was Constitutions, as follows:
naturalized as a Filipino citizen. On May 11,
1998, Andres Ang was elected Representative “The judicial power shall be vested in one Supreme
of the First District of Sorsogon. Juan Bonto Court and in such lower courts as may be established
who received the second highest number of by law.
votes, filed a petition for Quo Warranto against
Ang. The petition was filed with the House of “Judicial power includes the duty of the courts of
Representative Electoral Tribunal (HRET). justice to settle actual controversies involving rights
Bonto contends that Ang is not a natural born which are legally demandable and enforceable, and to
citizen of the Philippines and therefore is determine whether or not there has been a grave
disqualified to be a member of the House. abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
The HRET ruled in favor of Ang. Bonto filed a instrumentality of the Government.” (Section 1, Article
petition for certiorari in the Supreme Court. VIII)
The following issues are raised: Whether the
case is justiciable considering that Article VI, The second paragraph of the cited provision was not
Section 17 of the Constitution declares the found in the 1935 and 1973 Constitution. It contains a
HRET to be the “sole Judge” of all contests new definition of judicial power particularly the scope
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thereof. The first portion thereof represents the question should involve the constitutionality of a
traditional concept of judicial power, involving the treaty or its validity in relation to a statute (Gonzales v.
settlement of conflicting rights as by law, which Hechanova, 9 SCRA 230). It does not pertain to the
presumably was implicit in the 1935 and 1973 termination of a treaty.
Constitutions. The second (latter) portion of the
definition represents a broadening of the scope of The authority of the Senate over treaties is limited to
the judicial power or, in the language of the concurrence. (Art. VIII, Sec. 21 of the 1987 Constitution)
Supreme Court, conferment of “expanded There being no express constitutional provision
jurisdiction” on the judiciary (Daza v. Singson. 180 regulating the termination of treaties, it is presumed
SCRA 496) to enable the courts to review the that the power of the President over treaty
exercise of discretion by the political departments agreements and over foreign relations includes the
of government. This new prerogative of the authority to “abrogate” treaties. The termination of the
judiciary as now recognized under the 1987 treaty by the President without the concurrence of the
Constitution was not constitutionally permissible Senate is not subject to constitutional attack, there
under the 1935 and 1973 Charters. being no Senate authority to that effect.

Q: SDO was elected Congressman. Before the The Philippines is a party to the Vienna Convention
end of his first year in office, he inflicted on the Law of Treaties. Hence, the said Convention
physical injuries on a colleague, ETI. In the this becoming part of Philippine Law governs the act
course of a heated debate, charges were filed in of the President in terminating the treaty. Article 54
court against him as well as in the House Ethics of this Convention provides that a treaty may be
Committee. Later, the House of terminated “At any time by consent of all the
Representatives, dividing along party lines, parties”. Apparently, the treaty in question is a
voted to expel him. Claiming that his expulsion bilateral treaty in which the other state is agreeable
was railroaded and tainted by bribery, he filed to its termination. Article 67 of the Convention adds
a petition seeking a declaration by the Supreme the formal requirement that the termination must be
Court that the House gravely abused its in an instrument communicated to the other party
discretion and violated the Constitution. He signed by the Head of State or of Government or by
prayed that his expulsion be annulled and that the Minister of Foreign Affairs.
he should be restored by the Speaker to his
position as Congressman. Is SDO’s petition Q: Mr. Yellow and Mr. Orange were the leading
before the Supreme Court justiciable? (2004 candidates in the vice-presidential elections.
BAR) After elections, Yellow emerged as the winner by
a slim margin of 100,000 votes. Undaunted,
A: While under Section 1, Article VIII of the 1987 Orange filed a protest with the Presidential
Constitution the Supreme Court may inquire Electoral Tribunal (PET). After due consideration
whether or not the decision to expel SDO is tainted of the facts and the issues, the PET ruled that
with grave abuse of discretion amounting to lack or Orange was the real winner of the elections and
excess of jurisdiction, the petition should be ordered his immediate proclamation.
dismissed. In Alejandrino v. Quezon (46 Phil. 83
[1924J), the Supreme Court held that it could not a. Aggrieved, Yellow filed with the Supreme
compel the Senate to reinstate a Senator who Court a Petition for Certiorari challenging
assaulted another Senator and was suspended for the decision of the PET alleging grave
disorderly behavior, because it could not compel a abuse of discretion. Does the Supreme
separate and coequal department to take any Court have jurisdiction? Explain.
particular action. In Osmena v. Pendatun (109Phil. b. Would the answer in (a.) be the same if
863 [1960]), it was held that the Supreme Court Yellow and Orange were contending for a
could not interfere with the suspension of a senatorial slot and it was the Senate
Congressman for disorderly behavior, because the Electoral Tribunal (SET) who issued the
House of Representatives is the judge of what challenged ruling?
constitutes disorderly behavior. The assault of a c. What is the composition of the PET?
fellow Senator constitutes disorderly behavior. d. What is judicial power? Explain Briefly.
(2012 BAR)
Q: The President alone without the concurrence
of the Senate abrogated a treaty. Assume that A:
the other country-party to the treaty is a. The Supreme Court has no jurisdiction over the
agreeable to the abrogation provided it petition. The Presidential Electoral Tribunal is
complies with the Philippine Constitution. If a not simply an agency to which the Members of
case involving the validity of the treaty the Senate Court were assigned. It is not
abrogation is brought to the Supreme Court, separate from the Supreme Court. (Macalintal v.
how should it be resolved? (2008 BAR) Presidential Tribunal Electoral Tribunal, 631
SCRA 239)
A: The Supreme Court should dismiss the case. The b. The Supreme Court would have jurisdiction if it
jurisdiction of the Supreme Court over a treaty is were the Senate Electoral Tribunal who issued
only with respect to questions of its the challenged ruling. The Supreme Court can
constitutionality or validity. In other words, the review its decision if it acted with grave abuse of
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discretion. (Lerias v. HRET, 202 SCRA 808) freedom of expression and overbreadth.
c. The presidential Electoral Tribunal is
composed of the Chief Justice and the JUDICIAL REVIEW
Associate Justices of the Supreme Court en
banc. (Section 4, Article VII of the Constitution) Q: What is the concept of expanded judicial review
d. Judicial power - Section 1(1) Art. 8 is the under the 1987 Constitution? (2015 BAR)
authority to settle justifiable controversies or
dispute involving rights that are enforceable A: The 1987 Constitution has narrowed the reach of
and demandable before the courts of justice or the political doctrine when it expanded the power of
the redress of wrongs for violation of such judicial review of the court not only “to settle actual
rights (Lopez v. Roxas, 17 SCRA 756). It controversies involving rights which are legally
includes the duty of the courts to settle actual demandable and enforceable” but also “to determine
controversies involving rights which are whether or not there has been grave abuse of
legally demandable and enforceable, and to discretion amounting to lack or excess of jurisdiction
determine whether or not there has a grave on the part of any branch or instrumentality of the
abuse of discretion amounting to lack or government” as stated in the second paragraph of
excess of jurisdiction on the part of any branch Section 1, Article VIII of the Constitution.
or instrumentality of the government. (Section
1, Article VIII of the Constitution) The new provision vests in the judiciary, and
particularly, the Supreme Court, the power to review
Q: In keeping with the modern age of instant even the political decisions of the executive and the
and incessant information and transformation, legislature and declare their acts invalid for lack or
Congress passed Cybercrime Prevention Act to excess of jurisdiction because tainted with grave abuse
regulate access and use of the amenities of the of discretion. (Cruz, 2014)
cyberspace. While ostensibly the law is
intended to protect the interests of society, Q: In Serrano v. Gallant Maritime Services, Inc., 582
some if its provisions were also seen as SCRA 254 (2009), the Supreme Court declared as
impermissibly invading and impairing widely violative of the Equal Protection Clause the 5th
cherished liberties of the people particularly paragraph of §10 R.A. No. 8042 (Migrant Workers
the freedom of expression. Before the law and Overseas Filipinos Act of 1995) for
could even be implemented, petitions were discriminating against illegally dismissed OFWs
filed in the Supreme Court questioning said who still had more than a year to their contract
provisions by people who felt threatened, for compared to those who only had less than a year
themselves, as well as for the benefit of others remaining. The next year, Congress enacted R.A.
who may be similarly affected nut not minded No 10222, an amendment to the Migrant Workers
enough to challenge the law. The Solicitor and Overseas Filipinos Act, which practically
General countered that there is no basis for the reinstated the provision struck down in Serrano.
exercise of the power of judicial review since Seamacho, an overseas seafarer who still had two
there has yet been no violation of the law, and years remaining on his contract when he was
that the petitioners have no locus standi since illegally terminated, and who would only be
they do not claim to be in imminent danger of entitled to a maximum of six-month’s pay under
being prosecuted under the law. Can the Court the reinstated provision, engages you as his
proceed to decide the case even if the law has counsel. How are you to argue that the new law is
not yet become effective? (2014 BAR) invalid insofar as it brings back to the statute
books a provision that has already been struck
A: The Supreme Court can proceed to decide the down by the Court?
case even if the law has not yet become effective.
Since the petitions filed sought to nullify the A: I will argue that since Section 10 of Republic Act
Cybercrime Prevention Act, because it violated No. 8042 has already been declared unconstitutional
several provisions of the Bill of Rights, the by the Supreme Court, its nullity cannot be cured by
Supreme Court became duty-bound to settle the reincorporation or reenactment of the same or a
dispute (Tañada v. Angara, 272 SCRA 18). Since it is similar law or provision. Once a law has been
alleged that the Cybercrime Prevention Act declared unconstitutional, it remains unconstitutional
violates various provisions of the Bill of Rights, unless circumstances have changed as to warrant a
including freedom of speech, freedom of the press, reverse conclusion (Sameer Overseas Placement
and the right against unreasonable searches and Agency v. Cabiles, G.R. No. 170139, August 5, 2014).
seizures, the issues raised are of paramount public
interest, of transcendental importance and with Operative fact doctrine
far- reaching constitutional implications, that
justify dispensation with locus standi and exercise Q: Define/explain: Doctrine of operative facts
of the power of judicial review by the Supreme (2009 BAR)
Court (Chavez v. Gonzales, 545 SCRA 441).
Jurisprudence provides that locus standi is not A:The doctrine of operative facts means that before a
required when the ction was filed to prevent a law was declared unconstitutional, its actual
chilling effect on the exercise of the right to existence must be taken into account and whatever
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was done while the law was in operation should whether or not there has been a grave abuse of
be recognized as valid. (Rieta v. People, 436 SCRA discretion amounting to lack or excess of jurisdiction
273, 2004) on the part of any branch or instrumentality of the
Government. In Marcos vs. Manglapus (177 SCRA 668),
Political question doctrine the Supreme Court stated that because ofthis courts of
justice may decide political questions if there was
Q: Judicial power as defined in Sec. 1, 2nd par., grave abuse of discretion amounting to lack or excess
Art. VIII, 1987 Constitution, now “included the of jurisdiction on the part of the official whose action
duty of the Courts of Justice to settle actual is being questioned.
controversies involving rights which are legally
demandable and enforceable, and to determine Q: The 1935, 1973 and 1987 Constitutions
whether or not there has been a grave abuse of commonly provide that “Judicial power shall be
discretion amounting to lack or excess of vested in one Supreme Court and in such lower
jurisdiction on the part of any branch or courts as may be established by law.”
instrumentality of the Government. This
definition is said to have expanded the power of What is the effect of the addition in the 1987
the judiciary to in include political questions Constitution of the following provision: “Judicial
formerly beyond its jurisdiction. power includes the courts of justice to settle actual
controversies involving rights which are legally
a. Do you agree with such as interpretation of demandable and enforceable, and to determine
the constitutional definition of judicial whether or not there has been grave abuse of
power that would authorize the courts to discretion amounting to lack or excess of
review and, if warranted, reverse the jurisdiction on the part of any branch or
exercise of discretion by the political instrumentality of the government”? Discuss
departments (executive and legislative) of briefly, citing at least one illustrative case. (2004
the government including the BAR)
Constitutional Commissions? Discuss fully.
b. In your opinion, how should such definition A: The effect of the second paragraph of Section 1,
be construed so as not to erode Article VIII of the 1987 Constitution is to limit resort to
considerably or disregard entirely the the political question doctrine and to broaden the
existing “political question” doctrine? scope of judicial inquiry into areas which the Judiciary,
Discuss fully. (1995 BAR) under the previous Constitutions, would have left to the
political departments to decide. If a political question is
A: involved, the Judiciary can determine whether or not
the official whose action is being questioned acted with
a. Yes, the second paragraph of Section 1, Article grave abuse of discretion amounting to lack or excess
VIII of the 1987 Constitution has expanded the of jurisdiction (Marcos v. Manglapus, 177 SCRA 668;
power of the Judiciary to include political Daza v. Singson, 180 SCRA 496). Thus, although the
questions. This was not found in the 1935 and House of Representatives Electoral Tribunal has
the 1973 Constitution. Precisely, the framers of exclusive jurisdiction to decide election contests
the 1987 Constitution intended to widen the involving members of the House of Representatives, the
scope of judicial review. Supreme Court nullified the removal of one of its
b. As pointed out in Marcos v. Manglapus (177 members for voting in favor of the protestant, who
SCRA 668) so as not to disregard entirely the belonged to a different party. (Bondoc v. Pineda, 201
political question doctrine, the extent of SCRA 792)
judicial review when political questions are
involved should be limited to a determination SAFEGUARDS OF JUDICIAL INDEPENDENCE
of whether or not there has been a grave abuse
of discretion amounting to lack or excess of Q: Name at least three constitutional safeguards
jurisdiction on the part of the official whose act to maintain judicial independence. (2000 BAR)
is being questioned. If grave abuse of
discretion is not shown, the courts should not A: The following are the constitutional safeguards to
substitute their questioned for that of the maintain judicial independence:
official; concerned and decide a matter which
by its nature or by law is for the latter alone to 1. The Supreme Court is a constitutional body and
decide. cannot be abolished by mere legislation.
2. The members of the Supreme Court cannot be
Q: To what extent, if at all, has the 1987 removed except by Impeachment.
Constitution affected the “political question 3. The Supreme Court cannot be deprived of its
doctrine”? (1997 BAR) minimum Jurisdiction prescribed in Section 5,
Article X of the Constitution.
A: Section 1, Article VIII of the Constitution has 4. Cannot be increased by law without its advice
expanded the scope of judicial power by including and concurrence.
the duty of the courts of justice to settle actual 5. Appointees to the Judiciary are nominated by the
controversies involving rights which are legally Judicial and Bar Council and are not subject to
demandable and enforceable, and to determine confirmation by the Commission on
38

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QuAMTO (1987-2019)
Appointments. A: The Judicial and Bar Council is composed of the

6. The Supreme Court has administrative following:
supervision over all lower courts and their
personnel. a. The Chief Justice as ex officio chairman;
7. The Supreme Court has exclusive power to b. The Secretary of Justice as ex officio member;
discipline judges of lower courts. c. A representative of Congress as ex officio
8. The Members of the Judiciary have security member;
of tenure, which cannot be undermined by a d. A representative of the Integrated Bar;
law reorganizing the Judiciary. e. A professor of law;
9. Members of the Judiciary cannot be f. A retired Justice of the Supreme Court; and
designated to any agency performing g. A representative of the private sector.
quasijudicial or administrative functions. [Section 8(1), Article VIII of the
10. The salaries of Members of the Judiciary Constitution]
cannot be decreased during their
continuance in office. The term of office of the regular members is 4 years.
11. The Judiciary has fiscal autonomy. [Section 8(2), Article VIII of the Constitution]
12. The Supreme Court has exclusive power to Q: State whether or not the following acts are
promulgate rules of pleading, practice and constitutional:
procedure.
13. Only the Supreme Court can temporarily A law prescribing as qualifications for
assign judges to other stations. appointment to any court lower than the Supreme
14. It is the Supreme Court who appoints all Court, Philippine citizenship, whether natural-
officials and employees of the Judiciary (Cruz, born or naturalized, 35 years of age on the date of
Philippine Political Law, 1995 ed., pp. 229-31) appointment, and at least eight years as a
member of the Philippine Bar (2018 BAR)
Q: According to Sec. 3, Art. VIII of the
Constitution, the Judiciary shall enjoy fiscal A: The law prescribing as a qualification for
autonomy. What does the term fiscal autonomy appointment to any lower court mere Philippine
signify? Explain your answer (2017 BAR) citizenship, whether natural-born or naturalized,
would be unconstitutional with respect to
A: The power of approporiation is limited by Sec 3 appointments to collegiate courts (CA, CTA,
Art. VIII or the Judiciary’s enjoyment of fiscal Sandiganbayan) because all appointees to these
autonomy, which is intended to strengthen the courts must be natural-born citizens. (Article VIII,
independence of the judiciari (Cruz, 2014). Fiscal Section 7)
autonomy means freedom from outside control. It
contemplates a guarantee on full flexibility to SUPREME COURT
allocate and utilize their resources with the
wisdom and dispatch that their needs require. It Q: Enumerate the cases required by the
recognizes the power and authority to levy, assess Constitution to be heard en banc by the Supreme
and collect fees, fix rates of compensation not Court? (1999 BAR)
exceeding the highest rates authorized by law for
compensation and pay plans of the government A: The following are the cases required by the
and allocate and disburse such sums as may be Constitution to be heard en banc by the Supreme
provided by law or prescribed by them in the Court:
course of the discharge of their functions.
(Bengzon v. Drilon) 1. Cases involving the constitutionality of a
treaty, international or executive
The fiscal autonomy of the Judiciary means that agreement, or law;
the appropriation for the Judiciary may not be 2. Cases which under the Rules of Court are
reduced by Congress below the amount required to be heard en banc
appropriated for the previous year, and after 3. Cases involving the constitutionality,
approval, shall be automatically and regularly application, or operation of presidential
released. (Article VII, Sec. 3 of the 1987 decrees, proclamations,
Constitution) orders, instructions, ordinances, and
other regulations;
Fiscal autonomy authorizes the Supreme Court to 4. Cases heard by a division when the
levy, assess and collect fees, and to determine how required majority is not obtained;
its funds should be utilized. (Bengzon v. Drilon, G.R. 5. Cases where a doctrine or principle of
No.103524, April 15, 1992, 208 SCRA 133) law previously laid down will be
modified or reversed;
APPOINTMENTS TO THE JUDICIARY 6. Administrative cases against judges
when the penalty is dismissal;
Q: What is the composition of the Judicial and 7. Election contests for president or vice-
Bar Council and the term of office of its regular president.
members? (1988, 1999 BAR)
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Q: The Court had adopted the practice of deliberated upon, no majority decision was reached. If
announcing its decision in important, the case is an original action, it should be dismissed. If
controversial or interesting cases the moment it is an appealed case, the decision appealed from
the votes had been taken among the justices, should be affirmed if it is a civil case. If it is a criminal
even as the final printed decision and separate case, the accused should be acquitted (Section 7, Rule
opinions are not yet available to the public. In 56 of the Rules of Court; Section 3, Rule 125 Revised
a greatly anticipated decision in a case of wide- Rules on Criminal Procedure)
ranging ramifications, the voting was close – 8
for the majority, while 7 were for the other c. The Supreme Court should not release to the
side. After the Court had thus voted, it issued a public the majority opinion and the separate
press release announcing the result, with the opinions, as well as its deliberations. They are part
advice that the printed copy of the decision, of its confidential internal deliberations
together with the separate opinions, were to (Limkaichong v. COMELEC, supra.)
be issued subsequently. The following day,
however, one of the members of the Court Procedural rule-making
died. The Court then announced that it would
deliberate anew on the case since apparently Q: Ascertain the constitutionality of the following
the one who died belonged to the majority. acts:
Citizens for Transparency, a group of civic-
spirited professionals and ordinary citizens A law prohibiting any court, other than the
dedicated to transparency and accountability Supreme Court, from issuing a writ of injunction
in the government, questioned the act of the against an investigation being conducted by the
Court. The petitioners claimed the decision Ombudsman. (2018 BAR)
had already been validly adopted and
promulgated. Therefore, it could no longer be A: The law is unconstitutional. The power to issue
recalled by the Court. At the same time, the injunctive writs is part of judicial power. The rules
group also asked the Court to disclose to the governing the exercise of this power are within the
public the original decision and the separate powers of the Supreme Court to promulgate. The law
opinions of the magistrates, together with therefore is an encroachment of the Court's rule-
what they had deliberated on just before they making power (Carpio-Morales v CA, GR 217126- 27, 10
came up with the press release about the 8-7 Nov 2015)
decision.
Q: Under Section 6 of Article V (on Criminal
a. Was the announced 8-7 decision already Jurisdiction) of the Visiting Forces Agreement
validly promulgated and thus not subject (VFA), the custody of a United States (US)
to recall? personnel who becomes subject to criminal
b. If the decision was not yet finalized at the prosecution before a Philippine court shall be with
time when the justice died, could it still be the US military authorities, if the latter so
promulgated? requests. The custody shall begin from the
c. If the decision was still being finalized, commission of the offense until the completion of
should the Court release to the public the all judicial proceedings. However, when requested,
majority decision and the separate the US military authorities shall make the US
opinions as originally announced, together personnel available to Philippine authorities for
with their deliberations on the issues? any investigative or judicial proceeding relating to
(2014 BAR) the offense with which the person has been
charged. In the event that the Philippine judicial
A: proceedings are not completed within one year,
a. The decision cannot be deemed to have been the US shall be relieved of any obligation under
promulgated simply because of the Section 6.
announcement of the voting in a press release,
because the decision has not yet been issued The constitutionality of Section 6, Article V of the
and filled with the Clerk of Court. Until the VFA is challenged on two grounds: (1) it nullifies
decision is filed with the Clerk of Court, the the exclusive power of the Supreme Court to adopt
Justices still have control over the decision and rules of procedure for all courts in the Philippines;
they can still change their votes (Limkaichong
v. COMELEC, 594 SCRA 434 (2009). Rule on the challenge. (2018 BAR)
b. The decision can no longer be promulgated if
the Justice who belonged to the majority died, A: The challenge is without merit.
for lack of majority vote. The vote he cast is no
longer valid, as he was no longer an incumbent The rule in international law is that foreign armed
member of the Supreme Court (Lao v. To-Chip, forces allowed to enter one’s territory are immune
158 SCRA 243 (1988)). from local jurisdiction, except to the extent agreed
upon. As a result, the situation involved is not one in
ALTERNATIVE ANSWER: The decision can be which the power of the Supreme Court to adopt rules
promulgated even if the Supreme Court en banc is of procedure is curtailed or violated, rather, it is one in
equally divided, if after the case was again which, as is normally encountered around the world,
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the laws (including rules of procedure) of one State before the courts in a proper case, they would
do not extend or Apply, except to the extent agreed nevertheless be subject to the power of judicial review
upon, to subjects of another State due to the under the second paragraph of Section 1, Article VIII of
recognition of extraterritorial immunity given to the Constitution, which authorizes it to review and
such bodies as visiting foreign armed forces. annul all acts of any branch or instrumentality of the
government which may be tainted with grave abuse of
Nothing in the Constitution prohibits such discretion amounting to lack or excess of jurisdiction.
agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as ALTERNATIVE ANSWER:
custody), in relation to long-recognized subjects of
such immunity, like Heads of State, diplomats and Although the Rules of Procedure of the Sandiganbayan
members of the armed forces contingents of a are covered by the disapproval authority of the
foreign State allowed to enter another State’s Supreme Court as stated in Section 5(5) of Article VIII
territory. The Constitution, on the contrary, states of the Constitution, the same thing cannot be said for
that the Philippines adopts the generally accepted the Rules of Procedure promulgated by Congress by
principles of international law as part of the law of virtue of the doctrine of separation of powers, unless
the land (Art. II, Sec. 2). these rules are tainted with grave abuse of discretion.
The Rules of Procedure of Constitutional Commissions
Q: Section 9 of P.O. No. 1606, as amended, are likewise outside the disapproval authority of the
provides that the Sandiganbayan may adopt Supreme Court as these commissions are deliberately
internal rules governing the allotment of cases placed in the Constitution to be independent, unless
among its divisions, the rotation of justices these are tainted with grave abuse of discretion.
among them, and other matters relating to the
internal operations of the court. Q: Congress enacted a law providing for trial by
jury for those charged with crimes or offenses
Section 6 of Article IX-A of the Constitution punishable by reclusion perpetua or life
allows each of the Constitutional Commissions imprisonment. The law provides for the
"en banc [to] promulgate its own rules qualifications of members of the jury, the
concerning pleadings and practice before it or guidelines for the bar and bench for their
before any of its offices. Such rules however selection, the manner a trial by jury shall operate,
shall not diminish, increase, or modify and the procedures to be followed. Is the law
substantive rights." constitutional? (2008, 2013 BAR)

Section 16(3) of Article VI of the Constitution A: The law providing for trial by jury is
states that "Each House may determine the unconstitutional, because of the omission in Article
rules of its proceedings." Section 21, Article VI VIII, Section 5(5) of the 1987 Constitution and
of the Constitution further provides that "The Article X, Section 5(5) 1973 Constitution, which
Senate or the House of Representatives or any authorizes the Legislature to repeal, alter or
of its respective committees may conduct supplement the rules of procedure promulgated by
inquiries... in accordance with its duly the Supreme Court. Congress can no longer enact a
published rules of procedure." law governing rules of procedure for the courts.
(Echegaray v. Secretary of Justice, 301 SCRA 96)
Finally, Section 3(8) of Article XI of the
Constitution declares that "The Congress shall Q: Congress enacted R.A. No. 14344 creating the
promulgate its rules on impeachment to City of Masuwerte which took effect on
effectively carry out the purposes of this September 25, 2014. Section 23 of the law
section." specifically exempts the City of Masuwerte from
the payment of legal fees in the cases that it
Are the rules promulgated pursuant to these would file and/or prosecute in the courts of law.
provisions subject to review and disapproval by In two (2) cases that it filed, the City of
the Supreme Court? Masuwerte was assessed legal fees by the clerk of
court pursuant to Rule 141 (Legal Fees) of the
A: Section 5[5] of Article VIII of the Constitution Rules of Court. The City of Masuwerte questions
clearly provides that the “[R]ules of procedure of the assessment claiming that it is exempt from
special courts and quasi-judicial bodies shall paying legal fees under Section 23 of its charter.
remain effective unless disapproved by the Is the claim of exemption tenable? Explain. (2015
Supreme Court;” accordingly, it is clear that the BAR)
Supreme Court may review and reverse the rules of
procedure of the Sandiganbayan and the A: The exemption from payment of legal fees is not
Constitutional Commissions. valid. The rules promulgated by the Supreme Court
for the payment of legal fees were in the exercise of
With respect to the rules of procedure of Congress its rule-making power and cannot be modified by a
in its proceedings, legislative inquiries and on law granting an exemption from payment (In Re
impeachment, while these rules may be generally Exemption from Payment of Court and Sheriff’s Fees of
considered as political questions, when questioned Duly Registered Cooperatives, A.M. No. 12-2-03-0,
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March 3, 2012) Q: Congress passed a law, R.A. No. 15005, creating

an administrative Board principally tasked with
Q: TRUE or FALSE. A law fixing the passing the supervision and regulation of legal education.
grade in the Bar examinations at 70%, with no The Board was attached to the Department of
grade lower than 40% in any subject, is Education. It was empowered, among others, to
constitutional. (2009 BAR) prescribe minimum standards for law admission
and minimum qualifications of faculty members,
A: FALSE. Such a law entails amendment of the the basic curricula for the course of study aligned
Rules of Court promulgated by the Supreme to the requirements for admission to the Bar, law
Court. The present Constitution has taken away practice and social consciousness, as well as to
the power of Congress to alter the Rules of Court establish a law practice internship as a
(Echegaray v. Secretary of Justice, 301 SCRA 96 requirement for taking the Bar which a law
[1999]). The law will violate the principle of student shall undergo anytime during the law
separation of powers. course, and to adopt a system of continuing legal
education. Professor Boombastick, a long- time law
ALTERNATIVE ANSWER: True. Deliberations in practitioner and lecturer in several prestigious
the ConCon reveal that Congress retains the law schools, assails the constitutionality of the law
power to amend or alter the rules because the arguing that it encroached on the prerogatives of
power to promulgate rules is essentially the Supreme Court to promulgate rules relative to
legislative even though the power has been admission to the practice of law, the Integrated
deleted in the 1987 Constitution. If the law, Bar, and legal assistance to the underprivileged. If
however, is retroactive, it is unconstitutional you were Professor Boombastick’s understudy,
because it is prejudicial. how may you help him develop clear, concise and
cogent arguments in support of his position based
Q: Congress enacted a law exempting certain on the present Constitution and the decisions of
government institutions providing social the Supreme Court on judicial independence and
services from the payment of court fees. Atty. fiscal autonomy? (2014 BAR)
Kristopher Timoteo challenged the
constitutionality of the said law on the ground A: The statutory authority granted to the
that only the Supreme Court has the power to administrative Board to promulgate rules and
fix and exempt said entities from the payment regulations cannot encroach upon the exclusive
of court fees. authority of the Supreme Court to regulate the
admission to the practice of law (Section 5(5), Article
Congress, on the other hand, argues that the VIII of the Constitution)
law is constitutional as it has the power to
enact said law for it was through legislative Thus, The Administrative Board cannot prescribe
fiat that the Judiciary Development Fund (JDF) additional standards for admission to the practice of
and the Special Allowance for Judges and law, adopt a course study which is inconsistent with
Justices (SAJJ), the funding of which are the requirements to take the bar examinations
sourced from the fees collected by the courts, (Philippine Lawyer’s Association v. Agrava, 105 Phil.
were created. Thus, Congress further argues 173). Since Congress has no power to repeal, alter or
that if it can enact a law utilizing court fees to supplement the Rules of Court, it cannot delegate such
fund the JDF and SAJJ, a fortiori it can enact a power to the Administrative Board.
law exempting the payment of court fees.
Q: Under Sec. 5, Art. VIII of the Constitution, the
Discuss the constitutionality of the said law, Supreme Court shall have thepower to
taking into account the arguments of both “promulgate rules concerning the protection and
parties? (2014 BAR) enforcement of constitutional rights, pleading,
practice and procedure in all courts x x x.” Section
A: The law is constitutional. The Constitution has 23 of RA No. 9165 or the Comprehensive
taken away the power of Congress to repeal, alter Dangerous Drugs Act of 2002 provides that “any
or supplement the Rules of Court. The fiscal person charged under any provision of this Act
autonomy guaranteed the Judiciary by Section 3, regardless of the imposable penalty shall not be
Article VIII of the Constitution recognized the allowed to avail of the provision on plea-
authority of the Supreme Court to levy, assess and bargaining.” Patricio, a user who was charged with
collect fees. Congress cannot amend the rules alleged sale of shabu but who wants to enter into a
promulgated by the Supreme Court for the plea of guilty to a charge of possession, questions
payment of legal fees by granting exemptions (In the constitutionality of Sec. 23 on the ground that
re: Petition for Recognition of Exemption of the Congress encroached on the rule-making power of
Government Service Insurance System from the Supreme Court under Sec. 5, Art. VIII. He
Payment of Legal Fees, 612 SCRA 193); In re: argues that plea- bargaining is procedural in
Exemption of National Power Corporation from nature and is within the exclusive constitutional
Payment of Filling/Docket Fees, 615 SCRA 1]; In re power of the Court. Is Patricio correct? Explain
Exemption from Payment of Court and Sheriff’s Fees your answer. (2016 BAR)
of Duly Registered Cooperatives, 668, SCRA 1).
A: Patricio is correct. It is unconstitutional for being
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contrary to the rule-making authority of the suspended or dismissed except for cause as provided
Supreme Court under Section 5(5), Article VIII of by law and after due process.
the 1987 Constitution. The power to promulgate
rules of pleading, practice and procedure is now in Q: Ricardo was elected Dean of the College of
exclusive domain of the Judiciary and no longer Education in a State University for a term of five
shared with the Executive and Legislative years unless sooner terminated. Many were not
departments. Plea bargaining is essentially a rule pleased with his performance. To appease those
of procedure. It is towards the provision of a critical of him, the President created a new
simplified and inexpensive procedure for the position that of Special Assistant to the President
speedy disposition of cases in all courts that the with the rank of Dean, without reduction in salary,
rules on plea bargaining was introduced. As a way and appointed Ricardo to said position in the
of disposing criminal charges by agreement of the interest of the service. Contemporaneously, the
parties, plea bargaining is considered to be an University President appointed Santos as Acting
"important,""essential,""highly desirable," and Dean in place of Ricardo.
"legitimate" component of the administration of
justice. (Estipona Jr v. Abrigo, G.R. No. 226679, a. Does the phrase “unless sooner terminated”
August 15, 2017) mean that the position of Ricardo is
terminable at will?
Q: Differentiate the rule-making power or the b. Was Ricardo removed from his position as
power of the Supreme Court to promulgate Dean of the College of Education or merely
rules under Section 5, Article VIII of the 1987 transferred to the position of Special
Constitution and judicial legislation. (2015 Assistant to the President? Explain. (2005
BAR) BAR)

A: The rule-making power of the Supreme Court is A:
the power of the Court to “promulgate rules a. NO, the term “unless sooner terminated” could
concerning the protection and enforcement of not mean that his position is terminable at will.
constitutional rights, pleading, practice, and Security of tenure means that dismissal should
procedure in all courts, the admission to the only be for a cause, provided by law and not
practice of law, the integrated bar, and legal otherwise (Palmera v. CSC, G.R. No. 11018, August
assistance to the under-privileged.” 4, 1994)

On the other hand, judicial legislation is a breach of ALTERNATIVE ANSWER: No, his position is not
the doctrine of separation of powers. Verily, the terminable at will. Ricardo’s contract of employment
primordial duty of the Court is merely to apply the has a fixed term of five years. It is not an
law in such a way that it shall not usurp legislative appointment in an acting capacity or as officer-in-
powers by judicial legislation and that in the charge. A college dean appointed with a term cannot
course of such application or construction, it be separated without cause. Ricardo, with a definite
should not make or supervise legislation, or under term of employment, may not thus be removed
the guise of interpretation, modify, revise, amend, except for a cause (Sta. Maria v. Lopez, G.R. No. L-
distort, remodel, or rewrite the law, or give the law 30773, February 18, 1970).
a construction which is repugnant to its terms. The
Court should apply the law in a manner that would b. Ricardo was removed from his position as dean.
give effect to their letter and spirit, especially Having an appointment with a fixed term, he
when the law is clear as to its intent and purpose. cannot, without his consent, be transferred
Succinctly put, the Court should shy away from before the end of his term. He cannot be asked to
encroaching upon the primary function of a co- give up his post nor appointed as dean of
equal branch of the Government; otherwise, this another college, much less transferred to
would lead to an inexcusable breach of the another position even if it be dignified with a
doctrine of separation of powers by means of dean’s rank. More than this, the transfer was a
judicial legislation demotion because deanship in a university,
being an academic position which requires
learning, ability and scholarship, is more exalted
CONSTITUTIONAL COMMISSIONS than that of a special assistant who merely
assists the President, as the title indicates. The
special assistant does not make authoritative
POWERS AND FUNCTIONS OF EACH decisions unlike the dean who does so in his own
COMMISSION name and responsibility. The position of dean is
created by law, while the special assistant is not
Q: What is the meaning and guarantee of so provided by law; it was a creation of the
security of tenure? (1999 BAR) university president (Sta. Maria v. Lopez, G.R. No.
L-30773, February 18, 1970).
A: According to Palmera v. Civil Service Commission,
235 SCRA 87, Security of Tenure means that no
officer or employee in the Civil Service shall be
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Under the 1987 Constitution, to whom does Code of 1997 (E.O. No. 292), particularly Section
each 14, Chapter 3, Title I-A, Book V. This provision
duty/power/privilege/prohibition/disqualifica reads: "The chairman of the CSC shall be a
ti on apply: (2019 BAR) member of the Board of Directors of other
governing bodies of government entities whose
(a) The authority to keep the general accounts functions affect the career development,
of the Government and for such period employment, status, rights, privileges, and welfare
provided by law, preserve the vouchers and of government officials and employees... " A
other supporting documents pertaining taxpayer questions the designation of Melchor as
thereto. ex- officio member of the said corporations before
the Supreme Court based on two (2) grounds, to
A: The Commission on Audit. [Section 2(1), Article wit: (1) it violates the constitutional prohibition
IX-D, 1987 CONST.] on members of the Constitutional Commissions to
hold any other office or employment during his
(b) The authority to provide for the tenure; and (2) it impairs the independence of the
standardization of compensation of CSC. Will the petition prosper? Explain (2015
government officials and employees. BAR)

A: The Civil Service Commission. [Section 5, Article A: The petition will prosper. It is a clear violation of
IX-B, 1987 CONST.] the special prohibition in Section 2 of Article IX-A of
the Constitution, which strictly provides that he shall
PROHIBITED OFFICES AND INTERESTS not hold any other office or employment during his
tenure. The aforesaid provision does not make any
Q: Professor Masipag who holds a plantilla or distinction among the offices he may not hold, or as to
regular item in the University of the whether or not the functions attached to said offices
Philippines (UP) is appointed as an Executive would be primarily related to his duties as
Assistant in the Court of Appeals (CA). The Chairperson of the Civil Service Commission and
professor is considered only on leave of therefore may be held in an ex officio capacity.
absence in UP while he reports for work at the
CA which shall pay him the salary of the Additionally, the offices mentioned are vested by their
Executive Assistant. The appointment to the charters with various powers and functions to carry
CA position was questioned, but Professor out the purposes for which they were created. These
Masipag countered that he will not collect the powers and functions, whether personnel-related or
salary for both positions; hence, he can not be not, are carried out and exercised by the respective
accused of receiving double compensation. Is Boards of the GSIS, PHILHEALTH, ECC, and HDMF.
the argument of the professor valid? Explain. Thus, when the CSC Chairman sits as a member of the
(2015 BAR) governing board of the said offices, he may exercise
these powers and functions, which are not anymore
A: Although Professor Masipag is correct in derived from his position as CSC Chairman.
saying that “he cannot be accused of receiving
double compensation” as he would not actually Corollarily, the designation as member of the
be receiving additional or double compensation, governing Boards of the said offices entitles him to
it is submitted that he may nevertheless not be receive per diem, a form of additional compensation
allowed to accept the position of Executive that is disallowed by the concept of ex officio position
Assistant of the Court of Appeals during his by virtue of its clear contravention of the proscription
incumbency as a regular employee of the set by Section 2, Article IX-A of the 1987 Constitution.
University of the Philippines, as the former would It is unconstitutional, for it goes against the principle
be an incompatible office not allowed to be behind an ex officio position.
concurrently held by him under the provisions of
Article IX-B, Section 7 of the Constitution, the Apart from violating the prohibition against holding
second paragraph of which species that “unless multiple offices, the designation of the CSC Chairman
otherwise allowed by law or by the primary as member of the governing boards of GSIS,
functions of his position, no appointive official PHILHEALTH, ECC, and HDMF impairs the
shall hold any other office in the Government.” independence of the CSC. Under Section 17, Article VII
of the Constitution, the President exercises control
Q: The President appoints Emilio Melchor as over all government offices in the Executive Branch.
Chairperson of the Civil Service Commission. An office that is legally not under the control of the
Upon confirmation of Melchor's appointment, President is not part of the Executive Branch. (Funa v.
the President issues an executive order The Chairman, Civil Service Commission, G.R. No.
including him as Ex-Officio member of the 191672, November 25, 2014)
Board of Trustees of the Government Service
Insurance System (GSIS), Employees JURISDICTION OF CIVIL SERVICE COMISSION
Compensation Commission (ECC), and the
Board of Directors of the Philippine Health Q: Luzviminda Marfel, joined by eleven other
Insurance Corporation (PHILHEALTH). retrenched employees, filed a complaint with the
Allegedly, this is based on the Administrative Department of Labor and Employment (DOLE) for
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unpaid retrenchment or separation pay, JURISDICTION OF COMELEC

underpayment of wages and non-payment of
emergency cost of living allowance. The Q: As counsel for the protestant, where will you
complaint was filed against Food Terminal, Inc. file an election protest involving a contested
Food Terminal Inc. moved to dismiss on the elective position in:
ground of lack of jurisdiction, theorizing that it
is a government-owned and controlled (a) the barangay?
corporation and its employees are governed by (b) the municipality?
the Civil Service Law and not by the Labor Code. (c) the province?
Marfel opposed the motion to dismiss, (d) the city?
contending that although Food Terminal, Inc. is (e) the House of Representatives?
a corporation owned and controlled by the (1996, 2009 BAR)
government earlier created and organized
under the general corporation law as “The A: In accordance with Section 2(2), Article IX-C of the
Greater Manila Food Terminal, Inc.”, it has still Constitution an election protest involving the elective
the marks of a private corporation: it directly position enumerated below should be filed in the
hires its employees without seeking approval following courts or tribunals:
from the Civil Service Commission and its
personnel are covered by the Social Security (a) Barangay - Metropolitan Trial Court,
System and not the Government Service Municipal Circuit Trial Court, or
Insurance System. The question posed in the Municipal Trial Court
petition for certiorari at bar whether or not a (b) Municipality - Regional Trial Court
labor law claim against a government- owned (c) Province – COMELEC
or controlled corporation like the Food (d) City – COMELEC
Terminal, Inc. falls within the jurisdiction of (e) Under Section 17. Article VI of the
the Department of Labor and Employment or Constitution, an election protest involving
the Civil Service Commission? Decide and the position of Member of the House of
ratiocinate. (1999 BAR) Representatives shall be filed in the
House of Representatives Electoral
A: The claim of the retrenched employees falls Tribunal.
under the jurisdiction of the National Labor
Relations Commission and not under the Q: In an election protest involving the position of
jurisdiction of the Civil Service Commission. As Governor of the Province of Laguna between "A",
held in Lumanta v. National Labor Relations the protestee, and "B" the protestant, the First
Commission, 170 SCRA 790, since Food Terminal, Division of the Commission on Elections rendered
Inc., was organized under the Corporation Law and a decision upholding B's protest. Can "A" file a
was not created by a special law in accordance petition for certiorari with the Supreme Court
with Section 2(1), Article IX-B of the Constitution, under Rule 65 of the Rules of Court, from the
it is not covered by the civil service. decision of the COMELEC First Division? If yes,
Why? If not what procedural step must he
Q: A corporation, a holder of a certificate of undertake first? (2001 BAR)
registration issued by the Securities and
Exchange Commission, is owned and controlled A: "A" cannot file a petition for certiorari with the
by the Republic of the Philippines. Supreme Court. As held in Mastura vs. Commission on
Elections, 285 SCRA 493 (1998), the Supreme Court
The Civil Service Commission (CSC), in a cannot review the decisions or resolutions of a
memorandum-order, directs the corporation to division of the Commission on Elections. "A" should
comply with the Civil Service Rules in the first file a motion for reconsideration with the
appointment of all its officers and employees. Commission on Elections en banc.
The memorandum-order of the CSC is assailed
by the corporation, as well as by its officers and Q: Sec. 17, Art. VI of the Constitution establishes an
employees, before the court. How should the Electoral Tribunal for each of the Houses of
case be resolved? (2003 BAR) Congress, and makes each Electoral Tribunal "the
sole judge of all contests relating to the election,
A: The memorandum-order of the Civil Service returns, and qualifications of their respective
Commission should be declared void. As held in Members." On the other hand, Sec. 2(1), C
Gamogamo v. PNOC Shipping and Transit (Commission on Elections), Art. IX of the
Corporation, 381 SCRA 742, under Article IX-B, Constitution grants to the COMELEC the power to
Section 2(1) of the 1987 Constitution government- enforce and administer all laws and regulations
owned or controlled corporations organized under "relative to the conduct of an election, plebiscite,
the Corporation Code are not covered by the Civil initiative, referendum, and recall."
Service Law but by the Labor Code, because only
government-owned or controlled corporations Considering that there is no concurrence of
with original charters are covered by the Civil jurisdiction between the Electoral Tribunals and
Service. the COMELEC, state when the jurisdiction of the
45

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Electoral Tribunals begins, and the COMELEC's he was allegedly a "green card holder," i.e., a
jurisdiction ends. Explain your answer. (2017 permanent resident of the US, as evidenced by a
BAR) certification to this effect from the US Embassy.

A: To be considered a Member of the House of Acting on the recommendations of its Law
Representatives, there must be a concurrence of Department, the Comelec en banc motu proprio
the following requisites: (1) A valid proclamation, issued two resolutions granting the petitions
(2) a proper oath, and (3) assumption of office against Anselmo and Ambrosio.
(Reyes v. COMELEC, G.R. No. 207264, October 22,
2013). Once a winning candidate has been Both Anselmo and Ambrosio filed separate
proclaimed and taken his oath, and assumed office petitions with the Supreme Court assailing the
as a Member of the House of Representatives, the resolutions cancelling their respective CoCs. Both
jurisdiction of the Commission on Elections over claimed that the Comelec en bane acted with grave
the election contest ends, and the jurisdiction of abuse of discretion amounting to lack or excess of
the House of Representatives Electoral Tribunal jurisdiction because the petitions should have
begins. (Vinzons-Charo v. COMELEC, G.R. No. first been heard and resolved by one of the
172131, April 2, 2007) Comelec's Divisions.

Q: Ang Araw, a multi-sectoral party-list Are Anselmo and Ambrosio correct? (2018 BAR)
organization duly registered as such with the
Commission on Elections (Comelec), was A: Anselmo is incorrect. The rule is every quasi-
proclaimed as one of the winning party-list judicial matter must first be tackled by a division
groups in the last national elections. Its first subject to appeal by way of a Motion for
nominee, Alejandro, assumed office as the Reconsideration to the COMELEC en banc. In Jalosjos
party-list representative. v. COMELEC (G.R. No. 205033, June 18, 2013), it was
determined that a cancellation on the basis of
About one year after Alejandro assumed office, perpetual disqualification is a matter that can be
the Interim Central Committee of Ang Araw taken judicial notice of. When it cancels A CoC on that
expelled Alejandro from the party for ground, it is acting in performance of an
disloyalty and replaced him with Andoy, its administrative function and, therefore, the rule in
second nominee. Alejandro questioned before Article XI, Section 3 does not apply. Ambrosio, on the
the Comelec his expulsion and replacement by other hand, is correct that the petition for the
Andoy. cancellation of his CoC should have been first heard
and resolved by the Comelec Division. Cancellation
The Comelec considered Alejandro's petition as proceedings involve the COMELEC's quasijudicial
an intra-party dispute which it could resolve as functions. The Constitution mandates the COMELEC,
an incident of its power to register political in the exercise of its adjudicatory or quasi-judicial
parties; it proceeded to uphold the expulsion. powers, to hear and decide cases first by division and,
upon motion for reconsideration, by the COMELEC en
Is the Comelec's ruling correct? (2018 BAR) banc. (Bautista v. Comelec, G.R. Nos. 154796-97,
October 23, 2003)
A: Alejandro’s petition should be dismissed for lack
of jurisdiction. It is the HRET which has Q: Candidate X, a naturalized Filipino citizen, ran
jurisdiction over the case, because Alejandro is for Congressman for the Lone District of Batanes.
already a Member of the House of Representatives. After a close electoral contest, he won by a slim
(Lico v. Commission on Elections, G.R. No. 205505, margin of 500 votes. His sole opponent, Y, filed an
September 29, 2015) election protest before the Commission on
Election (COMELEC), claiming that X should be
Q: Two petitions for the cancellation of disqualified to run for said position because he is
Certificate of Candidacy (CoC)/Denial of Due not a natural-born citizen. While the case was
Course were filed with the Comelec against two pending, X was proclaimed by the Provincial
candidates running as municipal mayors of Election Supervisor of Batanes as the duly elected
different towns. Congressman of the province.

The first petition was against Anselmo. Years Did X’s proclamation divest the COMELEC of its
ago, Anselmo was charged and convicted of the jurisdiction to decide the case and vest the House
crime of rape by final judgment, and was of Representatives Electoral Tribunal (HRET)
sentenced to suffer the principal penalty of jurisdiction to hear the case? Explain. (2%) (2019
reclusion perpetua which carried the accessory BAR)
penalty of perpetual absolute disqualification.
While Anselmo was in prison, the President A: NO, COMELEC maintains its jurisdiction over the
commuted his sentence and he was discharged matter. To divest the COMELEC of jurisdiction over
from prison. election cases of Members of the House of
Representatives, the following requisites must concur:
The second petition was against Ambrosio.
Ambrosio's residency was questioned because 1. Valid Proclamation;
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2. Valid oath; and suits that may thereafter arise. The consent, to be
3. Assumption of office on June 30. effective though, must come from the State acting
through a duly enacted statute as pointed out by
Thus, the mere proclamation of X does not yet Justice Bengzon in Mobil."
transfer jurisdiction from the COMELEC to the
HRET. (Reyes v. COMELEC, G.R. No. 207264, October ALTERNATIVE ANSWER: In accordance with the
22, 2013) doctrine of exhaustion of administrative remedies,
Raintree Corporation should first file a claim with
JURISDICTION OF COMMISSION ON AUDIT the Commission on Audit. If the claim is denied, it
should file a petition for certiorari with the Supreme
Q: The Department of National Defense Court.
entered into a contract with Raintree
Corporation for the supply of ponchos to the Q: The Philippine National Bank was then one of
Armed Forces of the Philippines (AFP), the leading government-owned banks and it was
stipulating that, in the event of breach, action under the audit jurisdiction of the Commission
may be filed in the proper courts in Manila. on Audit (COA). A few years ago, it was
Suppose the AFP fails to pay for delivered privatized. What is the effect, if any, of the
ponchos, where must Raintree Corporation privatization of PNB on the audit Jurisdiction of
file its claim? Why? (1998 BAR) the COA? (2001 BAR)

A: Raintree Corporation must file its claim with A: In accordance with the ruling in Philippine Airlines
the Commission on Audit, Under Section 2(1) IX- v. COA, 245 SCRA 39, since the Philippine National
D of the Constitution, the Commission on Audit Bank is no longer owned by the Government, the
has the authority to settle all accounts pertaining Commission on Audit no longer has jurisdiction to
to expenditure of public funds. audit it as an institution. Under Section 2(2), Article
IX-D of the Constitution, it is government-owned or
Raintree Corporation cannot file a case in court. controlled corporations and their subsidiaries which
The Republic of the Philippines did not waive its are subject to audit by the Commission on Audit.
immunity from suit when it entered into the However, in accordance with Section 2(1), Article IX-
contract with Raintree Corporation for the supply D of the Constitution, the Commission on Audit can
of ponchos for the use of the Armed Forces of the audit the Philippine National Bank with respect to its
Philippines. The contract involves the defense of accounts because the Government still has equity in
the Philippines and therefore relates to a it.
sovereign function.
Q: Towards the end of the year, the Commission
In United States v. Ruiz, 136 SCRA 487, 492, the on Audit (COA) sought the remainder of its
Supreme Court held: "The restrictive application appropriation from the Department of Budget
of State immunity is proper only when the and Management (DBM). However, the DBM
proceedings arise out of commercial transactions refused because the COA had not yet submitted a
of the foreign sovereign. Stated differently, a State report on the expenditures relative to the earlier
may be said to have descended to the level of an amount released to it. And, pursuant to the “no
individual and can thus be deemed to have tacitly report, no release” policy of the DBM, COA is not
given its consent to be sued only when it enters entitled to any further releases in the meantime.
into business contracts. It does not apply where COA counters that such a policy contravenes the
the contract relates to the exercise of its guaranty of fiscal autonomy granted by the
sovereign functions. In this case the projects are Constitution. Is COA entitled to receive the rest of
an integral part of the naval base which is its appropriations even without complying with
devoted to the defense of both the United States the DBM policy? (2014 BAR)
and the Philippines, indisputably a function of the
government of the highest order; they are not A: YES. COA is entitled to the rest of its
utilized for nor dedicated to commercial or appropriations even without complying with the
business purposes." DBM policy. That the no report, no release policy
may not be validly enforced against offices vested
The provision for venue in the contract does not with fiscal autonomy is not disputed. Indeed, such
constitute a waiver of the State Immunity from policy cannot be enforced against offices possessing
suit, because the express waiver of this immunity fiscal autonomy without violating Article IX (A),
can only be made by a statute. Section 5 of the Constitution which provides: “Sec. 5.
The Commission shall enjoy fiscal autonomy. Their
In Republic v. Purisima 78 SCRA 470, 474, the approved appropriations shall be automatically and
Supreme Court ruled: "Apparently respondent regularly released.” (CSC v. Department of Budget and
Judge was misled by the terms of the contract Management, July 22, 2005)
between the private respondent, plaintiff in his
sala and defendant Rice and Corn Administration Q: The Congress establishes by law Philippine
which, according to him, anticipated the case of a Funds, Inc., a private corporation, to receive
breach of contract between the parties and the foreign donations coming from abroad during
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national and local calamities and disasters, and economic, and cultural rights, and are inherent
to enable the unhampered and speedy in persons from the fact of their humanity. On
disbursements of the donations through the the other hand, some civil and political rights
mere action of its Board of Directors. Thereby, are not natural rights. They exist because they
delays in the release of the donated funds are protected by a constitution or granted by
occasioned by the stringent rules of law. For example, the liberty to enter into
procurement would be avoided. Also, the contracts is not a human right but is a civil
releases would not come under the jurisdiction right.
of the Commission on Audit (COA).
Q: Congress enacted a law to provide Filipinos,
Can the Congress pass the law that would especially the poor and the marginalized, access
exempt the foreign grants from the and information to a full range of modern family
jurisdiction of the COA? Explain your answer. planning methods, including contraceptives,
(2017 BAR) intrauterine devices, injectibles, non- abortifacient
hormonal contraceptives, and family planning
A: Congress cannot exempt the foreign grants products and supplies, but expressly prohibited
from the jurisdiction of the Commission on Audit. abortion. To ensure its objectives, the law made it
Its jurisdiction extends to all government-owned mandatory for health providers to provide
or controlled corporations, including those information on the full range of modern family
funded by donations through the Government. planning methods, supplies and services, for
(Art IX-D, Sec. 3 of the 1987 Philippine schools to provide reproductive health education,
Constitution; and Petitioner Corporation v. for non-governmental medical practitioners to
Executive Secretary, G.R. Nos. 147036-37 & render mandatory 48 hours pro bono
147811, April 10, 2012, 269 SCRA 49) reproductive health services as a condition to
Philhealth accreditation, and for couples desiring
to marry to attend a family planning seminar prior
BILL OF RIGHTS to the issuance of a marriage license. It also
punishes certain acts of refusals to carry out its
mandates. The spouses Aguiluz, both Roman
Q: Catholics, filed a petition to declare the law as
1. Distinguish civil rights from political unconstitutional based on, among others, the
rights and give an example of each right. following grounds:
2. What are the relations of civil and
political rights to human rights? (a) It violates the right to life, since it practically
Explain. (1996 BAR) sanctions abortion. Despite express terms
prohibiting abortion, petitioners claim that the
A: family planning products and supplies oppose the
1. CIVIL RIGHTS refer to the rights secured by initiation of life, which is a fundamental human
the constitution of any state or country to all right, and the sanction of contraceptive use
its inhabitants and not connected with the contravenes natural law and is an affront to the
organization or administration of dignity of man.
government. POLITICAL RIGHTS consist in
the power to participate, directly or (b) It violates the constitutional prohibition
indirectly, in the management of the against involuntary servitude because it requires
government. CIVIL RIGHTS define the medical practitioners to render 48 hours of pro
relations of individual amongst themselves bono reproductive health services which may be
while POLITICAL RIGHTS defines the against their will.
relations of individuals vis-a-vis the state.
CIVIL RIGHTS extend protection to all Rule on each of the above objections. (2018 BAR)
inhabitants of a state, while POLITICAL
RIGHTS protect merely its citizens. A:
(a) The law in question does not sanction abortion
Examples of civil rights are the rights against even in practical terms. In the case of Imbong v. Ochoa
involuntary servitude, religious freedom, the (GR No. 204819, April 8, 2014), the law on its face
guarantee against unreasonable searches and expressly mentioned that abortion is not permissible,
seizures, liberty of abode, the prohibition against and this was the determinative factor in making the
imprisonment for debt, the right to travel, equal ruling. In the same case, the Court also found that the
protection, due process, the right to marry, right to RH law was replete with provisions that embody the
return to this country and right to education. policy of protecting the unborn from the moment of
fertilization. In addition, the majority of the court
Examples of political rights are the right of believes that the question of when life starts is a
suffrage, the right of assembly, and the right to scientific and medical issue; hence, the Court refused
petition for redress of grievances. to make a ruling on this issue.

2. Human rights are broader in scope than civil (b) Involuntary servitude denotes compulsion or
and political rights including social, coercion to do something either through force, threats,
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intimidation or other means. The accreditation A: If I were the judge, I would dismiss the case. As held
with the PhilHealth, as ruled by the Supreme Court in Ortigas and Company Limited Partnership v. FEATI
in the case of Imbong v. Ochoa, should be viewed as Bank and Trust Company, 94 SCRA 633, the zoning
an incentive and not a punishment. These health ordinance is a valid exercise of police power and
service providers also enjoy the liberty to choose prevails over the contractual stipulation restricting the
which kind of health service they wish to provide. use of the lot to residential purposes.
Clearly, there is no compulsion, force or threat
upon them to render the pro bono services against Q: As a reaction to the rice shortage and the dearth
their will. of mining engineers, Congress passed a law
requiring graduates of public science high school
FUNDAMENTAL POWERS OF THE STATE henceforth to take up agriculture or mining
engineering as their college course. Several
Police power students protested, invoking their freedom to
choose their profession. Is the law constitutional?
Q: Pedro bought a parcel of land from Smart (2008 BAR)
Corporation, a realty firm engaged in
developing and selling lots to the public. One of A: YES, the law is constitutional, it is valid exercise of
the restrictions in the deed of sale which was the State’s police power. Police power concerns
annotated in the title is that the lot shall be government enactments which precisely interfere
used by the buyer exclusively for residential with personal liberty or property in order to promote
purposes. A main highway having been the general welfare or the common good and that the
constructed across the subdivision, the area means employed are reasonably necessary for the
became commercial in nature. The municipality accomplishment of the purpose and not unduly
later passed a zoning ordinance declaring the oppressive upon individuals.
area as a commercial bank building on his lot.
Smart Corporation went to court to stop the It cannot be denied that a rice shortage and a dearth of
construction as violative of the building mining engineers are valid concerns that affect the
restrictions imposed by it. The corporation common good and must be addressed by the State.
contends that the zoning ordinance cannot Since the law is limited to public science high schools,
nullify the contractual obligation assumed by it is within the police power of the State to require the
the buyer. Decide the case. (1989, 2001 BAR) graduates whose education it has subsidized to take
up agriculture or mining engineering. The law
A: The case must be dismissed. As held in Ortigas provides for a lawful method geared toward a lawful
and Company, Limited Partnership v. FEATI Bank objective, and as such may be considered to be a
and Trust Company, 94 SCRA 533, such a restriction reasonable exercise of the State’s police power.
in the contract cannot prevail over the zoning
ordinance, because the enactment of the ordinance Q: The National Building Code and its
is a valid exercise of police power. It is hazardous implementing rules provide, inter alia, that
to health and comfort to use the lot for residential operators of shopping centers and malls should
purposes, since a highway crosses the subdivision provide parking and loading spaces, in accordance
and the area has become commercial. with a prescribed ratio. The Solicitor General,
heeding the call of the public for the provision of
Q: In the deeds of sale to, and in the land titles free parking spaces in malls, filed a case to compel
of homeowners of a residential subdivision in said business concerns to discontinue their
Pasig City, there are restrictions annotated practice of collecting parking fees. The mall
therein to the effect that only residential owners and operators oppose, saying that this is
houses or structures may be built or an invalid taking of their property, thus a violation
constructed on the lots. However, the City of due process. The Solicitor General justifies it,
Council of Pasig enacted an ordinance however, claiming that it is a valid exercise of
amending the existing zoning ordinance by police power. Could the mall owners and
changing the zone classification in that place operators be validly compelled to provide free
from purely residential to commercial. parking to their customers? (2014 BAR)
A: NO, the mall owners and operators cannot be
"A", a lot owner, sold his lot to a banking firm validly compelled to provide free parking to their
and the latter started constructing a customers, because requiring them to provide free
commercial building on the lot to house a bank parking space to their customers is beyond the scope
inside the subdivision. The subdivision owner of police powers. It unreasonably restricts the right to
and the homeowners' association filed a case in use property for business purposes and amounts to
court to stop the construction of the building confiscation of property (Office of the Solicitor General
for banking business purposes and to respect v. Ayala Land, Inc., 600 SCRA 617).
the restrictions embodied in the deed of sale by
the subdivision developer to the lot owners, as Similarities and differences
well as the annotation in the titles. If you were
the Judge, how would you resolve the case? Q: The City of San Rafael passed an ordinance
(2001 BAR) authorizing the City Mayor, assisted by the police,
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to remove all advertising signs displayed or alleged unlawful intrusion by the government.
exposed to public view in the main city street, Accordingly, the letter and check are admissible in
for being offensive to sight or otherwise a evidence. (Waterous Drug Corp. v. NLRC, G.R. No.
nuisance. AM, whose advertising agency owns 113271, October 16, 1997)
and rents out many of the billboards ordered
removed by the City Mayor, claims that the City ALTERNATIVE ANSWER: The letter is inadmissible in
should pay for the destroyed billboards at their evidence. The constitutional injunction declaring the
current market value since the City has privacy of communication and correspondence to be
appropriated them for the public purpose of inviolable is no less applicable simply because it is the
city beautification. The Mayor refuses to pay, so employer who is the party against whom the
AM is suing the City and the Mayor for damages constitutional provision is to be enforced. The only
arising from the taking of his property without exception to the prohibition in the Constitution is if
due process nor just compensation. Will AM there is a lawful order from the court or when public
prosper? Reason briefly. (2004 BAR) safety or order requires otherwise, as prescribed by
law. Any violation of this provision renders the
A: The suit of AM will not prosper. The removal of evidence obtained inadmissible for any purpose in any
the billboards is not an exercise of the power of proceeding. (Zulueta v. CA, G.R. No. 107383, February
eminent domain but of police power (Churchill v. 20, 1996)
Rafferty, 32 Phil. 580). The abatement of a nuisance
in the exercise of police power does not constitute Q: The Destilleria Felipe Segundo is famous for its
taking of property and does not entitle the owner 15-year old rum, which it has produced and
of the property involved to compensation. marketed successfully for the past 70 years. Its
(Association of Small Landowners in the Philippines, latest commercial advertisement uses the line:
Inc. v. Secretary of Agrarian Reform, 175 SCRA 343) "Nakalikim ka na ba ng kinse anyos?" Very soon,
activist groups promoting women's and children's
ALTERNATIVE ANSWER: The removal of the rights were up in arms against the advertisement.
billboards for the purpose of beautification
permanently deprived AM of the right to use his a. All advertising companies in the
property and amounts to its taking. Consequently, Philippines have formed an association,
he should be paid just compensation. (People v. the Philippine Advertising Council, and
Fajardo, 104 Phil. 443) have agreed to abide by all the ethical
guidelines and decisions by the Council. In
PRIVATE ACTS AND THE BILL OF RIGHTS response to the protests, the Council
orders the pull-out of the "kinse anyos"
Q: Emilio had long suspected that Alvin, his advertising campaign. Can Destilleria
employee, had been passing trade secrets to his Felipe Segundo claim that its
competitor, Randy, but he had no proof. One constitutional rights are thus infringed?
day, Emilio broke open the desk of Alvin and
discovered a letter wherein Randy thanked A: Destilleria Felipe Segundo cannot claim that its
Alvin for having passed on to him vital trade constitutional rights were infringed. In this case, a
secrets of Emilio. Enclosed in the letter was a private association formed by advertising companies
check for P50,000.00 drawn against the account for self-regulation was the one who ordered that the
of Randy and payable to Alvin. Emilio then advertisement be pulled out, because Destilleria did
dismissed Alvin from his employment. Emilio's not comply with the association’s ethical guidelines.
proof of Alvin's perfidy are the said letter and The guarantee of freedom of speech is a limitation on
check which are objected to as inadmissible for state action and not on the action of private parties
having been obtained through an illegal search. (Lloyd Corporation v. Tanner, 407 US 551). The mass
Alvin filed a suit assailing his dismissal. Rule on media are private enterprises, and their refusal to
the admissibility of the letter and check. (2005 accept any advertisement does not violate freedom of
BAR) speech (Times- Picayune Publishing Company v. United
States, 345 US 594; Columbia Broadcasting System, Inc.
A: As held in People v. Marti (G.R. No. 81561, v. Democrat Control Committee, 412 US 94).
January 18, 1991), the constitution, in laying down
the principles of the government and fundamental b. One of the militant groups, the Amazing
liberties of the people, does not govern Amazonas, call on all government-owned
relationships between individuals. Thus, if the and controlled corporations (GOCC) to
search is made at the behest or initiative of the boycott any newspaper, radio or TV station
proprietor of a private establishment for its own that carries the "kinse anyos"
and private purposes and without the intervention advertisements. They call on all
of police authorities, the right against unreasonable government nominees in sequestered
search and seizure cannot be invoked for only the corporations to block any advertising
act of private individuals, not the law enforcers, is funds allocated for any such newspaper,
involved. In sum, the protection against radio or TV station. Can the GOCCs and
unreasonable searches and seizures cannot be sequestered corporations validly comply?
extended to acts committed by PRIVATE (1992, 2007 BAR)
INDIVIDUALS so as to bring it within the ambit of
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A: The government-owned and controlled that he was authorized there under to investigate
corporations and the government nominees in city officers and employees. The case against
sequestered corporation cannot block any Gatdula was then forwarded to him, and a re-
advertising funds allocated for any newspaper, investigation was conducted. The office of the
radio or television station which carries the Fiscal subsequently recommended dismissal. On
advertisements of Destilleria Felipe Segundo. Since January 11, 1966, the City Mayor returned the
they are government entities and officers, they are records of the case to the City Fiscal for the
bound by the guarantee of freedom of speech. submission of an appropriate resolution but no
Freedom of speech extends to commercial resolution was submitted. On March 3, 1968, the
advertisements (Metromedia, Inc. v. San Diego, 453 City Fiscal transmitted the records to the City
US 400). The mere fact that an advertisement is Mayor recommending that final action thereon be
offensive cannot justify its suppression (Carey v. made by the City Board of Investigators (CBI).
Population Services International, 431 US 678). The Although the CBI did not conduct an investigation,
blocking of advertising funds is a threat intended to the records show that both the Municipal Board
prevent the exercise of the freedom of speech of and the Fiscal's Office exhaustively heard the case
Destilleria Felipe Segundo through the fear of with both parties afforded ample opportunity to
consequences. Such a threat qualifies as prior adduce their evidence and argue their cause. The
restraint. (Rosden, The Law of Advertising, Vol I, pp. Police Commission found Gatdula guilty on the
5-13) basis of the records forwarded by the CBI. Gatdula
challenged the adverse decision of the Police
DUE PROCESS– THE RIGHTS TO LIFE, LIBERTY & Commission theorizing that he was deprived of
PROPERTY due process. Questions: Is the Police Commission
bound by the findings of the City Fiscal? Is
Q: Give examples of acts of the state which Gatdula's protestation of lack or non-observance
infringe the due process clause: of due process well- grounded? Explain your
Answers. (1999 BAR)
a. in its substantive aspect and
b. in its procedural aspect? (199 BAR) A: The Police Commission is not bound by the findings
of the City Fiscal. In Mangubat v. de Castro, 163 SCRA
A: 608, it was held that the Police Commission is not
prohibited from making its own findings on the basis
a. Substantive due process requires that the law of its own evaluation of the records. Likewise, the
itself, not merely the procedures by which the protestation of lack of due process is not well
law would be enforced, is fair, reasonable, and grounded, since the hearings before the Municipal
just. It is violated when it is unreasonable or Board and the City Fiscal offered Gatdula the chance to
unduly oppressive. For example, Presidential be heard. There is no denial of due process if the
Decree No. 1717, which cancelled all the decision was rendered on the basis of evidence
mortgages and liens of a debtor, was contained in the record and disclosed to the parties
considered unconstitutional for being affected.
oppressive. Likewise, as stated in Ermita-
Malate Hotel and Motel Operators Association, Q: On November 7, 1990, nine lawyers of the Legal
Inc. v. City Mayor of Manila, 20 SCRA 849, a law Department of Y Bank who were all under Fred
which is vague so that men of common Torre, sent a complaint to management accusing
intelligence must guess at its meaning and Torre of abusive conduct and mismanagement.
differ as to its application violates substantive Furnished with a copy of the complaint, Torre
due process. denied the charges. Two days later, the lawyers
and Torre were called to a conference in the office
b. Procedural due process refers to the method or of the Board Chairman to give their respective
manner by which the law is enforced. In State sides of the controversy. However, no agreement
Prosecutors v. Muro, 236 SCRA 505, it was held was reached thereat. Bank Director Romulo Moret
that the dismissal of a case without the benefit was tasked to look further into the matter. He met
of a hearing and without any notice to the with the lawyers together with Torre several times
prosecution violated due process. Likewise, as but to no avail. Moret then submitted a report
held in People v. Court of Appeals, 262 SCRA sustaining the charges of the lawyers. The Board
452, the lack of impartiality of the judge who Chairman wrote Torre to inform him that the bank
will decide a case violates procedural due had chosen the compassionate option of "waiting"
process. for Torre's resignation. Torre was asked, without
being dismissed, to turn over the documents of all
Q: On April 6, 1963, Police Officer Mario cases handled by him to another official of the
Gatdula was charged by the Mayor with Grave bank but Torre refused to resign and requested for
Misconduct and Violation of Law before the a "full hearing". Days later, he reiterated his
Municipal Board. The Board investigated request for a "full hearing", claiming that he had
Gatdula but before the case could be decided, been "constructively dismissed". Moret assured
the City charter was approved. The City Fiscal, Torre that he is "free to remain in the employ of
citing Section 30 of the city charter, asserted the bank" even if he has no particular work
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assignment. After another request for a "full protected by the guarantee of due process. The pre-
hearing" was ignored, Torre filed a complaint evaluation cancellation of the licenses of the harbor
with the arbitration branch of NLRC for illegal pilots every year is unreasonable and violated their
dismissal. Reacting thereto, the bank right to substantive due process. The renewal is
terminated the services of Torre. dependent on the evaluation after the licenses have
been cancelled. The issuance of the administrative
a. Was Torre "constructively dismissed" order also violated procedural due process, since no
before he filed his complaint? prior public hearing was conducted. As held in CIR v.
b. Given the multiple meetings held among CA, 261 SCRA 237, when a regulation is being issued
the bank officials, the lawyers and Torre, under the quasi-legislative authority of an
is it correct for him to say that he was not administrative agency, the requirements of notice,
given an opportunity to be heard? Explain. hearing and publication must be observed.
(1999 BAR)
Q: Ten public school teachers of Caloocan City left
A: their classrooms to join a strike, which lasted for
a. Torre was constructively dismissed, as held one month, to ask for teachers' benefits. The
in Equitable Banking Corporation v. National Department of Education, Culture and Sports
Labor Relations Commission, 273 SCRA 352. charged them administratively, for which reason
Allowing an employee to report for work they were required to A and formally investigated
without being assigned any work constitutes by a committee composed of the Division
constructive dismissal. Superintendent of Schools as Chairman, the
b. Torre is correct in saying that he was not Division Supervisor as member and a teacher, as
given the chance to be heard. The meetings another member. On the basis of the evidence
in the nature of consultations and adduced at the formal investigation which amply
conferences cannot be considered as valid established their guilt, the Director rendered a
substitutes for the proper observance of decision meting out to them the penalty of
notice and hearing. removal from office. The decision was affirmed by
the DECS Secretary and the Civil Service
Q: The Philippine Ports Authority (PPA) Commission. On appeal, they reiterated the
General Manager issued an administrative arguments they raised before the administrative
order to the effect that all existing regular bodies, namely: They were deprived of due
appointments to harbor pilot positions shall process of law as the Investigating Committee was
remain valid only up to December 31 of the improperly constituted because it did not include
current year and that henceforth all a teacher in representation of the teachers'
appointments to harbor pilot positions shall be organization as required by the Magna Carta for
only for a term of one year from date of Public School Teachers (R.A. No. 4670, Sec. 9).
effectivity, subject to yearly renewal or (2002 BAR)
cancellation by the PPA after conduct of a rigid
evaluation of performance. Pilotage as a A: The teachers were deprived of due process of law.
profession may be practiced only by duly Under Section 9 of the Magna Carta for Public School
licensed individuals, who have to pass five Teachers, one of the members of the committee must
government professional examinations. The be a teacher who is a representative of the local, or in
Harbor Pilot Association challenged the its absence, any existing provincial or national
validity of said administrative order arguing organization of teachers. According to Fabella v. CA,
that it violated the harbor pilots' right to 283 SCRA 256, to be considered the authorized
exercise their profession and their right to due representative of such organization, the teacher must
process of law and that the said administrative be chosen by the organization itself and not by the
order was issued without prior notice and Secretary of Education, Culture and Sports. Since in
hearing. The PPA countered that the administrative proceedings, due process requires that
administrative order was valid as it was issued the tribunal be vested with jurisdiction and be so
in the exercise of its administrative control and constituted as to afford a person charged
supervision over harbor pilots under PPA's administratively a reasonable guarantee of
legislative charter, and that in issuing the order impartiality, if the teacher who is a member of the
as a rule or regulation, it was performing its committee was not appointed in accordance with the
executive or legislative, and not a quasi-Judicial law, any proceeding before it is tainted with
function. Due process of law is classified into deprivation of procedural due process.
two kinds, namely, procedural due process and
substantive due process of law. Was there, or, Q: The municipal council of the municipality of
was there no violation of the harbor pilots' Guagua, Pampanga, passed an ordinance
right to exercise their profession and their penalizing any person or entity engaged in the
right to due process of law? (2001 BAR) business of selling tickets to movies or other
public exhibitions, games or performances which
A: The right of the harbor pilots to due process would charge children between 7 and 12 years of
was violated. As held in Corona v. United Harbor age the full price of admission tickets instead of
Pilots Association of the Philippines, 283 SCRA 31 only one-half of the amount thereof. Would you
pilotage as a profession is a property right hold the ordinance a valid exercise of legislative
52

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power by the municipality? Why? (2003 BAR) Commission on Human Rights, 208 SCRA 125)

A: The ordinance is void. As held in Balacuit v. CFI Q: The Philippine National Police (PNP) issued a
of Agusan del Norte, 163 SCRA 182, the ordinance is circular to all its members directed at the style and
unreasonable. It deprives the sellers of the tickets length of male police officers' hair, sideburns and
of their property without due process. A ticket is a moustaches, as well as the size of their waistlines.
property right and may be sold for such price as It prohibits beards, goatees and waistlines over 38
the owner of it can obtain. There is nothing inches, except for medical reason. Some police
pernicious in charging children the same price as officers questioned the validity of the circular,
adults. claiming that it violated their right to liberty under
the Constitution. Resolve the controversy. (2008
Q: The City Mayor issues an Executive Order BAR)
declaring that the city promotes responsible
parenthood and upholds natural family A: The circular is valid. The circular is based on a
planning. He prohibits all hospitals operated desire to make police officers easily recognizable to
by the city from prescribing the use of artificial the members of the public or to inculcate spirit de
methods of contraception, including condoms, corps which such similarity is felt to inculcate within
pills, intrauterine devices and surgical the police force. Either one is a sufficient rational
sterilization. As a result, poor women in his city justification for the circular (Kelley v. Johnson 425 US
lost their access to affordable family planning 238)
programs. Private clinics however, continue to
render family planning counsel and devices to Constitutional and statutory due process
paying clients.
Q: Does a Permit to Carry Firearm Outside
a. Is the Executive Order in any way Residence (PTCFOR) constitute a property right
constitutionally infirm? Explain. protected by the Constitution? (2006 BAR)
b. Is the Philippines in breach of any
obligation under international law? A: No, it is not a property right under the due process
Explain. clause of the Constitution. Just like ordinary licenses in
c. May the Commission on Human Rights other regulated fields, it may be revoked any time. It
order the Mayor to stop the does not confer an absolute right, but only a personal
implementation of the Executive Order? privilege, subject to restrictions. A licensee takes his
Explain. (2007 BAR) license subject to such conditions as the Legislature
sees fit to impose, and may be revoked at its pleasure
A: without depriving the licensee of any property (Chavez
a. The Executive Order is constitutionally infirm. v. Romulo, G.R. No. 157036, June 9, 2004).
It violates the guarantee of due process and
equal protection. Due process includes the Hierarchy of rights
right to decisional privacy, which refers to the
ability to make one’s own decisions and to act Q: What do you understand by the term "hierarchy
on those decisions, free from governmental or of civil liberties"? Explain. (2012 BAR)
other unwanted interference. Forbidding the
use of artificial methods of contraception A: The hierarchy of civil liberties means that freedom
infringes on the freedom of choice in matters of of expression and the rights of peaceful assembly are
marriage and family life (Griswold v. superior to property rights (Philippine Blooming Mills
Connecticut, 381 US 415). Moreover, the v. Philippine Blooming Mills, 51 SCRA 189)
Executive Order violates equal protection as it
discriminates against poor women in the city Void-for-vagueness doctrine
who cannot afford to pay private clinics.
b. The acts of the City Mayor may be attributed to Q: What is the doctrine of "void for vagueness"? In
the Philippines under the principle of state what context can it be correctly applied? Not
responsibility. Article 26 of the International correctly applied? Explain (2010 BAR)
Covenant on Civil and Political rights requires
that Philippine law shall prohibit any A: A statute is vague when it lacks comprehensible
discrimination and shall guarantee to all standards that men of common intelligence guess as to
persons equal and effective protection against its meaning and differ as to its application. It applies to
discrimination on any ground such as social both free speech cases and penal statutes. However, a
origin, birth or other status. The Executive facial challenge on the ground of vagueness can be
Order of the City Mayor discriminates against made only in free speech cases. It does not apply to
poor women. penal statutes (Southern Hemisphere Engagement
c. The Commission on Human Rights cannot Network, Inc. v. Anti-Terrorism Council, 632 SCRA 146)
order the City Mayor to stop the
implementation of his Executive Order, Q: Compare and contrast “overbreadth doctrine”
because it has no power to issue writs of from “void-for-vagueness” doctrine. (2010 BAR)
injunction (Export Processing Zone Authority v.
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A: While the overbreadth doctrine decrees that a ground that GBTY A espouses immorality which
governmental purpose may not be achieved by offends religious dogmas. GBTY A challenges the
means in a statute which sweep unnecessary denial of its application based on moral grounds
broadly and thereby invades the area of protected because it violates its right to equal protection of
freedom. A statute is void for vagueness when it the law.
forbids or requires the doing of an act in terms so
vague that men of common intelligence cannot a. What are the three (3) levels of test that are
necessarily guess at its meaning and differ as to its applied in equal protection cases? Explain.
application (Estrada v. Sandiganbayan, 369 SCRA b. Which of the three (3) levels of test should be
394 [2001]) applied to the present case? Explain. (2015
BAR)
EQUAL PROTECTION
A:
Q: The Department of Education, Culture and a. The three levels of test applied in equal
Sports Issued a circular disqualifying anyone protection cases are as follow:
who fails for the fourth time in the National
Entrance Tests from admission to a College of First, the STRICT SCRUTINY TEST which is applied
Dentistry. X who was thus disqualified, when the legislative classification disadvantages a
questions the constitutionality of the circular. subject class or impinges upon a fundamental right,
Did the circular violate the equal protection the statute must fall unless the government can show
clause of the Constitution? (1994 BAR) that the classification serves a compelling
governmental interest.
A: NO, the circular did not violate the equal
protection clause of the Constitution. There is a Second, the INTERMEDIATE SCRUTINY TEST, when
substantial distinction between dentistry students the classification, while not facially invidious, gives
and other students. The dental profession directly rise to recurring constitutional difficulties or
affects the lives and health of people. Other disadvantages a quasi-suspect class. The law must not
professions do not involve the same delicate only further an important government interest and be
responsibility and need not be similarly treated. related to that interest. The justification must be
genuine and must not depend on broad
Q: Undaunted by his three failures in the generalizations.
National Medical Admission Test (NMAT), Cruz
applied to take it again but he was refused Lastly, the RATIONALITY TEST, if neither the strict nor
because of an order of the Department of the intermediate scrutiny is appropriate, the statute
Education, Culture and Sports (DECS) will be tested for mere rationality. The presumption is
disallowing flunkers from taking the test a in favor of the classification, the reasonableness and
fourth time. Cruz filed suit assailing this rule fairness of state action and of legitimate grounds of
raising the constitutional grounds of accessible distinction.
quality education, academic freedom and equal
protection. The government opposes this, b. Classification on the basis of sexual
upholding the constitutionality of the rule on orientation is a quasi-subject classification
the ground of exercise of police power. Decide that prompts intermediate review. Sexual
the case discussing the grounds raised. (1994, orientation has no relation to a person’s
2000 BAR) ability to contribute to society. The
discrimination that distinguishes the gays and
A: As held in Department of Education, Culture and lesbian persons are beyond their control. The
Sports v. San Diego, 180 SCRA 533, the rule is a valid group lacks sufficient political strength to
exercise of police power to ensure that those bring an end to discrimination through
admitted to the medical profession are qualified. political mean (Ang Ladlad v. COMELEC, 618
The arguments of Cruz are not meritorious. The SCRA 32 [2010]).
right to quality education and academic freedom
are not absolute. Under Section 5(3), Article XIV of ALTERNATIVE ANSWER:
the Constitution, the right to choose a profession is
subject to fair, reasonable and equitable admission a. The three levels of tests that may be applied in
and academic requirements. The rule does not equal protection cases may be classified as
violate equal protection. There is a substantial follow: the STRICT SCRUTINY TEST, for laws
distinction between medical students and other dealing with freedom of the mind or restricting
students. Unlike other professions, the medical the political processes; the RATIONAL BASIS
profession directly affects the lives of the people. STANDARD for the review of economic
legislation; and HEIGHTENED or INTERMEDIATE
Q: The Gay, Bisexual and Transgender Youth SCRUTINY for evaluating classifications based on
Association (GBTYA), an organization of gay, gender and legitimacy.
bisexual, and transgender persons, filed for
accreditation with the COMELEC to join the b. It is submitted that the strict scrutiny test should
forthcoming party-list elections. The COMELEC be applied in this case because the challenged
denied the application for accreditation on the classification restricts the political process.
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Q: A law is passed intended to protect women extent that it allows the transfer of the custody of
and children from all forms of violence. When a an accused to a foreign power as providing a
woman perceives an act to be an act of violence different rule of procedure for that accused.
or a threat of violence against her, she may
apply for a Barangay Protection Order (BPO) to Rule on the challenge. (2018 BAR)
be issued by the Barangay Chairman, which
shall have the force and effect of law. Conrado, A: The equal protection clause is not violated, either,
against whom a BPO had been issued on because there is a substantial basis for a different
petition of his wife, went to court to challenge treatment of foreign military armed forces allowed to
the constitutionality of the law. He raises the enter our territory and all other accused. (Nicolas v.
following grounds: Romulo, G.R. No. 175888, February 11, 2009)

a. The law violates the equal protection SEARCHES AND SEIZURES
clause, because while it extends protection
to women whi may be victims of violence Q: A is an alien. State whether, in the Philippines,
by their husbands, it does not extend the he: Is entitled to the right against illegal searches
same protection to husbands who may be and seizures and against illegal arrests. (2001
battered by their wives. BAR)
b. The grant of authority to the Barangay
Chairman to issue a Barangay Protection A: Aliens are entitled to the right against illegal
Order (BPO) constitutes an undue searches and seizures and illegal arrests. As applied in
delegation of judicial power, because People v. Chua Ho San, 307 SCRA 432, these rights are
obviously, the issuance of the BPO entails available to all persons, including aliens.
the exercise of judicial power.
Q: One day a passenger bus conductor found a
Rule on the validity of the grounds raised by man's handbag left in the bus. When the conductor
Conrado, with reasons. (2016 BAR) opened the bag, he found inside a calling card with
the owner’s name (Dante Galang) and address, a
A: few hundred peso bills, and a small plastic bag
a. The law does not violate the equal protection containing a white powdery substance. He brought
clause. It is based on substantial distinctions. the powdery substance to the National Bureau of
The unequal power relationshio betwwen Investigation for laboratory examination and it
women and men, the greater likelihood for was determined to be methamphetamine
women than men to be victims of violence, and hydrochloride or shabu, a prohibited drug. Dante
the widespread gender bias and prejudice Galang was subsequently traced and found and
against women all make for real differences. brought to the NBI Office where he admitted
(Garcia v. Drilon, 699 SCRA 352 [2013]) ownership of the handbag and its contents. In the
b. The grant of authority to the Barangay course of the interrogation by NBI agents, and
Chairman to issue a Barangay Protection without the presence and assistance of counsel,
Order is a purely executive function pursuant Galang was made to sign a receipt for the plastic
to his duty to enforce all laws and ordinances bag and its shabu contents. Galang was charged
and to maintain public order. (Garcia v. Drilon, with illegal possession of prohibited drugs and
599 SCRA 352 [2013]) was convicted. On appeal he contends that - The
plastic bag and its contents are inadmissible in
Q: Under Section 6 of Article V (on Criminal evidence being the product of an illegal search and
Jurisdiction) of the Visiting Forces Agreement seizure. Decide the case with reasons. (2002 BAR)
(VFA), the custody of a United States (US)
personnel who becomes subject to criminal A: The plastic bag and its contents are admissible in
prosecution before a Philippine court shall be evidence, since it was not the National Bureau of
with the US military authorities, if the latter so Investigation but the bus conductor who opened the
requests. The custody shall begin from the bag and brought it to the National Bureau of
commission of the offense until the completion Investigation. As held in People v. Marti, 193 SCRA 57
of all judicial proceedings. However, when (1991), the constitutional right against unreasonable
requested, the US military authorities shall search and seizure is a restraint upon the government.
make the US personnel available to Philippine It does not apply so as to require exclusion of evidence
authorities for any investigative or judicial which came into the possession of the Government
proceeding relating to the offense with which through a search made by a private citizen.
the person has been charged. In the event that
the Philippine judicial proceedings are not Q: Pornographic materials in the form of tabloids,
completed within one year, the US shall be magazines and other printed materials,
relieved of any obligation under Section 6. proliferate and are being sold openly in the streets
of Masaya City. The city Mayor organized a task
The constitutionality of Section 6, Article V of force which confiscate these materials. He then
the VFA is challenged on the ground that it ordered that the materials be burned in public.
violates the equal protection clause to the Dominador, publisher of the magazine “Plaything”,
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filed a suit raising the following constitutional No, those boxes containing the shabu are inadmissible
issues: (a) the confiscation of the materials in evidence against them.
constituted an illegal search and seizure,
because the same was done without a valid The signatures of the accused on the boxes constitute
search warrant; and (b) the confiscation as well as tacit admission of the crime charged and are
as the proposed destruction of the materials, is tantamount to an uncounselled extra-judicial
a denial of the right to disseminate confession which is not sanctioned by the Bill of
information, and thus, violates the Rights (Section 12[1] and [3], Article III, 1987
constitutional right to freedom of expression. Is Constitution). They are, therefore, inadmissible as
either or both contentions proper? Explain evidence for any admission wrung from them in
your answer (2016 BAR) violation of their constitutional rights is inadmissible
against them. The fact that all accused were foreign
A: The confiscation of the materials constituted an nationals does not preclude application of the
illegal search and seizure because it was done exclusionary rule because the constitutional
without a valid search warrant. It cannot be guarantees embodied in the Bill of Rights are given
justified as a valid warrantless search and seizure, and extend to all persons, both aliens and citizens.
because such search and seizure must have been (People V. Wong Chuen Ming, G.R. Nos. 112801-11, April
an incident of a lawful arrest. There was no lawful 12, 1996)
arrest. (Pita v. Court of Appeals, 178 SCRA 362
[1989]) Warrantless searches

The argument of Dominador that pornographic Q: At about 5:30 A.M. of September 15, 2019 Police
materails are protected by the constitutional right Senior Inspector Officer A of the Manila Police
to freedom of expression is erroneous. Obscenity is District Station received a text message from an
not protected expression. (Fernando v. Court of unidentified civilian informer that one Mr. Z would
Appeals, 510 SCRA 351[2006]) Section 2 of be meeting up later that morning with two (2)
Presidential Decree No. 969 requires the forfeiture potential sellers of drugs at a nearby restaurant.
and destruction of pornographic materials. As such, Officer A decided to hang around the said
(Nograles v. People, 660 SCRA 475 [2011]) place immediately.

Q: Five foreign nationals arrived at the NAIA At about 9:15 A.M., two (2) male passengers.
from Hong Kong. After retrieving their Named A and Y, who were each carrying a
checked-in luggage, they placed all their bags in traveling bag, alighted from a bus in front of the
one pushcart and proceeded to Express Lane 5. restaurant. A transport barker, serving as a
They were instructed to place their luggage on lookout for Officer A, signaled to the latter that X
the examiner's table for inspection. and Y were "suspicious-looking."

The examiner found brown-colored boxes, As the two were about to enter the restaurant,
similar in size to powdered milk boxes, Officer A stopped them and asked about the
underneath the clothes inside the foreigners' contents of their bags. Dissatisfied with their
bags. The examiner discovered white response that the bags contained only clothes,
crystalline substances inside the boxes that he Officer A proceeded to search the bags and found
inspected and proceeded to bundle all of the packs of shabu therein. Thus, X and Y were
boxes by putting masking tape around them. He arrested, and the drugs were seized from them.
thereafter handed the boxes over to Bureau of According to Officer A, a warrantless search was
Customs agents. The agents called out the validly made pursuant to the stop and frisk rule;
names of the foreigners one by one and hence, the consequent seizure of the drugs was
ordered them to sign their names on the likewise valid. (2019 Bar)
masking tape placed on the boxes recovered
from their respective bags. The contents of the (a) What is the stop and frisk rule?
boxes were thereafter subjected to tests which
confirmed that the substance was shabu. A: The stop and frisk rule is an exception to the
general rule against a search without a warrant.
Can the shabu found inside the boxes be Where a police officer observes an unusual conduct
admitted in evidence against the five foreigners which leads him reasonably to conclude in light of his
for the charge of illegal possession of drugs in experience that criminal activity may be afoot and that
violation of the Comprehensive Dangerous the persons with whom he is dealing may be armed
Drugs Act of 2002? (2018 BAR) and presently dangerous, where in the course of
investigating this behavior he identifies himself as a
A: Yes, shabu obtained in ordinary customs policeman and makes reasonable inquiries, and where
searches such as those done in airport, which is a nothing in the initial stages of the encounter serves to
valid warrantless search, are admissible in dispel his reasonable fear for his own or others' safety,
evidence (Dela Cruz v. People G.R. 209387, January he is entitled for the protection of himself and others
11, 2016). in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to
ALTERNATIVE ANSWER: discover weapons which might be used to assault him.
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(Manalili v. Court of Appeals, G.R. No. 113447, but veered away when he sensed the
October 9, 1997) presence of policemen. They approached
him, introduced themselves as police officers
(b) Was the stop and frisk rule validly invoked and asked him what he had clenched in his
by Officer A? If not, what is the effect on the hand. As he kept mum, the policemen pried
drugs seized as evidence? Explain. his hand open and found a sachet of shabu, a
dangerous drug. Accordingly charged in
A: NO, the stop-and-frisk rule was not validly court, the accused objected to the admission
invoked by Officer A. A basic criterion to invoke the in evidence of the dangerous drug because it
stop-and-frisk rule would be that the police officer, was the result of an illegal search and
with his or her personal knowledge, must observe seizure. Rule on the objection.
the facts leading to the suspicion of an illicit act. b. What are the instances when warrantless
Officer A merely relied on a text message by an searches may be effected? (2000, 2009 BAR)
unidentified informer to conduct the search. The A:
police officer should not adopt the suspicion
initiated by another person. Personal knowledge is a. The objection is not tenable. In accordance with
necessary to justify that the person suspected be Manalili v. CA, 280 SCRA 400, since the accused
stopped and reasonably searched. Anything less had red eyes and was walking unsteadily and
than this would be an infringement upon one’s the place is a known hang- out of drug addicts,
basic right to security of one’s person and effects. the police officers had sufficient reason to stop
(Cogaed v People, G.R. No. 200334, July 30, 2014) the accused and to frisk him. Since shabu was
actually found during the investigation, it could
Warrant requirement be seized without the need for a search warrant.

Q: Armed with a search and seizure warrant, a b. A warrantless search may be effected in the
team of policemen led by Inspector Trias following cases:
entered a compound and searched the house
described therein as No. 17 Speaker Perez St., 1. Searches incidental to a lawful arrest;
Sta. Mesa Heights, Quezon City, owned by Mr. 2. Searches of moving vehicles;
Ernani Pelets, for a reported cache of firearms 3. Searches of prohibited articles in
and ammunition. However, upon thorough plain view;
search of the house, the police found nothing. 4. Enforcement of customs law;
5. Consented searches;
Then, acting on a hunch, the policemen 6. Stop and frisk (People v. Monaco, 285
proceeded to a smaller house inside the same SCRA 703);
compound with address at No. 17-A Speaker 7. Routine searches at borders and
Perez St., entered it, and conducted a search ports of entry (US v. Ramsey, 431 U.S.
therein over the objection of Mr. Pelets who 606 [1977]); and
happened to be the same owner of the first 8. Searches of businesses in the
house. There, the police found the unlicensed exercise of visitorial powers to
firearms and ammunition they were looking enforce police regulations (New York
for. As a result. Mr. Ernani Pelets was v. Burger, 482 U.S. 691 (1987]).
criminally charged in court with Illegal
possession of firearms and ammunition as Q: A witnessed two hooded men with baseball bats
penalized under P.D. 1866, as amended by RA. enter the house of their next door neighbor B.
8294. At the trial, he vehemently objected to After a few seconds, he heard B shouting, "Huwag
the presentation of the evidence against him Pilo babayaran kita agad. Then A saw the two
for being inadmissible. Is Mr. Emani Pelet's hooded men hitting B until the latter fell lifeless.
contention valid or not? Why? (2001 BAR) The assailants escaped using a yellow motorcycle
with a fireball sticker on it toward the direction of
A: The contention of Ernani Pelet is valid. As held an exclusive village nearby. A reported the
in People v. CA, 291 SCRA 400, if the place searched incident to POI Nuval. The following day, POI Nuval
is different from that stated in the search warrant, saw the motorcycle parked in the garage of a
the evidence seized is inadmissible. The policeman house at Sta. Ines Street inside the exclusive
cannot modify the place to be searched as set out village. He inquired with the caretaker as to who
in the search warrant. owned the motorcycle. The caretaker named the
brothers Pilo and Ramon Maradona who were
Q: then outside the country. POI Nuval insisted on
getting inside the garage. Out of fear, the caretaker
a. Crack officers of the Anti-Narcotics Unit allowed him. POI Nuval took 2 ski masks and 2
were assigned on surveillance of the bats beside the motorcycle. Was the search valid?
environs of a cemetery where the sale What about the seizure? Decide with reasons.
and use of dangerous drugs are rampant. (2009 BAR)
A man with reddish and glassy eyes was
walking unsteadily moving towards them A: The warrantless search and the seizure was not
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valid. It was not made as an incident to a lawful the police officers asked him if they could look
warrantles arrest. (People v. Baula, 344 SCRA 663 inside the vehicle. Thus, any evidence obtained in
[2000]) The caretaker had no authority to waive the course thereof is admissible in evidence.
the right of the brothers Pilo and Ramon Maradona Whose claim is correct? Explain. (2015 BAR)
to waive their right against an unreasonable search
and seizure. (People v. Damaso, 212 SCRA547 A: The warrantless search was illegal. There was no
[1992]) The warrantless seizure of the ski masks probable cause to search the van. The shabu was not
and bats cannot be justified under the plain view immediately apparent. It was discovered only after
doctrine, because they were seized after an invalid they opened the boxes. The mere passive silence of
intrusion into the house. (People v. Bolasa, 321 Hades did not constitute consent to the warrantless
SCRA 459 [1999]) search (Caballes v. CA, 373 SCRA 221 [2002])

Q: When can evidence "in plain view" be seized Q: Ernesto, a minor, while driving a motor vehicle,
without need of a search warrant? Explain. was stopped at a mobile checkpoint. Noticing that
(2012 BAR) Ernesto is a minor, SPOl Jojo asked Ernesto to
exhibit his driver's license but Ernesto failed to
A: Evidence in plain view can be seized without produce it. SPOI Jojo requested Ernesto to alight
need of a search warrant if the following elements from the vehicle and the latter acceded. Upon
are present. observing a bulge in the pants of Ernesto, the
policeman frisked him and found an unlicensed
1. There was a prior valid intrusion based on the .22- caliber pistol inside Ernesto's right pocket.
valid warrantless arrest in which the police Ernesto was arrested, detained and charged. At the
were legally present pursuant of their duties; trial, Ernesto, through his lawyer, argued that,
2. The evidence was inadvertently discovered by policemen at mobile checkpoints are empowered
the police who had the right to be where they to conduct nothing more than a ''visual search".
were: They cannot order the persons riding the vehicle
3. The evidence must be immediately apparent; to alight. They cannot frisk, or conduct a body
and search of the driver or the passengers of the
4. Plain view justified seizure of the evidence vehicle.
without further search. (Del Rosario vs. People,
358 scra 372) Ernesto's lawyer thus posited that:

Q: Around 12:00 midnight, a team of police a. The search conducted in violation of the
officers was on routine patrol in Barangay Constitution and established jurisprudence
Makatarungan when it noticed an open delivery was an illegal search; thus, the gun which was
van neatly covered with banana leaves. seized in the course of an illegal search is the
Believing that the van was loaded with "fruit of the poisonous tree" and is
contraband, the team leader flagged down the inadmissible in evidence.
vehicle which was driven by Hades. He b. The arrest made as a consequence of the
inquired from Hades what was loaded on the invalid search was likewise illegal, because an
van. Hades just gave the police officer a blank unlawful act (the search) cannot be made the
stare and started to perspire profusely. The basis of a lawful arrest.
police officers then told Hades that they will
look inside the vehicle. Hades did not make any Rule on the correctness of the foregoing
reply. The police officers then lifted the banana arguments, with reasons (2016 BAR)
leaves and saw several boxes. They opened the
boxes and discovered several kilos of shabu A:
inside. Hades was charged with illegal a. The contention of Ernesto’s lawyer is correct. The
possession of illegal drugs. After due warrantless search of motor vehicles at
proceedings, he was convicted by the trial checkpoints should be limited to a visual search.
court. On appeal, the Court of Appeals affirmed Its occupants should not be subjected to a body
his conviction. search (Aniag, Jr. v. Commision on Elections, G.R.
No. 104961, October 7, 1994)
In his final bid for exoneration, Hades went to
the Supreme Court claiming that his The “stop and frisk rule” applies when a police officer
constitutional right against unreasonable observes suspicious activity or unusual activity which
searches and seizures was violated when the may lead him to believe that a criminal activity may be
police officers searched his vehicle without a afoot. The “stop and frisk” is merely a limited
warrant; that the shabu confiscated from him is protective search for outer clothing for weapons
thus inadmissible in evidence; and that there
being no evidence against him, he is entitled to b. Since where was no valid warrantless search, the
an acquittal. For its part, the People of the warrantless search was also illegal. The
Philippines maintains that the case of Hades unlicensed .22 caliber pistol is inadmissible in
involved a consented warrantless search which evidence (Luz v. People, G.R. No. 197788, February
is legally recognized. The People adverts to the 29, 2012)
fact that Hades did not offer any protest when
58

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Warrantless arrests Q: In a criminal prosecution for murder, the

prosecution presented, as witness, an employee of
Q: Two police teams monitored the payment of the Manila Hotel who produced in court a
ransom in a kidnapping case. videotape recording showing the heated exchange
between the accused and the victim that took
The bag containing the ransom money was place at the lobby of the hotel barely 30 minutes
placed inside an unlocked trunk of a car which before the killing. The accused objects to the
was parked at the Angola Commercial Center in admission of the videotape recording on the
Mandaluyong City. ground that it was taken without his knowledge or
consent, in violation of his right to privacy and the
The first police team, stationed in an area near Anti-Wire Tapping law. Resolve the objection with
where the car was parked, witnessed the reasons. (2009 BAR)
retrieval by the kidnappers of the bag from the
unlocked trunk. The kidnappers thereafter A: The objection should be overruled. What the law
boarded their car and proceeded towards the prohibits is the overhearing, intercepting, and
direction of Amorsolo St. in Makati City where recording of private communications. Since the
the second police team was waiting. exchange of heated words was not private, its
videotape recording is not prohibited (Navarro v. CA,
Upon confirmation by radio report from the 313 SCRA 153)
first police team that the kidnappers were
heading towards their direction, the second Q: Paragraphs c, d and f of Section 36 of Republic
police team proceeded to conduct surveillance Act No. 9165 provide:
on the car of the kidnappers, eventually saw it
enter Ayala Commercial Center in Makati City, "Sec. 36. Authorized drug testing. xx x The
and the police team finally blocked it when it following shall be subjected to undergo drug
slowed down. The members of the second testing: xx x
police team approached the vehicle and c. Students of secondary and tertiary schools x
proceeded to arrest the kidnappers. x x;

Is the warrantless arrest of the kidnappers by d. Officers and employees of public and private
the second police team lawful? (2018 BAR) offices x x x;
f. All persons charged before the prosecutor's
A: The warrantless arrest is lawful. office with a criminal offense having an
imposable imprisonment of not less than 6
There are two requirements before a warrantless years and 1 day;"
arrest can be effected under Section 5(b), Rule 113,
Rules of Court: (1) an offense has just been Petitioners contend that the assailed portions of
committed, and (2) the person making the arrest Sec. 36 are unconstitutional for violating the right
has personal knowledge of facts indicating that the to privacy, the right against unreasonable
person to be arrested has committed it. searches and seizures and the equal protection
clause. Decide if the assailed provisions are
Both requirements are present in the instant case. unconstitutional (2016 BAR)
The first police team present in the Angola
Commercial Center was able to witness the pay-off A: The drug testing of students of secondary and
which effectively consummated the crime of tertiary schools is valid.
kidnapping. Its team members all saw the
kidnappers take the money from the car trunk. There is no violation of the right to privacy. The
Such knowledge was then relayed to the other essence of privacy is the right to be left alone. In
police officers comprising the second police team context, the right to privacy means the right to be free
stationed in Amorsolo St. where the kidnappers from unwarranted exploitation of one's person or
were expected to pass. from intrusion into one's private activities in such a
way as to cause humiliation to a person's ordinary
It is sufficient for the arresting team that they were sensibilities. The right to privacy yields to certain
monitoring the pay-off for a number of hours long paramount rights of the public and defers to the
enough for them to be informed as to who the state's exercise of police power.
kidnappers were. This is equivalent to personal
knowledge based on probable cause. (People v. The reduced expectation of privacy on the part of the
Uyboco, G.R. No. 178039, January 19, 2011) employees, the compelling state concern likely to be
met by the search, and the well - defined limits set
PRIVACY OF COMMUNICATIONS AND forth in the law to properly guide authorities in the
CORRESPONDENCE conduct of the random testing, the challenged drug
test requirement is, under the limited context of the
case, reasonable and, ergo, constitutional (Social
Justice Society v. Dangerous Drugs Board, G.R. No.
157870 November 3, 2008)
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FREEDOM OF EXPRESSION rallies within the campus. Offended by the circular,

militant students spread word that on the
Concept and scope following Friday, all students were to wear black
T- shirt as a symbols of their protest both against
Q: May the COMELEC (COMELEC) prohibit the high gas prices and the university ban on
posting of decals and stickers on "mobile" demonstrations. The effort was only moderately
places, public or private, such as on a private successful, with around 30% of the students
vehicle, and limit their location only to the heeding the call. Nonetheless, university officials
authorized posting areas that the COMELEC were outraged and compelled the students leaders
itself fixes? Explain. (2003 BAR) to explain why they should not be expelled for
violating the circular against demonstrations.
A: According to the case of Adiong v. COMELEC. 207
SCRA 712, the prohibition is null and void on The student leaders approached you for legal
constitutional grounds. The regulation strikes at advice. They contended that they should not be
the freedom of an individual to express his expelled since they did not violate the circular,
preference and, by displaying it on his car, to their protest action being neither a demonstrator
convince others to agree with him. A sticker may be nor a rally since all they did was wear black T-
furnished by a candidate but once the car owner shirts. What would you advise the students? (2008
agrees to have it placed on his private vehicle, the BAR)
expression becomes a statement by the owner,
primarily his own and not of anybody else. A: I shall advise the students that the circular is void.
The constitutional guarantee of freedom of speech and
Moreover, the restriction as to where the decals peaceful assembly extends to students within the
and stickers should be posted is so broad that it premises of the Metro Manila State University
encompasses even the citizen's private property, (Malabanan v. Ramente 129 SCRA 359)
which in this case is a privately- owned vehicle. It
deprived an individual to his right to property I shall also advise the students that their wearing of
without due process of law. black T-shirts as a sign of protest is covered by their
freedom of speech, because it is closely akin to free
Q: The STAR, a national daily newspaper, speech (Tinker v. Des Moines Community School
carried an exclusive report stating that Senator District, 393 US 503)
XX received a house and lot located at YY Street,
Makati, in consideration for his vote cutting Q: Surveys Galore is an outfit involved in
cigarette taxes by 50%. The Senator sued the conducting nationwide surveys. In one such
STAR, its reporter, editor and publisher for survey, it asked the people about the degree of
libel, claiming the report was completely false trust and confidence they had in several
and malicious. According to the Senator, there institutions of the government. When the results
is no YY Street in Makati, and the tax cut was came in, the judiciary was shown to be less trusted
only 20%. He claimed one million pesos in than most of the government offices. The results
damages. The defendants denied "actual were then published by the mass media. Assension,
malice," claiming privileged communication a trial court judge, felt particularly offended by the
and absolute freedom of the press to report on news. He then issued a show-cause order against
public officials and matters of public concern. If Surveys Galore directing the survey entity to explain
there was any error, the STAR said it would why it should not be cited in contempt for coming
publish the correction promptly. Is there up with such a survey and publishing the results
"actual malice" in STAR'S reportage? How is which were so unflattering and degrading to the
"actual malice" defined? Are the defendants dignity of the judiciary. Surveys Galore
liable for damages? (2004 BAR) immediately assailed the show-cause order of
Judge Assension, arguing that it is violative of the
A: Since Senator XX is a public person and the constitutional guaranty of freedom of expression.
questioned imputation is directed against him in Is Surveys Galore’s petition meritorious? (2014
his public capacity, in this case actual malice means BAR)
the statement was made with knowledge that it
was false or with reckless disregard of whether it A: The petition of Surveys Galore is meritorious.
was false or not (Borjal v. CA, 301 SCRA 1). Since Freedom of speech and freedom of the press may be
there is no proof that the report was published identified with the liberty to discuss publicly and
with knowledge that it is false or with reckless truthfully any matter of public interest without
disregard of whether it was false or not, the censorship and punishment. There should be no
defendants are not liable for damage. previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution
Q: Nationwide protest have erupted over rising for sedition, or action for damages, or contempt
gas prices, including disruptive demonstrations proceedings unless there is a clear and present danger
in many universities throughout the country. of substantive evil that Congress has a right to prevent
The Metro Manila State University, a public (Chavez v. Gonzales, 545 SCRA 441). Freedom of speech
university, adopted a university-wide circular should not be impaired through the exercise of the
prohibiting public mass demonstrations and power to punish for contempt of court unless the
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statement in question is a serious and imminent The decision was affirmed by the DECS Secretary
threat to the administration of justice. Here, the and the Civil Service Commission.
publication of the result of the survey was not
intended to degrade the judiciary (Cabansag v. On appeal, they reiterated the arguments they
Fernandez, 102 Phil. 152) raised before the administrative bodies: their
strike was an exercise of their constitutional right
Q: Public school teachers staged for days mass to peaceful assembly and to petition the
actions at the Department of Education, Culture government for redress of grievances. (2002 BAR)
and Sports to press for the immediate grant of
their demand for additional pay. The DECS A: According to De la Cruz v. CA, 305 SCRA 303, the
Secretary issued to them a notice of the argument of the teachers that they were merely
illegality of their unauthorized action, ordered exercising their constitutional right to peaceful
them to immediately return to work, and assembly and to petition the government for redress
warned them of imposable sanctions. They of grievance cannot be sustained, because such rights
ignored this and continued with their mass must be exercised within reasonable limits. When
action. The DECS Secretary issued orders for such rights were exercised on regular school days
their preventive suspension without pay and instead of during the free time of the teachers, the
charged the teachers with gross misconduct teachers committed acts prejudicial to the best
and gross neglect of duty for unauthorized interests of the service.
abandonment of teaching posts and absences
without leave. Q: The Samahan ng mga Mahihirap (SM) filed with
the Office of the City Mayor of Manila an
a. Are employees in the public sector application for permit to hold a rally on Mendiola
allowed to form unions? To strike? Why? Street on September 5, 2006 from 10:00a.m. to
b. The teachers claim that their right to 3:00 p.m. to protest the political killings of
peaceably assemble and petition journalists. However, the City Mayor denied their
the government for redress of grievances application on the ground that a rally at the time
has been curtailed. Are they correct? Why? and place applied for will block the traffic in the
(2000 BAR) San Miguel and Quiapo Districts. He suggested
A: the Liwasang Bonifacio, which has been
designated a Freedom Park, as venue for the rally.
a. Section 8, Article III of the Constitution allows
employees in the public sector to form unions. 1. Does the SM have a remedy to contest the
However, they cannot go denial of its application for a permit?
on strike. As explained in Social Security 2. Does the availability of a Freedom Park
System Employees Association v. CA, 175 SCRA justify the denial of SM's application for a
686, the terms and conditions of their permit?
employment are fixed by law. Employees in 3. Is the requirement to apply for a permit to
the public sector cannot strike to secure hold a rally a prior restraint on freedom of
concessions from their employer. speech and assembly?
b. The teachers cannot claim that their right to
peaceably assemble and petition for the Assuming that despite the denial of SM's
redress of grievances has been curtailed. application for a permit, its members hold a rally,
According to Bangalisan v. CA, 276 SCRA 619, prompting the police to arrest them. Are the
they can exercise this right without stoppage arrests without judicial warrants lawful? (2006
of classes. BAR)

Q: Ten public school teachers of Caloocan City A:
left their classrooms to join a strike, which 1. YES, SM has a remedy. Under B.P. Blg. 880 (The
lasted for one month, to ask for teachers' Public Assembly Act of 1985), in the event of
benefits. denial of the application for a permit, the
applicant may contest the decision in an
The Department of Education, Culture and appropriate court of law. The court must decide
Sports charged them administratively, for within twenty-four (24) hours from the date of
which reason they were required to answer filing of the case. Said decision may be appealed
and formally investigated by a committee to the appropriate court within forty- eight (48)
composed of the Division Superintendent of hours after receipt of the same. In all cases, any
Schools as Chairman, the Division Supervisor decision may be appealed to the Supreme Court
as member and a teacher, as another member. (Bayan Muna v. Ermita, G.R. No.169838, April 25,
On the basis of the evidence adduced 2006).
at the formal
investigation which amply established their 2. NO, the availability of a freedom park does not
guilt, the Director rendered a decision meting justify the denial of the permit. It does imply
out to them the penalty of removal from office. that no permits are required for activities in
freedom parks. Under B.P. Big. 880, the denial
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may be justified only if there is clear and from the Mayor of Quezon City is limited to Quezon
convincing evidence that the public assembly City only and does not extend to the City of Manila and
will create a clear and present danger to no permit was obtained from the Mayor of Manila (B.P.
public order, public safety, public Blg. 880, Sec. 13[a]).
convenience, public morals or public health
(Bayan Muna v. Ermita, supra.). Q: The security police of the Southern Luzon
Expressway spotted a caravan of 20 vehicles, with
3. NO, the requirement for a permit to hold a paper banners taped on their sides and protesting
rally is not a prior restraint on freedom of graft and corruption in government. They were
speech and assembly. The Supreme Court driving at 50 kilometers per hour in a 40-90
has held that the permit requirement is valid, kilometers per hour zone. Some banners had been
referring to it as regulation of the time, place, blown off by the wind, and posed a hazard to other
and manner of holding public assemblies, but motorists. They were stopped by the security
not the content of the speech itself. Thus, police. The protesters then proceeded to march
there is no prior restraint, since the content instead, sandwiched between the caravan vehicles.
of the speech is not relevant to the regulation They were also stopped by the security force. May
(Bayan Muna v. Ermita, supra.). the security police validly stop the vehicles and the
marchers? (2007 BAR)
4. The arrests are unlawful. What is prohibited
and penalized under Sec.13(a) and 14(a) of A: In accordance with the policy of maximum
B.P. Big 880 is "the holding of any public tolerance, the security policy should not have stopped
assembly as defined in this Act by any leader the protesters. They should have simply asked the
or organizer without having first secured protesters to take adequate steps to prevent their
that written permit where a permit is banners from being blown off, such as rolling them up
required from the office concerned x x x while they were in the expressway and requires the
Provided, however, that no person can be protesters to board their vehicle and proceed on their
punished or held criminally liable for way.
participating in or attending an otherwise
peaceful assembly." ALTERNATIVE ANSWER: The security police may stop
the protesters to prevent public inconvenience,
Thus, only the leader or organizer of the rally because they were using the expressway for an
without a permit may be arrested without a appreciable length of time by marching while
warrant while the members may not be arrested, sandwiched between the caravan vehicles (BP Blg. 880,
as they cannot be punished or held criminally sec. 7).
liable for attending the rally. However, under
Section 12 thereof, when the public assembly is Prior restraint (censorship)
held without a permit where a permit is
required, the said public assembly may be Q: In the morning of August 28, 1987, during the
peacefully dispersed. height of the fighting at Channel 4 and Camelot
Hotel, the military closed Radio Station XX, which
Q: Batas Pambansa 880, the Public Assembly was excitedly reporting the successes of the rebels
Law of 1985, regulates the conduct of all and movements towards Manila and troops
protest rallies in the Philippines. Salakay, friendly to the rebels. The reports were correct and
Bayan! held a protest rally and planned to factual. On October 6, 1987, after normalcy had
march from Quezon City to Luneta in Manila. returned and the Government had full control of
They received a permit from the Mayor of the situation, the National Telecommunications
Quezon City, but not from the Mayor of Manila. Commission, without notice and hearing, but
They were able to march in Quezon City and up merely on the basis of the report of the military,
to the boundary separating it from the City of cancelled the franchise of station XX. Discuss the
Manila. Three meters after crossing the legality of:
boundary, the Manila Police stopped them for
posing a danger to public safety. Was this a 1. The action taken against the station on
valid exercise of police power? (2007 BAR) August 28, 1987;
2. The cancellation of the franchise of the
A: Since the protesters merely reached three station on October 6, 1987. (1987 BAR)
meters beyond the boundary of Quezon City, the
police authorities in Manila should not have A:
stopped them, as there was no clear and present 1. The closing down of Radio Station XX during the
danger to public order. In accordance with the fighting is permissible. With respect to news
policy of maximum tolerance, the police authorities media, wartime censorship has been upheld on
should have asked the protesters to disperse and if the ground that “when a nation is at war many
they refused, the public assembly may be things that might be said in time of peace are
dispersed peacefully. such a hindrance to its efforts that their
utterance will not be endured so long as men
ALTERNATIVE ANSWER: The police officers may fight and that no Court could regard them as
disperse the rally peacefully, because the permit protected by any constitutional right.” The
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security of community life may be protected in the case of free speech (United States v. Bustos, 37
against incitements to acts of violence and Phil. 741 (1918)).
the overthrow by force of orderly
government (Near v. Minnesota, 283 U.S. 697 The parties adversely affected may also disregard the
(1931), Justice Holme’s opinion in Schenck v. regulation as being on its face void. As has been held,
United States, 249 U.S. 47 (1919); New York “any system of prior restraints of expression comes to
Times v. United States, 403 U.S. 713 (1971)). the court bearing a heavy presumption against its
With greater reason then may censorship in constitutional validity,” and the government “thus
times of emergency be justified in the case of carries a heavy burden of showing justification for the
broadcast media since their freedom is imposition of such a restraint” (New York Times Co. v.
somewhat lesser in scope. The impact of the United States, 403 U.S. 713 (1971)). The usual
vibrant speech, as Justice Gutierrez said, is presumption of validity that inheres in legislation is
forceful and immediate. Unlike readers of reversed in the case of laws imposing prior restraint
the printed work, a radio audience has lesser on freedom of expression.
opportunity to cogitate, analyze and reject
the utterance (Eastern Broadcasting Corp Q: The KKK Television Network (KKK-TV) aired
(DYRE) v. Dans, 137 SCRA 647 (1985)). the documentary, “Case Law: How the Supreme
Court Decides,” without obtaining the necessary
2. But the cancellation of the franchise of the
permit required by P.D. 1986. Consequently, the
station on October 6, 1987, without prior
Movie and Television Review and Classification
notice and hearing, is void. As held in 137
Board (MTRCB) suspended the airing of KKK- TV
SCRA 647 (1985), the cardinal primary
programs. MTRCB declared that under P.D. 1986,
requirements in administrative proceedings
it has the power of prior review over all television
(one of which is that the parties must first be
programs, except “newsreels” and programs “by
heard) as laid down in Ang Tibay v. CIR, 69
the Government”, and the subject documentary
Phil. 635 (1940) must be observed in closing a
does not fall under either of these two classes. The
radio station because radio broadcasts are a
suspension order was ostensibly based on
form of constitutionally- protected
Memorandum Circular No. 98-17 which grants
expression.
MTRCB the authority to issue such an order.
Q: The Secretary of Transportation and
Communications has warned radio station KKK-TV filed a certiorari petition in court, raising
operators against selling blocked time, on the the following issues: The act of MTRCB
claim that the time covered thereby are often constitutes “prior restraint” and violates the
used by those buying them to attack the constitutionally guaranteed freedom of
present administration. Assume that the expression. (2009 BAR)
department implements this warning and
orders owners and operators of radio stations A: The contention of KKK-TV is not tenable. The prior
not to sell blocked time to interested parties restraint is a valid exercise of police power.
without prior clearance from the Department Television is a medium which reaches even the eyes
of Transportation and Communications. and ears of children (Iglesia ni Cristo v. CA, 259 SCRA
529 [1996]).
You are approached by an interested party
affected adversely by that order of the ALTERNATIVE ANSWER: The memo circular is
Secretary of Transportation and unconstitutional. The act of the Movie and Television
Communications. What would you do Review and Classification Board constitutes prior
regarding that ban on the sale of blocked time? restraint and violates freedom of expression. Any
Explain your answer. (1988 BAR) system of prior restraint has against it a heavy
presumption against its validity. Prior restraint is an

abridgment of the freedom of expression. There is no
A: I would challenge its validity in court on the
showing that the airing of the programs would
ground that it constitutes a prior restraint on
constitute a clear and present danger (403 U.S. 713
freedom of expression. Such a limitation is valid
[1971]).
only in exceptional cases, such as where the

purpose is to prevent actual obstruction to
Facial challenges and the overbreadth doctrine
recruitment of service or the sailing dates of

transports or the number and location of troops, or
Q: What is the doctrine of "overbreadth"? In what
for the purpose of enforcing the primary
context can it be correctly applied? Not correctly
requirements of decency or the security of
applied? Explain. (2010 BAR)
community life (Near v. Minnesota, 283 U.S. 697

(1931)). Attacks on the government, on the other
A: A statute is overbroad when a governmental
hand, cannot justify prior restraints. For as has
purpose to control or prevent activities
been pointed out, “the interest of society and the
constitutionally subject to state regulations is sought
maintenance of good government demand a full
to be achieved by means which sweep unnecessarily
discussion of public affairs. Complete liberty to
broadly and invade the area of protected freedom. It
comment on the conduct of public men is a scalpel
applies both to free speech cases and penal statues.
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However, a facial challenge on the ground of For unlike its counterpart in the U.S., the Court, under
overbreadth can only be made in free speech its expanded jurisdiction, is mandated by the
cases because of its chilling effect upon protected Fundamental Law not only to settle actual
speech. A facial challenge on the ground of controversies involving rights which are legally
overbreadth is not applicable to penal statutes, demandable and enforceable, but also to determine
because in general they have an in terrorem effect whether or not there has been a grave abuse of
(Southern Hemisphere Engagement Network, Inc. v. discretion amounting to lack or excess of jurisdiction
Anti-terrorism Council, 632 SCRA 146) on the part of any branch or instrumentality of the
Government.” (Imbong v. Ochoa, G.R. No. 204819, April
Q: In a protest rally' along Padre Faura Street, 8, 2014, 721 SCRA 146)
Manila, Pedrong Pula took up the stage and
began shouting "kayong mga kurakot kayo! Tests
Magsi-resign na kayo! Kung hindi,
manggugulo kami dito!" ("you corrupt Q: Allmighty Apostles is a relatively new religious
officials, you better resign now, or else we will group and movement with fast- growing
cause trouble here!") simultaneously, he membership. One time, DeepThroat, an investigative
brought out a rock the size of a· fist and reporter, made a research and study as to what the
pretended to hurl it at the flagpole area of a group’s leader, Maskeraid, was actually doing.
government building. He did not actually DeepThroat eventually came up with the conclusion
throw the rock. that Maskeraid was a phony who is just fooling the
simple-minded people to part with their money in
a. Police officers who were monitoring the exchange for the promise of eternal happiness in
situation immediately approached some far-away heaven. This was published in a
Pedrong Pula and arrested him. He was newspaper which caused much agitation among
prosecuted for seditious speech and was the followers of Maskeraid. Some threatened
convicted. On appeal, Pedrong Pula violence against DeepThroat, while some others
argued he was merely exercising his already started destroying properties while
freedom of speech and freedom of hurting those selling the newspaper. The local
expression guaranteed by the Bill of authorities, afraid of the public disorder that such
Rights. Decide with reasons. followers might do, decided to ban the distribution
b. What are the two (2) basic prohibitions of the newspaper containing the article.
of the freedom of speech and of the press DeepThroat went to court complaining about the
clause? Explain. (2012 BAR) prohibition placed on the dissemination of his
article. He claims that the act of the authorities
A: partakes of the nature of heckler’s veto, thus a
a. Pedrong Pula should be acquitted. His freedom violation of press freedom. On the other hand, the
of speech should not be limited in the absence of authorities counter that the act was necessary to
a clear and present danger of a substantive evil protect the public order and the greater interest of
that the state had the right to prevent. He the community. If you were the judge, how would
pretended to hurl a rock but did not actually you resolve the issue? (2014 BAR)
throw it. He did not commit any act of lawless
violence (David v. Macapagal-Arroyo, 489 SCRA A: If I were the judge, I would rule that the distribution
160) of the newspaper cannot be banned. Freedom of the
b. The two basic prohibitions on freedom of news should be allowed although it induces a condition
speech and freedom of the press are prior of unrest and stirs people to anger. Freedom of the
restraint and subsequent punishment (Chavez v. press includes freedom of circulation (Chavez v.
Gonzales, 545 SCRA 441) Gonzales, 545 SCRA 441). When governmental action
that restricts freedom of the press is based on content,
Q: When is a facial challenge to the it is given the strictest scrutiny and the government
constitutionality of a law on the ground of must show that there is a clear and present danger of
violation of the Bill of Rights traditionally the substantive evil which the government has the
allowed? Explain your answer. (2015 BAR) right to prevent. The threats of violence and even the
destruction of properties while hurting hose selling the
A: A facial challenge is one that is launched to assail newspaper do not constitute a clear and present
the validity of statues concerning not only danger as to warrant curtailment of the right of
protected speech, but also all other rights (in the DeepThroat to distribute the newspaper (Chavez v.
First Amendment [U.S.]) including religious Gonzales, 545 SCRA 441)
freedom, freedom of the press, and the rights of the
people to peaceably assemble, and to petition the Commercial speech
Government for a redress of grievances.
Q: What is "commercial speech"? Is it entitled to
While the Court has withheld the application of constitutional protection? What must be shown in
facial challenges to strictly penal statues, it has order for government to curtail "commercial
expanded its scope to cover statues not only speech"? Explain. (2012 BAR)
regulating free speech, but also those involving
religious freedom, and other fundamentals rights. A: Commercial speech is communication which
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involves only the commercial interests of the Q: Distinguish fully between the "free exercise of
speaker and the audience, such as religion clause" and the "non- establishment of
advertisements. religion clause". (2012 BAR)

Commercial speech is entitled to constitutional A: The freedom of exercise of religion entails the right
protection (Ayer Productions Pty., Ltd. v. Capulong to believe, which is absolute, and the right to act on
160 SCRA 861) one’s belief, which is subject to regulation. As a rule,
the freedom of exercise of religion can be restricted
Commercial speech may be required to be only if there is a clear and present danger of a
submitted to a governmental agency for review to substantive evil which the state has the right to
protest public interests by preventing false or prevent. (Iglesia ni Cristo v. CA, 259 SCRA 529)
deceptive claims (Pharmaceutical and Health Care
Association of the Philippines v. Duque, 535 SCRA The non-establishment clause implements the
265) principle of separation of church and state. The state
cannot set up a church, pass laws that aid one
FREEDOM OF RELIGION religion, and all religions, prefer one religion over
another force or influence a person to go to or remain
Q: Congress enacted a law to provide Filipinos, away from church against his will, of force him to
especially the poor and the marginalized, profess a belief or disbelief in any religion (Everson v.
access and information to a full range of Board of Education, 330 US 1)
modern family planning methods, including
contraceptives, intrauterine devices, Q: Congress passed a bill appropriating P100-
injectibles, non- abortifacient hormonal billion. Part of the money is to be used for the
contraceptives, and family planning products purchase of a 200-hectare property in Antipolo.
and supplies, but expressly prohibited The rest shall be spent for the development of the
abortion. To ensure its objectives, the law area and the construction of the Universal Temple
made it mandatory for health providers to for all the World’s Faiths (UTAW-F). when
provide information on the full range of completed, the site will be open, free of charge, to
modern family planning methods, supplies and all religions, beliefs, and faiths, where each
services, for schools to provide reproductive devotee or believer shall be accommodated and
health education, for non-governmental teated in a fair and equal manner, without
medical practitioners to render mandatory 48 distinction, favor or prejudice. There will also be
hours pro bono reproductive health services as individual segments or zones in the area which
a condition to Philhealth accreditation, and for can be used for the conduct of whatever rituals,
couples desiring to marry to attend a family services, sacraments, or ceremonials that may be
planning seminar prior to the issuance of a required by the customs or practices of each
marriage license. It also punishes certain acts particular religion. The President approved the
of refusals to carry out its mandates. The bill, happy in the thought that this could start the
spouses Aguiluz, both Roman Catholics, filed a healing process of our wounded country and
petition to declare the law as unconstitutional encourage people of varied and often conflicting
based on, among others, the following ground: faiths to live together in harmony and in peace.

It violates the Freedom of Religion, since If the law is questioned on the ground that it
petitioners' religious beliefs prevent them violates Sec. 5, Art. II of the Constitution that “no
from using contraceptives, and that any State- law shall be made respecting an establishment of
sponsored procurement of contraceptives, religion or prohibiting the free exercise thereof,”
funded by taxes, violates the guarantee of how will you resolve the challenge? Explain.
religious freedom. (2016 BAR)

Rule on the above objection. (2018 BAR) A: The contention must be rejected. The use of the
site temple will not be limited to a particular religion
A: What is prohibited in the Constitution is the sect. It will be made available to all religious sects.
establishment of a state religion. While the The temporary use of public property for religious
establishment clause in the Constitution restricts purposes without discrimination does not violate the
what the government can do with religion, it also Constitution. (Ignacio v. De La Cruz, 99 Phil. 346
limits what religious sects can or cannot do with [1956]; People v. Fernandez, 40 O.G. 1089 [1956])
the government. They can neither cause the
government to adopt their particular doctrine as ALTERNATIVE ANSWER: The contention is
policy for everyone, nor can they cause the meritorious. The State cannot pass laws which aid
government to restrict other groups. To do so one religion, all religions, or prefer one religion over
would cause the State to adhere to a particular another. (Emerson v. Board of Education, 330 USA 1
religion, and thus establish a state religion. [1947])
(Imbong v. Ochoa, GR No. 204819, April 8, 2014)
Non-establishment clause

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Q: Recognizing the value of education in wants to study for the priesthood can apply for
making the Philippine labor market attractive the subsidy and use it for his studies. This will
to foreign investment, the Department of involve using public funds to aid religion.
Education, Culture and Sports offers subsidies
to accredited colleges and universities in Q: The principal of Jaena High School, a public
order to promote quality tertiary education. school wrote a letter to the parents and guardians
The DECS grants a subsidy to a Catholic school of all the school's pupils, informing them that the
which requires its students to take at least 3 school was willing to provide religious instruction
hours a week of religious instruction. to its Catholic students during class hours, through
a Catholic priest. However, students who wished to
a. Is the subsidy permissible? Explain avail of such religious instruction needed to secure
b. Presuming that you answer in the the consent of their parents and guardians in
negative, would it make a writing.
difference if the subsidy were
given solely in the form of a. Does the offer violate the constitutional
laboratory equipment in chemistry prohibition against the establishment of
and physics? religion?

Presume, on the other hand, that the subsidy is A: The offer does not violate the Constitutional
given in the form of scholarship vouchers given prohibition against the establishment of religion.
directly to the student and which the student Section 3(3), Article XIV of the Constitution provides
can use for paying tuition in any accredited that at the option expressed in writing by their
school of his choice, whether religious or non- parents or guardians, religion shall be taught to
sectarian. Will your answer be different? (1992 students in public elementary and high schools within
BAR) regular class hours by instructors designated or
approved by the religious authorities of their religion.
A:
b. The parents of evangelical Christian
a. NO, the subsidy is not permissible. Such will students, upon learning of the offer,
foster religion, since the school give religious demanded that they too be entitled to have
instructions to students. Besides, it will their children instructed in their own
violate the prohibition in Section 29[2], religious faith during class hours. The
Article VI of the Constitution against the use principal, a devout Catholic, rejected the
of public funds to aid religion. In Lemon v. request. As counsel for the parents of the
Kurtzman, 403 U.S. 602, it was held that evangelical students, how would you argue
financial assistance to a sectarian school in support of their position? (2007 BAR)
violates the prohibition against the
establishment of religion if it fosters an A: As counsel for the parents of the evangelical
excessive government entanglement with students, I shall argue that the rejection of their
religion. Since the school requires its request violates the guarantee of the free exercise and
students to take at least three hours a week enjoyment of religious profession and worship,
of religious instructions, to ensure that the without discrimination or preference. The exercise of
financial assistance will not be used for religious freedom includes the right to disseminate
religious purposes, the government will have religious information (Iglesia ni Cristo v. CA, 259 SCRA
to conduct a continuing surveillance. This 529)
involves excessive entanglement with
religion. Q: To instill religious awareness in the students of
b. If the assistance would be in the form of Doña Trinidad High School, a public school in
laboratory equipment in chemistry and Bulacan, the Parent- Teacher’s Association of the
physics, it will be valid. The purpose of the school contributed funds for the construction of a
assistance is secular, i.e., the improvement of grotto and a chapel where ecumenical religious
the quality of tertiary education. Any benefit services and seminars are being held after school
to religion is merely incidental. Since the hours. The use of the school grounds for these
equipment can only be used for a secular purposes was questioned by a parent who does
purpose, it is religiously neutral. As held in not belong to any religious group. As his
Tilton v. Richardson, 403 U.S. 672, it will not complaint was not addressed by the school
involve excessive government entanglement officials, he filed an administrative complaint
with religion, for the use of the equipment against the principal before the DECS. Is the
will not require surveillance. principal liable? Explain briefly. (2010 BAR)
c. In general, the giving of scholarship
vouchers to students is valid. Section 2(3), A: The principal is liable. Although the grotto and the
Article XIV of the Constitution requires the chapel can be used by different religious sects
State to establish a system of subsidies to without discrimination, the land occupied by the
deserving students in both public and grotto and the chapel will be permanently devoted to
d. private schools. However, the law is vague religious use without being required to pay rent. This
and over-broad. Under it, a student who violates the prohibition against establishment of
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religion enshrined in Section 5 of the Bill of Rights absolute and is subject to police power for the
(Opinion 12 of the Secretary of Justice dated protection of the general welfare.
February 2, 1979). Although religion is allowed to
be taught in public elementary and high schools, it However, the Movie and Television Review and
should be without additional cost to the Classification Board cannot ban the tapes on the
government. (Section 3(3), Article XIV of the ground that they attacked other religions. In Iglesia ni
Constitution) Cristo v. CA, 259 SCRA 529, 547, the Supreme Court
held: "The respondent Board may disagree with the
Q: Upon request of a group of overseas criticisms of other religions by petitioner but that
contract workers in Brunei, Rev. Father Juan gives it no excuse to interdict such criticisms,
de la Cruz, a Roman Catholic priest, was sent to however, unclean they may be. Under our
that country by the President of the constitutional scheme, it is not the task of the State to
Philippines to minister to their spiritual needs. favor any religion by protecting it against an attack by
The travel expenses, per diems, clothing another religion.”
allowance and monthly stipend of P5,000 were
ordered charged against the President's Moreover, the broadcasts do not give rise to a clear
discretionary fund. Upon post audit of the and present danger of a substantive evil. In the case of
vouchers therefor, the Commission on Audit Iglesia ni Cristo v. CA, 259 SCRA 529, 549: "Prior
refused approval thereof claiming that the restraint on speech, including the religious speech,
expenditures were in violation of the cannot be justified by hypothetical fears but only by
Constitution. Was the Commission on Audit the showing of a substantive and imminent evil which
correct in disallowing the vouchers in has taken the reality already on the ground."
question? (1997 BAR)
Q: Section 28. Title VI, Chapter 9, of the
A: YES, the Commission on Audit was correct in Administrative Code of 1987 requires all
disallowing the expenditures. Section 29(2), educational institutions to observe a simple and
Article VI of the Constitution prohibits the dignified flag ceremony, including the playing or
expenditure of public funds for the use, benefit, or singing of the Philippine National Anthem,
support of any sect, church, denomination, pursuant to rules to be promulgated by the
sectarian institution, or system of religion, or of Secretary of Education, Culture and Sports, The
any priest, preacher, minister, other religious refusal of a teacher, student or pupil to attend or
teacher, or dignitary as such, except when such participate in the flag ceremony is a ground for
priest, preacher, minister, or dignitary is assigned dismissal after due investigation.
to the armed forces, or to any penal institution, or
government orphanage or leprosarium. The Secretary of Education Culture and Sports
issued a memorandum implementing said
The sending of a priest to minister to the spiritual provision of law. As ordered, the flag ceremony
needs of overseas contract workers does not fall would be held on Mondays at 7:30
within the scope of any of the exceptions. a.m. during class days. A group of teachers,
students and pupils requested the Secretary that
Free exercise clause they be exempted from attending the flag
ceremony on the ground that attendance thereto
Q: A religious organization has a weekly was against their religious belief. The Secretary
television program. The program presents and denied the request. The teachers, students and
propagates its religious, doctrines, and pupils concerned went to Court to have the
compares their practices with those of other memorandum circular declared null and void.
religions. As the Movie and Television Review Decide the case. (1997, 2009 BAR)
and Classification Board (MTRCB) found as
offensive several episodes of the program A: The teachers and the students should be exempted
which attacked other religions, the MTRCB from the flag ceremony. As held in Ebralinag vs.
required the organization to submit its tapes Division Superintendent of Schools of Cebu, to compel
for review prior to airing. them to participate in the flag ceremony will violate
their freedom of religion. Freedom of religion cannot
The religious organization brought the case to be impaired except upon the showing of a clear and
court on the ground that the action of the present danger of a substantive evil which the State
MTRCB suppresses its freedom of speech and has a right to prevent. The refusal of the teachers and
interferes with its right to free exercise of the students to participate in the flag ceremony does
religion. Decide. (1998, 2009 BAR) not pose a clear and present danger. Tocompel them
to participate in the flag ceremony will violate their
A: The religious organization must submit the freedom of religion.
tapes to the MTRCB. Freedom of speech and
freedom of religion does not shield any religious Q: Children who are members of a religious sect
organization against the regulation of the have been expelled from their respective public
government on its program over the television. schools for refusing, on account of their religious
The right to act on one’s religious belief is not beliefs, to take part in the flag ceremony which
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includes playing by a band or singing the LIBERTY OF ABODE AND FREEDOM OF MOVEMENT
national anthem, saluting the Philippine flag
and reciting the patriotic pledge. The students Limitations
and their parents assail the expulsion on the
ground that the school authorities have acted Q: The military commander-in charge of the
in violation of their right to free public operation against rebel groups directed the
education, freedom of speech, and religious inhabitants of the island which would be the
freedom and worship. Decide the case. (2003 target of attack by government forces to evacuate
BAR) the area and offered the residents temporary
military hamlet.
A: The students cannot be expelled from school. As
held in Ebralinaq v. Division Superintendent of Can the military commander force the residents
Schools of Cebu219 SCRA 256 [1993], to compel to transfer their places of abode without a court
students to take part in the flag ceremony when it order? Explain. (1996 BAR)
is against their religious beliefs will violate their
religious freedom. Their expulsion also violates A: NO, the military commander cannot compel the
the duty of the State under Article XIV, Section 1 of residents to transfer their places of abode without a
the Constitution to protect and promote the right court order. Under Section 6, Article III of the
of all citizens to quality education and make such Constitution, a lawful order of the court is required
education accessible to all. before the liberty of abode and of changing the same
can be impaired.
Q: Fernando filed an administrative complaint
against his co-teacher, Amelia, claiming that Q: Juan Casanova contracted Hansen's disease
the latter is living with a married man who is (leprosy) with open lesions. A law requires that
not her husband. Fernando charged Amelia lepers be isolated upon petition of the City Health
with committing "disgraceful and immoral Officer. The wife of Juan Casanova wrote a letter
conduct" in violation of the Revised to the City Health Officer to have her formerly
Administrative Code and, thus, should not be philandering husband confined in some isolated
allowed to remain employed in the leprosarium. Juan Casanova challenged the
government. Amelia, on the other hand, claims constitutionality of the law as violating his liberty
that she and her partner are members of a of abode. Will the suit prosper? (1998 BAR)
religious sect that allows members of the
congregation who have been abandoned by A: NO, the suit will not prosper. Section 6, Article III
their respective spouses to enter marital of the Constitution provides: "The liberty of abode
relations under a "Declaration of Pledging and of changing the same within the limits prescribed
Faithfulness." Having made such Declaration, by law shall not be impaired except upon lawful order
she argues that she cannot be charged with of the court."
committing immoral conduct for she is entitled
to free exercise of religion under the The liberty of abode is subject to the police power of
Constitution. the State. Requiring the segregation of lepers is a
valid exercise of police power. In Lorenzo v. Director
(a) Is Amelia administratively liable? State of Health, 50 Phil. 595, the Supreme Court held:
your reasons briefly. "Judicial notice will be taken of the fact that leprosy is
(b) Briefly explain the concept of commonly believed to be an infectious disease
"benevolent neutrality." (2016 BAR) tending to cause one afflicted with it to be shunned
and excluded from society, and that compulsory
A: segregation of lepers as a means of preventing the
(a) Amelia is not administratively liable. There is spread of the disease is supported by high scientific
no compelling state interest that justifies authority."
inhibiting free exercise of religious beliefs. The
means used by the government to achieve its Q: Mr. Violet was convicted by the RTC of Estafa. On
legitimate objective is not the least intrusive appeal, he filed with the Court of Appeals a Motion
means to Fix Bail for Provisional Liberty Pending Appeal.
The Court of Appeals granted the motion and set a
(b) Under the benevolent neutrality approach, the bail amount in the sum of Five (5) Million Pesos,
“wall of separation” is meant to protect the church subject to the conditions that he secure "a
from the State. It believes that with respect to certification/guaranty from the Mayor of the place
governmental actions, accommodation of of his residence that he is a resident of the area
religion may be allowed, not to promote the and that he will remain to be a resident therein
government’s favored form of religion, but to until final judgment is rendered or in case he
allow individuals and groups to exercise their transfers residence, it must be with prior notice to
religion without hindrance. What is sought is not a the court". Further, he was ordered to surrender
declaration of unconstitutionality of the law but an his passport to the Division Clerk of Court for
exemption from its application (Estrada v. safekeeping until the court orders its return.
Escritor, A.M. No. P-02-1651, June 22, 2006)

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a. Mr. Violet challenges the conditions computer parts, owns a sprawling plant in a
imposed by the Court of Appeals as 5,000-square meter lot in Pasig City. To remedy
violative of his liberty of abode and right to the city’s acute housing shortage, compounded by
travel. Decide with reasons. a burgeoning population, the Sangguniang
b. Are "liberty of abode" and "the right to Panglungsod authorized the City Mayor to
travel" absolute rights? Explain. What are negotiate for the purchase of the lot. The
the respective exception/s to each right if Sanggunian intends to subdivide the property
any? (2012 BAR) into small residential lots to be distributed at cost
to qualified city residents. But FCC refused to sell
A: the lot. Hard-pressed to find a suitable property
a. The right to change abode and the right to travel to house its homeless residents, the City filed a
are not absolute. The liberty of changing abode complaint for eminent domain against FCC.
may be unpaired upon order of the court. The
order of the Court of Appeals is lawful, because the a. If FCC hires you as lawyer, what defense
purpose is to ensure that the accused will be or defenses would you set up in order to
available whenever his presence is required. He is resist the expropriation of the property?
not being prevented from changing his abode. He Explain.
is merely being required to inform the Court of
Appeals if he does (Yap v. CA, 358 SCRA 564) A: I will raise the defense that the selection of the lot
to be expropriated violates due process, because it is
b. The liberty of abode and the right to travel are arbitrary. Since it is devoted to commercial use, the
not absolute. The liberty of abode and of changing beneficiaries of the expropriation will not settle there
it can be imposed within the limits prescribed by and will instead merely lease out or resell the lot for a
law upon lawful order of the court. The right to profit (Manotok v. National Housing Authority, 150
travel may be unpaired in the interest of national SCRA 89 [1987])
security, public safety, or public health as may be
provided by law (Section 6, Article III of the b. If the Court grants the City’s prayer for
Constitution) expropriation, but the City delays
payment of the amount determined by the
In addition, the court has the inherent power to court as just compensation, can FCC
restrict the right of an accused who has pending recover the property from Pasig City?
criminal case to travel abroad to maintain its Explain.
jurisdiction over him. (Santiago v. Vasquez, 217
SCRA 633) A: The mere delay in the payment of the just
compensation will not entitle the Filipinas Computer
EMINENT DOMAIN Corporation to recover the property.Instead, legal
interest on the just compensation should be paid
Q: The Republic of the Philippines, through the (NPC v. Henson, 300 SCRA 751 [1998]). However, if
Department of Public Works and Highways the payment was not made within five (5) years from
(DPWH), constructed a new highway linking thefinality of judgment in the expropriation case,
Metro Manila and Quezon Province, and which Filipinas Computer Corporation can recover the
major thoroughfare traversed the land owned property. To be just, the compensation must be paid
by Mang Pandoy. The government neither filed within a reasonable time. (NPC v. Henson, 462 SCRA
any expropriation proceedings nor paid any 265 [2005])
compensation to Mang Pandoy for the land
thus taken and used as a public road. c. Suppose the expropriation succeeds, but
the City decides to abandon its plan to
Mang Pandoy filed a suit against the subdivide the property for residential
government to compel payment for the value purposes having found a much bigger lot,
of his land. The DPWH filed a motion to dismiss can FCC legally demand that it be allowed
the case on the ground that the State is to repurchase the property from the City
immune of Pasig? Why or why not? (2005 BAR)
from suit. Mang Pandoy filed an opposition.
Resolve the motion. (2001, 1989, 1993 BAR) A: If the lot was expropriated with the condition it can
be used only for low-cost housing, it should be
A: The motion to dismiss should be denied. As returned to Filipinas Computer Corporation upon
held in Amigable v. Cuenca, 43 SCRA 300, when abandonment of the purpose (Heirs of
the Government expropriates private property TimoteoMoreno v. Mactan-Cebu International Airport
without paying compensation, it is deemed to have Authority,413 SCRA 502 [2003])
waived its immunity from suit. Otherwise, the
constitutional guarantee that private property Q: Congress passed a law authorizing the National
shall not be taken for compensation will be Housing Authority (NHA) to expropriate or
rendered nugatory. acquire private property for the redevelopment of
Q: Filipinas Computer Corporation (FCC), a slum areas, as well as to lease or resell the
local manufacturer of computers and property to private developers to carry out the
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redevelopment plan. Pursuant to the law, the socialized housing is for public use and the fact that
NHA acquired all properties within a targeted only a few and not everyone will benefit from the
badly blighted area in San Nicolas, Manila expropriation does not detract from the nature of the
except a well-maintained drug and public use.
convenience store that poses no blight or
health problem itself. Thereafter, NHA sold all b. NO, the Department of Agrarian Reform cannot
the properties it has thus far acquired to a require Pasig City to first secure authority from it
private realty company for redevelopment. before converting the use of the land from
Thus, the NHA initiated expropriation agricultural to residential. According to Province of
proceedings against the store owner who Camarines Sur v. CA, 222 SCRA 173, there is no
protested that his property could not be taken provision in the Comprehensive Agrarian Reform Law
because it is not residential or slum housing. which subjects the expropriation of agricultural lands
He also contended that his property is being by local government units to the control of the
condemned for a private purpose, not a public Department of Agrarian Reform and to require
one, noting the NHA`s sale of the entire area approval from the Department of Agrarian Reform
except his property to a private party. If you will mean that it is not the local government unit but
were the judge, how would you decide the the Department of Agrarian Reform who will
case? (2008 BAR) determine whether or not the expropriation is for a
public use.
A: If I were the judge, I would order the
expropriation of the property is valid being a Q: Madlangbayan is the owner of a 500 square
lawful exercise of the State’s power of eminent meter lot which was the birthplace of the founder
domain, exercised through the NHA by of a religious sect who admittedly played an
Congressional Fiat. The expropriation of the important role in Philippine history and culture.
private land for slum clearance urban The National Historical Commission (NHC) passed
development is for a public purpose even if the a resolution declaring it a national landmark and
developed area is later sold to private on its recommendation the lot was subjected to
homeowners, commercial firms, and other private expropriation proceedings. This was opposed by
parties (Heirs of Juancho Ardona v. Reyes, 125 Madlangbayan on the following grounds: a) that
SCRA 220). It is the function of the Congress to the lot is not a vast tract; b) that those to be
decide which type of taking is for public use and benefited by the expropriation would only be the
that the agency authorized to do the taking may do members of the religious sect of its founder, and
so to the full extent of its statutory authority. It is c) that the NHC has not initiated the expropriation
not the immediate effects, but rather the ultimate of birthplaces of other more deserving historical
results which determine whether a particular act personalities. Resolve the opposition raised by
is for public good. Madlangbayan. (2000 BAR)

Expansive concept of “public use” A: The arguments of Madlangbayan are not
meritorious. According to Manresa v. Court of
Q: The City of Pasig initiated expropriation Appeals, 252 SCRA 412, the power of eminent domain
proceedings on a one-hectare lot which is part is not confined to expropriation of vast tracts of the
of a 10-hectare parcel of land devoted to the land. The expropriation of the lot to preserve it as the
growing of vegetables. The purpose of the birthplace of the founder of the religious sect because
expropriation is to use the land as a relocation of his role in the Philippine history and culture is for a
site for 200 families squatting along the Pasig public purpose, because public use is no longer
river. restricted to the traditional concept. The fact that the
expropriation will benefit the member of the religious
a. Can the owner of the property oppose the sect is merely incidental. The fact that other
expropriation on the ground that only 200 birthplaces have not been expropriated is likewise
out of the more than 10,000 squatter not a valid basis for opposing the expropriation. As
families in Pasig City will benefit from the held in J.M. Tuason and Company, Inc. v. Land Tenure
expropriation? Explain. Administration, 31 SCRA 413, the expropriating
b. Can the Department of Agrarian Reform authority is not required to adhere to the policy of “all
require the City of Pasig to first secure or none.”
authority from said Department before
converting the use of the land from Just Compensation
agricultural to housing? Explain. (1996
BAR) Q: The Government, through Secretary Toogoody
of the Department of Transportation (DOTr), filed
A: a complaint for eminent domain to acquire a 1,
a. NO, the owner of the property cannot oppose 000-hectare property in Bulacan, owned by
the expropriation on the ground that only 200 out Baldomero. The court granted the expropriation,
of more than 10,000 squatter families in Pasig City fixed the amount of just compensation, and
will benefit from the expropriation. As held in installed the Government in full possession of the
Philippine Columbian Association v. Panis, 228 property.
SCRA 668, the acquisition of private property for
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a. If the government does not immediately b. Pursuant to the ruling in Pasay Government v.
pay the amount fixed by the court as just Court of First Instance of Manila, 132 SCRA 156,
compensation, can Baldomero successfully since the Municipality of Antipolo has
demand the return of the property to him? appropriated P1,000,000 to pay for the lot, its
Explain your answer? bank account may be garnished but up to this
amount only.
b. If the government paid full compensation
but after two years it abandoned its plan to Q: In expropriation proceedings, what legal
build an airport on the property, can interest should be used in the computation of
Baldomero compel the government to re- interest on just compensation? (1993 BAR)
sell the property back to him? Explain your
answer. (2016 BAR) A: As held in National Power Corporation v. Angas,
208 SCRA 542, in accordance with Article 2209 of the
A: Civil Code, the legal interest should be 6% a year.
a. If the government does not pay Baldomero the Central Bank Circular No. 416, which increased the
just compensation immediately, he cannot legal interest to 12% a year is not applicable to the
demand the return of the property to him. expropriation of property and is limited to loans,
Instead, legal interest should be paid from the since its issuance is based on Presidential Decree No.
time of taking of the property until actual 116, which amended the Usury Law.
payment in full. (Republic v. Court of Appeals,
383 SCRA 611 [2002]) Q: The National Power and Grid Corporation
b. With respect to the element of public use, the (NPGC), a government entity involved in power
expropriator should commit to use the generation distribution, had its transmission lines
property for the purpose stated in the traverse some fields belonging to Farmerjoe.
petition. If not, it is incumbent upon it to NPGC did so without instituting any expropriation
return the property to the owner, if the owner proceedings. Farmerjoe, not knowing any better,
desires ot reacquire it. Otherwise, the did not immediately press his claim for payment
judgment of expropriation will lack the until after ten years later when a son of his took
element of public use. The owner will be up Law and told him that he had a right to claim
denied due process and the judgment will compensation. That was then the only time that
violate his right to justice. (Mactan-Cebu Farmerjoe earnestly demanded payment. When
Airport Authority v. Lozada, Sr., 613 SCRA 618 the NPGC ignored him, he instituted a case for
[2010]) If the just compensation was not paid payment of just compensation. In defense, NPGC
within 5 years from finality of judgment, the pointed out that the claim had already prescribed
owner is entitled to recover the property. since under its Charter it is clearly provided that
(Republic v. Lim, 462 SCRA 265 [2005] "actions for damages must be filed within five
years after the rights of way, transmission lines,
Q: The Municipality of Antipolo, Rizal substations, plants or other facilities shall have
expropriated the property of Juan Reyes for been established and that after said period, no
use as a public market. The Municipal Council suit shall be brought to question the said rights of
appropriated P1,000,000 for the purchase of way, transmission lines, substations, plants or
the lot but the Regional Trial Court, on the other facilities." If you were the lawyer of
basis of the evidence, fixed the value at Farmerjoe, how would you protect and vindicate
P2,000,000. (1994 BAR) the rights of your client? (2014 BAR)

a. What legal action can Juan Reyes take to A: Farmerjoe’s demand for payment is justified and
collect the balance? (1998 BAR) cannot be considered as prescribed. His demand for
b. Can Juan Reyes ask the Regional Trial Court payment is an action for the payment of just
to garnish the Municipality’s account with compensation and not an action for damages as
the Land Bank? (1989 BAR) provided in the Charter of the

A: National Power and Grid Corporation. It partakes of
the nature of a reverse eminent domain proceeding
a. To collect the balance of Judgment, as stated (or inverse condemnation proceeding) wherein
in Tan Toco v. Municipal Council of lloilo, 49 claims for just compensation for property taken can
Phil. 52, Juan Reyes may levy on patrimonial be made and pursued (NPC v. Vda. De Capin, 569 SCRA
properties of the Municipality of Antipolo. If it 648; NPC v. Heirs of Sangkay, 656 SCRA 60)
has no patrimonial properties in accordance
with the Municipality of Makati v. Court of ALTERNATIVE ANSWER: As held in NPC v. Sps.
Appeals, 190 SCRA 206, the remedy of Juan Saludares, G. R. No. 189127, April 25, 2012; the right
Reyes is to file a petition for mandamus to to recover just compensation is enshrined in no less
compel the Municipality of Antipolo to than our Bill of Rights, which states in clear and
appropriate the necessary funds to satisfy the categorical language that private property shall not
judgment. be taken for public use without just compensation.
This constitutional mandate cannot be defeated by
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statutory prescription. Thus, It would be a response to questions by news reporters, not by the
confiscatory act on the part of the government to police or any other investigating officer. Statements
take the property of respondent spouses for a spontaneously made by suspects to news reporters
public purpose and deprive them of their right to during televised interviews are deemed voluntary
just compensation, solely because they failed to and are admissible in evidence (People v. Andan, G.R.
institute inverse condemnation proceedings No. 116437, March 3, 1997)
within five years from the time the transmission
lines were constructed. Q: The contents of the vault of ABC company
consisting of cash and documents were stolen.
RIGHTS OF SUSPECTS Paulyn, the treasurer of ABC, was invited by the
Makati City Police Department to shed light on the
Q: The police served a warrant of arrest on amount of cash stolen and the details of the
Ariston who was suspected of raping and missing documents. Paulyn obliged and
killing a female high school student. While on volunteered the information asked. Later, Paulyn
the way to the police station, one of the police was charged with qualified theft together with
officers who served the warrant asked Ariston other suspects. Paulyn claims her rights under the
in the local dialect if he really raped and killed Constitution and pertinent laws were blatantly
the student, and Ariston nodded and said, violated. The police explained that they were just
"Opo." Upon arriving at the police station, gathering evidence when Paulyn was invited for a
Ariston saw the City Mayor, whom he conference and she was not a suspect at that time.
approached and asked if they could talk Rule on her defense. (2016 BAR)
privately. The Mayor led Ariston to his office
and, while there in conversation with the A: The defense of Paulyn is bereft of merit. It is
Mayor, Ariston broke down and admitted that axiomatic that constitutional rights of a person under
he raped and killed the student. The Mayor investigation for the commission of an offense under
thereafter opened the door of the room to let Section 12(1), Article III of the Constitution begins
the public and media representatives witness when there is no longer a general inquiry into an
Ariston's confession. In the presence of the unresolved crime and the investigation has stated to
Mayor, the police and the media, and in focus on a particular person as a suspect., i.e., when
response to questions asked by some members the police investigator starts interrogating ot exacting
of the media, Ariston sorrowfully confessed his a confession from the suspect in connection with an
guilt and sought forgiveness for his actions. alleged offense. When she was invited for questioning
by the Makati City Police Department and she
Which of these extrajudicial confessions, if any, volunteered information, she was not yet a suspect.
would you consider as admissible in evidence
against Ariston? (2018 BAR) Q: An information for parricide was filed against
Danny. After the NBI found an eyewitness to the
A: Ariston was already under custodial commission of the crime, Danny was placed in a
investigation when he confessed to the police. It is police line-up where he was identified as the one
admitted that the police failed to inform him of his who shot the victim. After the line-up, Danny
constitutional rights when he was investigated made a confession to a newspaper reporter who
and interrogated. His confession to the police is interviewed him.
therefore inadmissible in evidence.
a. Can Danny claim that his identification by the
His confession before the mayor, however, is eyewitness be excluded on the ground that
admissible. While it may be true that a mayor has the line-up was made without benefit of his
“operational supervision and control” over the counsel? (1993, 1997 BAR)
local police and may arguably be deemed a law b. Can Danny claim that his confession be
enforcement officer for purposes of applying excluded on the ground that he was not
Section 12(1) and (3) of Article III of the afforded his "Miranda" rights? (1994 BAR)
Constitution, Ariston’s confession to the mayor, as
described in the problem, was not made in A:
response to any interrogation by the latter. In fact, a. NO, the identification of Danny, a private
the mayor did not appear as having questioned person, by an eyewitness during the line-up
Ariston at all. No police authority ordered Ariston cannot be excluded in evidence. In
to talk to the mayor. It was he himself who accordance with the ruling in People v.
spontaneously, freely and voluntarily sought the Hatton, 210 SCRA 1, the accused is not
mayor for a private meeting. The mayor did not entitled to be assisted by counsel during a
know that he was going to confess his guilt to him. police line-up, because it is not part of
When he talked with the mayor as a confidant and custodial investigation since he was not
not as a law enforcement officer, his uncounselled being questioned but was merely being asked
confession to the Mayor did not violate his to exhibit his body for identification by a
constitutional rights. witness.

His confession to the media can likewise be ALTERNATIVE ANSWER: Yes, in United States v.
properly admitted. The confessions were made in Wade, 338 U.S. 218 (1967) and Gilbert v. California,
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338 U.S. 263 (1967), it was held that on the basis jurisdiction, therefore, his right to bail must be
of the Sixth, rather than the Fifth Amendment determined on the basis of Section 13, Article III of
(equivalent to Art. III, Sec. 14 (2) rather than Sec. the Constitution.
12(1)), the police line-up is such a critical stage
that it carries "potential substantial prejudice" for Q: Mr. Brown, a cigarette vendor, was invited by
which reason the accused is entitled to the PO1 White to a nearby police station. Upon
assistance of Counsel. arriving at the police station, Brown was asked to
stand side-by-side with five (5) other cigarette
b. NO. Danny cannot ask that his confession vendors in a police line-up. PO1 White informed
to a newspaper reporter should be them that they were looking for a certain
excluded in evidence. As held in People v. cigarette vendor who snatched the purse of a
Bernardo, 220 SCRA 31, such an passer-by and the line-up was to allow the victim
admission was not made during a to point at the vendor who snatched her purse. No
custodial interrogation but a voluntary questions were to be asked from the vendors.
statement made to the media.
a. Brown, afraid of a "set up" against him,
Q: William, a private American citizen, a demanded that he be allowed to secure his
university graduate and frequent visitor to the lawyer and for him to be present during the
Philippines, was inside the U.S. embassy when police line-up. Is Brown entitled to counsel?
he got into a heated argument with a private Explain.
Filipino citizen. Then, in front of many shocked b. Would the answer in (a) be the same if Brown
witnesses, he killed the person he was arguing was specifically invited by White because an
with. The police came, and brought him to the eyewitness to the crime identified him as the
nearest police station. Upon reaching the perpetrator? Explain.
station, the police investigator, in halting c. Briefly enumerate the so-called "Miranda
English, informed William of his Miranda Rights". (2012 BAR)
rights, and assigned him an independent local
counsel. William refused the services of the A:
lawyer, and insisted that he be assisted by a a. Brown is not entitled to counsel during the police
Filipino lawyer currently based in the U.S. The line-up. He was not yet being asked to answer for
request was denied, and the counsel assigned a criminal offense. (Garaboa v. Cruz, 162 SCRA
by the police stayed for the duration of the 642)
investigation. William protested his arrest. b. Brown would be entitled to the assistance of a
lawyer. He was already considered as a suspect
He also claimed that his Miranda rights were and was therefore entitled to the right under
violated because he was not given the lawyer custodial investigation. (People v. Legaspi, 331
of his choice; that being an American, he SCRA 95.)
should have been informed of his rights in c. The Miranda warning means that a person in
proper English; and that he should have been custody who will be interrogated must be
informed of his rights as soon as he was taken informed of the following:
into custody, not when he was already at the 1. He has right to remain silent;
police station. Was William denied his Miranda 2. Anything said can be used as evidence
rights? Why or why not? against him;
3. He has the right to have counsel during the
A: The fact that the police officer gave him the investigation; and
Miranda warning in halting English does not 4. He must be informed that if he is indigent, a
detract from its validity. Under Section 2(b) of RA lawyer will be appointed to represent him.
7438, it is sufficient that the language used was (Miranda v. Arizona, 384 U.S 436)
known to and understood by him. William need
not be given the Miranda warning before the Q: As he was entering a bar, Arnold — who was
investigation started. William was not denied his holding an unlit cigarette in this right hand — was
Miranda rights. It is not practical to require the handed a match box by someone standing near
police officer to provide a lawyer of his own choice the doorway. Arnold unthinkingly opened the
from the United States (Gamboa v. Cruz, 162 SCRA matchbox to light his cigarette and as he did so, a
642) sprinkle of dried leaves fell out, which the guard
noticed. The guard immediately frisked Arnold,
If William applies for bail, claiming that he is grabbed the matchbox, and sniffed its contents.
entitled thereto under the "international After confirming that the matchbox contained
standard of justice" and that he comes from a marijuana, he immediately arrested Arnold and
U.S. State that has outlawed capital called in the police.
punishment, should William be granted bail as
a matter of right? Reasons. (2009 BAR) At the police station, the guard narrated to the
police that he personally caught Arnold in
A: William should not be granted bail as a matter possession of dried marijuana leaves. Arnold did
of right. He is subject to Philippine criminal not contest the guard’s statement; he steadfastly
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remained silent and refused to give any investigation in Section 12, Article III of the
written statement. Later in court, the guard Constitution are applicable to any person under
testified and narrated the statements he gave investigation for the commission of an offense. The
the police over Arnold’s counsel’s objections. investigation began when a policeman told Edward
While Arnold presented his own witnesses to that several witnesses pointed to him as the shooter,
prove that his possession and apprehension because it started to focus on him as a suspect (People
had been set-up, he himself did not testify. The v. Labtan, 320 SCRA 140)
court convicted Arnold, relying largely on his
admission of the charge by silence at the police Requisites
investigation and during trial. From the
constitutional law perspective, was the court Q: In his extrajudicial confession executed before
correct in its ruling? (2013 BAR) the police authorities, Jose Walangtakot admitted
killing his girlfriend in a fit of jealousy. This
A: The court was wrong in relying on the silence of admission was made after the following A and
Arnold during the police investigation and during question to wit:
the trial. Under Article III, Section 12 of the 1987
Constitution, he had the right to remain silent. His T - Ikaw ay may karapatan pa rin kumuha ng
silence cannot be taken as a tacit admission; serbisyo ng isang abogado para makatulong mo sa
otherwise, his right to remain silent would be imbestigasyong ito at kung wala kang makuha,
rendered nugatory. Considering that his right ikaw ay aming bibigyan ng libreng abogado, ano
against self-incrimination protects his right to ngayon ang iyong masasabi?"
remain silent, he cannot be penalized for
exercising it (People v. Galvez, G.R. No. 157221, "S - Nandiyan naman po si Fiscal (point to
March 30, 2007, 519 SCRA 521) Assistant Fiscal Aniceto Malaputo) kaya hindi ko
na kinakailanganang abogado."
ALTERNATIVE ANSWER: The court correctly
convicted Arnold. There is no showing that the During the trial. Jose Walangtakot repudiated his
evidence for the prosecution was insufficient. confession contending that it was made without
When Arnold remained silent, he runs the risk of the assistance of counsel and therefore
an interference of guilt from non-production of Inadmissible in evidence. Decide. (1993 BAR)
evidence in his behalf (People v. Solis G.R. No.
124127, June 29, 1998, 128 SCRA 217) A: The confession of Jose Walangtakot is inadmissible
in evidence. The warning given to him is insufficient
Q: The police got a report about a shooting in accordance with the ruling in People v. Duero, 104
incident during a town fiesta. One person was SCRA 379, he should have been warned also that he
killed. The police immediately went to the has the right to remain silent and that any statement
scene and started asking the people about he makes may be used as evidence against him.
what they witnessed. In due time, they were Besides, under Art. III, Sec. 12(1) of the Constitution,
pointed to Edward Gunman, a security guard, the counsel assisting a person being investigated
as the possible malefactor. Edward was then must be independent. Assistant Fiscal Aniceto
having refreshment in one of the eateries when Malaputo could not assist Jose Walangtakot. As held
the police approached him. They asked him if in People v. Viduya, 189 SCRA 403, his function is to
he had a gun to which question he answered prosecute criminal cases. To allow him to act as
yes. Then they asked if he had seen anybody defense counsel during custodial investigations
shot in the vicinity just a few minutes earlier would render nugatory the constitutional rights of the
and this time he said he did not know about it. accused during custodial investigation. What the
After a few more questions, one of the Constitution requires is a counsel who will effectively
policemen asked Edward if he was the shooter. undertake the defense of his client without any
He said no, but then the policeman who asked conflict of interest. The A of Jose Walangtakot
him told him that several witnesses pointed to indicates that he did not fully understand his rights.
him as the shooter. Whereupon Edward broke Hence, it cannot be said that he knowingly and
down and started explaining that it was a intelligently waived those rights.
matter of self-defense. Edward was eventually
charged with murder. During his trial, the Q: Larry was an overnight guest in a motel. After
statements he made to the police were he checked out the following day, the
introduced as evidence against him. He chambermaid found an attaché case which she
objected claiming that they were inadmissible surmised was left behind by Larry. She turned it
since he was not given his Miranda rights. On over to the manager who, to determine the name
the other hand, the prosecution countered that and address of the owner, opened the attache case
there was no need for such rights to be given and saw packages which had a peculiar smell and
since he was not yet arrested at the time of the upon squeezing felt like dried leaves. His curiosity
questioning. If you were the judge, how would aroused, the manager made an opening on one of
you rule on the issue? (2014 BAR) the packages and took several grams of the
contents thereof. He took the packages to the NBI,
A: If I were the judge, I would rule that the and in the presence of agents, opened the
confession is inadmissible. First, the rights under packages, the contents of which upon laboratory
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examination, turned out to be marijuana NBI dismissed Atty. Santos. Appointed in his place
flowering tops, Larry was subsequently found, was Atty. Barroso, a bar topnotcher who was in
brought to the NBI Office where he admitted the premises visiting a relative. Atty. Barroso ably
ownership of the attaché case and the assisted Mariano when the latter gave a
packages. He was made to sign a receipt for the statement. However, Mariano assailed the
packages. Larry was charged in court for investigation claiming that he was deprived of
possession of prohibited drugs. He was counsel of his choice. Was the NBI correct in
convicted. On appeal, he now poses the dismissing Atty. Santos and appointing Atty.
following issues: Barroso in his stead? Is Mariano's statement,
made with the assistance of Atty. Barroso,
a. The packages are inadmissible in admissible in evidence? (2005 BAR)
evidence being the product of an illegal
search and seizure; A: The NBI was not correct in dismissing Atty. Santos
b. b. Neither is the receipt he signed and appointing Atty. Barroso in his stead. Article III,
admissible, his rights under custodial Section 12(1) of the 1987 Constitution requires that a
investigation not having been observed. person under investigation for the commission of an
Decide. (1993 BAR) offense shall have no less than "competent and
independent counsel preferably of his own choice".
A: According to the ruling in People v. Mirantes, This is meant to stress the primacy accorded to the
209 SCRA 179, such receipt is in effect an voluntariness of the choice under the uniquely
extrajudicial confession of the commission of an stressful conditions of a custodial investigation. The
offense. Hence, if it was signed without the appointment of Atty. Barroso is questionable because
assistance of counsel, in accordance with Section he was visiting a relative working in the NBI and thus
12(3), Article IV of the Constitution, it is his independence is doubtful. Considering that
inadmissible in evidence. (People v. Duhan, 142 Mariano was deprived of counsel of his own choice,
SCRA 100) the statement is inadmissible in evidence. (People v.
Januario, G.R. No. 98252, February 7, 1997)
Q: A, who was arrested as a suspect in a
murder case was not represented by counsel ALTERNATIVE ANSWER: The NBI was correct in
during the "question and A" stage. However, dismissing Atty. Santos as he was incompetent. The
before he was asked to sign his statements to 1987 Constitution requires counsel to be competent
the police investigator, the latter provided A and independent. Atty. Barroso, being a bar
with a counsel, who happened to beat the topnotcher ably assisted Mariano and there is no
police station. After conferring with A, the showing that his having a relative in the NBI affected
counsel told the police investigator that A was his independence. Moreover, the accused has the final
ready to sign the statements. Can the choice of ounsel as he may reject the one chosen for
statements of A be presented in court as his him and ask for another. A lawyer provided by the
confession? Explain. (1996 BAR) investigators is deemed engaged by the accused
where he raises no objection against the lawyer
A: NO, the statements of A cannot be presented in during the course of the investigation, and the
court as his confession. He was not assisted by accused thereafter subscribes to the truth of his
counsel during the actual questioning. There is no statement before the swearing officer. Thus, once the
showing that the lawyer who belatedly conferred prosecution shows there was compliance with the
with him fully explained to him the nature and constitutional requirement on pre-interrogation
consequences of his confession. In People v. advisories, a confession is presumed to be voluntary
Compil 244 SCRA 135, the Supreme Court held and the declarant bears the burden of proving that his
that the accused must be assisted by counsel confession is involuntary and untrue. A confession is
during the actual questioning and the belated admissible until the accused successfully proves that
assistance of counsel before he signed the it was given as a result of violence, intimidation,
confession does not cure the defect. threat or promise of reward or leniency which are not
present in this case. Accordingly, the statement is
ALTERNATIVE ANSWER: Yes, the statements of A admissible (People v. Jerez, G.R. No. 114385, January
can be presented in court as his confession. As 29, 1998)
held in People v. Rous, 242 SCRA 732, even if the
accused was not assisted by counsel during the Waiver
questioning, his confession is admissible if he was
able to consult a lawyer before he signed. Q: On October 1, 1985, Ramos was arrested by a
security guard because he appeared to be
Q: Mariano was arrested by the NBI as a "suspicious" and brought to a police precinct
suspect in the shopping mall bombings. where in the course of the investigation he
Advised of his rights, Mariano asked for the admitted he was the killer in an unsolved
assistance of his relative, Atty. Santos. The NBI homicide committed a week earlier. The
noticed that Atty. Santos was inexperienced, proceedings of his investigation were put in
incompetent and inattentive. Deeming him writing and dated October 1, 1985, and the only
unsuited to protect the rights of Mariano, the participation of counsel assigned to him was his
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mere presence and signature on the statement. soonest, the police called City Attorney Juan Buan
The admissibility of the statement of Ramos to serve as the trio’s counsel and to advise them
was placed in issue but the prosecution claims about their rights during the investigation.
that the confession was taken on October 1, Badong and Rollie, weakened in spirit by Lito’s
1985 and the 1987 Constitution providing for early admission, likewise admitted their
the right to counsel of choice and opportunity participation. The trio thus signed a joint
to retain, took effect only on February 2, 1987 extrajudicial confession which served as the main
and cannot be given retroactive effect. Rule on evidence against them at their trial. They were
this. (2000 BAR) convicted based on their confession.

A: The confession of Ramos is not admissible, Should the judgment of conviction be affirmed or
since the counsel assigned to him did not advise reversed on appeal? (2013 BAR)
him of his rights. The fact that his confession was
taken before the effectivity of the 1987 A: The judgment of conviction should be reversed on
Constitution is of no moment. Even prior to the appeal. It relied mainly on the extra judicial
effectivity of the 1987 Constitution, the Supreme confession of the accused. The lawyer assisting them
Court already laid down strict rules on waiver of must be independent. City Attorney Juan Buan is not
the rights during investigation in the case of independent. As City Attorney, he provided legal
People v. Galit, 135 SCRA 465. support to the City Mayor in performing his duties
which include the maintenance of peace and order
RIGHTS OF THE ACCUSED (People v. Sunga, 399 SCRA 624)

Q: Rafael, Carlos and Joseph were accused of ALTERNATIVE ANSWER: The judgment of conviction
murder before the Regional Trial Court of should be affirmed if the accused failed to object
Manila. Accused Joseph turned state witness when their extrajudicial confession was offered in
against his co-accused Rafael and Carlos, and evidence which was rendered it admissible (People v.
was accordingly discharged from the Samus, 389 SCRA 93)
information. Among the evidence presented by
the prosecution was an extrajudicial Q: Agnes was allegedly picked up by a group of
confession made by Joseph during the military men headed by Gen. Altamirano, and was
custodial Investigation, implicating Rafael and brought to several military camps where she was
Carlos who, he said, together with him interrogated, beaten, mauled, tortured, and
(Joseph), committed the crime. The threatened with death if she would not confess
extrajudicial confession was executed without her membership in the New People's Army (NPA)
the assistance of counsel. Accused Rafael and and point to the location of NPA camps. She
Carlos vehemently objected on the ground that suffered for several days until she was released
said extrajudicial confession was inadmissible after she signed a document saying that she was a
in evidence against them. Rule on whether the surenderee, and was not abducted or harmed by
said extrajudicial confession is admissible in the military. After she was released, and alleging
evidence or not. (2001 BAR) that her rights to life, liberty and security had
been violated and continued to be threatened by
A: According to People v. Balisteros, 237 SCRA violation of such rights, she filed with the
499, the confession is admissible. Under Section Supreme Court (the Court) a Petition for the Writs
12, Article III of the Constitution, the confession is of Amparo and Habeas Data with prayers for
inadmissible only against the one who confessed. Temporary Protection Orders, Inspection of
Only the one whose rights were violated can raise Place, and Production of Documents and Personal
the objection as his right is personal. Properties. The case was filed against President
Amoyo (who was the President of the Philippines
ALTERNATIVE ANSWER: According to People v. when the abduction, beating, mauling and life
Jara, 144 SCRA 516, the confession is inadmissible. threats were committed), General Altamirano,
If it is inadmissible against the one who confessed, and several military men whom Agnes was able to
with more reason it should be inadmissible recognize during her ordeal. The Court, after
against others. finding the petition to be in order, issued the writ
of amparo and the writ of habeas data and
Q: A robbery with homicide had taken place directed the respondents to file a verified return
and Lito, Badong, and Rollie were invited for on the writs, and directed the Court of Appeals
questioning based on the information (CA) to hear the petition. The respondents duly
furnished by a neighbor that he saw them filed their return on the writs and produced the
come out of the victim’s house at the time of documents in their possession. After hearing, the
the robbery/killing. The police confronted the CA ruled that there was no more need to issue the
three with this and other information they had temporary protection orders since the writ of
gathered, and pointedly accused them of amparo had already been issued, and dismissed
committing the crime. Lito initially resisted, the petition against President Amoyo on the
but eventually broke down and admitted his ground that he was immune from suit during his
participation in the crime. Elated by this break incumbency as President. Agnes appealed the CA
and desirous of securing a written confession ruling to the Court. The appeal was lodged after
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President Amoyo's term had ended. proceedings need not be clothed with the attributes
of a judicial proceeding. Thus, while desirable, the
Was the CA correct in saying that the writ of right to counsel is not available in administrative
amparo rendered unnecessary the issuance of proceedings. Since the proceedings involved in this
the temporary protection order? (2018 BAR) case is an investigation being conducted by a PNP
committee, which is administrative and not a
A: YES. The writ of amparo is an extraordinary custodial investigation, Mrs. W is not entitled to the
and independent remedy that provides rapid assistance of counsel. [Cudia v. The Superintendent of
judicial relief, as it partakes of a summary the PMA, G.R. No. 211362, February 24, 2015].
proceeding and requires only substantial evidence
to make the appropriate interim and permanent Q: Johann learned that the police were looking for
reliefs to the petitioner. It serves both preventive him in connection with the rape of an 18-year old
and curative reliefs in addressing extrajudicial girl, a neighbor. He went to the police station a
abduction and torture. Temporary protection week later and presented himself to the desk
orders are merely intended to assist the Court sergeant. Coincidentally, the rape victim was in
before it can arrive at a judicious determination of the premises executing an extrajudicial
the amparo petition. A temporary protection statement. Johann, along with six (6) other
order, being an interim relief, can only be granted suspects, were placed in a police lineup and the
before final adjudication on the amparo case is girl pointed to him as the rapist. Johann was
made. The privilege of the writ of amparo, once arrested and locked up in a cell. Johann was
granted, already entails the protection of the charged with rape in court but prior to
aggrieved party. Thus, since the writ of amparo arraignment invoked his right to preliminary
was already granted and issued, there is no more investigation. This was denied by the judge, and
need to issue a temporary protection order (Yano thus, trial proceeded. After the prosecution
v. Sanchez, G.R. No. 186640, Feb. 11, 2010; presented several witnesses, Johann through
Rodriguez v. Macapagal-Arroyo, G.R. Nos. 191805 & counsel, invoked the right to bail and filed a
193160, Nov. 15, 2011) motion therefor, which was denied outright by
the Judge. Johann now files a petition for
Q: Mrs. W supplies the Philippine National certiorari before the Court of Appeals arguing
Police (PNP) with uniforms every year. Last that he is entitled to bail as a matter of right, thus
month, he and two (2) other officers of the PNP the Judge should not have denied his motion to fix
conspired to execute a "ghost purchase", ball outright. Decide. (1993, 2008 BAR)
covered by five (5) checks amounting to
₱200,000.00 each, or a total of ₱1,000,000.00. A: In accordance with Art. III. sec. 13 of the
An investigating committee within the PNP, Constitution, Johann may be denied bail if the
which was constituted to look into it, invited evidence of his guilt is strong considering that the
Mrs. W, among others, for an inquiry regarding crime with which he is charged is punishable by
the anomalous transaction. Mrs. W accepted reclusion perpetua. It is thus not a matter of right for
the invitation but during the committee him to be released on bail in such case. The court
hearing, she stated that she will not answer must first make a determination of the strength of the
any question unless she be provided with the evidence on the basis of evidence already presented
assistance of a counsel. The PNP officials by the prosecution, unless it desires to present some
denied her request; hence, she no longer more, and give the accused the opportunity to present
participated in the investigation. (2019 BAR) countervailing evidence. If having done this the court
finds the evidence not to be strong, then it becomes
(a) What is a custodial investigation? Under the right of Johann to be admitted to bail. The error of
the 1987 Constitution, what are the rights of a the trial court lies in outrightly denying the motion
person during custodial investigation? for bail of Johann.

A: Custodial investigation refers to any Q: State with reason(s) whether bail is a matter of
questioning initiated by law enforcement officers right or a matter of discretion in the following
after a person has been taken into custody [People cases:
v. Basay, G.R. No. 86941, March 3, 1993]. The
rights of a person under custodial investigation a. The imposable penalty for the crime charged
include the right to remain silent, the right to have is reclusion perpetua and the accused is a
competent and independent counsel, and the right minor;
to be informed of these rights. [Art. III, Sec. 12(1)] b. The imposable penalty for the crime charged
is life imprisonment and the accused is a
(b) Was the PNP’s denial of Mrs. W’s request minor;
violative of her right to counsel in the c. The accused has been convicted of homicide
proceedings conducted before the PNP? on a charge of murder and sentenced to
Explain. suffer an indeterminate penalty of from eight
(8) years and one (1) day of prision
A: NO, PNP’s denial of Mrs W’s request is not mayor, as minimum, to twelve (12) years and
violative of her right to counsel. In administrative four (4) months of reclusion temporal as
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maximum. (2005 BAR) a lawyer who told him he has a right to be

presumed innocent under the Bill of Rights. But
A: there is another presumption of theft arising from
a. A minor charged with a crime punishable with his unexplained possession of stolen cattle—
reclusion perpetua is entitled to bail as a under the penal law. Are the two presumptions
matter of right. Under Article 68 of the capable of reconciliation In this case? If so, how
Revised Penal Code, in case of conviction the can they be reconciled? If not, which should
penalty would be one degree lower than prevail? (2004 BAR)
reclusion perpetua. This rules out reclusion
perpetua. [Bravo v. Borja,134 SCRA 466 A: The two presumptions can be reconciled. The
(1985)] presumption of innocence stands until the contrary is
b. Bail is a matter of discretion for a minor proved. It may be overcome by a contrary
charged with an offense punishable with life presumption founded upon human experience. The
imprisonment, because Article 68 of the presumption that RR is the one who stole the cattle of
Revised Penal Code is inapplicable and he is OZ is logical, since he was found in possession of the
not entitled to the privileged mitigating stolen cattle. RR can prove his innocence by
circumstance under it. [People v. Lagasca, 148 presenting evidence to rebut the presumption. The
SCRA 264 (1987)] burden of evidence is shifted to RR, because how he
c. Bail is a matter of discretion for an accused came into possession of the cattle is peculiarly within
convicted of homicide on a charge of murder, his knowledge (Dizon-Pamintuan v. People, 234 SCRA
because an appeal opens the whole case of 63).
review. There is a possibility that he may be
convicted of murder, which is punishable with Assistance of counsel
reclusion perpetua to death. His conviction
shows the evidence of his guilt is strong. Q: One day a passenger bus conductor found a
[Obosa v. CA, 266 SCRA 281 (1997)] man's handbag left in the bus. When the
conductor opened the bag, he found inside a
Q: A law denying persons charged with crimes calling card with the owner’s name (Dante
punishable by recluion perpetua or death the Galang) and address, a few hundred peso bills,
right to bail. State whether or not the law is and a small plastic bag containing a white
constitutional. Explain briefly. (2006 BAR) powdery substance. He brought the powdery
substance to the National Bureau of Investigation
A: A law denying persons charged with crimes for laboratory examination and it was determined
punishable by reclusion perpetua or death the to be methamphetamine hydrochloride or shabu,
right to be bail is unconstitutional, because a prohibited drug. Dante Galang was subsequently
according to the constitution, ”[A]all persons, traced and found and brought to the NBI Office
except those charged with offenses punishable by where he admitted ownership of the handbag and
reclusion perpetua when evidence of guilt is its contents. In the course of the interrogation by
strong, shall, before conviction, be bailable by NBI agents, and without the presence and
sufficient sureties, or be released on recognizance assistance of counsel, Galang was made to sign a
as may be provided by law.” receipt for the plastic bag and its shabu contents.
Galang was charged with illegal possession of
Q: JC, a major in the Armed Forces of the prohibited drugs and was convicted. On appeal he
Philippines, is facing prosecution before the contends that - The receipt he signed is also
Regional Trial Court of Quezon City for the inadmissible as his rights under custodial
murder of his neighbor whom he suspected to investigation were not observed. Decide the case
have molested his (JC’s) 15-year old daughter. with reasons. (2002 BAR)
Is JC entitled to bail? Why or why not? (2008
BAR) A: The receipt which Galang signed without the
assistance of counsel is not admissible in evidence. As
A: As a rule, bail is a matter of right even in capital held in People v. Castro, 274 SCRA 115 (1997), since
offense, unless it is determined, after due hearing, the receipt is a document admitting the offense
that the evidence of his guilt is strong (Section 13, charged, Galang should have been assisted by counsel
Article III of the Constitution; Article 248 of the as required by Article III, Section 11 of the
Revised Penal Code, as amended). Constitution.

Presumption of innocence Right to speedy, impartial and public trial

Q: OZ lost five head of cattle which he reported Q: Charged by Francisco with libel, Pablo was
to the police as stolen from his barn. He arraigned on January 3, 2000, pre-trial was
requested several neighbors, including RR, for dispensed with and continuous trial was set for
help in looking for the missing animals. After March 7, 8, and 9, 2000. On the first setting, the
an extensive search, the police found two head prosecution moved for its postponement and
in RR's farm. RR could not explain to the police cancellation of the other settings because its
how they got hidden in a remote area of his principal and probably only witness, the private
farm. Insisting on his innocence, RR consulted complainant Francisco, suddenly had to go abroad
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to fulfill a professional commitment. The judge required to submit a sample of his urine. The drug
instead dismissed the case for failure to test showed that he was positive for dangerous
prosecute. Would the grant of the motion for drugs. Hence, PO1 Adrian was charged with
postponement have violated the accused's violation of Section 15, Article II of R.A. No. 9165
right to speedy trial? (2000 BAR) or the Comprehensive Dangerous Drugs Act of
2002.
A: The grant of the motion for postponement
would not have violated the right of the accused to PO1 Adrian argues against the admissibility of the
speedy trial. As held In People v. Leviste, 255 SCRA urine test results and seeks its exclusion. He
238, since the motion for postponement was the claims that the mandatory drug test under R.A.
first one requested, the need for the offended No. 9165 is a violation of the accused's right to
party to attend to a professional commitment is a privacy and right against self-incrimination.
valid reason, no substantial right of the accused
would be prejudiced, and the prosecution should Are PO1 Adrian's contentions correct? (2018
be afforded a fair opportunity to prosecute its BAR)
case, the motion should be granted.
A: PO1 Adrian is correct that his rights to privacy and
ALTERNATIVE ANSWER: Since continuous trial against selfincrimination have been violated. The
of cases is required and since the date of the initial results of the “confirmatory” urine test should
hearing was set upon agreement of all parties, therefore be rejected as evidence against him. It
including the private complainant, the judge should be noted that RA 9165 allows the conduct of
properly dismissed the case for failure to urine tests only for persons arrested for acts
prosecute. prohibited under said law, such as, among others, the
manufacturing, sale, use or possession of illegal drugs,
Q: Select the best answer and explain. and not for any unlawful act, like extortion, for which
PO1 Adrian was arrested (De la Cruz v. People, G.R.
1. An accused’s right against self- No. 200748, July 23, 2014).
incrimination is violated in the following cases:
SELF-INCRIMANATION CLAUSE
a. When he is ordered by the trial court to
undergo a paraffin test to prove he is Q: Congressman Nonoy delivered a privilege
guilty of murder; speech charging the Intercontinental Universal
b. When he is compelled to produce his Bank (IUB) with the sale of unregistered foreign
bankbooks to be used as evidence against securities, in violation of R.A. 8799. He then filed,
his father charged with plunder; and the House of Representatives unanimously
c. When he is ordered to produce a sample approved a Resolution directing the House
of his handwriting to be used as evidence Committee on Good Government (HCGG) to
that he is the author of a letter wherein he conduct an inquiry on the matter, in aid of
agreed to kill the victim; legislation, in order to prevent the recurrence of
d. When the president of a corporation is any similar fraudulent activity.
subpoenaed to produce certain
documents as proofs he is guilty of illegal The HCGG immediately scheduled a hearing and
recruitment. (2006 BAR) invited the responsible officials of IUB, the
Chairman and Commissioners of the Securities
A: The best answer is (c), ordering the accused to and Exchange Commission (SEC), and the
produce a sample of his handwriting to be used as Governor of the Bangko Sentral ng Pilipinas
evidence to prove that he is the author of a letter (BSP). On the date set for the airing, only the SEC
in which he agreed to kill the victim as this will Commissioners appeared, prompting
violate his right against self- incrimination. Congressman Nonoy to move for the issuance of
Writing is not a purely mechanical act, because it the appropriate subpoena ad testificandum
requires the application of intelligence and tocompel the attendance of the invited resource
attention. Producing a sample of his handwriting persons.
may identify him as the writer of the letter
(Beltran v. Samson, 53 Phil. 570, [1929]). The IUB officials filed suit to prohibit HCGG from
proceeding with the inquiry and to quash the
Q: PO1 Adrian Andal is known to have taken subpoena, raising the following argument:
bribes from apprehended motorists who have Compelling the IUB officials, who are also
violated traffic rules. The National Bureau of respondents in the criminal and civil cases in
Investigation conducted an entrapment court, to testify at the inquiry would violate their
operation where P01 Adrian was caught red- constitutional right against self- incrimination.
handed demanding and taking PhP500.00 Are the foregoing argument tenable? Reasons.
from a motorist who supposedly beat a red (2009 BAR)
light.
A: The argument is untenable. Since the IUB officials
After he was apprehended, PO1 Adrian was were not being subjected to a criminal penalty, they
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cannot invoke their right against self- his photographs, fingerprints comparison and the
incrimination unless a question calling for an results of the paraffin test, asserting that these
incriminating answer is propounded (Standard were taken in violation of his right against self-
Chartered Bank v. Senate Committee, 541 SCRA incrimination. Rule on the objection. (2000 BAR)
456 [2007]).
A: The objection of Borja is not tenable. As held in
Foreign laws People v. Paynor, 261 SCRA 615, the rights guaranteed
by Section 12, Article in of the Constitution applies
Q: Alienmae is a foreign tourist. She was asked only against testimonial evidence. An accused may be
certain questions in regard to a complaint that compelled to be photographed or measured, his
was filed against her by someone who claimed garments may be removed, and his body may be
to have been defrauded by her. Alienmae examined.
answered all the questions asked, except in
regard to some matters in which she invoked Q: A, the wife of an alleged victim of enforced
her right against self-incrimination. When she disappearance, applied for the issuance of a Writ
was pressed to elucidate, she said that the of Amparo before a Regional Trial Court in Tarlac.
questions being asked might tend to elicit Upon motion of A, the court issued inspection and
incriminating answers insofar as her home production orders addressed to the AFP Chief of
state is concerned. Could Alienmae invoke the Staff to allow entry at Camp Aquino and permit
right against self-incrimination if the fear of the copying of relevant documents, including the
incrimination is in regard to her foreign law? list of detainees, if any. Accompanied by court-
(2014 BAR) designated Commission on Human Rights (CHR)
lawyers, A took photographs of a suspected
A: NO. Alienmae cannot invoke her right against isolation cell where her husband was allegedly
self-incrimination even if the fear of incrimination seen being held for three days and tortured
is in regard to her foreign law. Under the before he finally disappeared. The CHR lawyers
territoriality principle, the general rule is that a requested one Lt. Valdez for a photocopy of the
state has jurisdiction over all persons and master plan of Camp Aquino and to confirm in
property within its territory. The jurisdiction of writing that he had custody of the master plan. Lt.
the nation within its own territory is necessary, Valdez objected on the ground that it may violate
exclusive, and absolute. However, there are a few his right against self-incrimination. Decide with
exceptions on when a state cannot exercise reasons. (2010 BAR)
jurisdiction even within its own territory, to wit:
1) foreign states, head of states, diplomatic A: The objection of Lt. Valdez is not valid. The right
representatives, and consults to a certain degree; against self-incrimination refers to testimonial
2) foreign state property; 3) acts of state; 4) evidence and does not apply to the production of a
foreign merchant vessels exercising rights of photocopy of the master plan of Camp Aquino,
innocent passage or arrival under stress; 5) because it is a public record. He cannot object to the
foreign armies passing through or stationed in its request for him to confirm his custody of the master
territories with its permission; and 6) such other plan, because he is the public officer who had custody
persons or property, including organisations like of it (Almonte v. Vasquez, 244 SCRA 286 [1995].)
the United Nations, over which it may, by
agreement, waive jurisdiction. NON-IMPRISONMENT OF DEBTS

Seeing that the circumstances surrounding Q: Sec. 13 of PD 115 (Trust Receipts Law)
Alienmae do not fall under those exceptions, that provides that when the entrustee in a trust
she is a foreign tourist who received a complaint receipt agreement fails to deliver the proceeds of
for fraud, such principle of territoriality can be the sale or to return the goods if not sold to the
exercised by the State to get the information it entrustee-bank, the entrustee is liable for estafa
needs to proceed with the case. under the RPC. Does this provision not violate
the constitutional right against imprisonment for
Application non-payment of a debt? Explain. (1993 BAR)

Q: A man was shot and killed and his killer fled. A: NO, Section 13 of Presidential Decree No. 115 does
Moments after the shooting, an eyewitness not violate the constitutional right against
described to the police that the slayer wore imprisonment for non-payment of a debt. As held in
white pants, a shirt with floral design, had Lee v. Rodil, 175 SCRA 100, P.D. 115 is a valid exercise
boots and was about 70 kilos and 1.65 meters. of police power and is not repugnant to the
Borja, who fit the description given, was seen constitutional provision on non-imprisonment for
nearby. He was taken into custody and brought non-payment of debt. The non-payment of debt is not
to the police precinct where his pants, shirt the one being punish in the said law, but the violation
and boots were forcibly taken and he was of a trust receipt committed by disposing of the goods
weighed, measured, photographed, covered thereby and failing to deliver the proceeds of
fingerprinted and subjected to paraffin testing. such sale. This act constitutes violation Art. 315 (1)
At his trial, Borja objected to the admission in (b) of the Revised Penal Code.
evidence of the apparel, his height and weight,
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DOUBLE JEOPARDY promises (of marriage) just to accomplish his lewd

designs." Years later, Virginia brought another
Q: Discuss the right of every accused against complaint for Qualified Seduction. Geralde
double jeopardy? (1999 BAR) presented a Motion to Quash on the ground of
double jeopardy, which motion and his subsequent
A: Article III (21) of the New Constitution reads: motion for reconsideration were denied: Question:
"No person shall be twice put in jeopardy of May Geralde validly invoke double jeopardy in
punishment for the same offense. If an act is questioning the institution of the case for Qualified
punished by a law and an ordinance, conviction or Seduction? He placed reliance principally on the
acquittal under either shall constitute a bar to "same evidence" test to support his stance. He
another prosecution for the same act." asserted that the offenses with which he was
charged arose from the same set of facts.
The first sentence sets forth the general rule: the Furthermore, he averted that the complaint for
constitutional protection against double jeopardy Qualified Seduction is barred by waiver and
is not available where the second prosecution is estoppel on the part of the complainant, she
for an offense that is different from the offense having opted to consider the case as consented
charged in the first or prior prosecution, although abduction. Finally, he argued that her delay of
both the first and second offenses may be based more than eight (8) years before filing the second
upon the same act or set of acts. The second case against him constituted pardon on the part of
sentence embodies an exception to the general the offended party. How would you resolve
proposition: the constitutional protection, against Gerald's contentions? Explain. (1999 BAR)
double jeopardy is available although the prior
offense charged under an ordinance be different A: Geralde’s invocation of double jeopardy is
from the offense charged subsequently under a improper. Although the two crimes may have arisen
national statute such as the Revised Penal Code, from the same set of facts, they are not identical
provided that both offenses spring from the same offenses as would make applicable the rule on double
act or set of acts. jeopardy. The gravamen of the offense of the
abduction of a woman with her own consent, who is
Requisites still under the control of her parents or guardians is
"the alarm and perturbance to the parents and
Q: What are the requisites of double jeopardy? family" of the abducted person, and the infringement
(1999 BAR) of the rights of the parent or guardian. In cases of
seduction, the gravamen of the offense is the wrong
A: Double jeopardy exists when the following done the young woman who is seduced.
requisites are present:
Moreover, Virginia's filing of a subsequent case
a. a first jeopardy attached prior to the second; against the accused belies his allegation that she has
b. the first jeopardy has been validly waived or is estopped from filing the second charge
terminated; and against him. Neither could she be deemed to have
c. a second jeopardy is for the same offense as pardoned him, for the rules require that in cases of
in the first. seduction, abduction, rape and acts of lasciviousness,
pardon by the offended party, to be effective, must be
A first jeopardy attaches only: expressly given (Rule 110, Sec. 4 of the Rules of Court,
Ruled 110, Sec. 5 of the 1985 Rules on Criminal
a. after a valid indictment; Procedure). Moreover the length of time it took her to
b. before a competent court; file the second case is of no moment considering that
c. after arraignment; she filed it within the ten (10)-year prescriptive
d. when a valid plea has been entered; and period (Art. 90, RPC; Perez v. CA, G.R. No. L-80838,
e. when the accused has been acquitted or November 29, 1988).
convicted, or the case dismissed or otherwise
terminated without his express consent Q: Charged by Francisco with libel, Pablo was
(Cerezo v. People, G.R. No. 185230, June 1, arraigned on January 3, 2000. Pre-trial was
2011). dispensed with and continuous trial was set for
March 7, 8 and 9, 2000. On the first setting, the
Q: On October 21, 1986, 17 year old Virginia prosecution moved for its postponement and
Sagrado brought a complaint against Martin cancellation of the other settings because its
Geralde for consented abduction. With the principal and probably only witness, the private
accused pleading not guilty upon arraignment, complainant Francisco, suddenly had to go abroad
trial ensued. After trial, a judgment of to fulfill a professional commitment. The judge
conviction was rendered against Geralde. When instead dismissed the case for failure to
the case was appealed to it, the Court of Appeals prosecute. Would the reversal of the trial court's
reversed the judgment of the Trial Court, assailed dismissal of the case place the accused in
ratiocinating and ruling as follows: "This is not double jeopardy? (2000 BAR)
to say that the appellant did nothing
wrong...she was seduced by the appellant with A: NO, the reversal of the trial court’s assailed
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dismissal of the case would not place the accused act of driving allegedly under the influence of
in double jeopardy. While generally, dismissal of liquor which caused the accident. Was there
cases on the ground of failure to prosecute double jeopardy? Explain your Answer. (2002,
predicated on the clear right of the accused to 1997 BAR)
speedy trial is equivalent to an acquittal that
would bar further prosecution of the accused for A: YES, there was double jeopardy. The constitutional
the same offense, the same rule is not applicable in protection against double jeopardy is available so
this case considering that the right of the accused long as the acts which constitute or have given rise to
to speedy trial has not been violated by the State. the first offense under a municipal ordinance are the
For this reason, Pablo cannot invoke his right same acts which constitute or have given rise to the
against double jeopardy (People v. Tampal, G.R. No. offense charged under a statute. In this case, the same
102485, May 22, 1995). act is involved in the two cases. The reckless
imprudence which resulted in physical injuries arose
Q: For the death of Joey, Erning was charged from the same act of driving under the influence of
with the crime of homicide before the Regional liquor. The fact that the two charges sprung from one
Trial Court of Valenzuela. He was arraigned. and the same act of conviction or acquittal under
Due to numerous postponements of the either the law or the ordinance shall bar a
scheduled hearings at the instance of the prosecution under the other thus making it against
prosecution, particularly based on the ground the logic of double jeopardy.
of unavailability of prosecution witnesses who
could not be found or located, the criminal Q: Butchoy installed a jumper cable. He was
case was pending trial for a period of seven prosecuted under a Makati ordinance penalizing
years. Upon motion of accused Erning who such act. He moved for its dismissal on the ground
invoked his right to speedy trial, the court that the jumper cable was within the territorial
dismissed the case. Eventually, the prosecution jurisdiction of Mandaluyong and not Makati. The
witnesses surfaced, and a criminal case for case was dismissed. The City of Mandaluyong
homicide, involving the same incident was thereafter filed a case against him for theft under
filed anew against Erning. Accused Erning the Revised Penal Code (RCP). Is there double
moved for dismissal of the case on the ground jeopardy?
of double jeopardy. The prosecution
objected, submitting the reason that it was not a. No. The first jeopardy was terminated with
able to present the said witnesses earlier his express consent;
because the latter went into hiding out of fear. b. Yes. This is double jeopardy of the second
Resolve the motion. (2001 BAR) kind – prosecution for the same act under an
ordinance and a law;
A: The motion should be granted. As held in Caes v. c. Yes. He is prosecuted for the same offense
IAC, 179 SCRA 54, the dismissal of a criminal case which has already been dismissed by the City
predicated on the right of the accused to a speedy of Makati;
trial amounts to an acquittal for failure of the d. No. The second kind of double jeopardy
prosecution to prove his guilt and bars his under Section 21, Article III only
subsequent prosecution for the same offense. contemplates conviction or acquittal which
could terminate a first jeopardy. (2012 Bar)
Q: A Tamaraw FX driven by Asiong Cascasero,
who was drunk, sideswiped a pedestrian along A: D. No. The second kind of double jeopardy under
EDSA in Makati City, resulting in physical Section 21, Article III only contemplates conviction or
injuries to the latter. The public prosecutor acquittal which could terminate a first jeopardy.
filed two separate informations against (Zapatos Vs People, 411 SCRA 148)
Cascasero, the first for reckless imprudence
resulting in physical injuries under the Q: Amoroso was· charged with treason before a
Revised Penal Code, and the second for military court martial. He was acquitted.
violation of an ordinance of Makati City
prohibiting and penalizing driving under the He was later charged with the same offense before
influence of liquor. Cascasero was arraigned, a Regional Trial Court. He asks that the
tried and convicted for reckless imprudence information be quashed on the ground of double
resulting in physical injuries under the jeopardy.
Revised Penal Code. With regard to the second
case (i.e., violation of the city ordinance), upon The prosecution objects, contending that for
being arraigned, he filed a motion to quash the purposes of double jeopardy, the military court
information invoking his right against double martial cannot be considered as a "competent
jeopardy. He contended that, under Art. III, court."
Section 21 of the Constitution, if an act is
punished by a law and an ordinance, Should the Regional Trial Court grant Amoroso's
conviction or acquittal under either shall motion to quash on the ground of double
constitute a bar to another prosecution for the jeopardy? (2018 BAR)
same act He argued that the two criminal
charges against him stemmed from the same A: YES, the Motion to Dismiss should be granted. A
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defendant, having been acquitted of a crime by a consent of the accused will not be a bar to the
court martial of competent jurisdiction proceeding subsequent prosecution of the accused for the same
under lawful authority, cannot be subsequently offense. (Salcedo v. Mendoza, G.R. No. L-49375,
tried for the same offense in a civil court. February 28, 1979)

It appearing that the offense charged in the Court ALTERNATIVE ANSWER:
Martial and in the Regional Trial Court is the same,
that the military court had jurisdiction to try the Recent jurisprudence provide that “As a general rule,
case and that both courts derive their powers from the dismissal of a criminal case resulting in acquittal,
one sovereignty, the acquittal by the military court made with the express consent of the accused or upon
should be a bar to Amoroso’s further prosecution his own motion, will not place the accused in double
for the same offense in the Regional Trial Court jeopardy. This rule, however, admits of two
(Crisologo v. People, (G.R. No. L-6277, February 26, exceptions, namely: insufficiency of evidence and
1954); Marcos v. Chief of Staff (G.R. No. L-4663, May denial of the right to speedy trial. x x x x It must be
30, 1951); Garcia v. Executive Secretary (G.R. stressed, however, that these dismissals were
198554, July 30, 2012). predicated on the clear right of the accused to speedy
trial. These cases are not applicable to the petition at
Q: An Information for Estafa was filed against bench considering that the right of the private
the accused, Mr. D. During the course of the respondents to speedy trial has not been violated by
trial, Mr. D filed a motion to dismiss for failure the State.” (Tan v. People, G.R. NO. 173637, April 21,
to prosecute the case for a reasonable length of 2009). In these cases, the Court focused on discussing
time. Opposing the motion, the prosecution why there was no violation of the right to speedy trial
argued that its failure to present its witnesses hence there was no first jeopardy to speak of. The
was due to circumstances beyond its control. facts stipulated in the question, however, do not
Eventually, the trial court dismissed the case provide that there was an issue on the first jeopardy
with finality on the ground that Mr. D’s right to other than it was secured upon the motion of the
speedy trial was violated. accused.

A month after, the same criminal case for
Estafa was refilled against Mr. D, prompting CITIZENSHIP
him to file a motion to dismiss invoking his
right against double jeopardy. The prosecution
opposed the motion, arguing that the first FILIPINO CITIZENS
criminal case for Estafa was dismissed with the
express consent of the accused as it was, in Q: From mainland China where he was born of
fact, upon his own motion. Moreover, it was Chinese parents, Mr. Nya Tsa Chan migrated to the
already able to secure the commitments of its Philippines in 1894. As of April 11, 1899, he was
witnesses to appear; hence, it would be already a permanent resident of the Philippine
prejudicial for the State if the case were to be Islands and continued to reside in this country
dismissed without trial. until his death. During his lifetime and when he
was already in the Philippines, Mr. Nya Tsa Chan
(a) For double jeopardy to attach, what married Charing, a Filipina, with whom he begot
requisites must exist? (2019 BAR) one son, Hap Chan, who was born on October 18.
1897. Hap Chan got married also to Nimfa, a
A: No person shall be twice put in jeopardy of Filipina, and one of their children was Lacqui
punishment for the same offense. If an act is Chan who was born on September 27. 1936.
punished by a law and an ordinance, conviction or Lacqui Chan finished the course Bachelor of
acquittal under either shall constitute a bar to Science in Commerce and eventually engaged in
another prosecution for the same act (Section 21, business. In the May 1989 election, Lacqui Chan
Article III, CONST.). To raise the defense of double ran for and was elected Representative
jeopardy, three requisites must be present: (1) a (Congressman). His rival candidate, Ramon
first jeopardy must have attached prior to the Deloria, filed a quo warranto or disqualification
second; (2) the first jeopardy must have been case against him on the ground that he was not a
validly terminated; and (3) the second jeopardy Filipino citizen. It was pointed out in particular,
must be for the same offense as that in the first. that Lacqui Chan did not elect Philippine
citizenship upon reaching the age of 21.
(b) Rule on Mr. D’s present motion. (2019 BAR)
Decide whether Mr. Lacqui Chan suffers from a
A: Mr. D’s motion to dismiss should be granted. A disqualification or not. (2001 BAR)
dismissal predicated on the right of the accused to
speedy trial upon his own motion or express A: Lacqui Chan is a Filipino citizen and need not elect
consent, amounts to an acquittal which will bar Philippine citizenship. His father, Hap Chan, was a
another prosecution of the accused for the same Spanish subject, was residing in the Philippines on
offense This is an exception to the rule that a April 11, 1899, and continued to reside in the
dismissal upon the motion or with the express Philippines. In accordance with Section 4 of the
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Philippine Bill of 1902, he was a Filipino citizen. A: Atty. William Chua should not be disbarred. In
Hence, in accordance with Section 1(3) of the accordance with Section 15 of the Revised
1935 Constitution. Lacqui Chan is a natural born Naturalization Act, he became a naturalized
Filipino citizen, since his father was a Filipino Philippine citizen when his father became a Filipino
citizen. citizen during his minority. Hence, there was no need
for him to elect Philippine citizenship (Co v. HRET,
Q: Miguel Sin was born a year ago in China to a 199 SCRA 692, [1991]).
Chinese father and a Filipino mother. His
parents met in Shanghai where they were Q: Edwin Nicasio, born in the Philippines of
lawfully married just two years ago. Is Miguel Filipino parents and raised in the province of
Sin a Filipino citizen? (2003 BAR) Nueva Ecija, ran for Governor of his home
province. He won and he was sworn into office.It
A: YES, Miguel Sin is a Filipino citizen because he was recently revealed, however, that Nicasio is a
is the legitimate child of a Filipino mother. Under naturalized American citizen.
Article IV, Section 4 of the 1987 Constitution, his
mother retained her Philippine citizenship despite a. Does he still possess Philippine
her marriage to an alien husband, and according to citizenship?
Article IV, Section 1(2) of the 1987 Constitution, b. If Nicasio was born in the United States,
children born of a Filipino mother are Filipino would he still be a citizen of the
citizens. Philippines? (1992 BAR)

Q: Atty. Emily Go, a legitimate daughter of a A:
Chinese father and a Filipino mother, was born a. NO. Nicasio no longer possesses Philippine
in 1945. At 21, she elected Philippine citizenship. As held in Frivaldo vs. Commission on
citizenship and studied law. She passed the bar Elections, 174 SCRA 245, by becoming a
examinations and engaged in private practice naturalized American citizen, Nicasio lost his
for many years. The Judicial and Bar Council Philippine citizenship. Under Section 1(1) of
nominated her as a candidate for the position Commonwealth Act No. 63, Philippine citizenship
of Associate Justice of the Supreme Court. But is lost by naturalization in a foreign country.
her nomination is being contested by Atty. b. If Nicasio was born in the United States, he would
Juris Castillo, also an aspirant to the position. still be a citizen of the Philippines, since his
She claims that Atty. Emily Go is not a natural- parents are Filipinos. Under Section 1(2), those
born citizen, hence, not qualified to be whose fathers or mothers are citizens of the
appointed to the Supreme Court. Is this Philippines are citizens of the Philippines. Nicasio
contention correct? (2006 BAR) would possess dual citizenship, since under
American Law persons born in the United States
A: The contention that Atty. Emily Go is not a are American citizens. As held in Aznar vs.
natural-born citizen is not correct. She was born COMELEC, 185 SCRA 703, a person who
before January 17, 1973 of a Chinese father and a possesses both Philippine and American
Filipino mother. She elected Philippine citizenship citizenship is still a Filipino and does not lose his
when she reached twenty-one years of age. Those Philippine citizenship unless he renounces it.
who elect Philippine citizenship under Section
1(3), Article IV of the Constitution are natural- Q: Discuss the evolution of the principle of jus
born citizens. sanguinis as basis of Filipino citizenship under
the 1935, 1973, and 1987 Constitutions. (2015
Q: Atty. Richard Chua was born in 1964. He is a BAR)
legitimate son of a Chinese father and a
Filipino mother. His father became a A: Section 1. Art. III of the 1935 Constitution adopted
naturalized Filipino citizen when Atty. Chua the jus sanguinis principles as the basis of the Filipino
was still a minor. Eventually, he studied law citizenship if the father is a Filipino citizen. However,
and was allowed by the Supreme Court to take Subsection 4, Section 1, Art. III of the Constitution
the bar examinations, subject to his provided that if the mother was a Filipino citizen who
submission to the Supreme Court proof of his lost her Philippine citizenship because of her
Philippine citizenship. Although he never marriage to a foreign husband, her children could
complied with such requirement, Atty. Chua elect Philippine citizenship upon reaching the age of
practiced law for many years until one Noel majority.
Eugenio filed with the Supreme Court a
complaint for disbarment against him on the Subsection 2, Section 1, Art. III of the 1973
ground that he is not a Filipino citizen. He then Constitution provided that a child born of a father or
filed with the Bureau of Immigration an a mother who is a citizen of the Philippines is a
affidavit electing Philippine citizenship. Noel Filipino citizen.
contested it claiming it was filed many years
after Atty. Chua reached the age of majority. Section 2, Art. III of the 1973 Constitution provided
Will Atty. Chua be disbarred? Explain. (2006 that a child whose father or mother is a Filipino
BAR) citizen is a Filipino citizen. Subsection 3, Section 1,
Art. IV of the 1987 Constitution provided that a child
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born before January 17, 1973, of Filipino mothers, 1. Valid Proclamation;

who elected Philippine citizenship upon reaching 2. Valid oath; and
the age of majority under the 1973 Constitution is 3. Assumption of office on June 30.
a natural-born Filipino citizen (Tecson v COMELEC,
424 SCRA 277 [2004]). Thus, the mere proclamation of X does not yet
transfer jurisdiction from the COMELEC to the HRET.
Q: Candidate X, a naturalized Filipino citizen, [Reyes v. COMELEC, G.R. No. 207264, October 22, 2013]
ran for Congressman for the Lone District of
Batanes. After a close electoral contest, he won NATURALIZATION AND DENATURALIZATION
by a slim margin of 500 votes. His sole
opponent, Y, filed an election protest before Q: Onofre, a natural born Filipino citizen, arrived
the Commission on Election (COMELEC), in the United States in 1985. In 1990, he married
claiming that X should be disqualified to run Salvacion, a Mexican, and together they applied
for said position because he is not a natural- for and obtained American citizenship in 2001. In
born citizen. While the case was pending, X 2015, the couple and their children --Alfred, 21
was proclaimed by the Provincial Election years of age, Robert, 16, and Marie, 14, who were
Supervisor of Batanes as the duly elected all born in the U.S. -- returned to the Philippines
Congressman of the province. (2019 BAR) on June 1, 2015. On June 15, 2015, informed that
he could reacquire Philippine citizenship without
a. Distinguish between natural-born and losing his American citizenship, Onofre went
naturalized citizen under the 1987 home to the Philippines and took the oath of
Constitution, allegiance prescribed under R.A. No. 9225.

A: Natural-born citizens are those who are citizens On October 28, 2015, he filed a Certificate of
of the Philippines from birth without having to Candidacy to run in the May 9, 2016 elections for
perform any act to acquire or perfect their the position of Congressman in his home province
Philippine citizenship. Those who elect Philippine of Pala wan, running against re- electionist
citizenship in accordance with paragraph (3), Congressman Profundo.
Section 1 hereof shall be deemed natural-born
citizens. [Art. IV, Sec. 2, 1987 Const.] [a] Did Onofre's reacquisition of Philippine
citizenship benefit his wife, Salvacion, and their
On the other hand, naturalized citizens are those minor children and confer upon them Filipino
who acquire Philippine Citizenship through either: citizenship? Explain your answer.
1) Judicial naturalization under CA 473 or 2)
Administrative Naturalization Law (R.A. 9139). A [b] Before the May 9, 2016 elections,
third option is Derivative Naturalization, which is Profundo's lawyer filed a Petition to Deny Due
available to alien women married to Filipino Course or to Cancel the Certificate of Candidacy
husbands found under section 15 of CA 473 which against Onofre. What grounds can he raise in his
provides that: “Any woman who is now or may Petition to support it? Explain your answer. (2016
hereafter be married to a citizen of the Philippines BAR)
and who might herself be lawfully naturalized
shall be deemed a citizen of the Philippines.” A:
(a) The reacquisition of Philippine Citizenship by
b. Is X qualified to run for Congress? Onofre did not automatically make his American wife,
Explain. Salvacion, a Filipino citizen. Nowhere does Republic
Act no. 9225 provide that the foreign wife of a former
A: NO, X is not qualified to run for Congress. The Filipino citizen who reacquired his Filipino
Constitution prescribes that no person shall be a citizenship will automatically become a Filipino
Member of the House of Representatives unless he citizen. Robert who is 16 years old, and Marie, who is
is a natural-born citizen of the Philippines [Art. VI, 14 years old, also became Filipino citizens. The
Sec. 6, 1987 Const]. In this case, X is a naturalized unmarried children below eighteen years of age, of
citizen and is thus not qualified to run for those who reacquire Philippine citizenship are also
Congress. deemed citizens of the Philippines (Section 4 of RA
9225)
c. Did X’s proclamation divest the
COMELEC of its jurisdiction to decide the case (b) The lawyer of Congressman Profundo can ask for
and vest the House of Representatives the cancellation of the certificate of candidacy on the
Electoral Tribunal (HRET) jurisdiction to hear ground that he did not execute an affidavit
the case? Explain. renouncing his American citizenship as required by
Section 5(2) of RA 9225 and he lacked one-year
A: NO, COMELEC maintains its jurisdiction over residence in the Philippines as required in by Section
the matter. To divest the COMELEC of jurisdiction 6, Article VI, of the Constitution.
over election cases of Members of the House of
Representatives, the following requisites must MODES OF ACQUIRING CITIZENSHIP
concur:
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Q: What are the effects of marriages of: January 10, 1956. He took his oath of office on
June 5, 1959. In 1970, the Solicitor General filed a
1. A citizen to an alien; petition to cancel his citizenship on the ground
2. An alien to a citizen; on their spouses that in July 1969 the Court of Tax Appeals found
and children? Discuss. (1999, 1989 that Enzo had cheated the government of income
BAR) taxes for the years 1956 to 1959. Said decision of
the Tax Court was affirmed by the Supreme Court
A: in 1969. Between 1960 and 1970, Enzo had
1. According to Section 4, Article IV of the acquired substantial real property in the
Constitution, Filipino citizens who marry Philippines.
aliens retain their citizenship, unless by their
act or omission they are deemed, under the a. Has the action for cancellation of Enzo’s
law, to have renounced it. citizenship prescribed?
b. Can Enzo ask for the denial of the petition on
2. According to Mo Ya Lim Yao v. Commissioner the ground that he had availed of the Tax
of Immigration, 41 SCRA 292, under Section Amnesty for his tax liabilities?
15 of the Revised Naturalization Law, a c. What is the effect on the petition for
foreign woman who marries a Filipino citizen cancellation of Enzo's citizenship if Enzo died
becomes a Filipino citizen provided she during the pendency of the hearing on said
possesses none of the disqualifications for petition? (1994 BAR)
naturalization. A foreign man who marries a
Filipino citizen does not acquire Philippine A:
citizenship. However, under Section 3 of the a. NO, the action has not prescribed. As held in
Revised Naturalization Act, in such a case the Republic vs. Li Yao, 214 SCRA 748, a certificate of
residence requirement for naturalization will naturalization may be cancelled at any time if it
be reduced from ten (10) to five (5) years. was fraudulently obtained by misleading the
Under Section 1(2), Article IV of the court regarding the moral character of the
Constitution, the children of an alien and a petitioner.
Filipino citizen are citizens of the Philippines. b. NO. Enzo cannot ask for the denial of the petition
for the cancellation of his certificate of
Q: Rosebud is a natural-born Filipino woman naturalization on the ground that he had availed
who got married to Rockcold, a citizen of State of the tax amnesty. In accordance with the ruling
Frozen. By virtue of the laws of Frozen, any in Republic vs. Li Yao. 224 SCRA 748, the tax
person who marries its citizens would amnesty merely removed all the civil, criminal
automatically be deemed its own citizen. After and administrative liabilities of Enzo. It did not
ten years of marriage, Rosebud, who has split obliterate his lack of good moral character and
her time between the Philippines and Frozen, irreproachable conduct.
decided to run for Congress. Her opponent c. On the assumption that he left a family, the death
sought her disqualification, however, claiming of Enzo does not render the petition for the
that she is no longer a natural-born citizen. In cancellation of his certificate of naturalization
any event, she could not seek elective position moot. As held in Republic vs. Li Yao, 224 SCRA 748,
since she never renounced her foreign the outcome of the case will affect his wife and
citizenship pursuant to the Citizenship children.
Retention and Reacquisition Act (R.A. No.
9225). Is Rosebud disqualified to run by Q: Lim Tong Biao, a Chinese citizen applied for
reason of citizenship? (2014 BAR) and was granted Philippine citizenship by the
court. He took his oath as citizen of the
A: NO, because Rosebud never lost her status as a Philippines in July 1963. In 1975, the Office of the
natural-born citizen by reason of marriage to a Solicitor General filed a petition to cancel his
foreigner. In addition to her status as a natural Philippine citizenship for the reason that in
born citizen, she acquired the citizenship of her August 1963, the Court of Tax Appeals found him
husband by operation of law and not by a guilty of tax evasion for deliberately understating
voluntary act of acquisition thereof and voluntary his income taxes for the years 1959-1961.
renunciation of her former citizenship.
a. Could Lim Tong Biao raise the defense of
In relation to election protest, what is prohibited prescription of the action for cancellation of
is dual allegiance. Allegiance to a foreign state is his Filipino citizenship?
acquired through an express and voluntary act of b. Supposing Lim Tong Biao had availed of the
renouncing once allegiance to the Republic of the tax amnesty of the government for his tax
Philippines and swearing allegiance to a foreign liabilities, would this constitute a valid
state e.g. enlisting in the military services of defense to the cancellation of his Filipino
another state. citizenship? (1998 BAR)

Q: Enzo, a Chinese national, was granted A:
Philippine citizenship in a decision rendered a. NO, Lim Tong Biao cannot raise the defense of
by the Court of First Instance of Pampanga on prescription. As held in Republic vs. Go Bon Lee, 1
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SCRA 1166, 1170, a decision granting to execute a personal and sworn renunciation of any
citizenship is not res judicata and the right of and all foreign citizenships before an authorized
the government to ask for the cancellation of a public officer prior to or simultaneous to the filing of
certificate cancellation is not barred by the their certificates of candidacy, to qualify as candidates
lapse of time. in Philippine elections. The rule applies to all those
b. The fact that Lim Tong Biong availed of the tax who have re-acquired their Filipino citizenship,
amnesty is not a valid defense to the without regard as to whether they are still dual
cancellation of his Filipino citizenship. In citizens or not. (Sobejana-Condon v. Commission on
Republic vs. Li Yao, 214 SCRA 748, 754, the Elections, G.R. No. 198742, August 10, 2012)
Supreme Court held: “xxx the tax amnesty
does not have the effect of obliterating his lack LOSS AND RE-ACQUISITION OF PHILIPPINE
of good moral character and irreproachable CITIZENSHIP
conduct which are grounds for
denaturalization." Q: Julio Hortal was born of Filipino parents. Upon
reaching the age of majority, he became a
DUAL CITIZENSHIP AND DUAL ALLEGIANCE naturalized citizen in another country. Later, he
reacquired Philippine citizenship. Could Hortal
TRUE or FALSE. Dual citizenship is not the same regain his status as natural born Filipino citizen?
as dual allegiance. (2009 BAR) Would your answer be the same whether he
reacquires his Filipino citizenship by repatriation
A: TRUE. Dual citizenship arises when, as a result or by act of Congress? Explain. (1999 BAR)
of the concurrent application of the different laws
of two or more states, a person is simultaneously A: Julio Mortal can regain his status as a natural born
considered a national by those states and is citizen by repatriating. Since repatriation involves
involuntary. On the other hand, dual allegiance restoration of a person to citizenship previously lost
refers to the situation in which a person by expatriation and Julio Mortal was previously a
simultaneously owes by some positive and natural born citizen, in case he repatriates he will be
voluntary act, loyalty to two or more states restored to his status as a natural born citizen. If he
(Mercado v. Manzano, 307 SCRA 630 [1999]). reacquired his citizenship by an act of Congress, Julio
Hortal will not be a natural born citizen, since he
Q: H, a naturalized American citizen who later reacquired his citizenship by legislative naturalization.
became a dual citizen under Republic Act No.
9225 (the Citizenship Retention and Re- Q: Cruz, a Filipino by birth, became an American
acquisition Act), decided to run for Congress citizen. In his old age he has returned to the
and thus, filed a certificate of candidacy (CoC). country and wants to become a Filipino again. As
A citizen argued that H is ineligible for the his lawyer, enumerate the ways by which
position because of his status as a dual citizen. citizenship may be reacquired. (2000 BAR) Is the
H responded that his act of filing a CoC insurance company liable under its policy? Why?
amounted to his renunciation of foreign (1992 BAR)
citizenship, rendering him eligible for the
position. (2019 BAR) A: Cruz may reacquire Philippine citizenship in the
following ways:
a. Was H’s filing of a CoC sufficient to
renounce foreign citizenship? Explain. 1. By naturalization;
2. By repatriation pursuant to Republic Act No.
A: NO, H’s filing of a CoC is not sufficient to 8171; and
renounce foreign citizenship. Section 5(3) of RA 3. By direct act of Congress (Section 2 of
9225 requires that “Those appointed to any public Commonwealth Act No. 63).
office shall subscribe and swear to an oath of
allegiance to the Republic of the Philippines and Q: Warlito, a natural-born Filipino, took up
its duly constituted authorities prior to their permanent residence in the United States, and
assumption of office: Provided, That they eventually acquired American citizenship. He then
renounce their oath of allegiance to the country married Shirley, an American, and sired three
where they took that oath”. children. In August 2009, Warlito decided to visit
the Philippines with his wife and children: Johnny,
b. Assuming that H is a dual citizen because 23 years of age; Warlito, Jr., 20; and Luisa, 17.
his parents are Filipino citizens and he
was born in California, USA, was filing of a While in the Philippines, a friend informed him
CoC sufficient to renounce his foreign that he could reacquire Philippine citizenship
citizenship? Explain. without necessarily losing U.S. nationality. Thus,
he took the oath of allegiance required under R.A.
A: NO, the filing of his CoC was not sufficient to 9225.
renounce his foreign citizenship. R.A. No. 9225 a. Having reacquired Philippine
categorically demands natural-born Filipinos who citizenship, is Warlito a natural-born or a
re-acquire their citizenship and seek elective office,
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naturalized Filipino citizen today? Explain a. Under Section 4, Article IV of the Constitution.
your answer. Zeny retained her Filipino

b. With Warlito having regained Philippine citizenship. Since she also became a citizen of Kongo,
citizenship, will Shirley also become a she possesses dual citizenship. Pursuant to Section 40
Filipino citizen? If so, why? If not, what (d) of the Local Government Code, she is disqualified
would be the most speedy procedure for to run for governor. In addition, if Zeny returned to the
Shirley to acquire Philippine citizenship? Philippines, less than a year immediately before the
Explain day of the election, Zeny is not qualified to run for
Governor of Sorsogon. Under Section 39(a) of the
c. Do the children --- Johnny, Warlito Jr., and Local Government Code, a candidate for governor
Luisa --- become Filipino citizens with must be a resident in the province where he intends to
their father's reacquisition of Philippine run at least one (1) year immediately preceding the
citizenship? Explain your answer. (2009 day of the election. By residing in Kongo upon her
BAR) marriage in 1989, Zeny abandoned her residence in
the Philippines. This is in accordance with the decision
A: in Caasi v. Court of Appeals, 191 SCRA 229.
a. Warlito is a natural-born Filipino citizen.
Repatriation of Filipinos results in the ALTERNATIVE ANSWER:
recovery of his original nationality. Since a. NO. Zeny was not qualified to run for Governor.
Warlito was a natural-born citizen before he Under the Constitution, "citizens of the Philippines
lost his Philippine citizenship, he was who marry aliens shall retain their citizenship, unless
restored to his former status as a natural- by their act or omission they are deemed, under the
born Filipino citizen (Bengson v. House of law to have renounced it." (Sec. 4, Art. IV,
Representatives Electoral Tribunal, 357 SCRA Constitution). Her residing in Kongo and acquiring a
545; RA 2630). Kongo passport are indicative of her renunciation of
b. Shirley will not become a Filipino citizen, Philippine citizenship, which is a ground for loss of her
because under RA 9225, Warlito’s citizenship which she was supposed to have retained.
reacquisition of Philippine citizenship did not When she ran for Governor of Sorsogon, Zeny was no
extend its benefits to Shirley. She should longer a Philippine citizen and, hence, was disqualified
instead file with the Bureau of Immigration a for said position.
petition for the cancellation of her alien
certificate of registration on the ground that b. Although under Section 11(1), Article XVI of the
in accordance with Section 15 of the Constitution, mass media must be wholly owned by
Naturalization Law, because of her marriage Filipino citizens and under Section 2 of the Anti-
with Warlito, she should be deemed to have Dummy Law aliens may not intervene in the
become a Filipino citizen. She must allege and management of any nationalized business activity,
prove that she possessed none of the Zeny may be elected vice president of the Philippine
disqualification to become a naturalized Bulletin, because she has remained a Filipino citizen.
Filipino citizen (Burca v. Republic 51 SCRA Under Section 4, Article IV of the Constitution, Filipino
248). citizens who marry aliens retains their citizenship
c. Under Section 18 of RA 9225, only the unless by their act or omission they are deemed,
unmarried children who are below eighteen under the law, to have renounced it. Zeny is not guilty
years of age of those who reacquire Philippine of any of acts or omission which will result in loss of
citizenship shall be deemed Filipino citizens. citizenship are enumerated in Commonwealth Act No,
Thus, only Luisa, who is seventeen years old, 63. As held in Kawakita v. United States, 343 U.S. 717, a
became a Filipino citizen. person who possesses dual citizenship like Zeny may
exercise rights of citizenship in both countries and the
NATURAL-BORN CITIZENS AND PUBLIC OFFICE use of a passport pertaining to one country does not
result in loss of citizenship in the other country.
Q: In 1989, Zeny Reyes married Ben Tulog, a
national of the State of Kongo. Under the laws of ALTERNATIVE ANSWER:
Kongo, an alien woman marrying a Kongo Neither, was Zeny qualified to hold the position of
national automatically acquires Kongo vice- president of Philippine Bulletin. Under the
citizenship. After her marriage, Zeny resided in Constitution, "the ownership and management of mass
Kongo and acquired a Kongo passport. In 1991, media shall be limited to citizens, of the Philippines, or
Zeny returned to the Philippines to run for to corporation, cooperatives or associations wholly
Governor of Sorsogon. owned and managed by such citizens" (Section XI [1],
Art. XVI), Being a non-Philippine citizen, Zeny cannot
a. Was Zeny qualified to run for Governor? qualify to participate in the management of the
b. Suppose instead of entering politics. Zeny Bulletin as Vice-President thereof.
just got herself elected as vice- president of
the Philippine Bulletin, a local newspaper. Q: Andres Ang was born of a Chinese father and a
Was she qualified to hold that position? Filipino mother in Sorsogon, Sorsogon on January
(1994 BAR) 20, 1973. In 1988, his father was naturalized as a
A: Filipino citizen. On May 11, 1998, Andres Ang was
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elected Representative of the First District of A: Cruz was qualified to run as representative of the
Sorsogon. Juan Bonto who received the second First District of Pampanga. Since his parents were
highest number of votes, filed a petition for Quo Filipino citizens, he was a natural born citizen.
Warranto against Ang. The petition was filed Although he became a naturalized American citizen,
with the HRET. Bonto contends that Ang is not a under the ruling in Bengson v. HRET, 357 SCRA 545, by
natural born citizen of the Philippines and virtue of his repatriation, Cruz was restored to his
therefore is disqualified to be a member of the original status as a natural-born Filipino citizen.
House.
Q: TCA, a Filipina medical technologist, left in
The HRET ruled in favor of Ang. Bonto filed a 1975 to work in ZOZ State. In 1988 she married
petition for certiorari in the Supreme Court. ODH, a citizen of ZOZ. Pursuant to ZOZ's law, by
The following issue is raised: Whether Ang is a taking an oath of allegiance, she acquired her
natural born citizen of the Philippines. How husband’s citizenship.
should this case be decided? (1998 BAR)
ODH died in 2001, leaving her financially secured.
A: Andres Ang should be considered a natural born She returned home in 2002, and sought elective
citizen of the Philippines. He was born of a Filipino office in 2004 by running for Mayor of APP, her
mother on January 20, 1973. This was after the hometown. Her opponent sought to have her
effectivity of the 1973 Constitution on January 17, disqualified because of her ZOZ citizenship. She
1973. Under Section (1), Article VI of the 1973 replied that although she acquired ZOZ’s
Constitution, those whose fathers or mothers are citizenship because of marriage, she did not lose
citizens of the Philippines are citizens of the her Filipino citizenship. Both her parents, she said,
Philippines. Andres Ang remained a citizen of the are Filipino citizens. Is TCA qualified to run for
Philippines after the effectivity of the 1987 Mayor? (2004 BAR)
Constitution. Section 1, Article IV of the 1987
Constitution provides: "The following are citizens A: On the assumption that TCA took an oath of
of the Philippines: (1) Those who are citizens of the allegiance to ZOZ to acquire the citizenship of her
Philippines at the time of the adoption of this husband, she is not qualified to run for mayor. She did
Constitution;" not become a citizen of ZOZ merely by virtue of her
marriage; she also took an oath of allegiance to ZOZ.
Q: A was born in the Philippines of Filipino By this act, she lost her Philippine citizenship. (Section
parents. When martial law was declared in the 1 [3], Commonwealth Act No. 63.)
Philippines on September 21, 1972, he went to
the United States and was naturalized as an

American citizen. After the EDSA Revolution, he
came home to the Philippines and later on LAW ON PUBLIC OFFICERS
reacquired Philippine citizenship by
repatriation. Suppose in the May 2004 elections Q: State at least three constitutional provisions
he is elected Member of the House of reflecting the State policy on transparency in
Representatives and a case is filed seeking his matters of public interest. What is the purpose of
disqualification on the ground that he is not a said policy? (2000, 1997, 1989 BAR)
natural-born citizen of the Philippines, how
should the case against him be decided? Explain A: The following are the constitutional provisions
your answer. (2002 BAR) reflecting the State policy on transparency in matters
of public interest:
A: The case should be decided in favor of A. As held
In Bengson v. HRET, 357 SCRA 545, repatriation 1. Subject to reasonable conditions prescribed by
results in the recovery of the original nationality. law, the State adopts and implements a policy of
Since A was a natural-born Filipino citizen before full public disclosure of all its transactions
he became a naturalized American citizen, he was involving public interest. (Section 28, Article II)
restored to his former status as a natural-born 2. The right of the people to information on matters
Filipino when he repatriated. of public concern shall be recognized. Access to
official records, and to documents, and papers
Q: Juan Cruz was born of Filipino parents in pertaining to official acts, transactions, or
1960 in Pampanga. In 1985, he enlisted in the decisions, as well as to government research data
U.S. Marine Corps and took an oath of allegiance used as basis for policy development, shall be
to the United States of America. In 1990, he was afforded to citizen, subject to such limitations as
naturalized as an American citizen. In 1994, he may be provided by law. (Section 7, Article III)
was repatriated under Republic Act No. 2430. 3. The records and books of accounts of the Congress
During the 1998 National Elections, he ran for shall be preserved and be open to the public in
and was elected representative of the First accordance with law, and such books shall be
District of Pampanga where he resided since his audited by the Commission on Audit which shall
repatriation. Was he qualified to run for the publish annually an itemized list of amounts paid
position? Explain. (2003 BAR) to and expenses incurred for each Member.
(Section 20. Article VI)
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4. The Office of the Ombudsman shall have the c. The appointment can be upheld, because only the
following powers, functions, and duties: (6) Ombudsman is required under the Constitution to
Publicize matters covered by its investigation have been engaged in the practice of law for at
when circumstances so warrant and with due least ten years prior to his appointment. (Article
prudence," (Section 12, Article XI) XI, Section 8).
5. A public officer or employee shall, upon
assumption of office, and as often as thereafter MODES AND KINDS OF APPOINTMENT
may be required by law, submit a declaration
under oath of his assets, liabilities, and net Q: In December 1988, while Congress was in
worth. In the case of the President, the Vice recess, A was extended an ad interim appointment
President, the Members of the Cabinet, the as Brigadier General of the Philippine Army. In
Congress, the Supreme Court, the February 1989, when Congress was in session, B
Constitutional Commissions and other was nominated as Brigadier General of the
constitutional offices, and officers of the armed Philippine Army. B’s nomination was confirmed on
forces with general or flag rank, the declaration August 5, 1989 while A’s appointment was
shall be disclosed to the public in the manner confirmed on September 5, 1989.
provided by law. (Section 17, Article XI)
6. Information on foreign loans obtained or a. Who is deemed more senior of the two, A or B?
guaranteed by the Government shall be made b. Suppose Congress adjourned without the
available to the public." (Section 21 Article XII) Commission on Appointments acting on both
As explained in Valmonte v. Belmonte, 170 appointments, can A and B retain their original
SCRA 256, the purpose of the policy is to ranks of colonel? (1994 BAR)
protect the people from abuse of governmental
power. If access to information of public A:
concern is denied, the postulate "public office a. A is senior to B. In accordance with the ruling in
is a public trust" would be mere empty words. Summers vs. Ozaeta, 81 Phil. 754, the ad interim
appointment extended to A is permanent and is
Q: State whether or not the following acts are effective upon his acceptance although it is subject
constitutional: to confirmation by the Commission on
Appointments.
a. A law requiring all candidates for national
or local elective offices to be college degree b. If Congress adjourned without the appointments
holders; of A and B having been confirmed by the
b. The designation by the President of an Commission on Appointments, A cannot return to
acting Associate Commissioner of the Civil his old position. As held in Summers vs. Ozaeta, 81
Service Commission; Phil. 754, by accepting an ad interim appointment
c. The appointment by the President as to a new position, A waived his right to hold his
Deputy Ombudsman of a lawyer who has old position. On the other hand, since B did not
been engaged in the practice of law for five assume the new position, he retained his old
years (2018 BAR) position.

A: Q: What is the nature of an “acting appointment" to
a. The law requiring all candidates for national or a government office? Does such an appointment
local elective offices to be college degree give the appointee the right to claim that the
holders should be considered as appointment will, in time, ripen into a permanent
unconstitutional with respect to national one? Explain. (2003 BAR)
elective offices, because it is not one of the
qualifications specifically required for these A: According to Sevilla v. Court of Appeals, 209 SCRA
offices. The qualifications for these positions 637 [1992], an acting appointment is merely
under the Constitution are exclusive in temporary. As held in Marohombsar v. Alonto. 194
character and the Congress would be SCRA 390 [1991], a temporary appointment cannot
incompetent to prescribe this requirement as become a permanent appointment, unless a new
an additional qualification for candidates for appointment which is permanent is made. This holds
national elective office. This additional true unless the acting appointment was made because
requirement would, however, be valid with of a temporary vacancy. In such a case, the temporary
respect to candidates for local elective posts appointee holds office until the assumption of office by
(Social Justice Society v. Dangerous Drugs the permanent appointee.
Board, 570 SCRA 410).
Q: A was appointed by the President as a
b. Such designation is unconstitutional because Commissioner of the Commission on Election
the Constitution provides that no person shall (COMELEC) while Congress was not in session.
be appointed or designated in any of the Pending confirmation of his appointment by the
constitutional commissions in a temporary or Commission on Appointments, A started to
acting capacity (Articles IX-B, Section 1(2), IX- perform his official functions in the COMELEC, such
C, Section 2 and IX-D, Section 2). as attending en banc sessions, hearing election
protests, signing Resolutions, issuing Orders, and
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appearing before Congress during budget to the CA. May the Vice President validly sit in the
hearings. Cabinet? (2017 BAR)
Atty. B questioned before the Supreme Court
the exercise of official functions by A, stating A: The Vice President may validly sit in the Cabinet
that his ad interim appointment is not a even if he was not confirmed by the Commission on
permanent appointment but a temporary one Appointments. Under Article VII, Sec. 3 of the
pending confirmation by the Commission on Constitution, the appointment of the Vice President as
Appointments, and thus, prohibited under cabinet member requires no confirmation (Araullo v.
Article IX-C of the 1987 Constitution which Aquino III, G.R. No. 209287, July 1, 2014, 728 SCRA 1)
states that "[i]n no case shall any Member [of
the COMELEC] be appointed or designated in a DISABILITIES AND INHIBITIONS OF PUBLIC OFFICE
temporary or acting capacity."
Q: X was elected provincial governor for a term of
a. Is Atty. B’s contention correct? Explain. three years. He was subsequently appointed by the
b. If the Commission on Appointments by- President of the Philippines serving at her
passed the confirmation of A, can he still be pleasure, as concurrent Presidential Assistant for
reappointed by the President? Explain. Political Affairs in the Office of the President,
(2019 BAR) without additional compensation. Is X’s
appointment valid? (2002 BAR)
A:
a. NO, B’s contention is not correct. An ad interim A: The appointment of X is not valid, because the
appointment is a permanent appointment position of Presidential Assistant for Political Affairs is
because it takes effect immediately and can no a public office. Article IX-B Section 7 of the
longer be withdrawn by the President once the Constitution provides that no elective official shall be
appointee has qualified into office. The fact eligible for appointment or designation in any capacity
that it is subject to confirmation by the to any public office or position during his tenure. As
Commission on Appointments does not alter held in Flores v. Drilon, 223 SCRA 563 (1993), since an
its permanent character. elective official is ineligible for an appointive position,
his appointment is not valid.
The Constitution itself makes an ad interim
appointment permanent in character by making it Q: M is the Secretary of the Department of Finance.
effective until disapproved by the Commission on He is also an ex-officio member of the Monetary
Appointments or until the next adjournment of Board of the Bangko Sentral ng Pilipinas from
Congress. (Matibag v Benipayo, G.R. No. 149036, which he receives an additional compensation for
April 2, 2002) every Board meeting attended. N, a taxpayer, filed
a suit in court to declare Secretary M’s
b. YES, the President can continue to reappoint A. membership in the Monetary Board and his
Under the Rules of the Commission on receipt of additional compensation illegal and in
Appointments, a by-passed appointment can violation of the Constitution. N invoked Article VII,
be considered again if the President renews Section 13 of the Constitution which provides that
the appointment. The prohibition on the President, Vice- President, the Members of the
reappointment in Section 1 (2), Article IX-C of Cabinet, and their deputies or assistants shall not,
the Constitution applies neither to disapproved unless otherwise provided in the Constitution,
nor by-passed ad interim appointments. A by- hold any other office or employment during their
passed ad interim appointment can be revived tenure. N also cited Article IX-B, Section 8 of the
by a new ad interim appointment because Constitution, which provides that no elective or
there is no final disapproval under Section 16, appointive public officer or employee shall receive
Article VII of the Constitution, and such new additional, double, or indirect compensation,
appointment will not result in the appointee unless specifically authorized by law. If you were
serving beyond the fixed term of seven years. the judge, how would you decide the following:
An ad interim appointment that has lapsed by
inaction of the Commission on Appointments a. the issue regarding the holding of multiple
does not constitute a term of office. The period positions?
from the time the ad interim appointment is b. the issue on the payment of additional or
made to the time it lapses is neither a fixed double compensation?
term nor an unexpired term. Explain your answers fully. (2002 BAR)

Q: The President appoints the Vice President as A:
his Administration's Housing Czar, a position a. If I were the judge, I would uphold the validity of
that requires the appointee to sit in the Cabinet. the designation of Secretary M as ex officio
Although the appointment of the members of member of the Monetary Board. As stated in Civil
the Cabinet requires confirmation by the Liberties Union v. Executive Secretary,194 SCRA
Commission on Appointment (CA), the Office of 317 (1991), the prohibition against the holding of
the President does not submit the appointment multiple positions by Cabinet Members in Article
VII, Section 13 of the Constitution does not apply
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to positions occupied in an ex officio capacity appealed decision by imposing only a penalty of

as provided by law and as required by the reprimand, and which decision became final.
primary functions of their office.
a. Can Alfonso Belt claim salary for the period
b. If I were the judge, I would rule that Secretary that his case was pending investigation? Why?
M cannot receive any additional compensation. b. Can he claim salary for the period that his case
As stated in Civil Liberties Union v. Executive was pending appeal? Why? (2001 BAR)
Secretary, 194 SCRA 317 (1991), a Cabinet
Member holding an ex- officio position has no A:
right to receive additional compensation, for a. Alfonso Beit cannot claim any salary for the period
his services in that position are already paid of his preventive suspension during the pendency
for by the compensation attached to his of the investigation. As held in Gloria v. Court of
principal office. Appeals, 306 SCRA 287, under Section 52 of the
Civil Service Law, the provision for payment of
Q: Suppose A, a Municipal Mayor, went on a sick salaries during the period of preventive
leave to undergo medical treatment for a suspension during the pendency of the
period of four (4) months. During that time: investigation has been deleted. The preventive
suspension was not a penalty. Its imposition was
a. Will B, the Municipal Vice-Mayor, be lawful, since it was authorized by law.
performing executive functions? Why?
b. Will B at the same time be also performing b. If the penalty was modified because Alfonso Beit
legislative functions as presiding officer of was exonerated of the charge that was the basis
the Sangguniang Bayan? Why? (2002 BAR) for the decision ordering his dismissal, he is
entitled to back wages, otherwise, this would be
A: tantamount to punishing him after exoneration
a. Since the Municipal Mayor is temporarily from the charge which caused his dismissal
incapacitated to perform his duties, in (Gloria v. Court of Appeals, 3O6 SCRA). If he was
accordance with Section 46(a) of the Local reprimanded for the same charge which was the
Government Code, the Municipal Vice- Mayor basis of the decision ordering his dismissal,
shall exercise his powers and perform his Alfonso Belt is not entitled to back wages, because
duties and functions. The Municipal Vice- he was found guilty, and the penalty was merely
Mayor will be performing executive functions, commuted (Dela Cruz v. Court of Appeals, 305 SCRA
because the functions of the Municipal Mayor 303).
are executive.
Q: Simeon Valera was formerly a Provincial
b. The Municipal Vice-Mayor cannot continue as Governor who ran and won as a Member of the
presiding officer of the Sangguniang Bayan House of Representatives for the Second
while he is acting Municipal Mayor. Congressional District of lloilo. For violation of
Section 3 of the Anti-Graft and Corrupt Practices
In accordance with Gamboa v. Aguirre, 310 SCRA Act (R.A. No.3019), as amended, allegedly
867 (1999), under the Local Government Code, the committed when he was still a Provincial
Vice-Municipal Mayor was deprived of the power Governor, a criminal complaint was filed against
to preside over the Sangguniang Bayan and is no him before the Office of the Ombudsman for which,
longer a member of it. The temporary vacancy in upon a finding of probable cause, a criminal case
the office of the Municipal Mayor creates a was filed with the Sandiganbayan. During the
corresponding temporary vacancy in the Office of course of trial, the Sandiganbayan issued an order
the Municipal Vice-Mayor when he acts as of preventive suspension for 90 days against him.
Municipal Mayor. This constitutes inability on his Representative Valera questioned the validity of
part to preside over the sessions of the the Sandiganbayan order on the ground that,
Sangguniang Bayan. under Article VI , Section 16(3) of the Constitution,
he can be suspended only by the House of
LIABILITIES OF PUBLIC OFFICERS Representatives and that the criminal case against
him did not arise from his actuations as a member
Preventive suspension and back salaries of the House of Representatives. Is Representative
Valera's contention correct? Why? (2002 BAR)
Q: Alfonso Beit, a supply officer in the
Department of Science and Technology (DOST), A: The contention of Representative Valera is not
was charged administratively. Pending correct. As held in Santiago v. Sandiganbayan, 356
investigation, he was preventively suspended SCRA 636, the suspension contemplated in Article VI,
for 90 days. The DOST Secretary found him Section 16(3) of the Constitution is a punishment that
guilty and meted him the penalty of removal is imposed by the Senate or House of Representatives
from office. He appealed to the Civil Service upon an erring member, it is distinct from the
Commission (CSC). In the meantime, the suspension under Section 13 of the Anti-Graft and
decision was executed pending appeal. The CSC Corrupt Practices Act, which is not a penalty but a
rendered a decision which modified the preventive measure. Since Section 13 of the Anti-Graft
and Corruption Practices Act does not state that the
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public officer must be suspended only in the office f. Betrayal of Public Trust – refers to any violation of
where he is alleged to have committed the acts the oath of office. (Cruz, Philippine Political Law,
which he has been charged, it applies to any office 1998 ed., pp. 336- 337; Bernas, The 1987
which he may be holding. Constitution of the Philippines: A Commentary,
1996 ed., pp. 991-992)
Q: Maximino, an employee of the Department of
Education, is administratively charged with Ombudsman (Sections 5 to 14, Article XI of the
dishonesty and gross misconduct. During the 1987 Constitution, in relation to R.A. No. 6770, or
formal investigation of the charges, the otherwise known as "The Ombudsman Act of
Secretary of Education preventively suspended 1989.")
him for a period of 60 days. On the 60th day of
the preventive suspension, the Secretary Q: Who are the impeachable officers under the
rendered a verdict, finding Maximino guilty, 1987 Constitution? Briefly explain the process of
and ordered his immediate dismissal from the impeaching them thereunder. (2017, 2019 BAR)
service. Maximino appealed to the Civil Service
Commission (CSC), which affirmed the A: Article XI Sec. 2 of the 1987 Constitution provides
Secretary’s decision. Maximino then elevated that the following are impeachable officers: The
the matter to the Court of Appeals (CA). The CA President, the Vice-President, the Members of the
reversed the CSC decision, exonerating Supreme Court, the Members of the Constitutional
Maximino. The Secretary Of Education then Commissions, and the Ombudsman.
petitions the Supreme Court (SC) for the review
of the CA decision. Is the Secretary of Education The process of impeachment is provided for in Article
a proper party to seek the review of the CA XI Sec. 3 of the 1987 Constitution. It states the
decision exonerating Maximino? Reasons. following:
(2010 BAR)
1. The House of Representatives shall have the
A: The Secretary of Education is not the proper exclusive power to initiate all cases of
party to seek a review of the decision of the Court impeachment.
of Appeals, because he is the one who heard the
case and imposed the penalty. Being the 2. A verified complaint for impeachment may be
disciplinary authority, the Secretary of Education filed by any Member of the House of
should be impartial and should not actively Representatives or by any citizen upon a
participate in prosecuting Maximino (National resolution or endorsement by any Member
Appellate Board of the National Police Commission v. thereof, which shall be included in the Order
Mamauag, 466SCRA 624 [2005]). of Business within ten session days, and
referred to the proper Committee within
ACCOUNTABILITY OF PUBLIC OFFICERS three session days thereafter. The Committee,
after hearing, and by a majority vote of all its
Impeachment Members, shall submit its report to the House
within sixty session days from such referral,
Q: What are the grounds for impeachment. together with the corresponding resolution.
Explain. (1999, 2012, 2013 BAR) The resolution shall be calendared for
consideration by the House within ten session
A: days from receipt thereof.
Under Section 2, Article XI of the Constitution, the
grounds for impeachment are: 3. A vote of at least one-third of all the Members
of the House shall be necessary either to
a. Culpable violation of the Constitution – means affirm a favorable resolution with the Articles
intentional violation of the Constitution and of Impeachment of the Committee, or override
not violations committed in good faith. its contrary resolution. The vote of each
Member shall be recorded.
b. Treason – the same meaning as in the Revised
Penal Code 4. In case the verified complaint or resolution of
impeachment is filed by at least one-third of
c. Bribery – the same meaning as in the Revised all the Members of the House, the same shall
Penal Code constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.
d. Graft and Corruption – refers to prohibited acts
enumerated in the Anti-Graft and Corrupt 5. No impeachment proceedings shall be
Practices Act. initiated against the same official more than
once within a period of one year.
e. Other High Crimes – refers to offenses that
strike at the very life or orderly working of the 6. The Senate shall have the sole power to try
government. and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be
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on oath or affirmation. When the President over the complaint against him. Should CTD's
of the Philippines is on trial, the Chief petition be granted or dismissed? Reason briefly.
Justice of the Supreme Court shall preside, (2004 BAR)
but shall not vote. No person shall be
convicted without the concurrence of two- A: The petition of CTD should be dismissed. Section 21
thirds of all the Members of the Senate. of the Ombudsman Act vests the Office of the
Ombudsman with disciplinary authority over all
7. Judgment in cases of impeachment shall elective and appointive officials of the government,
not extend further than removal from except officials who may be removed only by
office and disqualification to hold any impeachment, Members of Congress and the Judiciary.
office under the Republic of the While CTD has the rank of a Justice of the Court of
Philippines, but the party convicted shall Appeals, he does not belong to the Judiciary but to the
nevertheless be liable and subject to Executive Department. This simply means that he has
prosecution, trial, and punishment, the same compensation and privileges as a Justice of
according to law. the Court of Appeals. If the Supreme Court were to
investigate CTD, it would be performing a non-judicial
(Sections 5 to 14, Article XI of the 1987 function. This will violate the principle of separation of
Constitution, in relation to R.A. No. 6770, or powers (Noblejas v. Teehankee, 23 SCRA 405)
otherwise known as "The Ombudsman Act of
1989.") Q: May a complaint for disbarment against the
Ombudsman prosper during her incumbency?
Q: A group of losing litigants in a case decided Explain your answer. (2017, 2019 BAR)
by the Supreme Court filed a complaint before
the Ombudsman charging the Justices with A: NO. This is because the ultimate effect is to remove
knowingly and deliberately rendering an unjust him from office, circumventing the provision on
decision in utter violation of the penal laws of removal by impeachment thus violating his security of
the land. Can the Ombudsman validly take tenure (In Re: First Indorsement from Hon. Raul
cognizance of the case? Explain. (2003 BAR) Gonzalez, A.M. No. 88-4-5433, April 15, 1988).

A: NO, the Ombudsman cannot entertain the An impeachable officer who is a member of the
complaint. As stated in the case of In re: Laureta v. Philippine bar cannot be disbarred first without being
Court of Appeals 148 SCRA 382, pursuant to the impeached (Jarque v. Desierto, A.C. No. 4509, December
principle of separation of powers, the correctness 5, 1995).
of the decisions of the Supreme Court as final
arbiter of all justiciable disputes is conclusive upon Q: Director WOW failed the lifestyle check
all other departments of the government; the conducted by the Ombudsman's Office because
Ombudsman has no power to review the decisions WOW’s assets were grossly disproportionate to his
of the Supreme Court by entertaining a complaint salary and allowances. Moreover, some assets
against the Justices of the Supreme Court for were not included in his Statement of Assets and
knowingly rendering an unjust decision. Liabilities. He was charged of graft and corrupt
practices and pending the completion of
ALTERNATIVE ANSWER: Article XI, Section 1 of investigations, he was suspended from office for
the 1987 Constitution provides that public officers six months.
must at all times be accountable to the people.
Section 22 of the Ombudsman Act provides that the a. Aggrieved, WOW petitioned the Court of
Office of the Ombudsman has the power to Appeals to annul the preventive suspension
investigate any serious misconduct allegedly order on the ground that the Ombudsman
committed by officials removable by impeachment could only recommend but not impose the
for the purpose of filing a verified complaint for suspension. Moreover, according to WOW, the
impeachment if warranted. The Ombudsman can suspension was imposed without any notice or
entertain the complaint for this purpose. hearing, in violation of due process. Is the
petitioner's contention meritorious? Discuss
Q: CTD, a Commissioner of the National Labor briefly.
Relations Commission (NLRC), sports a No. 10
car plate. A disgruntled litigant filed a b. For his part, the Ombudsman moved to dismiss
complaint against him for violation of the Anti- WOW’s petition. According to the Ombudsman
Graft and Corrupt Practices Act before the the evidence of guilt of WOW is strong, and
Ombudsman. CTD now seeks to enjoin the petitioner failed to exhaust administrative
Ombudsman in a petition for prohibition, remedies. WOW admitted he filed no motion
alleging that he could be investigated only by for reconsideration, but only because the
the Supreme Court under its power of order suspending him was immediately
supervision granted in the Constitution. He executory. Should the motion to dismiss be
contends that under the law creating the NLRC, granted or not? Discuss briefly. (2004 BAR)
he has the rank of a Justice of the Court of
Appeals, and entitled to the corresponding A:
privileges. Hence, the OMB has no jurisdiction
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a. The contention of Director WOW is not b. The Ombudsman can investigate crimes or
meritorious. The suspension meted out to offenses committed by public officers which are
him is preventive and not punitive. Section not connected with the performance of their
24 of Republic Act No. 6770 grants the duties. Under Section 13(1), Article XI of the
Ombudsman the power to impose Constitution, the Ombudsman can investigate any
preventive suspension up to six months. act or omission of a public official which is illegal
Preventive suspension maybe imposed (Deloso v. Domingo, 191 SCRA 545).
without any notice or hearing. It is merely
a preliminary step in an administrative c. All public officers and employees are required to
investigation and is not the final submit a declaration under oath of their assets,
determination of the guilt of the officer liabilities and net worth (Section 17, Article XI of
concerned (Garcia v. Mojica, 314 SCRA the Constitution).
207).
b. The motion to dismiss should be denied. Sandiganbayan; Ill-gotten wealth
Since the suspension of Director WOW was
immediately executory, he would have Q: Suppose a public officer has committed a
suffered irreparable injury had he tried to violation of Section 3 (b) and (c) of the Anti- Graft
exhaust administrative remedies before and Corrupt Practices Act (R.A. No. 3019), as
filing a petition in court (University of the amended, by receiving monetary and other
Philippines Board of Regents v. Rasul, 200 material considerations for contracts entered into
SCRA 685). Besides, the question involved by him in behalf of the government and in
is purely legal (Azarcon v. Bunagan, 399 connection with other transactions, as a result of
SCRA 365). which he has amassed illegally acquired wealth.

Q: Judge Red is the Executive Judge of Green a. Does the criminal offense committed
City. Red is known to have corrupt tendencies prescribe?
and has a reputation widely known among b. Does the right of the government to recover
practicing lawyers for accepting bribes. the illegally acquired wealth prescribe? (2002
Ombudsman Grey, wishing to "clean up" the BAR)
government from errant public officials, A:
initiated an investigation on the alleged
irregularities in the performance of duties of a. A violation of Section 3(b) and (c) of the Anti-Graft
Judge Red. and Corrupt Practices Act prescribes. As held in
Presidential Ad- Hoc Fact-Finding Committee on
a. Judge Red refused to recognize the Behest Loans v. Desierto,317 SCRA 272 (1999),
authority of the Office of the Ombudsman Article XI, Section 15 of the Constitution does not
over him because according to him, any apply to criminal cases for violation of the Anti-
administrative action against him or any Graft and Corrupt Practices Act.
court official or employee falls under the
exclusive jurisdiction of the Supreme Court. b. Article XI, Section 15 of the Constitution provides
Decide with reasons. that the right of the State to recover properties
unlawfully acquired by public officials or
b. Does the Ombudsman have authority to employees, or from them or from their nominees
conduct investigation over crimes or or transferees, shall not be barred by prescription.
offenses committed by public officials that
are NOT in connection or related at all to
the official’s discharge of his duties and ADMINISTRATIVE LAW
functions? Explain.

c. Who are required by the Constitution to Q: Are government-owned or controlled
submit a declaration under oath of his corporations within the scope and meaning of the
assets, liabilities, and net worth? (2012 "Government of the Philippines"? (1997 BAR)
BAR)
A: Section 2 of the Introductory Provision of the
A: Administrative Code of 1987 defines the government
of the Philippines as the corporate governmental
a. Since the complaint refers to the performance entity through which the functions of government are
of the duties of Judge Red, Ombudsman Grey exercised throughout the Philippines, including, same
should not act on it and should refer it to the as the contrary appears from the context, the various
Supreme Court. His investigation will encroach arms through which political authority is made
upon the exclusive power of administrative effective in the Philippines, whether pertaining to the
supervision of the Supreme Court over all autonomous regions, the provincial, city, municipal or
courts (Maceda v. Vasquez, 221 SCRA 464). barangay subdivisions or other forms of local
government. Government owned or controlled
corporation are within the scope and meaning of the
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Government of the Philippines if they are financing agrarian reform, it is endowed with
performing governmental or political functions. all corporate powers, and it enjoys autonomy
through a charter (Section 74, Agrarian Land
Q: State with reason(s) which of the following is Reform Code).
a government agency or a government
instrumentality: POWERS OF ADMINISTRATIVE AGENCIES

a. Department of Public Works and Q: What is a quasi-judicial body or agency? (2006
Highway; BAR)
b. Bangko Sentral ng Pilipinas;
c. Philippine Ports Authority; A: A quasi-judicial body is an administrative agency
d. Land Transportation Office; which performs adjudicative functions. Although itis
e. Land Bank of the Philippines. (2005 BAR) authorized by law to try and decide certain cases, it is
not bound strictly by the technical rules of evidence
A: An agency of the government refers to any of the and procedure. However, it must observe the
various units of the government, including a requirements of due process.
department, bureau, office, instrumentality, or
government-owned or controlled corporation, or a Q: Section 9 of P.O. No. 1606, as amended, provides
local government or a distinct unit therein [Section that the Sandiganbayan may adopt internal rules
2(4j, Introductory Provisions, Administrative Code governing the allotment of cases among its
of 1987; Mactan Cebu v. Marcos, 261 SCRA 667 divisions, the rotation of justices among them, and
(1996)]. other matters relating to the internal operations of
the court.
An instrumentality of the government refers to any
agency of the national government, not integrated Section 6 of Article IX-A of the Constitution allows
within the department framework, vested with each of the Constitutional Commissions "en banc
special functions or jurisdiction by law, endowed [to] promulgate its own rules concerning
with some if not all corporate powers, pleadings and practice before it or before any of its
administering special funds, and enjoying offices. Such rules however shall not diminish,
operational autonomy, usually through a charter. increase, or modify substantive rights."
This term includes regulatory agencies, chartered
institutions, and government-owned or Section 16(3) of Article VI of the Constitution
controlled corporation [Section 3(10), Introductory states that "Each House may determine the rules of
Provisions, Administrative Code of 1987; Mactan its proceedings." Section 21, Article VI of the
Cebu v. Marcos, 261 SCRA 667 (1996)]. Constitution further provides that "The Senate or
the House of Representatives or any of its
a. The Department of Public Works and respective committees may conduct inquiries... in
Highways is an agency of the government, accordance with its duly published rules of
because it is a department. procedure."

b. The Bangko Sentral ng Pilipinas is a Finally, Section 3(8) of Article XI of the
government instrumentality, because it is Constitution declares that "The Congress shall
vested with the special function of being promulgate its rules on impeachment to effectively
the central monetary authority, and enjoys carry out the purposes of this section."
operational autonomy through its charter
(Section 1, Republic Act No. 7653). Are the rules promulgated pursuant to these
provisions subject to review and disapproval by
c. The Philippine Ports Authority is a the Supreme Court? (2018 BAR)
government instrumentality, because it is
merely attached to the Department of A: Section 5[5] of Article VIII of the Constitution
Transportation and Communication, it is clearly provides that the “Rules of procedure of special
vested with the special function of courts and quasi-judicial bodies shall remain effective
regulating ports, and it is endowed with all unless disapproved by the Supreme Court;”
corporate powers through its charter accordingly, it is clear that the Supreme Court may
(Sections 4(a) and 6 (a)(2), Presidential review and reverse the rules of procedure of the
Decree No. 857). Sandiganbayan and the Constitutional Commissions.

d. The Land Transportation Office is an With respect to the rules of procedure of Congress in
agency of the government, because it is an its proceedings, legislative inquiries and on
office under the Department of impeachment, while these rules may be generally
Transportation and Communication considered as political questions, when questioned
(Section 4(a), Republic Act No. 4136). before the courts in a proper case, they would
nevertheless be subject to the power of judicial review
e. The Land Bank of the Philippines is a under the second paragraph of Section 1, Article VIII of
government instrumentality, because it is the Constitution, which authorizes it to review and
vested with the special function of annul all acts of any branch or instrumentality of the
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government which may be tainted with grave aboard the vessel. The shipping lines object to the
abuse of discretion amounting to lack or excess of admission of the statements as evidence
jurisdiction. contending that during their execution, the captain
and the shipping agent were not assisted by
ALTERNATIVE ANSWER: Although the Rules of counsel, in violation of due process. Decide. (1993
Procedure of the Sandiganbayan are covered by the BAR)
disapproval authority of the Supreme Court as
stated in Section 5(5) of Article VIII of the A: The admission of the statements of the captain and
Constitution, the same thing cannot be said for the the shipping agent as evidence did not violate due
Rules of Procedure promulgated by Congress by process even if they were not assisted by counsel. In
virtue of the doctrine of separation of powers, Feeder International Line, Pts, Ltd. v. Court of Appeals,
unless these rules are tainted with grave abuse of 197 SCRA 842, it was held that the assistance of
discretion. The Rules of Procedure of Constitutional counsel is not indispensable to due process in
Commissions are likewise outside the disapproval forfeiture proceedings since such proceedings are not
authority of the Supreme Court as these criminal in nature. Moreover, the strict rules of
commissions are deliberately placed in the evidence and procedure will not apply in
Constitution to be independent, unless these are administrative proceedings like seizure and forfeiture
tainted with grave abuse of discretion. proceedings. What is important is that the parties are
afforded the opportunity to be heard and the decision
Q: The Maritime Industry Authority (MARINA) of the administrative authority is based on substantial
issued new rules and regulations governing evidence.
pilotage services and fees, and the conduct of
pilots in Philippine ports. This it did without Q: A complaint was filed by Intelligence agents of
notice, hearing nor consultation with harbor the Bureau of Immigration and Deportation (BID)
pilots or their associations whose rights and against Stevie, a German national, for his
activities are to be substantially affected. deportation as an undesirable alien. The
Immigration Commissioner directed the Special
The harbor pilots then filed suit to have the Board of Inquiry to conduct an investigation. At
new MARINA rules and regulations declared the said investigation, a lawyer from the Legal
unconstitutional for having been issued Department of the BID presented as witnesses the
without due process. Decide the case. (2000 three Intelligence agents who filed the complaint.
BAR) On the basis of the findings, report and
recommendation of the Board of Special Inquiry,
A: The issuance of the new rules and regulations the BID Commissioners unanimously voted for
violated due process. Under Section 9, Chapter II, Stevie's deportation. Stevie’s lawyer questioned
Book VII of the Administrative Code of 1987, as far the deportation order:
as practicable, before adopting proposed rules, an
administrative agency should publish or circulate a. On the ground that Stevie was denied due
notices of the proposed rules and afford interested process because the BID Commissioners who
parties the opportunity to submit their views; and rendered the decision were not the ones who
in the fixing of rates, no rule shall be valid unless received the evidence, in violation of the “He
the proposed rates shall have been published in a who decides must hear" rule. Is he correct?
newspaper of general circulation at least two
weeks before the first hearing on them. In b. On the ground that there was a violation of due
accordance with this provision, in Commissioner of process because the complainants, the
Internal Revenue v. CA, 261 SCRA 236, it was held prosecutor and the hearing officers were all
that when an administrative rule substantially subordinates of the BID Commissioners who
increases the burden of those directly affected, they rendered the deportation decision. Is he
should be accorded the chance to be heard before correct? (1994 BAR)
its issuance.
A:
Administrative due process a. NO, Stevie is not correct. As held in Adamson &
Adamson, Inc. vs. Amores, 152 SCRA237,
Q: The S/S “Masoy" of Panamanian registry, administrative due process does not require that
while moored at the South Harbor, was found to the actual taking of testimony or the presentation
have contraband goods on board. The Customs of evidence before the same officer who will
Team found out that the vessel did not have the decide the case. In American Tobacco Co. v.
required ship’s permit and shipping Director of Patents, 67 SCRA 287, the Supreme
documents. The vessel and its cargo were held Court has ruled that so long as the actual decision
and a warrant of Seizure and Detention was on the merits of the cases is made by the officer
issued after due investigation. In the course of authorized by law to decide, the power to hold a
the forfeiture proceedings, the ship captain and hearing on the basis of which his decision will be
the ship’s resident agent executed sworn made can be delegated and is not offensive to due
statements before the Custom legal officer process. The Court noted that: “As long as a party
admitting that contraband cargo were found is not deprived of his right to present his own case
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and submit evidence in support thereof, and b. NO, the failure to exhaust administrative remedies
the decision is supported by the evidence in before filing a case in court does not oust the court
the record, there is no question that the of jurisdiction to hear the case. As held in Rosario
requirements of due process and fair trial are vs. Court of Appeals, 211 SCRA 384, the failure to
fully met. In short, there is no abrogation of exhaust administrative remedies does not affect
responsibility on the part of the officer the jurisdiction of the court but results in the lack
concerned as the actual decision remains with of a cause of action, because a condition precedent
and is made by said officer. It is, however, that must be satisfied before action can be filed
required that to give the substance of a was not fulfilled.
hearing, which is for the purpose of making
determinations upon evidence the officer who Q:
makes the determinations must consider and 1. Explain the doctrine of exhaustion of
appraise the evidence which justifies them." administrative remedies.
2. Give at least three (3) exceptions to its
b. NO, Stevie was not denied due process simply application. (2000 BAR)
be-cause the complainants, the prosecutor, and
the hearing officers were all subordinates of A:
the Commissioner of the Bureau of 1. The doctrine of exhaustion of administrative
Immigration and Deportation. In accordance remedies means that when an adequate remedy is
with the ruling in Erlanger & Galinger, Inc. vs. available within the Executive Department, a
Court of Industrial Relations, 110 Phil. 470, the litigant must first exhaust this remedy before he
findings of the subordinates are not conclusive can resort to the courts. The purpose of the
upon the Commissioners, who have the doctrine is to enable the administrative agencies
discretion to accept or reject them. What is to correct themselves if they have committed an
important is that Stevie was not deprived of his error (Rosales v. Court of Appeals, 165 SCRA 344).
right to present his own case and submit
evidence in support thereof, the decision is 2. The following are the exceptions to the application
supported by substantial evidence, and the of the doctrine of exhaustion of administrative
commissioners acted on their own remedies:
independent consideration of the law and facts
of the case, and did not simply accept the views a. The question involved is purely legal;
of their subordinates in arriving at a decision. b. The administrative body is in estoppel;
c. The act complained of is patently illegal;
JUDICIAL RECOURSE AND REVIEW d. There is an urgent need for judicial
intervention;
Q: e. The claim involved is small;
a. Distinguish the doctrine of primary f. Grave and irreparable injury will be suffered;
jurisdiction from the doctrine of exhaustion g. There is no other plain, speedy and adequate
of administrative remedies. remedy;
h. Strong public interest is involved;
b. Does the failure to exhaust administrative i. The subject of the controversy is private law;
remedies before filing a case in court oust j. The case involves a quo warranto proceeding
said court of jurisdiction to hear the case? (Sunville Timber Products, Inc. v. Abad, 206
Explain. (1996 BAR) SCRA 48);
k. The party was denied due process (Samahang
A: Magbubukid ng Kapdula, Inc. v. Court of
a. The doctrine of primary jurisdiction and the Appeals, 305 SCRA 147);
doctrine of exhaustion of administrative l. The decision is that of a Department Secretary
remedies both deal with the proper (Nazareno v. Court of Appeals, G.R. No.
relationships between the courts and 131641, [2000]);
administrative agencies. The doctrine of m. Resort to administrative remedies would be
exhaustion of administrative remedies applies futile (University of the Philippines Board of
where a claim is cognizable in the first instance Regents v. Rasul, G.R. No. 91551 [1991]);
by an administrative agency alone. Judicial n. There is unreasonable delay (Republic v.
interference is withheld until the Sandiganbayan, 301 SCRA 237);
administrative process has been completed. As o. The action involves recovery of physical
stated in Industrial Enterprises, Inc. vs. Court of possession of public land (Gabrito v. Court of
Appeals, 184 SCRA 426, the doctrine of primary Appeals, 167 SCRA 771);
jurisdiction applies where a case is within the p. The party is poor (Sabello v. Department of
concurrent jurisdiction of the court and an Education, Culture and Sports, 180 SCRA
administrative agency but the determination of 623); and
the case requires the technical expertise of the q. The law provides for immediate resort to the
administrative agency. In such a case, although court (Rulian v. Valdez, 12 SCRA 501).
the matter is within the jurisdiction of the
court, it must yield to the jurisdiction of the Q: Give the two (2) requisites for the judicial
administrative case. review of administrative decision/actions, that is,
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when is an administrative action ripe for The act is unconstitutional since serious misconduct
judicial review? (2001 BAR) is not a ground for impeachment. Given the limited
facts of the case, it cannot be assumed that serious
A: The following are the conditions for ripeness for misconduct in this case amounts to betrayal of public
judicial review of an administrative action: trust.

a. The administrative action has already been (b) The law is unconstitutional. The power to issue
fully completed and, therefore, is a final injunctive writs is part of judicial power. The rules
agency action; and governing the exercise of this power are within the
b. All administrative remedies have been powers of the Supreme Court to promulgate. The law
exhausted (Gonzales, Administrative Law, therefore is an encroachment of the Court's rule-
Rex Bookstore: Manila, p. 136 [1979]). making power (Carpio-Morales v CA, GR 217126- 27, 10
Nov 2015).
The President can also abolish the Bureau in the
Department of Interior and Local Governments, (c) The law is unconstitutional. In Fabian v. Desierto
provided it is done in good faith because the (G.R. No. 129742, 16 September 1998), the Court
President has been granted continuing authority to invalidated Section 27 of R.A. No. 6770 insofar as it
reorganize the administrative structure of the provided for appeal by certiorari under Rule 45 from
National Government to effect economy and the decisions or orders of the Ombudsman in
promote efficiency, and the powers include the administrative cases. Section 27 of R.A. No. 6770 had
abolition of government offices. (Presidential the effect, not only of increasing the appellate
Decree No. 1416, as amended by Presidential jurisdiction of the Supreme Court without its advice
Decree No. 1772; Larin v. The Executive Secretary, and concurrence in violation of Section 30, Article VI
280 SCRA 71). of the Constitution; it is also inconsistent with Section
1, Rule 45 of the Rules of Court which provides that a
Q: Ascertain the constitutionality of the petition for review on certiorari shall apply only to a
following acts: review of "judgments or final orders of the Court of
(a) An investigation conducted by the Appeals, the Sandiganbayan, the Court of Tax Appeals,
Ombudsman against a Commissioner of the the Regional Trial Court, or other courts authorized by
Commission on Audit for serious law." In the absence of concurrence by the Supreme
misconduct. Court, such a law would be unconstitutional.

(b) A law prohibiting any court, other than the Q: The Secretary of the Department of
Supreme Court, from issuing a writ of Environment and Natural Resources (DENR)
injunction against an investigation being issued Memorandum Circular No. 123-15
conducted by the Ombudsman. prescribing the administrative requirements for
the conversion of a timber license agreement
(c) A law prohibiting any appeal from the (TLA) into an Integrated Forestry Management
decision or final order of the Ombudsman Agreement (IFMA). ABC Corporation, a holder of a
in an administrative proceeding, except TLA which is about to expire, claims that the
through a petition for review on certiorari conditions for conversion imposed by the said
filed before the Supreme Court. (2018 BAR) circular are unreasonable and arbitrary and a
patent nullity because it violates the non-
A: impairment clause under the Bill of Rights of the
(a) The act is constitutional. Article XI, Section 1987 Constitution. ABC Corporation goes to court
13(1) of the Constitution expressly gives the seeking the nullification of the subject circular.
Ombudsman the power to investigate on its own or The DENR moves to dismiss the case on the ground
on complaint by any person, any act or omission of that ABC Corporation has failed to exhaust
any public official, employee, office or agency, administrative remedies which is fatal to its cause
when such act or omission appears to be illegal, of action. If you were the judge, will you grant the
unjust, improper or inefficient. motion? EXPLAIN. (2015 BAR)

ALTERNATIVE ANSWER: A: The motion to dismiss should be denied. The
doctrine of exhaustion of administrative remedies
The act is constitutional. Although a Commission of applies only to judicial review of decisions of
any of the Constitutional Commissions is administrative agencies in the exercise of their quasi-
removable only through impeachment, this rule judicial power. It has no application to their exercise of
does not preclude the Ombudsman from rule-making power. (Holy Spirit Homeowners
conducting an investigation into the alleged Association, Inc. vs. Defensor, 2006)
serious misconduct committed by impeachable
officials for the purpose of filing a verified
complaint for impeachment (Section 22, RA 6770;
Carpio-Morales v. CA, GR 217126-27, 10 Nov 2015).

ANOTHER ALTERNATIVE ANSWER:
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b. To be qualified for the office to which a local

ELECTION LAWS official has been elected, he must be a resident of
the locality for at least one year immediately
before the election. (Section 39(a), Local
CANDIDACY Government Code).

Qualifications of candidates Q: Congress enacted Republic Act No. 1234
requiring all candidates for public offices to post
Q: Under the Local Government Code, name an election bond equivalent to the one (1) year
four persons who are disqualified from running salary for the position for which they are
for any elective position. (1999 Bar) candidates. The bond shall be forfeited if the
candidates fail to obtain at least 10% of the votes
A: Under Section 40 of the Local Government Code, cast. Is Republic Act No. 1234 valid?
the following are disqualified from running for any
local elective position: a. It is valid as the bond is a means of ensuring
fair, honest, peaceful and orderly elections.
1. Those sentenced by final judgment for an b. It is valid as the bond requirements ensures
offense involving moral turpitude or for an that only candidates with sufficient means and
offense punishable by one (1) year or more of who cannot be corrupted, can run for public
imprisonment, within two (2) years after office.
serving sentence; c. It is invalid as the requirement effectively
2. Those removed from office as a result of an imposes a property qualification to run for
administrative case; public office.
3. Those convicted by final judgment for violating d. It is invalid as the amount of the surety bond is
the oath of allegiance to the Republic of the excessive and unconscionable.
Philippines; e. It is valid because it is a reasonable
4. Those with dual citizenship; requirement; the Constitution itself expressly
5. Fugitives from justice in criminal or supports the accountability of public officers.
nonpolitical cases here or abroad; (2013 BAR)
6. Permanent residents in a foreign country or
those who have acquired the right to reside A: (C) It is invalid as the requirement effectively
abroad and continue to avail of the same right imposes a property qualification to run for public
after the effectivity of the Local Government office. (Marquera v. Borra, G.R. No. L- 24761, September
Code; and 7, 1965, 15 SCRA 7).
7. The insane or feeble-minded.
Q: (1) Gandang Bai filed her certificate of
Q: In the May 8, 1995 elections for local officials candidacy (COC) for municipal mayor stating that
whose terms were to commence on June 30, she is eligible to run for the said position. Pasyo
1995, Ricky filed on March 20, 1995 his Maagap, who also filed his COC for the same
certificate of candidacy for the Office of position, filed a petition to deny due course or
Governor of Laguna. He won, but his cancel Bai's COC under Section 78 of the Omnibus
qualifications as an elected official was Election Code for material misrepresentation as
questioned. It is admitted that he is a before Bai filed her COC, she had already been
repatriated Filipino citizen and a resident of the convicted of a crime involving moral turpitude.
Province of Laguna. To be qualified for the Hence, she is disqualified perpetually from holding
office to which a local official has been elected, any public office or from being elected to any
when at the latest should he be: public office. Before the election, the COMELEC
cancelled Bai' s COC but her motion for
a. A Filipino Citizen? Explain. reconsideration (MR) remained pending even
b. A resident of the locality? Explain. (2005 after the election. Bai garnered the highest
BAR) number of votes followed by Pasyo Maagap, who
took his oath as Acting Mayor. Thereafter, the
A: COMELEC denied Bai's MR and declared her
a. To be qualified for the office to which a local disqualified for running for Mayor. P. Maagap
official has been elected, it is sufficient that he asked the Department of Interior and Local
is a Filipino citizen at the time of his Government Secretary to be allowed to take his
proclamation and at the start of his term. oath as permanent municipal mayor. This request
Philippine citizenship is required for holding was opposed by Vice Mayor Umaasa, invoking the
an elective public office to ensure that no rule on succession to the permanent vacancy in the
person owing allegiance to another country Mayor's office. Who between Pasyo Maagap and
shall govern our people and a unit of the Vice Mayor Umaasa has the right to occupy the
Philippine territory. An official begins to position of Mayor? Explain your answer. (2015
discharge his functions only upon his BAR)
proclamation and on the day his term of office
begins. [Frivaldo v. Commission on Elections, A: Pasyo Maagap would be entitled to occupy the
257 SCRA 727 (1996)] position of Mayor upon disqualification of Gandang
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Bai on the basis of the petition to deny due course A: Agripina is eligible to run as member of Congress.
or cancel her certificate of candidacy under the Repatriation results in the recovery of a person’s
provisions of Section 78 of the Omnibus Election original nationality. This means that a naturalized
Code. Filipino who lost his citizenship will be restored to his
prior status as a Filipino citizen. If she were originally
The rule is that “an ineligible candidate who a natural-born citizen before she lost her Philippine
receives the highest number of votes is a wrongful citizenship, she would be restored to her former status
winner. By express legal mandate, he could not as a natural-born Filipino. (Bengson III vs. HRET, G.R.
even have been a candidate in the first place, but by No. 142840, May 7, 2001. See also: Parreno v.
virtue of the lack of material time or any other Commission on Audit, G.R. No. 162224, June 7, 2007, and
intervening circumstances, his ineligibility might Tabasa v. Commission on Elections, G.R. Nos. 221697 &
not have been passed upon prior to election date. 221698-700, March 8, 2016)
Consequently, he may have had the opportunity to
hold himself out to the electorate as a legitimate RA 9225 makes a distinction between those natural-
and duly qualified candidate. However, born Filipinos who became foreign citizens before and
notwithstanding the outcome of the elections, his after the effectivity of RA No. 9225. For those who
ineligibility as a candidate remains unchanged. were naturalized in a foreign country, they shall be
Ineligibility does not only pertain to his deemed to have reacquired their Philippine citizenship
qualifications as a candidate but necessarily affects which was lost pursuant to CA 63. In the case of those
his right to hold public office. The number of who became foreign citizens after RA 9225 took effect,
ballots cast in his favor cannot cure the defect of they shall retain Philippine citizenship despite having
failure to qualify with the substantive legal acquired foreign citizenship, provided they take the
requirements of eligibility to run for public office.” oath of allegiance under the new law.
(Maquiling v. COMELEC, GR No. 195649, April 16,
2013) Considering that petitioner was naturalized as a
Canadian citizen prior to the effectivity of RA 9225,
Accordingly, Gandang Bai “being anon- candidate, she belongs to the first category of natural-born
the votes cast in his favor should not have been Filipinos who lost their Philippine citizenship by
counted.” This leaves Pasyo Maagap as “the naturalization in a foreign country, under the first
qualified candidate who obtained the highest paragraph of Section 3. As the new law allows dual
number of votes. Therefore, the rule on succession citizenship, she was able to reacquire her Philippine
under the Local Government Code will not apply.” citizenship by taking the required oath of allegiance
(Maquiling v. COMELEC, GR No. 195649, April 16, (See Bengson v. HRET and as affirmed by Poe-
2013). Llamanzares v. COMELEC, G.R. No. 221697, March 8,
2016)
Q: In 1990, Agripina migrated to Canada and
acquired Canadian citizenship. In 2008, Q: President Alfredo died during his third year in
Agripina retired and returned to the office. In accordance with the Constitution, Vice
Philippines to permanently reside in her President Anastasia succeeded him. President
hometown of Angeles, Pampanga. A month after Anastasia then nominated the late President
returning to the Philippines, Agripina took her Alfredo's Executive Secretary, Anna Maria, as her
oath of allegiance and executed a sworn replacement as Vice President. The nomination
renunciation of her Canadian citizenship in was confirmed by a majority of all the Members of
accordance with R.A. No. 9225. the House of Representatives and the Senate,
In 2009, Agripina filed her certificate of voting separately. Can Anastasia run as President
candidacy for Congress for the 2010 elections. in the next election? (2018 BAR)
Agripina's political rivals lost no time in
causing the filing of various actions to question A: YES, Anastacia can still run as President in the next
her candidacy. They questioned her eligibility election since she has served for less than four years.
to run as member of Congress. Since Agripina Section 4, Article VII provides that “no person who has
had to take an oath under R.A. No. 9225, it succeeded as President and has served as such for
meant that she needed to perform an act to more than four years shall be qualified for election to
perfect her Philippine citizenship. the same office at any time.”

Hence, they claimed that Agripina could not be Q: W, the incumbent Congressman of the Province
considered a natural-born citizen. Agripina of Albay, decided to run for Governor. He filed his
raised the defense that, having complied with certificate of candidacy (CoC) for Governor
the requirements of R.A. No. 9225, she had without resigning from his post and continued
reacquired, and was deemed never to have lost, exercising his duties as Congressman, such as
her Philippine citizenship. attending plenary sessions and committee
hearings in the House of Representatives.
Is Agripina disqualified to run for Congress for
failing to meet the citizenship requirement? One of W’s fiercest critics, X, claimed that W should
(2018 BAR) not be dispensing the functions of a Congressman

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since he is deemed ipso facto resigned as such except for President and Vice-President, was
upon his filing of a CoC for Governor of Albay. repealed by the Fair Election Act.

(a) Is X’s argument correct? Explain. Q: Pedro Reyes is an incumbent Vice-Mayor of
(b) Assuming that W is instead, an incumbent Quezon City. He intends to run in the regular
Undersecretary of the Department of elections for the position of City Mayor of Quezon
National Defense, what is the effect of the City whose incumbent mayor would have fully
filing of his CoC for the position of Governor served three consecutive terms by 2004.
of Albay to said post? Explain. (2019 BAR)
1. Would Pedro Reyes have to give up his
A: position as Vice-Mayor:
(a) The argument of X is not correct. Section 14 of
RA 9006 (Fair Elections Act) reads: “Sec. 14. a. Once he files his certificate of candidacy;
Repealing Clause. - Sections 67 and 85 of the or
Omnibus Election Code (Batas Pambansa Blg. b. When the campaign period starts; or
881) and Sections 10 and 11 of Republic Act c. Once and if he is proclaimed winner in the
No. 6646 are hereby repealed.” Section 47 of election; or
BP 881, which deemed elective officials ipso d. Upon his assumption to the elective office;
facto resigned when they file their Certificate or
of Candidacy, is inoperative, and therefor W e. None of the above.
may still continue office.
Choose the correct answer
(b) W would be considered ipso facto resigned.
Under Sec. 66 of the Omnibus Election Code 2. If Pedro Reyes were, instead, an incumbent
(BP 881), “any person holding a public Congressman of Quezon City, who intends to
appointive office or position, including active seek the mayoralty post in Quezon City, would
members of the Armed Forces of the your choice of answer in no. (1) above be the
Philippines, and officers and employees in same? If not, which would be your choice?
government-owned or controlled corporations, (2003 BAR)
shall be considered ipso facto resigned from
his office upon the filing of his certificate of A:
candidacy.” W, as Undersecretary of the 1. The correct answer is (e). Section 14 of the Fair
Department of National Defense, is an Election Act repealed Section 67 of the Omnibus
appointive official, and therefor falls under this Election Code, which provided that any elected
provision. official, whether national or local, who runs for
any office other than the one he is holding in a
Filing of certificates of candidacy permanent capacity, except for President and Vice
President, shall be considered ipso facto resigned
Q: A, a City Legal Officer, and B, a City Vice- from his office upon the filing of his certificate of
Mayor, filed certificates of candidacy for the candidacy. Section 14 of the Fair Election Act
position of City Mayor in the May 14, 2001 likewise rendered ineffective the first proviso in
elections. the third paragraph of Section 11 of Republic Act
No. 8436.
a. Was A ipso facto considered resigned and, if
so, effective on what date? Consequently, Pedro Reyes can run for Mayor
b. Was B ipso facto considered resigned and, if without giving up his position as Vice-Mayor. He
so, effective on what date? In both cases, will have to give up his position as Vice-Mayor
state the reason or reasons for your upon expiration of his term as Vice-Mayor on June
answer. (2002 BAR) 30, 2004.

A: 2. The answer is the same if Pedro Reyes is a
Congressman of Quezon City, because the repeal
a. A was considered ipso facto resigned upon the of Section 67 of the Omnibus Election Code covers
filing of his certificate of candidacy, because both elective national and local officials.
being a City Legal Officer, he is an appointive
official. Section 66 of the Omnibus Election Q: What is a "stray ballot"? (1994 BAR)
Code provides that any person holding a public
appointive office shall be considered ipso facto A: Under Rule No. 19 of the rules for the appreciation
resigned upon the filing of his certificate of of ballots in Section 211 of the Omnibus Election Code,
candidacy. stray ballot is one cast in favor of a person who has not
filed a certificate of candidacy or in favor of a
b. B is not considered ipso facto resigned. Section candidate for an office for which he did not present
67 of the Omnibus Election Code considers any himself. Although the Code does not provide for stray
elective official ipso facto resigned from office ballot, it is presumed that stray ballot refers to stray
upon his filing of a certificate of candidacy for vote.
any office other than the one he is holding
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Effect of disqualification Schengen visa to allow him to travel to Spain to

visit his wife and minor children.
Q: In the municipal mayoralty elections in 1980,
the candidate who obtained the highest number (a) Based on the allegations of the parties, is
of votes was subsequently declared to be there sufficient ground to cancel Anacleto's CoC?
disqualified as a candidate and so ineligible for
the office to which he was elected. Would this (b) In case Anacleto's CoC is properly cancelled,
fact entitle a competing candidate who who should serve as mayor of Ardania City:
obtained the second highest number of votes to Arnaldo, who obtained the second highest number
ask and to be proclaimed the winner of the votes, or Andrea, the duly-elected Vice Mayor of
elective office? Reasons. (2003 BAR) the City? (2018 BAR)

A: YES. The rule is that “an ineligible candidate A:
who receives the highest number of votes is a (a) The sole act of using a foreign passport does not
wrongful winner”. By express legal mandate, he divest Anacleto of his Filipino citizenship which he
could not even have been a candidate in the first acquired by repatriation. By representing himself as a
place, but by virtue of the lack of material time or Spanish citizen; however, Anacleto voluntarily and
any other intervening circumstances, his effectively reverted to his earlier status as a dual
ineligibility might not have been passed upon prior citizen. Such reversion was not retroactive; it took
to election date. Notwithstanding the outcome of place the instant Anacleto represented himself as a
the elections, his ineligibility as a candidate Spanish citizen by using his Spanish passport. He is,
remains unchanged. Ineligibility does not only thus, disqualified for being a dual citizen, and his CoC
pertain to his qualifications as a candidate but should be cancelled. (Macquiling v. Comelec, G.R. No.
necessarily affects his right to hold public office. 195649, April 16, 2013)
The number of ballots cast in his favor cannot cure
the defect of failure to qualify with the substantive NOTE: The use of the foreign passport amounts to a
legal requirements of eligibility to run for public recantation of the Oath of Renunciation required to
office. qualify one to run for an elective position.

Accordingly, the disqualified candidate, being a (b) The rule on succession would not apply if the
non-candidate, the votes cast in his favor should permanent vacancy was caused by one whose
not have been counted. This leaves the candidate certificate of candidacy was void ab initio. Specifically
who obtained the second highest vote as the with respect to dual citizens, their certificates of
qualified candidate who actually obtained the candidacy are void ab initio, because they possess "a
highest number of votes. (Maquiling v. COMELEC, substantive [disqualifying circumstance] [existing]
GR No. 195649, April 16, 2013) prior to the filing of their certificate of candidacy.
"Legally, they should not even be considered
Q: The 2016 mayoralty race in the City of candidates. The votes cast for them should be
Ardania included Arnaldo and Anacleto as considered stray and should not be counted.
contenders.
In cases of vacancies caused by those with void ab
Arnaldo filed a petition with the Comelec to initio certificates of candidacy, the person legally
cancel Anacleto's Certificate of Candidacy (CoC) entitled to the vacant position would be the candidate
for misrepresenting himself as a Filipino who garnered the next highest number of votes among
citizen. Arnaldo presented as evidence a copy of those eligible; in this case, it was Arnaldo. (Chua v.
Anacleto's Spanish passport and a certification COMELEC, G.R. No. 216607, April 5, 2016)
from the Bureau of Immigration (Bl) showing
that Anacleto used the same passport several CAMPAIGN
times to travel to and from Manila and Madrid
or Barcelona. Q: Mayor Pink is eyeing re-election in the next
mayoralty race. It was common knowledge in the
In his Comment, Anacleto claimed that, a year town that Mayor Pink will run for re-election in
prior to filing his CoC, he had complied with all the coming elections. The deadline for filing of
the requirements of R.A. No. 9225 (Citizenship Certificate of Candidacy (CoC) is on March 23 and
Retention and Re-acquisition Act of 2003) to the campaign period commences the following
reacquire his Philippine citizenship by taking day. One month before the deadline, Pink has yet
an oath of allegiance and executing a sworn to file her CoC, but she has been going around town
renunciation of his Spanish citizenship. He giving away sacks of rice with the words "Mahal
defended the use of his Spanish passport Tayo ni Mayor Pink" printed on them, holding
subsequent to taking his oath of allegiance to public gatherings and speaking about how good
the Philippines as a practical necessity since he the town is doing, giving away pink t-shirts with
had yet to obtain his Philippine passport "Kay Mayor Pink Ako" printed on them. Mr. Green
despite reacquiring his Philippine citizenship. is the political opponent of Mayor Pink. In April,
Even after he secured his Philippine passport, noticing that Mayor Pink had gained advantage
he said he had to wait for the issuance of a over him because of her activities before the
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Political Law
campaign period, he filed a petition to the Omnibus Election Code (Sec. 211, BP 881) stating
disqualify Mayor Pink for engaging in an that "A name or surname incorrectly written which
election campaign outside the designated when read, has a sound similar to the name or
period. surname of a candidate when correctly written shall
be counted in his favor. Thus, if the name as spelled in
a. Which is the correct body to rule on the the ballot, though different from the correct spelling
matter? Comelec en banc, or Comelec thereof, conveys to the ears when pronounced
division? Answer with reasons. according to the commonly accepted methods, a sound
b. Rule on the petition. (2012 BAR) practically identical with the sound of the correct
name as commonly pronounced, the name thus given
A: is a sufficient designation of the person referred to.
a. It is the Commission on Elections En Banc The question whether one name is idem sonans with
which should decide the petition. Since it another is not a question of spelling but of
involves the exercise of the administrative pronunciation (Mandac v. Samonte, 49 Phil. 284). Its
powers of the Commission on Election, Section application is aimed at realizing the objective of every
3, Article Ix-C of the Constitution is not election which is to obtain the expression of the voters
applicable (Baytan V. COMELEC, 396 SCRA 703). will.

b. The petition should be denied. Under Section REMEDIES AND JURISDICTION IN ELECTION LAW
80 Of the Omnibus Election Code, to be liable
for premature campaigning, he must be a Q: Sec. 17, Art. VI of the Constitution establishes an
candidate and unless he filed his CoC, he is not Electoral Tribunal for each of the Houses of
a candidate (Lanot Vs. Commission On Elections, Congress, and makes each Electoral Tribunal "the
507 Scra 114). sole judge of all contests relating to the election,
returns, and qualifications of their respective
Lawful and prohibited election propaganda Members." On the other hand, Sec. 2(1), C
(Commission on Elections), Art. IX of the
Q: Discuss the disputable presumptions: Constitution grants to the COMELEC the power to
enforce and administer all laws and regulations
a. of conspiracy to bribe voters; "relative to the conduct of an election, plebiscite,
b. of the involvement of a candidate and of his initiative, referendum, and recall."
principal campaign managers in such
conspiracy. (1991 BAR) Considering that there is no concurrence of
jurisdiction between the Electoral Tribunals and
A: the COMELEC, state when the jurisdiction of the
a. Under Sec. 28 of the Electoral Reforms Law, Electoral Tribunals begins, and the COMELEC's
proof that at least one voter in different jurisdiction ends. Explain your answer. (2017
precincts representing at least twenty per cent BAR)
(20%) of the total precincts in any
municipality, city or province was offered, A: To be considered a Member of the House of
promised or given money, valuable Representatives, there must be a concurrence of the
consideration or other expenditure by the following requisites: (1) A valid proclamation, (2) a
relatives, leader or sympathizer of a candidate proper oath, and (3) assumption of office (Reyes v.
for the purpose of promoting the candidacy of COMELEC, G.R. No. 207264, October 22, 2013). Once a
such candidate, gives rise to a disputable winning candidate has been proclaimed and taken his
presumption of conspiracy to bribe voters. oath, and assumed office as a Member of the House of
Representatives, the jurisdiction of the Commission on
b. Under Sec. 28, if the proof affects at least 20% Elections over the election contest ends, and the
of the precincts of the municipality, city or jurisdiction of the House of Representatives Electoral
province to which the public office aspired for Tribunal begins (Vinzons-Charo v. COMELEC, G.R. No.
by the favored candidate relates, this shall 172131, April 2, 2007).
constitute a disputable presumption of the
involvement of the candidate and of his Q: Despite lingering questions about his Filipino
principal campaign managers in each of the citizenship and his one-year residence in the
municipalities concerned, in the conspiracy. district, Gabriel filed his certificate of candidacy
for congressman before the deadline set by law.
BOARD OF ELECTION INSPECTORS AND BOARD His opponent, Vito, hires you as lawyer to contest
OF CANVASSERS Gabriel’s candidacy.

Q: What is your understanding of the principle a. Before election day, what action or actions
of idem sonans as applied in the Election Law? will you institute against Gabriel, and before
(1994 BAR) which court, commission or tribunal will you
file such action/s? Reasons.
A: Idem sonans literally means the same or similar b. If, during the pendency of such action / s but
sound. This principle is made manifest in one of the before election day, Gabriel withdraws his
rules for the appreciation of ballots embodied in certificate of candidacy, can he be
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substituted as candidate? If so, by whom nominee. Alejandro questioned before the

and why? If not, why not? Comelec his expulsion and replacement by Andoy.
c. If the action/s instituted should be
dismissed with finality before the The Comelec considered Alejandro's petition as an
election, and Gabriel assumes office after intra-party dispute which it could resolve as an
being proclaimed the winner in the incident of its power to register political parties; it
election, can the issue of his candidacy proceeded to uphold the expulsion. Is the
and/or citizenship and residence still be Comelec's ruling correct? (2018 BAR)
questioned? If so, what action or actions
may be filed and where? If not, why not? A: Alejandro’s petition should be dismissed for lack of
(2010 BAR) jurisdiction. It is the HRET which has jurisdiction over
the case, because Alejandro is already a Member of the
A: House of Representatives (Lico v. Commission on
a. I will file a petition to cancel the certificate of Elections, G.R. No. 205505, September 29, 2015).
candidacy of Gabriel in the Commission on
Elections because of the false material Q: Two petitions for the cancellation of Certificate
representation that he is qualified to run for of Candidacy (CoC)/Denial of Due Course were
congressman (Section 78 of the Omnibus filed with the Comelec against two candidates
Election Code;574 SCRA 787 [2008]). The running as municipal mayors of different towns.
question of the disqualification of Gabriel
cannot be raised before the House of The first petition was against Anselmo. Years ago,
Representatives Electoral Tribunal, because Anselmo was charged and convicted of the crime
he is not yet a member of the House of of rape by final judgment, and was sentenced to
Representatives (Aquino v. COMELEC,248 suffer the principal penalty of reclusion perpetua
SCRA400 [1995]). which carried the accessory penalty of perpetual
b. If Gabriel withdraws, he may be substituted absolute disqualification. While Anselmo was in
by a candidate nominated by his political prison, the President commuted his sentence and
party. Section 77 of the Omnibus Election he was discharged from prison.
Code states: “If after the last day for the filing
of certificates of candidacy, an official The second petition was against Ambrosio.
candidate of a registered or accredited Ambrosio's residency was questioned because he
political party dies, withdraws or is was allegedly a "green card holder," i.e., a
disqualified for any cause, only a person permanent resident of the US, as evidenced by a
belonging to, and certified by, the same certification to this effect from the US Embassy.
political party may file a certificate of
candidacy to replace the candidate who died, Acting on the recommendations of its Law
withdrew or was disqualified.” Department, the Comelec en banc motu proprio
c. The question of the citizenship and residence issued two resolutions granting the petitions
of Gabriel can be questioned in the House of against Anselmo and Ambrosio.
Representatives Electoral Tribunal by filing a
quo warranto case. Since it is within its Both Anselmo and Ambrosio filed separate
jurisdiction to decide the question of the petitions with the Supreme Court assailing the
qualification of Gabriel, the decision of the resolutions cancelling their respective CoCs. Both
Commission on Elections does not constitute claimed that the Comelec en bane acted with grave
res judicata (Jalandoni v. Crespo, HRET Case abuse of discretion amounting to lack or excess of
No. 01- 020, March 6, 2003). Once a candidate jurisdiction because the petitions should have first
for member of the House of Representatives been heard and resolved by one of the Comelec's
has been proclaimed, the House of Divisions. Are Anselmo and Ambrosio correct?
Representatives Electoral Tribunal acquires (2018 BAR)
jurisdiction over election contests relating to
his qualifications (Guerrero v COMELEC,336 A: Anselmo is incorrect. The rule is every quasi-
SCRA 458 [2000]). judicial matter must first be tackled by a division
subject to appeal by way of a Motion for
Q: Ang Araw, a multi-sectoral party-list Reconsideration to the COMELEC en banc. In Jalosjos v.
organization duly registered as such with the COMELEC (G.R. No. 205033, June 18, 2013), it was
Commission on Elections (Comelec), was determined that a cancellation on the basis of
proclaimed as one of the winning party-list perpetual disqualification is a matter that can be taken
groups in the last national elections. Its first judicial notice of. When it cancels A CoC on that
nominee, Alejandro, assumed office as the ground, it is acting in performance of an
party-list representative. administrative function and, therefore, the rule in
Article XI, Section 3 does not apply.
About one year after Alejandro assumed office,
the Interim Central Committee of Ang Araw Ambrosio, on the other hand, is correct that the
expelled Alejandro from the party for disloyalty petition for the cancellation of his CoC should have
and replaced him with Andoy, its second been first heard and resolved by the Comelec Division.
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Cancellation proceedings involve the COMELEC's Q: Manuel was elected Mayor of the Municipality of
quasi-judicial functions. The Constitution mandates Tuba in the elections of 1992, 1995 and 1998. He
the COMELEC, in the exercise of its adjudicatory or fully served his first two terms, and during his
quasi-judicial powers, third term, the municipality was converted into
the component City of Tuba. The said charter
Petition for disqualification provided for a holdover and so without
interregnum Manuel went on to serve as the
Q: During his third term, "A", a Member of the Mayor of the City of Tuba.
House of Representatives, was suspended from
office for a period of 60 days by his colleagues In the 2001 elections, Manuel filed his certificate
upon a vote of two- thirds of all the Members of of candidacy for City Mayor. He disclosed, though,
the House. In the next succeeding election, he that he had already served for three consecutive
filed his certificate of candidacy for the same terms as elected Mayor when Tuba was still a
position. "B", the opposing candidate, filed an municipality. He also stated in his certificate of
action for disqualification of "A" on the ground candidacy that he is running for the position of
that the latter's, candidacy violated Section 7, Mayor for the first time now that Tuba is a city.
Article VI of the Constitution which provides Reyes, an adversary, ran against Manuel and
that no Member of the House of petitioned that he be disqualified because he had
Representatives shall serve for more than three already served for three consecutive terms as
consecutive terms. "A" answered that he was Mayor. The petition was not timely acted upon,
not barred from running again for that position and Manuel was proclaimed the winner with
because his service was interrupted by his 60- 20,000 votes over the 10,000 votes received by
day suspension which was involuntary. Can ‘A’, Reyes as the only other candidate. It was only after
legally continue with his candidacy or is he Manuel took his oath and assumed office that the
already barred? Why? (2001 BAR) COMELEC ruled that he was disqualified for having
ran and served for three consecutive terms.
A: A cannot legally continue with his candidacy. He
was elected as Member of the House of a. As lawyer of Manuel, present the possible
Representatives for a third term. This term should arguments to prevent his disqualification and
be included in the computation of the term limits, removal.
even if "A" did not serve for a full term. (Record of b. How would you rule on whether or not Manuel
the Constitutional Commission, Vol. n, p. 592.) He is eligible to run as Mayor of the newly-created
remained a Member of the House of City of Tuba immediately after having already
Representatives even if he was suspended. served for three (3) consecutive terms as
Mayor of the Municipality of Tuba?
Q: In the May 1992 elections, Manuel Manalo c. Assuming that Manuel is not an eligible
and Segundo Parate were elected as Mayor and candidate, rebut Reyes' claim that he should be
Vice Mayor, respectively. Upon the death of proclaimed as winner having received the next
Manalo as incumbent municipal mayor, Vice higher number of votes. (2005 BAR)
Mayor Segundo Parate succeeded as mayor and
served for the remaining portion of the term of A:
office. In the May 1995 election, Segundo Parate a. As lawyer of Manuel, I would argue that he
ran for and won as mayor and then served for should not be disqualified and removed because
the full term. In the May 1998 elections, Parate he was a three-term mayor of the municipality of
ran for reelection as Mayor and won again. In Tuba, and, with its conversion to a component
the May 2001 election, Segundo Parate filed his city, the latter has a totally separate and different
certificate of candidacy for the same position of corporate personality from that of the
mayor, but his rival mayoralty candidate sought municipality. Moreover, as a rule, in a
his disqualification alleging violation of the representative democracy, the people should be
three term limit for local elective officials allowed freely to choose those who will govern
provided for in the Constitution and in the Local them. Having won the elections, the choice of the
Government Code. Decide whether the people should be respected.
disqualification case will prosper or not. (2001
BAR) b. Manuel is not eligible to run as mayor of the city
of Tuba. The 1987 Constitution specifically
A: The disqualification case should be dismissed. included an exception to the people's freedom to
As held in Borja v. COMELEC, 295 SCRA 157, in choose those who will govern them in order to
computing the three-term limitation imposed upon avoid the evil of a single person accumulating
elective local officials, only the term for which he excessive power over a particular territorial
was elected to should be considered. The term jurisdiction as a result of a prolonged stay in the
which he served as a result of succession should same office. To allow Manuel to vie for the
not be included. It is not enough that the official has position of city mayor after having served for
served three consecutive terms. He must have been three consecutive terms as a municipal mayor
elected to the same position three consecutive would obviously defeat the very intent of the
times. framers when they wrote this exception. Should
he be allowed another three consecutive terms as
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mayor of the City of Tuba, Manuel would then course or cancelled if found to be containing material
be possibly holding office as chief executive representations which are false and deliberately made.
over the same territorial jurisdiction and These would include misrepresentations as to age,
inhabitants for a total of eighteen consecutive residence, citizenship or non-possession of natural-
years. This is the very scenario sought to be born status, registration as a votes, and eligibility, as
avoided by the Constitution, if not abhorred when one, although precluded from running for a
by it (Latasa v. COMELEC, G.R. No. 154829, fourth term because of the three-term limit rule,
[2003]). claims to be nonetheless qualified, or when one claims
to be eligible despite his disqualification on the bases
c. Reyes cannot be proclaimed winner for of an accessory penalty imposed upon him in
receiving the second highest number of votes. connection with his conviction in a criminal case.
The Supreme Court has consistently ruled
that the fact that a plurality or a majority of A petition for disqualification under Section 68 may be
the votes are cast for an ineligible candidate filed at any time after the last day for filing of the
at a popular election, or that a candidate is certificate of candidacy but not later that the
later declared to be disqualified to hold office, candidate’s proclamation should he win in the
does not entitle the candidate who garnered elections, while a petition to deny due course to or
the second highest number of votes to be cancel a certificate of candidacy under Section 78 must
declared elected. The same merely results in be filed within 5 days prior to the last day for filing of
making the winning candidate's election a certificates of candidacy, but not later than 25 days
nullity. In the present case, 10,000 votes were from the time of the filing of the certificate of
cast for private respondent Reyes as against candidacy.
the 20,000 votes cast for petitioner Manuel.
The second placer is obviously not the choice While a person who is disqualified under Section 68 is
of the people in this particular election. The merely prohibited to continue as a candidate, the
permanent vacancy in the contested office person whose certificate is cancelled or denied due
should be filled by succession (Labo v. course under Section 78 is not treated as candidate at
COMELEC, G.R. No. 105111, [1992]). all. Thus, a candidate disqualified under Section 68
may be validly substituted but only by an official
ALTERNATIVE ANSWER: Reyes could not be candidate of his registered or accredited party.
proclaimed as winner because he did not win the
election. To allow the defeated candidate to take Pre-proclamation controversy
over the mayoralty despite his rejection by the
electorate is to disenfranchise the electorate Q: Give three issues that can be properly raised
without any fault on their part and to undermine and brought in a pre-proclamation contest.
the importance and meaning of democracy and the
people's right to elect officials of their choice A: According to Section 243 of the Omnibus Election
(Benito v. COMELEC, G.R. No. 106053, [1994]). Code, the following issues can be properly raised:

Q: How do you differentiate the petition filed a. The composition or proceedings of the board
under Section 68 from the petition filed under of canvassers are illegal;
Section 78, both of the Omnibus Election Code? b. The canvassed election returns are
(2015 BAR) incomplete, contain material defects,
approved to be tampered with, or contain
A: A certificate of candidacy which is denied or discrepancy in the same returns or in other
cancelled under Section 78 of the Omnibus Election authenticated copies;
Code would make said certificate of candidacy void c. The election returns were prepared under
ab initio (which would preclude the application of duress, threats, coercion, or intimidation, or
the rules on succession for purposes of replacing they are obviously manufactured or not
him upon his disqualification because, up to that authentic; and
point of his disqualification, he shall be considered d. Substitute or fraudulent returns in
merely as a de facto officer), unlike in the case of controverter polling places were canvassed,
disqualification under Section 68 of Omnibus the results of which materially affected the
Election Code, which would give rise to the de jure standing of the aggrieved candidate or
officership of the disqualified candidate up to the candidates.
point of disqualification. The other basic
distinctions between petitions for disqualification However, according to Section 15 of the Synchronized
of candidates and petitions to reject or cancel Election Law, no pre- proclamation cases shall be
certificates of candidacy are follows- Under Section allowed on matters relating to the preparation,
68 of OEC, a candidate may be disqualified if he transmission, receipt, custody and appreciation of the
commits any of the election offenses or “prohibited election returns or the certificates of canvass with
acts” specified therein, of if he is permanent respect to the positions of President, Vice- President,
resident of or an immigrant to a foreign country. Senator and Member of the House of Representatives.
On the other hand, under Section 78 of the same No pre-proclamation case is allowed in the case of
law, a certificate of candidacy may be denied due barangay elections.
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Q: The 1st Legislative District of South Cotabato disqualified as a candidate and so ineligible for the
is composed of General Santos and three office to which he was elected. Would this fact
municipalities including Polomolok. During the entitle a competing candidate who obtained the
canvassing proceedings before the District second highest number of votes to ask and be
Board of Canvassers in connection with the proclaimed the winner of the elective office?
2007 congressional elections, candidate MP Reasons. (2003 BAR)
objected to the certificate of canvass for
Polomolok on the ground that it was obviously A: According to Trinidad v. COMELEC, 315 SCRA 175
manufactured, submitting as evidence the (1999), if the candidate who obtained the highest
affidavit of a mayoralty candidate of Polomok. number of votes is disqualified, the candidate who
The certificate of canvass for General Santos obtained the second highest number of votes cannot
was likewise objected to by MP on the basis of be proclaimed the winner. Since he was not the choice
the confirmed report of the local NAMFREL that of the people, he cannot claim any right to the office.
10 election returns from non-existent precincts
were included in the certificate. MP moved that However, the alleged "second-placer," should be
the certificate of canvass for General Santos be proclaimed if the certificate of candidacy was void ab
corrected to exclude the results from the non- initio. In short, the winner was never a candidate at all
existent precincts. The District Board of and all votes were stray votes. Thus, the second-placer
Canvassers denied both objections and ruled to is the only qualified candidate who actually garnered
include the certificate of canvass. May MP the highest number of votes (Tea v. COMELEC, G.R. No.
appeal the rulings to the COMELEC? Explain. 195229 [2012]).
(2008 BAR)
Q: Abdul ran and won in the May 2001, 2004 and
A: NO, MP cannot appeal the rulings to the 2007 elections for Vice-Governor of Tawi-Tawi.
Commission on Elections. Under Section 15 of After being proclaimed Vice- Governor in the 2004
Republic Act No. 7166, as amended by Republic Act elections, his opponent, Khalil, filed an election
No. 9369, no pre-proclamation controversies protest before the Commission on Election. Ruling
regarding the appreciation of election returns and with finality on the protest, the COMELEC declared
certificates of canvass maybe entertained in Khalil as the duly elected Vice- Governor though
elections for members of the House of the decision was promulgated only in 2007, when
Representatives. The canvassing body may correct Abdul had fully served his 2004-2007 term and
manifest errors in the certificate of canvass. His was in fact already on his 2007-2010 term as Vice
recourse is to file a regular election protest before Governor.
the HRET (Pimentel v. COMELEC, 548 SCRA 169
[2008]). a. Abdul now consults you if he can still run for
Vice-Governor of Tawi-Tawi in the
Election protest forthcoming May 2010 election on the
premise that he could not be considered as
Q: Under the Omnibus Election Code (B.P. 881, having served as Vice-Governor from 2004-
as amended), briefly differentiate an election 2007 because he was not duly elected to the
protest from a quo warranto case, as to who can post, as he assumed office merely as a
file the case and the respective grounds presumptive winner and that presumption
therefor. (2001, 2006 BAR) was later overturned when COMELEC
decided with finality that had lost in the May
A: An ELECTION PROTEST maybe filed by a losing 2004 elections. What will be your advice?
candidate for the same office for which the winner b. Abdul also consults you whether his political
filed his certificate of candidacy. A QUO party can validly nominate his wife as
WARRANTO CASE may be filed by any voter who is substitute candidate for Vice- Mayor of Tawi-
a registered voter in the constituency where the Tawi in May 2010 elections in case the
winning candidate sought to be disqualified ran for COMELEC disqualifies him and denies due
office. course to or cancels his certificate of
candidacy in view of a false material
In an election contest, the issues are: (a) who representation therein. What will be your
received the majority or plurality of the votes advice? (2008 BAR)
which were legally cast and (b) whether there were A:
irregularities in the conduct of the election which
affected its results. a. I shall advice Abdul that he cannot run for Vice-
Governor of Tawi-Tawi in the May 2010
In a quo warranto case, the issue is whether the elections. His second term should be counted as
candidate who was proclaimed elected should be a full term served in contemplation of the three-
disqualified because of ineligibility or disloyalty to term limit prescribed by Section 8, Article X of
the Philippines. the Constitution. Since the election protest
against him was decided after the term of the
Q: In the municipal mayoralty elections in 1980, contested office had expire, it had no practical
the candidate who obtained the highest number and legal use and value. (Ong v. Alegre, 479 SCRA
of votes was subsequently declared to be 473)
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b. I shall advise Abdul that his wife cannot be Representatives Electoral Tribunal (HRET)
nominated as substitute candidate for Vice- jurisdiction to hear the case? Explain.
Governor of Tawi-Tawi. The denial of due (2019 BAR)
course and cancellation of a certificate of
candidacy is not one of the cases in which a A:
candidate may be validly substituted. A (a) Natural-born citizens are those who are citizens
cancelled certificate does not give rise to a of the Philippines from birth without having to
valid candidacy. Under Section 77 of the perform any act to acquire or perfect their
Omnibus Election Code, a valid candidacy is Philippine citizenship. Those who elect
an indispensable requisite in case of a Philippine citizenship in accordance with
substitution of a disqualified candidate. paragraph (3), Section 1 hereof shall be deemed
(Miranda v. Abaya 311 SCRA 617) natural-born citizens. [Art. IV, Sec. 2, 1987
Const.]
Q: Atty. G ran for Governor of the Province of
Pampanga, while his close friend, Atty. M, ran On the other hand, naturalized citizens are those
for Mayor of the Municipality of Guagua, who acquire Philippine Citizenship through
Pampanga. They both won convincingly. either: 1) Judicial naturalization under CA 473 or
Eventually, the losing candidates timely filed 2) Administrative Naturalization Law (R.A.
election protests. The losing gubernatorial 9139). A third option is Derivative
candidate, Mr. A, filed his protest before the Naturalization, which is available to alien women
Regional Trial Court of Pampanga (RTC), married to Filipino husbands found under
whereas the losing mayoralty candidate, Mr. B, section 15 of CA 473 which provides that: “Any
filed his protest before the Municipal Trial woman who is now or may hereafter be married
Court of Guagua, Pampanga (MTC). to a citizen of the Philippines and who might
herself be lawfully naturalized shall be deemed a
(a) Does the RTC have jurisdiction over the case citizen of the Philippines.”
filed by Mr. A? Explain.
(b) Does the MTC have jurisdiction over the (b) No, X is not qualified to run for Congress. The
case filed by Mr. B? Explain. (2019 BAR) Constitution prescribes that no person shall be a
Member of the House of Representatives unless he is a
A: natural-born citizen of the Philippines [Art. VI, Sec. 6,
(a) The RTC does not have jurisdiction over the 1987 Const]. In this case, X is a naturalized citizen and
case filed by Mr. A. COMELEC has jurisdiction is thus not qualified to run for Congress.
over an election contest between a losing
gubernatorial candidate and a proclaimed (c) No, COMELEC maintains its jurisdiction over the
winner of the gubernatorial post. [Section 2(2), matter. To divest the COMELEC of jurisdiction over
Article IX-C, 1987 CONST.] election cases of Members of the House of
Representatives, the following requisites must concur:
(b) The MTC does not have jurisdiction over the
case filed by Mr. B. The RTC has jurisdiction 1. Valid Proclamation;
over an election contest between a losing 2. Valid oath; and
municipal mayoralty candidate and a 3. Assumption of office on June 30.
proclaimed municipal mayor. [Section 2(2),
Article IX-C, 1987 CONST.] Thus, the mere proclamation of X does not yet transfer
jurisdiction from the COMELEC to the HRET. [Reyes v.
Q: Candidate X, a naturalized Filipino citizen, COMELEC, G.R. No. 207264, October 22, 2013]
ran for Congressman for the Lone District of
Batanes. After a close electoral contest, he won CONDONATION DOCTRINE
by a slim margin of 500 votes. His sole
opponent, Y, filed an election protest before the Q: Mayor X and his City Administrator, Y, are
Commission on Election (COMELEC), claiming political buddies who assumed their respective
that X should be disqualified to run for said offices in 2010. Sometime in January 2012, Y
position because he is not a natural-born proposed to Mayor X the entry into a
citizen. While the case was pending, X was ₱5,000,000.00 loan agreement with ABC
proclaimed by the Provincial Election Foundation, a non-stock and non-profit
Supervisor of Batanes as the duly elected organization in which the two had a long-standing
Congressman of the province. personal involvement. The loan agreement was
(a) Distinguish between natural-born and duly executed in the same year but was never
naturalized citizen under the 1987 authorized and approved by the Sangguniang
Constitution. Panlungsod. It was further found that the same
(b) Is X qualified to run for Congress? constituted a fraudulent scheme to defraud the
Explain. City Government.
(c) Did X’s proclamation divest the
COMELEC of its jurisdiction to decide Meanwhile. Mayor X won another term during the
the case and vest the House of May 2013 Elections and Y continued on as his City
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Administrator. A year after, or in May 2014, 3(E), Rule 1, Rules Of Procedure In Election Cases). If he
administrative charges for grave misconduct, is ineligible, the candidate who got the second highest
serious dishonesty, and conduct prejudicial to number of votes cannot be proclaimed elected (Sinsuat
the best interest of the service were filed v. COMELEC, 492 Scra 264). A voter may file for quo
against them before the Office of the warranto against an elected candidate. The petition
Ombudsman. In defense, Mayor X argued that should be filed within ten days after the proclamation
his subsequent reelection in May 2013 of the elected candidate.
absolved him from any administrative liability
for any alleged anomalous activity during his In quo warranto in appointive office, the issue is the
first term in office. legality of the appointment. The court will decide who
between the parties has the legal title to the office
Y raised the same defense of condonation, (Nachura, Outline Reviewers in Political Law, P. 567). It
having been retained by Mayor X as City is the Solicitor General, a public prosecutor, or a
Administrator for a second term. On December person claiming to be entitled to the public office who
10, 2015, the Ombudsman rendered its ruling can file a petition for quo warrato against an
in the case, finding both Mayor X and Y appointive official (Section 2 And 5, Rule 65 of the Rules
administratively liable. Citing the Supreme of Court). The petition should be filed within one year
Court’s Decision in Carpio-Morales v. Court of after the cause of action accrued (Section 11, Rules 66
Appeals (G.R. Nos. 217126-27), which was of the Rules of Court)
initially promulgated on November 10, 2015,
the Ombudsman rejected their defense of
condonation. With the motions for LOCAL GOVERNMENTS
reconsideration of Mayor X and Y having been
denied by the Ombudsman on March 10, 2016,
they elevated the matter to the Court of Q: Under the Constitution, what are the three main
Appeals. sources of revenues of local government units?
(1999 BAR)
(a) Did the Ombudsman err in not giving
credence to the defense of condonation as A: The following are the main sources of revenues of
raised by Mayor X? explain. local government units under the constitution:

(b) How about Y? Can he validly invoke the a. Taxes, fees, and charges. (Section 5, Article X)
condonation doctrine to absolve him of the b. Share in the national taxes. (Section 6, Article
charge? Explain. (2019 BAR) X)
A: c. Share in the proceeds of the utilizations and
(a) Yes, the Ombudsman erred in not giving development of the national wealth within
credence to the defense. Although in Carpio- their areas. (Section 7, Article X)
Morales v Court of Appeals abandoned the
condonation doctrine, the Supreme Court also Q: Sec. 8, Article X of the 1987 Constitution
pronounced that such ruling may not be provides that no elective official shall serve for
applied retroactively, for the reason that more than three (3) consecutive terms. Rule and
judicial decisions applying or interpreting the explain briefly the reason if the official is
laws or the Constitution, until reversed, shall prohibited to run for another term in each of the
form part of the legal system of the Philippines. following situations: (a) if the official is a Vice-
Considering that the acts of Mayor X were Mayor who assumed the position of Mayor for the
committed in 2013, before the Carpio-Morales unexpired term under the Local Government Code;
case, Mayor X can still validly invoke the (b) if the official has served for three consecutive
condonation doctrine. (Office of the terms and did not seek a 4th term but who won in
Ombudsman v Vergara, G.R. No. 216871, a recall election; (c) if the position of Mayor of a
December 6, 2017). town is abolished due to conversion of the town to
a city; (d) if the official is preventively suspended
(b) No, the condonation doctrine only applies to during his term but was exonerated; and (e) if the
elective officials. Y, being the City official is proclaimed as winner and assumes office
Administrator, is an appointive official and can but loses in an election protest. (2016 BAR)
therefore not validly invoke the doctrine.
(Carpio-Morales v Court of Appeals, G.R. Nos. A:
217126-27, November 10, 2015). (a) He is not prohibited. In computing the three- term
limit, only the term for which the local official was
Quo warranto elected should be considered. The second
sentence of Section 8, Article X, of the Constitution
Q: Distinguish briefly between Quo Warranto states that the voluntary renunciation shall not be
in elective office and Quo Warranto in considered as interruption of the continuity of the
appointive office. (2012 BAR) service for the full term for which he was elected
(Borja v. Commission on Elections, G.R. No. 133495,
A: In quo warranto in elective officer, the issue is September 3, 1998)
the ineligibility of the elected candidate (Section
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(b) A mayor who served three consecutive terms For as long as there is compliance with the income
and did not seek a fourth term but ran and won requirement, the legislative intent is, after all, to the
in the recall election can serve, because the effect that the land area and population requirements
recall election was not an immediate reelection may be overridden by the established economic
(Socrates v. Commission on Elections, G.R. Nos. viability of the proposed province.
154512, 154683, 155083-84)
(c) If a municipality in which a mayor served three Q: A law converted the component city of
consecutive terms was converted to a city, he Malumanay, Laguna into a highly urbanized city.
cannot run as city mayor in the first election. The Local Government Code (LGC) provides that
For purposes of applying the three-term limit, the conversion "shall take effect only after it is
the office of the municipal mayor should not be approved by the majority of votes cast in a
considered as different from that of the city plebiscite to be held in the political units directly
mayor (Latasa v. Commission on Elections, G.R. affected." Before the COMELEC, Mayor Xenon of
No. 154829, December 10, 2003) Malumanay City insists that only the registered
(d) The temporary inability of an elective official voters of the city should vote in the plebiscite
to exercise his functions due to preventive because the city is the only political unit directly
suspension is not an interruption of his term, affected by the conversion.
because it did not involve loss of title to the
office (Aldovino Jr. v. Commission on Elections, Governor Yuri asserts that all the registered voters
G.R. No. 184836, December 23, 2009) of the entire province of Laguna should
(e) If a candidate was proclaimed for three participate in the plebiscite, because when the LGC
consecutive terms but did not serve in full speaks of the "qualified voters therein," it means
because of loss in an election protest he is not all the voters of all the political units affected by
disqualified (Lonzanida v. COMELEC, G.R. No. such conversion, and that includes all the voters of
135150, July 28, 1999). the entire province. He argues that the income,
population and area of Laguna will be reduced.
CREATION, CONVERSION, DIVISION, Who, between Mayor Xenon and Governor Yuri, is
MERGER OR DISSOLUTION correct? Explain your answer (2016 BAR)

Q: From an existing province, Wideland, A: Governor Yuri is correct. All the registered voters of
Congress created a new province, Hundred the Province of Laguna should be included in the
Isles, consisting of several islands, with an plebiscite. The conversion of the City of Malumanay
aggregate area of 500 square kilometers. The into a highly urbanized city will adversely affect the
law creating Hundred Isles was duly approved Province of Laguna and its residents. The territory of
in a plebiscite called for that purpose. Juan, a the Province of Laguna will be reduced. Its share in the
taxpayer and a resident of Wideland, assailed internal revenue allotment will be reduced, because
the creation of Hundred Isles claiming that it the population and land area are included as basis for
did not comply with the area requirement as determining its share. Once the City of Malumanay
set out in the Local Government Code, i.e., an becomes a highly urbanized city, the Province of
area of at least 2,000 square kilometres. The Laguna will no longer share in the taxes collected by
proponents justified the creation, however, the City of Malumanay. The City of Malumanay will be
pointing out that the Rules and Regulations under the supervision of the President instead of the
Implementing the Local Government Code Province of Laguna. Decisions of the City of
states that “the land area requirement shall not Malumanay in administrative cases involving
apply where the proposed province is barangay officials will no longer be appealable to the
composed of one (1) or more islands.” Sangguniang Panlalawigan. The registered voters of
Accordingly, since the new province consists of the City of Malumanay will no longer be entitled to
several islands, the area requirement need not vote for provincial officials. To limit the plebiscite to
be satisfied. How tenable is the position of the the voters of City of Malumanay would nullify the
proponents? (2014 BAR) principle of majority rule (Umali v. Commission on
Elections, G.R. No. 203974, April 22, 2014).
A: In exempting provinces composed of one or
more islands from both the contiguity and land POWERS OF LOCAL GOVERNMENT UNITS
area requirements, Article 9 of the IRR cannot be
considered inconsistent with the criteria under Police power (General Welfare Clause)
Section 461 of the Local Government Code. Far
from being absolute regarding application of the Q:
requirement of a contiguous territory of at least a. Can a Barangay Assembly exercise any police
2,000 square kilometers ascertified by the Land power?
Management Bureau, Section 461 allows for said b. Can the Liga ng mga Barangay exercise
exemption by providing, under paragraph (b) legislative powers? (2003 BAR)
thereof, that the territory need not be contiguous if
(the new province) comprises two or more islands A:
or is separated by a chartered city or cities which a. NO, the Barangay Assembly cannot exercise any
do not contribute to the income of the province. police power. Under Section 398 ofthe Local
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Government Code, it can only recommend to

the Sangguniang Barangay the adoption of Q: ABC operates an industrial waste processing
measures for the welfare of the barangay and plant within Laoag City. Occasionally, whenever
decide on the adoption of an initiative. fluid substances are released through a nearby
creek, obnoxious odor is emitted causing dizziness
b. The Liga ng Mga Barangay cannot exercise among residents in Barangay La Paz. On complaint
legislative powers. As stated in Bito-Onon v. of the Punong Barangay, the City Mayor II wrote
Fernandez. 350 SCRA 732 [2001], it is not a local ABC demanding that it abate the nuisance. This
government unit and its primary purpose is to was ignored. An invitation to attend a hearing
determine representation of the liga in the called by the Sangguniang Panlungsod was also
sanggunians; to ventilate, articulate, and declined by the president of ABC. The city
crystallize issues affecting barangay government thereupon issued a cease and desist
government administration; and to secure order to stop the operations of the plant,
solutions for them through proper and legal prompting ABC to file a petition for injunction
means. before the Regional Trial. Court, arguing that the
city government did not have any power to abate
Q: The City of San Rafael passed an ordinance the alleged nuisance. Decide with reasons. (2010
authorizing the City Mayor, assisted by the BAR)
police, to remove all advertising signs displayed
or exposed to public view in the main city A: The city government has no power to stop tile
street, for being offensive to sight or otherwise operations of the plant. Since its operations is not a
a nuisance. AM, whose advertising agency owns nuisance per se, the city government cannot abate it
and rents out many of the billboards ordered extra judicially. A suit must be filed in court
removed by the City Mayor, claims that the City (ACEnterprises, Inc. v. Frabelle Properties Corporation,
should pay for the destroyed billboards at their 506 SCRA 625 [2006]).
current market value since the City has
appropriated them for the public purpose of Eminent domain
city beautification. The Mayor refuses to pay, so
AM is suing the City and the Mayor for damages Q: The Sangguniang Bayan of the Municipality of
arising from the taking of his properly without Santa, Ilocos Sur passed Resolution No. 1
due process nor just compensation. Will AM’s authorizing its Mayor to initiate a petition for the
suit prosper? Reason briefly. (2004 BAR) expropriation of a lot owned by Christina as site
for its municipal sports center. This was approved
A: The suit of AM will not prosper. The removal of by the Mayor. However, the Sangguniang
the billboards is not an exercise of the power of Panlalawigan of Ilocos Sur disapproved the
eminent domain but of police power (Churchill v. Resolution as there might still be other available
Rafferty, 32 Phil. 580 11915D). The abatement of a lots in Santa for a sports center. Nonetheless, the
nuisance in the exercise of police power does not Municipality of Santa, through its Mayor, filed a
constitute taking of property and does not entitle complaint for eminent domain. Christina opposed
the owner of the property involved to this on the following grounds:
compensation (Association of Small Landowners in
the Philippines, Inc. v. Secretary of Agrarian Reform, (a) the Municipality of Santa has no power to
175 SCRA 343 [1989]). expropriate;
(b) Resolution No. 1 has been voided since the
Q: The Sangguniang Panlungsod of Pasay City Sangguniang Panlalawigan disapproved it for
passed an ordinance requiring all disco pub being arbitrary; and
owners to have all their hospitality girls tested (c) the Municipality of Santa has other and better
for the AIDS virus. Both disco pub owners and lots for that purpose. Resolve the case with
the hospitality girls assailed the validity of the reasons. (2005 BAR)
ordinance for being violative of their
constitutional rights to privacy and to freely A:
choose a calling or business. Is the ordinance (a) The Municipality of Santa has the power to
valid? Explain. (2010 BAR) expropriate. Section 19 of the Local Government
Code grants all local government units the power
A: The ordinance is a valid exercise of police of eminent domain. However, Section 19 of the
power. The right to privacy yields to certain Local Government Code requires an ordinance,
paramount rights of the public and defers to the not a resolution, for the exercise of the power of
exercise of police power. The ordinance is not eminent domain [Heirs of Alberto Suguitan v. City
prohibiting the disco pub owners and the of Mandaluyong, 328 SCRA 137 (2000)].
hospitality girls from pursuing their calling or
business but is merely regulating it (Social Justice (b) The disapproval of Resolution No. 1 by the
Society v. Dangerous Drugs Board, 570 SCRA 410 Sangguniang Panlalawigan of Ilocos Sur on the
[2008]) The ordinance is a valid exercise of police ground that there may be other lots available in
power, because its purpose is to safeguard public Santa is not a valid ground, because it can
health (Beltran vs. Secretary of Health, 476 SCRA disapprove Resolution No. 1 solely on the ground
168 [2005]). that it is beyond the power of the Sangguniang
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Bayan of Santa [Modayv. Court of Appeals, 268 a. How does the local legislative assembly
SCRA 586 (1997)]. override the veto by the local chief
executive of an ordinance?
(c) If there are other lots that are better and more b. On what grounds can a local chief
appropriate for the municipal sports center, executive veto an ordinance?
the lot owned by Christina should not be c. How can an ordinance vetoed by a local
expropriated. Its choice is arbitrary chief executive become a law without it
[Municipality of Meycauayan v. IAC, 157 SCRA being overridden by the local legislative
640 (1988)]. assembly? (1996 BAR)

Q: The Municipality of Bulalakaw, Leyte, passed A:
Ordinance No. 1234, authorizing the a. Under Sections 54 (a) and 55 (c) of the Local
expropriation of two parcels of land situated in Government Code, the local legislative assembly
the poblacion as the site of a freedom park, and can override the veto of the local chief executive
appropriating the funds needed therefor. Upon by two-thirds vote of all its members.
review, the Sangguniang Panlalawigan of Leyte b. Under Section 55[a] of the Local Government
disapproved the ordinance because the Code, the local chief executive may veto an
municipality has an existing freedom park ordinance on the ground that it is ULTRA VIRES or
which, though smaller in size, is still suitable PREJUDICIAL TO THE PUBLIC WELFARE.
for the purpose, and to pursue expropriation c. Pursuant to Section 54(b) of the Local
would be needless expenditure of the people’s Government Code, an ordinance vetoed by the
money. Is the disapproval of the ordinance local chief executive shall be deemed approved if
correct? Explain your answer. (2009 BAR) he does not communicate his veto to the local
legislative assembly within 15 days in the case of a
A: The disapproval of the ordinance is not correct. province and 10 days in the case of a city or a
Under Section 56(c) (Local Government Code), the municipality. Likewise, if the veto by the local
Sangguniang Panlalawigan of Leyte can declare the executive has been overridden by the local
ordinance invalid only if it is beyond the power of legislative assembly, a second veto will be void.
the Sangguniang Bayan of Bulalakaw. In the instant Under Section 55(c) of the Local Government
case, the ordinance is well within the power of the Code, the local chief executive may veto an
Sangguniang Bayan. The disapproval of the ordinance only once.
ordinance by the Sangguniang Panlalawigan of
Leyte was outside its authority having been done Q: Jose Y. Sabater is a real estate developer. He
on a matter pertaining to the wisdom of the acquires raw lands and converts them into
ordinance which pertains to the Sangguniang subdivisions. After acquiring a lot of around 15
Bayan [Moday v. Court of Appeals, 268 SCRA 586 hectares in Cabanatuan City, he caused the
[1997]) preparation of a subdivision plan for the property.
Before he was able to submit the subdivision plan
Legislative power to the Bureau of Lands and/or Land Registration
Commission for verification and/or approval, he
Q: An aggrieved resident of the City of Manila was informed that he must first present the plan to
filed mandamus proceedings against the city the City Engineer who would determine whether
mayor and the city engineer to compel these the zoning ordinance of the Cabanatuan City had
officials to remove the market stalls from been observed. He was surprised when he was
certain city streets which they had designated asked to pay the city government a service fee of
as flea markets. Portions of the said city streets P0.30 per square meter of land, covered by his
were leased or licensed by the respondent subdivision plan. He was even more surprised
officials to market stallholders by virtue of a when informed that a fine of P200.00 and/or
city ordinance. Decide the dispute. (2003 BAR) imprisonment for not exceeding six months or
both, have been fixed in the ordinance as penalty
A: The petition should be granted. In accordance for violation thereof. Believing that the city
with Macasiano v. Diokno. 212 SCRA 464 (1992), ordinance is illegal, he filed suit to nullify the
since public streets are properties for public use same. Decide the case with reasons. (1998 BAR)
and are outside the commerce of man, the City
Mayor and the City Engineer cannot lease or license A: The ordinance is null and void. In Villacorta v.
portions of the city streets to market stallholders. Bernardo, 143 SCRA 480 (1986), the Supreme Court
held that a municipal ordinance cannot amend a
ALTERNATIVE ANSWER: national law in the guise of implementing it. In this
The petition should be denied. Under Section 21(d) case, the requirement actually conflicts with sec. 44 of
of the Local Government Code, a city may by Act No. 496 because the latter does not require
ordinance temporarily close a street so that a flea subdivision plans to be submitted to the City Engineer
market may be established. before they can be submitted for approval to, and
verification by, the Land Registration Commission
Q: and/or the Bureau of Lands.

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Q: The Municipality of Bulalakaw, Leyte, passed 3. In accordance with Sec. 606 of the Revised
Ordinance No. 1234, authorizing the Administrative Code, there must be an
expropriation of two parcels of land situated in appropriation of the public funds; and in
the poblacion as the site of a freedom park, and accordance with Sec. 607, there must be a
appropriating the funds needed therefor. Upon certificate of availability of funds issued by
review, the Sangguniang Panlalawigan of Leyte the municipal treasurer; and
disapproved the ordinance because the 4. The contract must conform with the formal
municipality has an existing freedom park requisites of written contracts prescribed by
which, though smaller in size, is still suitable law.
for the purpose, and to pursue expropriation
would be needless expenditure of the people's SETTLEMENT OF BOUNDARY DISPUTES
money. Is the disapproval of the ordinance
correct? Explain your answer. (2009 BAR) Q: What body or bodies are vested by law with the
authority to settle disputes involving:
A: The disapproval of the ordinance is not correct.
Under Section 56(c) (Local Government Code), the a. Two or more towns within the same province.
Sangguniang Panlalawigan of Leyte can declare the b. Two or more highly urbanized cities. (1999
ordinance invalid only if it is beyond the power of BAR)
the Sangguniang Bayan of Bulalakaw. In the instant
case, the ordinance is well within the power of the A:
Sangguniang Bayan. The disapproval of the a. Under Section 118(b) of the Local Government
ordinance by the Sangguniang Panlalawigan of Code, boundary disputes involving two or more
Leyte was outside its authority having been done municipalities within the same province shall be
on a matter pertaining to the wisdom of the settled by the Sangguniang Panlalawigan
ordinance which pertains to the Sangguiniang concerned.
Bayan (Moday v. Court of Appeals, 268 SCRA 586).
b. Under Section 118(d) of the Local Government
Corporate powers Code, boundary disputes involving two or more
highly urbanized cities shall be settled by the
Q: The Municipality of Pinatukdao is sued for Sangguniang Panlungsod of the parties.
damages arising from injuries sustained by a
pedestrian who was hit by a glass pane that fell Q: There was a boundary dispute between Duenas,
from a dilapidated window frame of the a municipality, and Passi, an independent
municipal hall. The municipality files a motion component city, both of the same province. State
to dismiss the complaint, invoking state how the two local government units should settle
immunity from suit. Resolve the motion with their boundary dispute. (2005 BAR)
reasons. (2009 BAR)
A: Boundary disputes between local government units
A: The motion to dismiss should be denied. Under should, as much as possible, be settled amicably. After
Section 24 of the Local Government Code and efforts at settlement fail, then the dispute may be
Article 2189 of the Civil Code, the Municipality of brought to the appropriate Regional Trial Court in the
Pinatukdao is liable for damages arising from said province. Since the Local Government Code is
injuries to person by reason of negligence of local silent as to what body has exclusive jurisdiction over
government units or local officers of the defective the settlement of boundary disputes between a
condition of the municipal hall, which is under municipality and an independent component city of
their control and supervision. the same province, the Regional Trial Courts have
general jurisdiction to adjudicate the said controversy
To enter into contracts (Municipality of Kananga v. Madrona, G.R. No. 141375
[2003]).
Q: The Municipality of Sibonga, Cebu, wishes to
enter into a contract involving expenditure of DISCIPLINE OF LOCAL OFFICIALS
public funds. What are the legal requisites
therefor? (1991, 1995 BAR) Appointive officials

A: The following are the legal requisites for the Q: A vacancy occurred in the sangguniang bayan of
validity of a contract to be entered into by the a municipality when X, a member, died. X did not
Municipality of Sibonga which involves the belong to any political party. To fill up the vacancy,
expenditure of public funds: the provincial governor appointed A upon the
recommendation of the sangguniang
1. The contract must be within the power of panlalawigan. On the other hand, for the same
the municipality; vacancy, the municipal mayor appointed B upon
2. The contract must be entered into by the the recommendation of the sangguniang bayan.
proper officer, i.e., the mayor, upon Which of these appointments is valid? (2002 BAR)
resolution of the Sangguniang Bayan
pursuant to Section 142 of the Local A: As held in Farinas v. Barba, 256 SCRA 396 (1996),
Government Code; neither of the appointments is valid. Under Section 45
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of the Local Government Code, in case of a position of Municipal Councilor? Or, is he

permanent vacancy in the Sangguniang Bayan prescribed to do so under the Local
created by the cessation in office of a member who Government Code? Explain. (2019 BAR)
does not belong to any political party, the Governor A:
shall appoint qualified person recommended by the
Sangguniang Bayan. Since A was not recommended (a) No, T’s contention is not correct. Succession in
by the Sangguniang Bayan, his appointment by the local government offices is by operation of law.
Governor is not valid. Since B was not appointed by Section 44 of Republic Act No. 7160, otherwise
the Governor but by the Municipal Mayor, his known as the Local Government Code, provides
appointment is also not valid. that if a permanent vacancy occurs in the office of
the vice mayor, the highest ranking sanggunian
Q: On August 8, 2008, the Governor of Bohol member shall become vice mayor (Montebon v.
died and Vice- Governor Cesar succeeded him Commission on Elections, G.R. No. 180444, April 8,
by operation of law. Accordingly, Benito, the 2008).
highest-ranking member of the Sangguniang
Panlalawigan was elevated to the position of (b) R can still run for the position of Municipal
Vice-Governor. By the elevation of Benito to the Councilor. Voluntary renunciation of a term does
office of Vice- Governor, a vacancy in the not cancel the renounced term in the computation
Sangguniang Panlalawigan was created. How of the three-term limit; conversely, involuntary
should the vacancy be filled? (2008 BAR) severance from office for any length of time short
of the full term provided by law amounts to an
A: In accordance with Section 45 of the Local interruption of continuity of service (Montebon v.
Government Code, the vacancy should be filled by Commission on Elections, G.R. No. 180444, April 8,
appointment by the President of the nominee of the 2008).
political party of Benito since his elevation to the
position of Vice-Governor created the last vacancy Q: The Province of Amaya is one of the smallest
in the Sangguniang Panlalawigan. If Benito does not provinces in the Philippines with only one
belong to any political party, a qualified person legislative district composed of four
recommended by the Sangguniang Panlalawigan municipalities: Uno, Dos, Tres, and Cuatro.
should be appointed (Navarro v. Court of Appeals,
355 SCRA 672 [2001]). Andres, a resident and registered voter of Cuatro
municipality, ran and was elected as member of
Term Limits the Sangguniang Panlalawigan (SP) of Amaya in
Q: Atty. G ran for Governor of the Province of the 2010 and 2013 local elections.
Pampanga, while his close friend, Atty. M, ran
for Mayor of the Municipality of Guagua, While Andres was serving his second term as ·sp
Pampanga. They both won convincingly. member, a law was enacted re-apportioning the
Eventually, the losing candidates timely filed four towns of Amaya into two legislative districts:
election protests. The losing gubernatorial Uno and Dos comprising the First District, and
candidate, Mr. A, filed his protest before the Tres and Cuatro comprising the Second District.
Regional Trial Court of Pampanga (RTC),
whereas the losing mayoralty candidate, Mr. B, In the 2016 local elections, Andres ran and was
filed his protest before the Municipal Trial elected as member of the SP of Amaya
Court of Guagua, Pampanga (MTC). What are representing the Second District.
the term limits for the positions of Atty. G and
Atty. M? (2019 BAR) Andres seeks your legal advice regarding his
intention to run as a member of the SP of Amaya
A: The term limits for both are three terms of three for the Second District in the next local elections in
years for each term. [Section 43(a), Local 2019. What will you advise Andres? (2018 BAR)
Government Code]
A: My advise is for him not to run for SP member,
Q: R was elected as Municipal Councilor for because doing so violates the limitation of three
three (3) consecutive terms. Before the end of consecutive terms upon local elective officials. In the
the third term, Vice Mayor S died, rendering his cases of Latasa v. COMELEC (G.R. 154289, December 10,
post vacant. Since R was the highest-ranking 2003) and Naval v. COMELEC (G.R. No. 207851, July 8,
Municipal Councilor, he assumed the office of 2014]), the Court ruled that the three-term limit
the Vice Mayor. One of his constituents, T, applies notwithstanding any reapportionment,
assailed R’s assumption of office, arguing that renaming, or reclassification of any local government
elections should have been conducted to fill in unit. The clear intent of the framers of the Constitution
the vacancy following the death of Vice Mayor S. was to limit the term to three consecutive elections to
the same position.
(a) Is T’s contention correct? Explain.
(b) Assuming that R validly assumed S’s RECALL
post, at the end of R’s term as Vice
Mayor, may he run, once more, for the
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Q: Suppose the people of a province want to Do they have the standing in this dispute?
recall the provincial governor before the end of Explain.
his three-year term of office.
b. Would your answer be different if the
a. On what ground or grounds can the Philippine Power Corporation, a private
provincial governor be recalled? company, were to operate the plant? Explain.
b. How will the recall be initiated? (2010 BAR)
c. When will the recall of an elective local
official be considered effective? (2002 A:
BAR) a. If the projected lawsuit will be based on violation
of the rights of the indigenous cultural
A: communities, the Philippine Environmentalists
a. In accordance with Section 69 of the Local Organization will have no standing to file the
Government Code, the Governor can case. None of its officers and members belong to
berecalled for loss of confidence. the indigenous cultural community. None of their
rights are affected.
b. Under Section 70 of the Local Government
Code, the recall may be initiated by a If the lawsuit will seek to enjoin the use of public
resolution adopted by a majority of all the funds to operate the power plant, the Philippine
members of the preparatory recall Environmentalists’ Organization, can file a
assembly, which consists of all the mayors, taxpayer’s suit. As held in Maceda vs. Macaraig,
the vice-mayors, and the sangguniang 197 SCRA 771, a taxpayer has standing to
members of the municipalities and question the illegal expenditure of public funds.
component cities, or by a written petition
signed by at least twenty-five per cent b. The Philippine Environmentalists Organization
(25%) of the total number of registered will have no standing to file the case if it is a
voters in the province. private company that will operate the power
plant, because no public funds will be spent for
c. According to Section 72 of the Local its operation. As held in Gonzales vs. Marcos, 65
Government Code, the recall of an elective SCRA 624, a taxpayer has no standing to file a
local official shall take effect upon the case if no expenditure of public funds is involved.
election and proclamation of a successor in
the person of the candidate receiving the NATIONALIST AND CITIZENSHIP REQUIREMENT
highest number of votes cast during the PROVISIONS
election on recall.
Q:
1. Give a business activity the equity of which
NATIONAL ECONOMY AND PATRIMONY must be owned by Filipino citizens:
a. at least 60%
b. at least 70%
Q: What is meant by National Patrimony? c. 100%
Explain the concept of National Patrimony?
(1999 BAR) 2. Give two cases in which aliens may be allowed
to acquire equity in a business activity but
A: According to Manila Prince Hotel v. Government cannot participate in the management thereof?
Service Insurance System, 267 SCRA 408, the (1994 B)
national patrimony refers not only to our natural
resources but also to our cultural heritage. A:
1.
Q: The Philippine Environmentalists’ a. At least sixty per cent (60%) of the equity of
Organization for Nature, a duly recognized the entities engaged in the followingbusiness
nongovernmental-organization, intends to file must be owned by Filipino citizens under the
suit to enjoin the Philippine Government from Constitution.
allocating funds to operate a power plant at
Mount Tuba in a southern island. They claim i. Co-production, joint venture, or
that there was no consultation with the production sharing agreement
indigenous cultural community which will be with the State for the exploration,
displaced from ancestral lands essential to development, and utilization of
their livelihood and indispensable to their natural resources (Section 2,
religious practices. Article XII)
ii. Operation of a public utility
a. The organization is based in Makati. All its (Section 11, Article XII)
officers live and work in Makati. Not one of iii. Education (Section 4(2), Article
its officers or members belong to the XIV)
affected indigenous cultural community.
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b. At least seventy percent (70%) of the the locus of the “beneficial ownership” and “control”
equity of business entities engaged in (Narra Nickel Mining and Development Corporation v.
advertising must be owned by Filipino Redmont Consolidated Mines Corporation, G.R. No.
citizens under the Constitution. (Section 195580, January 28, 2015).
11(2), Article XVI)
c. Mass media must be wholly owned by Q: Pursuant to its mandate to manage the orderly
Filipino citizens under the Constitution sale, disposition and privatization of the National
(Section 11(1), Article XVI) Power Corporation's (NPC) generation assets, real
estate and other disposable assets, the Power
2. Under the Constitution, aliens may acquire Sector Assets and Liabilities Management (PSALM)
equity but cannot participate in the management started the bidding process for the privatization of
of business entities engaged in the following Angat Hydro Electric Power Plant (AHEPP).
activities:
After evaluation of the bids, K-Pop Energy
a. Public utilities (Section 11, Article XII) Corporation, a South Korean Company, was the
b. Education (Section 4(2), Article XIV) highest bidder. Consequently, a notice of award
c. Advertising (Section 11(2), Article XVI) was issued to K-Pop. The Citizens' Party
questioned the sale arguing that it violates the
Q: BD Telecommunications, Inc. (BDTI), a constitutional provisions on the appropriation and
Filipino-owned corporation, sold its 1,000 utilization of a natural resource which should be
common shares of stock in the Philippine limited to Filipino citizens and corporations which
Telecommunications Company (PTC), a public are at least 60% Filipino-owned. The PSALM
utility, to Australian Telecommunications countered that only the hydroelectric facility is
(AT), another stockholder of the PTC which also being sold and not the Angat Dam; and that the
owns 1,000 common shares. A Filipino utilization of water by a hydroelectric power plant
stockholder of PTC questions the sale on the does not constitute appropriation of water from its
ground that it will increase the common shares natural source of water that enters the intake gate
of AT, a foreign company, to more than 40% of of the power plant which is an artificial structure.
the capital (stock) of PTC in violation of the Whose claim is correct? Explain. (2015 BAR)
40% limitation of foreign ownership of a public
utility. AT argues that the sale does not violate A: PSALM is correct. Foreign ownership of a
the 60-40 ownership requirement in favor of hydroelectric power plant is not prohibited by the
Filipino citizens decreed in Section II, Article XII Constitution. PSALM will not retain ownership of the
of the 1987 Constitution because Filipinos still Angat Dam. Angat Dam will trap the natural flow of
own 70% of the capital of the PTC. AT points to water from the river. The water supplied by PSALM
the fact that it owns only 2,000 common voting will then be used for power generation. Once the
shares and 1,000 non-voting preferred shares water is removed from its natural source, it ceases to
while Filipino stockholders own 1,000 common be part of the natural resources of the Philippines and
shares and 6,000 preferred shares, therefore, may be acquired by the foreigners (Initiatives for
Filipino stockholders still own a majority of the Dialogue vs. Power Sector Assets and Liabilities
outstanding capital stock of the corporation, Management Corp., 2012).
and both classes of shares have a par value of
Php 20.00 per share. Decide. (2015 BAR) Q: Sec. 11 of Art. XII of the Constitution provides:
“No franchise, certificate or any other form of
A: “The application of the Grandfather Rule is authorization for the operation of a public utility
justified by the circumstance of the case to shall be granted except to citizens of the
determine the nationality of petitioners. The use of Philippines or to corporations or associations
the Grandfather Rule as a “Supplement” to the organized under the laws of the Philippines at
Control Test is not Prescribed by the least sixty per centum of whose capital is owned by
Constitution…” “The grandfather Rule, standing such citizens x x x.” Does the term “capital”
alone, should not be used to determine the Filipino mentioned in the cited section refer to the total
ownership and control in a corporation, as it could common shares only, or to the total outstanding
result in an otherwise foreign corporation capital stock, or to both or “separately to each
rendered qualified to perform nationalized or class of shares, whether common, preferred non-
partly nationalized activities. Hence, it is only when voting, preferred voting or any class of shares?”
the control test is first complied with that the Explain your answer. (2016 BAR)
Grandfather Rule may be applied. Put in another
manner, if the subject corporation’s Filipino equity A: The term “capital” mentioned in Sec. 11, Art. XII of
falls below the threshold 60%, the corporation is the Constitution refers to the total outstanding capital
immediately considered foreign-owned, in which stock of public utilities. The requirement that at least
case, the need to resort to the Grandfather Rule sixty percent of the capital must be owned by Filipino
disappears. As a corollary rule, even if the 60-40 citizens applies separately to each class of shares,
Filipino to foreign equity ratio is apparently met by whether common, preferred non-voting, preferred
the subject or investee corporation, a resort to the voting, or any class of shares. Mere legal title is not
Grandfather Rule is necessary if doubt exists as to enough. Full beneficial ownership of sixty percent of
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the outstanding capital stock is required. (Gamboa releases would not come under the jurisdiction of
v. Teves, 652 SCRA 690, [2011]) the Commission on Audit (COA).

REGALIAN DOCTRINE a) Is the law establishing Philippine Funds, Inc.
constitutional? Explain your answer.
Q: A bank acquired a large tract of land as the
highest bidder in the foreclosure sale of the b) Can the Congress pass the law that would
mortgaged assets of its borrower. It appears exempt the foreign grants from the jurisdiction of
that the land has been originally registered the COA? Explain your answer. (2017 BAR)
under the Torrens system in 1922 pursuant to
the provisions of the Philippine Bill of 1902, the A:
organic act of the Philippine Islands as a colony
of the USA. Sec. 21 of the Philippine Bill of 1902 a. The establishment of Philippine Funds, Inc. is
provided that "all valuable mineral deposits in valid. It was created to enable the speedy
public lands in the Philippine Islands, both disbursements of donations for calamities and
surveyed and unsurveyed, are hereby declared disasters, Public purpose is no longer restricted to
to be free and open to exploration, occupation traditional government functions (Petitioner-
and purchase, and the land in which they are Organization v. Executive Secretary, G.R. Nos,
found to occupation and purchase, by citizens 147036-37 & 147811, April 10, 2012, 269 SCRA 49)
of the United States, or of said Islands." Sec. 27
of the law declared that a holder of the mineral b. Congress cannot exempt the foreign grants from
claim so located was entitled to all the minerals the jurisdiction of the Commission on Audit. Its
that lie within his claim, but he could not mine jurisdiction extends to all government-owned or
outside the boundary lines of his claim. controlled corporations, including those funded
by donations through the Government (Art IX-D,
The 1935 Constitution expressly prohibited the Sec. 3 of the 1987 Philippine Constitution; and
alienation of natural resources except Petitioner Corporation v. Executive Secretary, G.R.
agricultural lands. Sec. 2, Art. XII of the 1987 Nos. 147036-37 & 147811, April 10, 2012, 269 SCRA
Constitution contains a similar prohibition, and 49).
proclaims that all lands of the public domain,
waters, minerals, coal, petroleum, and other ACQUISITION, OWNERSHIP AND TRANSFER OF
mineral oils, all forces of potential energy, PUBLIC AND PRIVATE LANDS
fisheries, forests or timber, wildlife, flora and
fauna, and other natural resources are owned Q: Express your agreement or disagreement with
by the State. This provision enunciates the any of the following statements. Begin your
Regalian Doctrine. answer with the statement: "I AGREE" or
"DISAGREE" as the case may be:
May the Government, on the basis of the
Regalian Doctrine enunciated in the a. Anyone, whether individual, corporation or
constitutional provisions, deny the bank its association, qualified to acquire private lands
right as owner to the mineral resources is also qualified to acquire public lands in the
underneath the surface of its property as Philippines.
recognized under the Philippine Bill of 1902? b. A religious corporation is qualified to have
Explain your answer. (2017 BAR) lands in the Philippines on which it may build
its church and make other improvements
A: The government cannot deny the bank its right provided these are actually, directly and
as owner of the mineral resources underneath the exclusively used for religious purposes.
surface of the property. The mining rights acquired c. A religious corporation cannot lease private
under Philippine Bill of 1902 before the effectivity lands in the Philippines.
of the 1935 Constitution were vested rights that d. A religious corporation can acquire private
cannot be impaired by the Government (Yinhu Bicol lands in the Philippines provided all its
Mining Corporation v. Trans-Asia Oil and Energy members are citizens of the Philippines.
Development Corporation, G.R. No. 207942, January e. A foreign corporation can only lease private
12, 2015, 745 SCRA 154). lands in the Philippines. (1998 BAR)

Q: The Congress establishes by law Philippine A:
Funds, Inc., a private corporation, to receive a. I disagree. Under Section 7, Article XII of the
foreign donations coming from abroad during Constitution, a corporation or association which is
national and local calamities and disasters, and sixty percent owned by Filipino citizens can
to enable the unhampered and speedy acquire private land, because it can lease public
disbursements of the donations through the land and can therefore hold public land. However,
mere action of its Board of Directors. Thereby, it cannot acquire public land. Under Section 3,
delays in the release of the donated funds Article XII of the Constitution, private
occasioned by the stringent rules of corporations and associations can only lease and
procurement would be avoided. Also, the cannot acquire public land. Under Section 8,
Article XII of the Constitution, a natural-born
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Filipino citizen who lost his Philippine accident without leaving a last will and testament.
citizenship may acquire private land only and Now, X brought suit to recover the land on the
cannot acquire public land. ground that B, being an alien, was not qualified to
buy the land when B and A jointly bought the land
b. I disagree. The mere fact that a corporation is from him and that, upon the death of C, the land
religious does not entitle it to own public land. was inherited by his parents but B cannot legally
As held in Register of Deeds v. Ung Siu Si acquire and/or inherit it. How should the case be
Temple, 97 Phil. 58, 61, land tenure is not decided? If X filed the suit against C when the latter
indispensable to the free exercise and was still alive, would your answer be the same?
enjoyment of religious profession of worship. Why? (2002 BAR)
The religious corporation can own private land
only if it is at least sixty per cent owned by A: X cannot recover the land whether from C or A and
Filipino citizens. B. Under Article IV, Section 1 (2) of the Constitution, C
is a Filipino citizen since his father is a Filipino. When
c. I disagree. Under Section 1 of Presidential A and B donated the land to C, it became property of a
Decree No. 471, corporations and associations Filipino citizen. As held in Halili v. Court of Appeals, 287
owned by aliens are allowed to lease private SCRA 465 (1998), the sale of land to an alien can no
lands up to twenty-five years, renewable for longer be annulled if it has been conveyed to a Filipino
another period of twenty-five years upon citizen. Since C left no will and his parents are his
agreement of the lessor and the lessee. Hence, heirs, in accordance with Article XII, Section 7 of the
even if the religious corporation is owned by Constitution, B can acquire the land by hereditary
aliens, it can lease private lands. succession.

d. I disagree. For a corporation to qualify to Q: EAP is a government corporation created for the
acquire private lands in the Philippines, under purpose of reclaiming lands, including foreshore
Section 7, Article X of the Constitution in and submerged areas, as well as to develop,
relation to Section 2, Article XII of the improve, acquire, lease and sell any and all kinds
Constitution, only sixty per cent (60%) of the of lands. A law was passed transferring title to EAP
corporation is required to be owned by of lands already acclaimed in the foreshore and
Filipino citizens for it to qualify to acquire offshore areas of MM Bay, particularly the so-
private lands. called Liberty Islands, as alienable and disposable
lands of the public domain. Titles were duly issued
e. I agree. A foreign corporation can lease private in in EAP’s name.
lands only and cannot lease public land. Under
Section 2, Article XII of the Constitution, the Subsequently, EAP entered into a joint venture
exploration, development and utilization of agreement (JVA) with ARI, a private foreign
public lands may be undertaken through co- corporation, to develop Liberty Islands.
production. Joint venture or production- Additionally, the JVA provided for the reclamation
sharing agreements only with Filipino citizen of 250 hectares of submerged land in the area
or corporations or associations which are at surrounding Liberty Islands. EAP agreed to sell
least sixty percent owned by Filipino citizen. and transfer to ARI a portion of Liberty Islands and
a portion of the area to be reclaimed as the
Q: Andy Lim, an ethnic Chinese, became a consideration for ARI's role and participation in
naturalized Filipino in 1935. But later he lost the joint venture, upon approval by the Office of
his Filipino citizenship when he became a the President. Is there any constitutional obstacle
citizen of Canada in 1971. Wanting the best of to the sale and transfer by EAP to ARI of both
both worlds, he bought, in 1987, a residential portions as provided for in the JVA? (2004 BAR)
lot in Forbes Park and a commercial lot in
Binondo. Are these sales valid? Why? (2000 A: ARI cannot acquire a portion of Liberty Islands
BAR) because, although EAP has title to Liberty Islands and
thus such lands are alienable and disposable land, they
A: NO, the sales are not valid. Under Section 8, cannot be sold, only leased, to private corporations.
Article XII of the Constitution, only a natural born The portion of the area to be reclaimed cannot be sold
citizen of the Philippines who lost his Philippine and transferred to ARI because the seabed is
citizenship may acquire private land. Since Andy inalienable land of the public domain. (Section 3,
Lim was a former naturalized Filipino citizen, he is Article XU of the 1987 Constitution; Chavez v. Public
not qualified to acquire private lands. Estates Authority, 384 SCRA 152 [2002])

Q: A, a Filipino citizen, and his wife B, a Q: TRUE or FALSE. Explain your answer in not
Japanese national, bought a five-hectare more than two (2) sentences: Aliens are absolutely
agricultural land from X, a Filipino citizen. The prohibited from owning private lands in the
couple later executed a deed of donation over Philippines. (2009 BAR)
the same land in favor of their only child C. A
year later, however, C died in vehicular A: FALSE. Under Section 7, Article XII of the
Constitution, aliens may acquire private land by
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hereditary succession. Under Section 8, Article XII a. Under the Universal Declaration of Human
of the Constitution, natural-born citizens of the Rights, the International Covenant on
Philippines who lost their Filipino citizenship may Economic, Social and Cultural Rights and
be transferees of private land. International Covenant on Civil and Political
Rights, the scope of human rights includes
SOCIAL JUSTICE AND HUMAN RIGHTS "those that relate to an individual's social,
economic, cultural, political and civil
Commission on Human Rights relations... along with what is generally
considered to be his inherent and inalienable
Q: In order to implement a big government rights, encompassing almost all aspects of
flood control project, the Department of Public life."
Works and Highways (DPWH) and a local
government unit (LGU) removed squatters from In the case at bar, the land adjoins a busy national
the bank of a river and certain esteros for highway and the construction of the squatter shanties
relocation to another place. Their shanties impedes the flow of traffic. The consequent danger to
were demolished. The Commission on Human life and limb cannot be ignored. It is paradoxical that a
Rights (CHR) conducted an investigation and right which is claimed to have been violated is one that
issued an order for the DPWH and the LGU to cannot, in the first place, even be invoked, if it is, in
cease and desist from effecting the removal of fact, extant. Based on the circumstances obtaining in
the squatters on the ground that the human this instance, the CHR order for demolition do not fall
rights of the squatters were being violated. The within the compartment of human rights violations
DPWH and the LGU objected to the order of the involving civil and political rights intended by the
CHR. Resolve which position is correct. Constitution (Simon v. Commission on Human Rights,
Reasons. (2001 BAR) G.R. No. 100150 [1994]).

A: The position of the Department of Public Works b. The CHR may not issue an "order to desist" or
and Highways and of the local government unit is restraining order. The constitutional
correct. As held in Export Processing Zone provision directing the CHR to provide for
Authority v. Commission on Human Rights, 208 preventive measures to those whose human
SCRA125 (1992), no provision in the Constitution rights have been violated or need protection
or any law confers on the Commission on Human may not be construed to confer jurisdiction on
Rights jurisdiction to issue temporary restraining the Commission to issue a restraining order
orders or writs of preliminary injunction. The or writ of injunction for, it that were the
Commission on Human Rights have no judicial intention, the Constitution would have
power. Its powers are merely investigatory. expressly said so. Jurisdiction is conferred
only by the Constitution or by law. It is never
Q: Squatters and vendors have put up derived by implication (Export Processing
structures in an area intended for a People's Zone Authority v. Commission on Human
Park, which are impeding the flow of traffic in Rights, G.R. No. 101476 [1992]).
the adjoining highway. Mayor Cruz gave notice
for the structures to be removed, and the area c. The CHR does not possess adjudicative
vacated within a month, or else, face demolition functions and therefore, on its own, is not
and ejectment. The occupants filed a case with empowered to declare Mayor Cruz in
the Commission on Human Rights (CHR) to stop contempt for issuing the "order to desist."
the Mayor's move. However, under the 1987 Constitution, the
CHR is constitutionally authorized, in the
The CHR then issued an "order to desist" exercise of its investigative functions, to
against Mayor Cruz with warning that he would "adopt its operational guidelines and rules of
be held in contempt should he fail to comply procedure, and cite for contempt for
with the desistance order. When the allotted violations thereof in accordance with the
time lapsed, Mayor Cruz caused the demolition Rules of Court." Accordingly, the CHR, in the
and removal of the structures. Accordingly, the course of an investigation, may only cite or
CHR cited him for contempt. hold any person in contempt and impose the
appropriate penalties in accordance with the
a. What is your concept of Human Rights? procedure and sanctions provided for in the
Does this case involve violations of Rules of Court (Carino v. Commission on
human rights within the scope of the Human Rights, G.R. No. 96681 [1991]).
CHR's jurisdiction?
b. Can the CHR issue an "order to desist"
EDUCATION, SCIENCE, TECHNOLOGY, ARTS,
or restraining order?
CULTUR, AND SPORTS
c. Is the CHR empowered to declare Mayor
Cruz in contempt? Does it have
contempt powers at all? (2005 BAR) Academic freedom

A:

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Q: What is Academic Freedom? Discuss the ensued. Cooler heads prevented the verbal war
extent of Academic Freedom enjoyed by ending in physical confrontation. Mahigpit left the
institutions of higher learning. (1989, 1999, campus and went shopping in a department store.
2013 BAR) Ting saw Mahigpit and without any warning
mauled the latter. Mahigpit filed an administrative
A: According to Reyes v. Court of Appeals, 194 complaint against Ting before the Dean of
SCRA 402, academic freedom is the freedom of a Students for breach of university rules and
faculty member to pursue his studies in his regulations. The Dean set the complaint for
particular specialty and thereafter to make known hearing. However, Ting filed a petition before the
or publish the result of his endeavors without fear RTC to prohibit the Dean and the school from
that retribution would be visited on him in the investigating him contending that the mauling
event that his conclusions are found distasteful or incident happened outside the school premises
objectionable by the powers that be, whether in the and therefore, outside the school's jurisdiction.
political, economic, or academic establishments. The school and the Dean answered that the school
can investigate Ting since his conduct outside
In Garcia v. Faculty Admission Committee, 68 SCRA school hours and even outside of school premises
277, it was held that the academic freedom of an affect the welfare of the school; and furthermore,
institution of higher learning includes the freedom the case involves a student and faculty member. If
to determine who may teach, what may be taught, you were the judge, how would you decide the
how it shall be taught, and who may be admitted to case? (1993 BAR)
study. Because of academic freedom, an institution
of higher learning can refuse to re-enroll a student A: If I were the Judge, I would dismiss the petition. In
who is academically deficient or who has violated Angeles v. Sison, 112 SCRA 26, it was held that a school
the rules of discipline. Academic freedom grants can subject to disciplinary action a student who
institutions of higher learning the discretion to assaulted a professor outside the school premises,
formulate rules for the granting of honors. because the misconduct of the student involves his
Likewise, because of academic freedom, an status as, a student or affects the good name or
institution of higher learning can close a school. reputation of the school. The misconduct of Ting
directly affects his suitability as a student.
Q: Undaunted by his three failures in the
National Medical Admission Test (NMAT), Cruz Q: What is the rule on the number of aliens who
applied to take it again but he was refused may enroll in educational institutions in the
because of an order of the Department of Philippines? Give the exception to the rule. May
Education, Culture and Sports (DECS) such institutions accept donations from foreign
disallowing flunkers from taking the test a students under the pretext that such donations are
fourth time. Cruz filed suit assailing this rule to be used to buy equipment and improve school
raising the constitutional grounds of accessible facilities? Explain. (1999 BAR)
quality education, academic freedom and equal
protection. The government opposes this, A: Under Section 4(2), Article XIV of the Constitution,
upholding the constitutionality of the rule on no group of aliens shall comprise more than one-third
the ground of exercise of police power. Decide of the enrollment in any school. The exception refers
the case discussing the grounds raised. (2000 to schools established for foreign diplomatic
BAR) personnel and their dependents and, unless otherwise
provided by law, for other foreign temporary
A: As held in Department of Education, Culture and residents.
Sports v. San Diego, 180 SCRA 533, the rule is a
valid exercise of police power to ensure that those Educational institutions may accept donations from
admitted to the medical profession are qualified. foreign students. No provision in the Constitution or
The arguments of Cruz are not meritorious. The any law prohibits it.
right to quality education and academic freedom
are not absolute. Q: Children who are members of a religious sect
have been expelled from their respective public
Under Section 5(3), Article XIV of the Constitution, schools for refusing, on account of their religious
the right to choose a profession is subject to fair, beliefs, to take part in the flag ceremony which
reasonable and equitable admission and academic includes playing by a band or singing the national
requirements. The rule does not violate equal anthem, saluting the Philippine flag and reciting
protection. There is a substantial distinction the patriotic pledge. The students and their
between medical students and other students. parents assail the expulsion on the ground that the
Unlike other professions, the medical profession school authorities have acted in violation of their
directly affects the lives of the people. right to free public education, freedom of speech,
and religious freedom and worship. Decide the
Q: Ting, a student of Bangkerohan University, case. (2003 BAR)
was given a failing grade by Professor Mahigpit. A: The students cannot be expelled from school. As
Ting confronted Professor Mahigpit at the held in Ebralinag v. The Division Superintendent of
corridor after class and a heated argument Schools of Cebu. 219 SCRA 256, to compel students to
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take part in the flag ceremony when it is against h. The State shall enhance the rights of teachers
their religious beliefs will violate their religious to professional advancement.
freedom. Their expulsion also violates the duty of i. Non-teaching academic and non-academic
the State under Article XIV, Section 1 of the personnel shall enjoy the protection of the
Constitution to protect and promote the right of all State. [Section 5(4)]
citizens to quality education and make such j. The State shall assign the highest budgetary
education accessible to all. priority to education and ensure that teaching
will attract and retain its rightful share of the
Q: What is the constitutional provision best available talents through adequate
concerning the teaching of religion in the remuneration and other means of job
elementary and high schools in the Philippines? satisfaction and fulfillment. [Section 5(5)]
Explain. (1999 BAR)
Q: Bobby, an incoming third year college student,
A: Under Section 3(3), Article XIV of the was denied admission by his university, a
Constitution, at the option expressed in writing by premiere educational institution in Manila, after
the parents or guardians, religion shall be allowed he failed in three (3) major subjects in his
to be taught to their children or wards in public sophomore year. The denial of admission was
elementary and high schools within the regular based on the university’s rules and admission
class hours by instructors designated or approved policies. Unable to cope with the depression that
by the religious authorities to which the children or his non-admission triggered, Bobby committed
wards belong, without additional cost to the suicide. His family sued the school for damages,
Government. citing the school’s grossly unreasonable rules that
resulted in the denial of admission. They argued
Q: Give two duties of the state mandated by the that these rules violated Bobby’s human rights and
Constitution regarding education. (1999 BAR) the priority consideration that the Constitution
gives to the education of the youth. You are
A: Article XIV of the Constitution imposes the counsel for the university. Explain your arguments
following duties regarding education upon the in support of the university’s case. (2013 BAR)
State:
a. The State shall protect and promote the A: I shall argue that under Article XIV, Section 5(2) of
right of all citizens to quality education at the 1987 Constitution, the educational institution
all levels and shall take appropriate steps enjoys academic freedom. Academic freedom includes
to make such education accessible to all its rights to prescribe academic standards, policies and
(Section 1). qualifications for the admission of a student
b. The State shall establish, maintain and (University of San Agustin,Inc. v. Court of Appeals, G.R.
support a complete, adequate, and No. 100588, March 7, 1994, 230 SCRA761)
integrated system of education relevant to
the needs of the people and society
[Section 2(1)]. PUBLIC INTERNATIONAL LAW
c. The State shall establish and maintain a
system of free public education in the
elementary and high school levels [Section Q: Select any five (5) of the following and explain
2(2)]. each, using examples:
d. The State shall establish and maintain a a. Reprisal
system of scholarship grants, student loan b. Retorsion
programs, subsidies, and other incentives c. Declaratory Theory of Recognition
which shall be available to deserving Principle
students in both public and private d. Recognition of Belligerency
schools, especially to the underprivileged e. Continental Shelf
[Section 2(3)]. f. Exequatur
e. The State shall encourage non-formal, g. Principle of Double Criminality (2007,
informal and indigenous learning systems, 2019 Bar)
as well as self-learning, independent and h. Protective Personality
out-of-school study program particularly i. Innocent Passage
those that respond to community needs, j. Jus cogens in International Law (1991,
[Section 2(4)] 2019 BAR)
f. The State shall provide adult citizens, the
disabled, and out-of-school youth with A:
training in civics, vocational efficiency and
other skills. [Section 2(5)] a. REPRISAL is a coercive measure short of war,
g. The State shall take into account regional directed by a state against another, in
and sectoral needs and conditions and retaliation for acts of the latter and as means
shall encourage local planning in the of obtaining reparation or satisfaction for
development of educational policies and such acts. Reprisal involves retaliatory acts
programs. [Section 5(1)] which by themselves would be illegal. For
example, for violation of a treaty by a state,
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the aggrieved state seizes on the high seas crime in both the requesting state and the
the ships of the offending state. state to which the fugitive has fled. For
example, since murder is a crime both in the
b. RETORSION is a legal but deliberately Philippines and in Canada, under the Treaty
unfriendly act directed by a state against on Extradition between the Philippines and
another in retaliation for an unfriendly Canada, the Philippines can request Canada to
though legal act to compel that state to extradite a Filipino who has fled to Canada.
alter its unfriendly conduct. An example of
retorsion is banning exports to the h. PROTECTIVE PERSONALITY principle is the
offending state. principle by which the state exercise
jurisdiction over the acts of an alien even if
c. The DECLARATORY THEORY OF committed outside its territory, if such acts
RECOGNITION is a theory according to are adverse to the interest of the national
which recognition of a state is merely an state.
acknowledgment of the fact of its
existence. In other words, the recognized i. INNOCENT PASSAGE means the right of
state already exists and can exist even continuous and expeditious navigation of a
without such recognition. For example, foreign ship through the territorial sea of a
when other countries recognized state for the purpose of traversing that sea
Bangladesh, Bangladesh already existed as without entering the internal waters or calling
a state even without such recognition. at a roadstead or port facility outside internal
waters, or proceeding to or from internal
d. RECOGNITION OF BELLIGERENCY is the waters or a call at such roadstead or port
formal acknowledgment by a third party of facility. The passage is innocent so long as it is
the existence of a state of war between the not prejudicial to the peace, good order or
central government and a portion of that security of the coastal state.
state.
j. JUS COGENS is a peremptory norm of general
Belligerency exists when a sizeable portion of the international law accepted and recognized by
territory of a state is under the effective control of the international community as a whole as a
an insurgent community which is seeking to norm from which no derogation is permitted
establish a separate government and the and which can be modified only by a
insurgents are in de facto control of a portion of the subsequent norm of general international law
territory and population, have a political having the same character. An example is the
organization, are able to maintain such control, and prohibition against the use of force.
conduct themselves according to the laws of war.
For example, Great Britain recognized a state of Q: State A and State B, two sovereign states, enter
belligerency in the United States during the Civil into a 10-year mutual defense treaty. After five
War. years, State A finds that the more progressive State
B did not go to the aid of State A when it was
e. CONTINENTAL SHELF of a coastal state threatened by its strong neighbor State C. State B
comprises the sea-bed and subsoil of the reasoned that it had to be prudent and deliberate
submarine areas that extend beyond its in reacting to State C because of their existing
territorial sea throughout the natural trade treaties.
prolongation of its land territory to the
outer edge of the continental margin, or to What is the difference between the principles of
a distance of 200 nautical miles from the pacta sunt servanda and rebus sic stantibus in
baselines from which the breadth of the international law? (2017 BAR)
territorial sea is measured where the outer
edge of the continental shelf does not A: Pacta sunt servanda means that every treaty in
extend up to that distance. force is binding upon the States who are parties to it
and States must perform their obligation in good faith
f. EXEQUATUR is an authorization from the (Deutsche Bank AG Manila Branch v. Commissioner of
receiving state admitting the head of a Internal Revenue, G.R. No. 188550, August 19, 2013, 704
consular post to the exercise of his SCRA 216).
functions. For example, if the Philippines
appoints a consul general for New York, he Rebus sic stantibus means that a fundamental change
cannot start performing his functions of circumstances, which occurred with regard to those
unless the President of the United States existing at the time of the conclusion of a treaty and
issues an exequatur to him. which was not foreseen by the parties may not be
invoked for withdrawing from a treaty unless their
g. The principle of DOUBLE CRIMINALITY is existence constituted an essential basis of the consent
the rule in extradition which states that for of the parties and their effect is to radically transform
a request to be honored the crime for the extent of the obligations still to be performed
which extradition is requested must be a
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(Article 62 of the Vienna Convention on the Law of The contract was awarded by the Ministry of the
Treaties). Army to Marikina Shoe Corporation and was
signed by the parties in Jakarta. Marikina Shoe
Q: How is state sovereignty defined in Corporation was able to deliver only 200,000 pairs
International Law? (2006 BAR) of combat boots in Jakarta by 30 October 1990 and
it received payment for 100,000 pairs or a total of
A: Sovereignty signifies the right to exercise the U.S. $3,000,000.00. The Ministry of the Army
functions of a State in regard to a portion of the promised to pay for the other 100,000 pairs
globe to the exclusion of any other State. It is the already delivered as soon as the remaining
principle of exclusive competence of a State in 300,000 pairs of combat boots are delivered, at
regard to its own territory (The Island of Las which time the said 300,000 pairs will also be paid
Palmas Case, 2 Report of International Arbitration for. Marikina Shoe Corporation failed to deliver
Awards 839 [1928]). any more combat boots.

ALTERNATIVE ANSWER: State sovereignty is the On 1 June 1991, the Republic of Indonesia filed an
ability of a state to act without external controls on action before the Regional Trial Court of Pasig,
the conduct of its affairs (Fox, Dictionary of Rizal to compel Marikina Shoe Corporation to
International and Comparative Law, p. 294). perform the balance of its obligations under the
contract and for damages. In its answer, Marikina
Q: Is state sovereignty absolute? (2006 BAR) Shoe Corporation sets up a counterclaim for U.S. $
3,000,000.00 representing the payment for the
A: State sovereignty is not absolute. It is subject to 100,000 pairs of combat boots already delivered
limitations imposed by membership in the family but unpaid.
of nations and limitations imposed by treaty
stipulations (Tanada v Angara, 272 SCRA 18, 1997) Indonesia moved to dismiss the counterclaim,
asserting that it is entitled to sovereign immunity
Jus cogens from suit. The trial court denied the motion to
dismiss and issued two writs of garnishment upon
Q: May a treaty violate international law? If Indonesian Government funds deposited in the
your answer is in the affirmative, explain when Philippine National Bank and Far East Bank.
such may happen. If your answer is in the Indonesia went to the Court of Appeals on a
negative, explain why. (2008 BAR) petition for certiorari under Rule 65 of the Rules of
Court. How would the Court of Appeals decide the
A: YES, a treaty may violate international law case? (1991 BAR)
(understood as general international law) if it
conflicts with a peremptory norm or jus cogens of A: The Court of Appeals should dismiss the petition
international law. Jus cogens norm is defined as a insofar as it seeks to annul the order denying the
norm of general international law accepted and motion of the Government of Indonesia to dismiss the
recognized by the international community of counterclaim. The counterclaim in this case is a
states as a whole “as a norm from which no compulsory counterclaim since it arises from the same
derogation is permitted and which can be modified contract involved in the complaint. As such it must be
only by a subsequent norm of general international set up otherwise it will be barred. Above all, as held in
law having the same character.” Article 53 of the Froilan v. Pan Oriental Shipping Co., 95 Phil. 905, by
Vienna Convention on the Law of Treaties (1969) filing a complaint, the State of Indonesia waived its
provides that (a) treaty is void if the at the time of immunity from suit. It is not right that it can sue in the
its conclusion, it conflicts with jus cogens norm. courts but it cannot be sued. The defendant therefore
Moreover, under Article 54 of this Convention if a acquires the right to set up a compulsory counterclaim
new peremptory norm of general international law against it.
emerges, any existing treaty which is in conflict
with that norm becomes void and terminates. However, the Court of Appeals should grant the
petition of the Indonesian government insofar as it
RELATIONSHIP BETWEEN INTERNATIONAL sought to annul the garnishment of the funds of
AND NATIONAL LAW Indonesia which were deposited in the Philippine
National Bank and Far East Bank. Consent to the
exercise of jurisdiction of a foreign court does not
Q: In February 1990, the Ministry of the Army include waiver of the separate immunity from
Republic of Indonesia, invited bids for the execution (Brownlie, Principles of Public International
supply of 500,000 pairs of combat boots for the Law, 4th ed., p. 344).Thus, in Dexter v. Carpenter vs.
use of the Indonesian Army. The Marikina Shoe Kunglig Jarnvagsstyrelsen, 43 Fed. 705, it was held the
Corporation, a Philippine corporation, which consent to be sued does not give consent to the
has no branch office and no assets in Indonesia, attachment of the property of a sovereign government.
submitted a bid to supply 500,000 pairs of
combat boots at U.S. $30 per pair delivered in Q: The State of Nova, controlled by an
Jakarta on or before 30 October 1990. authoritarian government, had unfriendly
relations with its neighboring State, Ameria.
Bresia, another neighboring State, had been
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shipping arms and ammunitions to Nova for use Q: What is the doctrine of sovereign immunity in
in attacking Ameria. International Law? (1998 BAR)

To forestall an attack, Ameria placed floating A: By the doctrine of sovereign immunity, a State, its
mines on the territorial waters surrounding agents and property are immune from the judicial
Nova. Ameria supported a group of rebels process of another State, except with its consent. Thus,
organized to overthrow the government of immunity may be waived and a State may permit itself
Nova and to replace it with a friendly to be sued in the courts of another State.
government.
Sovereign immunity has developed into two schools of
Nova decided to file a case against Ameria in the thought, namely, absolute immunity and restrictive
International Court of Justice. immunity. By absolute immunity, all acts of a State are
covered or protected by Immunity. On the other hand,
a. On what grounds may Ameria move to restrictive immunity makes a distinction between
dismiss the case with the ICJ? governmental or sovereign acts (acta jure imperii) and
b. Decide the case. (1994 BAR) nongovernmental, propriety or commercial acts (acta
jure gestiones). Only the first category of acts is
A: covered by sovereign immunity. The Philippine
a. By virtue of the principle of sovereign adheres to the restrictive immunity school of thought.
immunity, no sovereign state can be made a
party to a proceeding before the International ALTERNATIVE ANSWER: In United States vs. Ruiz,
Court of Justice unless it has given its consent. 128 SCRA 487, 490-491, the Supreme Court explained
If Ameria has not accepted the Jurisdiction of the doctrine of sovereign Immunity in international
the International Court of Justice, Ameria can law; “The traditional rule of State immunity exempts a
invoke the defense of lack of jurisdiction. Even State from being sued in the courts of another State
if Ameria has accepted the jurisdiction of the without its consent or waiver, this rule is a necessary
court but the acceptance is limited and the consequence of the principles of independence and
limitation applies to the case, it may invoke equality of states. However, the rules of International
such limitation its consent as a bar to the Law are not petrified, they are constantly developing
assumption of jurisdiction. If jurisdiction has and evolving. Arid because the activities of states have
been accepted, Ameria can invoke the multiplied, it has been necessary to distinguish them
principle of anticipatory self- defense, — between sovereign and government acts (jure
recognized under customary international imperii) and private, commercial and proprietary acts
law, because Nova is planning to launch an (jure gestionis). The result is that State immunity now
attack against Ameria by using the arms it extends only to acts jure imperii.”
bought from Bresia.
Q: An organization of law students sponsored an
b. If jurisdiction over Ameria is established, the inter-school debate among three teams with the
case should be decided in favor of Nova, following assignments and propositions for each
because Ameria violated the principle against team to defend:
the use of force and the principle of
nonintervention. The defense of anticipatory Team "A" - International law prevails over
self-defense cannot be sustained, because municipal law.
there is no showing that Nova had mobilized Team "B" - Municipal law prevails over
to such an extent that if Ameria were to wait international law.
for Nova to strike first it would not be able to Team "C" – A country's Constitution prevails over
retaliate. However, if jurisdiction over Ameria international law but international law prevails
is not established, the case should be decided over municipal statutes.
in favor of Ameria because of the principle of
sovereign immunity. If you were given a chance to choose the correct
proposition, which would you take and why?
Q: What do you understand by the "Doctrine of (2003 BAR)
Incorporation" in Constitutional Law? (1997
BAR) A: I shall take the proposition for Team C.
International Law and municipal laws are supreme in
A: The DOCTRINE OF INCORPORATION means that their own respective fields. Neither has hegemony
the rules of International law form part of the law over the other (Brownlie, Principles of Public
of the land and no legislative action is required to International Law, 4th ed. p. 157). Under Article II,
make them applicable to a country. The Philippines Section 2 of the 1987 Constitution, the generally
follows this doctrine, because Section 2, Article II of accepted principles of international law form part of
the Constitution states that the Philippines adopts the law of the land. Since they merely have the force of
the generally accepted principles of international law, if it is Philippine courts that will decide the case,
law as part of the law of the land. they will uphold the Constitution over international
law. If it is an international tribunal that will decide
the case, it will uphold international law over
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municipal law. As held by the Permanent argued that the proposed amnesty law is contrary
International Court of Justice in the case of the to international law. Decide with reasons. (2010
Polish Nationals in Danzig, a State cannot invoke its BAR)
own Constitution to evade obligations incumbent
upon it under international law. A: The proposed amnesty law is contrary to
international law. The mass killings of member of
ALTERNATIVE ANSWER: I would take the indigenous groups constitute genocide under Article II
proposition assigned to Team "C" as being nearer (a), Convention for the Prevention and Punishment of
to the legal reality in the Philippines, namely, "A the crime of Genocide. The proposed amnesty law is
country's Constitution prevails over international against international law because it is incompatible
law but international law prevails over municipal with, or in violation of the international obligation
statutes". under Article IV of this Convention that “Persons
committing genocide… shall be punished, whether
This is, however, subject to the place of they are constitutionally responsible rulers, public
international law in the Philippine Constitutional officials or private individuals.”
setting in which treaties or customary norms in
international law stand in parity with statutes and The Contracting Parties confirm that genocide,
in case of irreconcilable conflict, this may be whether committed in time of peace of in time of war,
resolved by lex posteriori derogat lex priori as the is a crime under international law which they
Supreme Court obiter dictum in Abbas v. COMELEC undertake to prevent and to punish.
GR. No. 89651 (1989) holds. Hence, a statute
enacted later than the conclusion or effectivity of a Q: What is the concept of association under
treaty may prevail. international law? (2009 BAR)

In the Philippine legal system, there are no norms A: An association is formed when two states of
higher than constitutional norms. The fact that the unequal power voluntarily establish durable links. The
Constitution makes generally accepted principles associate delegates certain responsibilities to the
of international law or conventional international other, the principal, while maintaining its status as a
law as part of Philippine law does not make them state. It is an association between sovereigns. The
superior to statutory law, as clarified in Secretary associated state arrangement has usually been used as
of Justice v. Lantion and Philip Morris, GR. No. a transitional device of former colonies on their way to
139465 (2000) decision. full independence. (Province of North Cotabato v. GRP
Peace Panel on Ancestral Domain, 568 SCRA 402
Q: What is the principle of auto-limitation? [2008].)
(2006 BAR)
Association, under international law, is a formal
A: Under the principle of auto-limitation, any state arrangement between a non-self-governing territory
may by its consent, express or implied, submit to a and an independent State whereby such territory
restriction of its sovereign rights. There may thus becomes an associated State with internal self-
be a curtailment of what otherwise is a plenary government, but the independent state is responsible
power (Reagan v. CIR, G.R. L-26379, [1969]). for foreign relations and defense.

Q: What is the relationship between reciprocity For an association to be lawful, it must comply with
and the principle of auto- limitation? (2006 the general conditions prescribed in UN General
BAR) Assembly Resolution 1541 (XV) of 14 December 160:
(1) the population must consent to the association;
A: By reciprocity, States grants to one another and (2) the association must promote the
rights or concessions, in exchange for identical or development and well-being of the dependent state
comparable duties, thus acquiring a right as an (the non-self-governing territory). Association is
extension of its sovereignty and at the same time subject to UN approval.
accepting an obligation as a limitation to its
sovereign will, hence, a complementation of SOURCES OF OBLIGATION IN
reciprocity and auto-limitation. INTERNATIONAL LAW

Q: The dictatorial regime of President A of the
Republic of Gordon was toppled by a combined Q: State your general understanding of the
force led by Gen. Abe, former royal guards and primary sources and subsidiary sources of
the secessionist Gordon People’s Army. The international law, giving an illustration of each.
new government constituted a Truth and (2003 BAR)
Reconciliation Commission to look into the
serious crimes committed under President A’s A: Under Article 38 of the Statute of the International
regime. After the hearings, the Commission Court of Justice, the primary sources of international
recommended that an amnesty law be passed to law are the following:
cover even those involved in mass killings of
members of indigenous groups who opposed 1. International conventions, e.g., Vienna
President A. International human rights groups Convention on the Law of Treaties.
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2. International customs, e.g., cabotage, the be carried out in such a way, as to be evidence of a
prohibition against slavery, and the belief that this practice is rendered obligatory by the
prohibition against torture. existence of a rule of law requiring it.”
3. General principles of law recognized by
civilized nations, e.g., prescription, res Q: Under international law, differentiate “hard
judicata, and due process. law” from “soft law”. (2009 BAR)

The subsidiary sources of international law are A: “Hard law” is used to designate a norm or rule of
judicial decisions, subject to the provisions of conduct accepted and recognized by the international
Article 59, e.g., the decision in the Anglo- community of states as a whole, as a source of law
Norwegian Fisheries Case and Nicaragua v. United binding on them. “Hard law” produces obligations
States, and teachings of the most highly qualified which when breached gives rise to international
publicists of various nations, e.g., Human Rights in responsibility and, consequently, to reparation.
International Law by Lauterpacht and
International Law by Oppenheim-Lauterpacht. On the other hand, “soft law” has no binding force and
pertains to a statement or declaration of principles
ALTERNATIVE ANSWER: Reflecting general with moral force on the conduct of states but no
international law, Article 38(1) of the Statute of the normative character and without intent to create
International Court of Justice is understood as enforceable obligations. In the development of
providing for international convention, international law, a number of “soft law” principles or
international custom, and general principles of law declarations have become the basis of norm-creation
as primary sources of international law, while in treaty- making and in general practice of states in
indicating that judicial decisions and teachings of customary-norm formation.
the most highly qualified publicists as “subsidiary
means for the determination of the rules of law.” ALTERNATIVE ANSWER: Soft law has no binding
force and pertains to a statement or declaration of
The primary sources may be considered as formal principles with moral force on the conduct of states
sources in that they are the methods by which but no normative character and without intent to
norms of international law are created and create enforceable obligations.
recognized. A conventional or treaty norm comes
into being by established treaty-making On the other hand, hard law is a norm or rule of
procedures and a customary norm is the product of conduct accepted and recognized by the international
the formation of general practice accepted as law. community of states as a whole, as a source of law that
is binding on them. Hard law produces obligations
By way of illustrating International Convention as a which when breached gives rise to international
source of law, we may refer to the principle responsibility and, consequently, to reparation.
embodied in Article 6 of the Vienna Convention on
the Law of Treaties which reads: “Every State ALTERNATIVE ANSWER: Soft law is an expression' of
possesses capacity to conclude treaties”. It tells us non-binding norms, principles and practices that
what the law is and the process or method by influence State behavior. On the other hand, hard law
which it came into being. International Custom may involves binding rules of international law
be concretely illustrated by pacta sunt servanda, a (Pharmaceutical and Health Care Association of the
customary or general norm which came about Philippines v. Duque, 535 SCRA 265 [2007]).
through extensive and consistent practice by a
great number of states recognizing it as obligatory. Q: What are the sources of International Law?
The subsidiary means serves as evidence of law. (2012 BAR)

Q: The legal yardstick in determining whether A: The following are the sources of International Law:
usage has become customary international law
is expressed in the maxim opinio juris sive a. International conventions, whether general or
necessitates or opinion juris for short. What particular, establishing rules expressly
does the maxim mean? (2008 BAR) recognized by the contesting states;
b. International custom, as evidence of a general
A: Opinio juris sive necessitates or simply opinion practice accepted as law;
juris means that as an element in the formation of c. The general principles of law recognized by
customary norm in international law, it is required civilized nations
that States in their conduct amounting to general
practice, must act out of a sense of legal duty and Q: What is opinio juris in International Law? (2008,
not only by the motivation of courtesy, convenience 2012 BAR)
or tradition. According to the International Court of
Justice in the North Sea Continental Shelf Cases (ICJ A: To establish customary international law, two
Reports, 1969, para. 77), and quoted by the elements must concur: the general state practice and
Philippine Supreme Court in Mijares v Ranada (455 opinio juris sire necessitatis. State practice refers to the
SCRA 397 [2005]), “Not only must the acts amount continuous repetition of the same or similar kind of
to a settled practice, but they must also be such, or acts or norms by states. Opinio juris requires that the
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state practice or norm be carried out in such a way ALTERNATIVE ANSWER: The distinction between de
as to be evidence of the belief that it is obligatory facto recognition and de jure recognition of a State is
by the existence of a rule of law requiring it (Bayan not clear in international law. It is, however, usually
Muna v. Romulo, 641 SCRA 244). assumed as a point of distinction that while de facto
recognition is provisional and hence may be
withdrawn, de jure recognition is final and cannot be
SUBJECTS withdrawn.

Confronted with the emergence of a new political
Q: The Japanese Government confirmed that entity in the international community, a State may
during the Second World War, Filipinas were experience some difficulty in responding to the
among those conscripted as "comfort women" question whether the new political order qualifies to
(or prostitutes) for Japanese troops in various be regarded as a state under international law, in
parts of Asia. The Japanese Government has particular from the viewpoint of its effectiveness and
accordingly launched a goodwill campaign and independence on a permanent basis. The recognizing
has offered the Philippine Government State may consider its act in regard to the new political
substantial assistance for a program entity as merely a de facto recognition, implying that it
that will promote — through government and may withdraw it if in the end it turns out that the
nongovernmental organizations — women's conditions of statehood are not fulfilled should the
rights, child welfare, nutrition and family new authority not remain in power.
health care.
But even then, a de facto recognition in this context
An executive agreement is about to be signed produces legal effects in the same way as de jure
for that purpose. The agreement includes a recognition. Whether recognition is de facto or de jure,
clause whereby the Philippine Government steps may be taken to withdraw recognition if the
acknowledges that any liability to the "comfort conditions of statehood in international law are not
women" or their descendants are deemed fulfilled.
covered by the reparations agreements signed
and implemented immediately after the Second Thus, from this standpoint, the distinction is not
World War. Juliano Iglesias, a descendant of a legally significant.
now deceased comfort woman, seeks your
advice on the validity of the agreement. Advise Q: Distinguish: The constitutive theory and the
him. (1992 BAR) declaratory theory concerning recognition of
states. (2004 BAR)
A: The agreement is valid. The comfort women and
their descendants cannot assert individual claims A: According to the CONSTITUTIVE THEORY,
against Japan. As stated in Davis & Moore vs. Regan, recognition is the last indispensable element that
453 U.S. 654, the sovereign authority of a State to converts the state being recognized into an
settle claims of its nationals against foreign international person.
countries has repeatedly been recognized. This
may be made without the consent of the nationals According to the DECLARATORY THEORY, recognition
or even without consultation with them. Since the is merely an acknowledgment of the pre-existing fact
continued amity between a State and other that the state being recognized is an international
countries may require a satisfactory compromise of person (Cruz, International Law, 2003 ed.)
mutual claims, the necessary power to make such
compromises has been recognized. The settlement
of such claims may be made by executive DIPLOMATIC AND CONSULAR LAW
agreement.

Q: Distinguish between de facto recognition and Q: What is the right of legation, and how is it
de jure recognition of states. (1998 BAR) undertaken between states? Explain your answer.
(2017 BAR)
A: The following are the distinctions between de
facto recognition and de jure recognition of a A: Right of legation or the right of diplomatic
government: intercourse is the right of the state to send and receive
diplomatic missions, which enables states to carry on
a. De facto recognition is provisional, de jure friendly intercourse. It is governed by the Vienna
recognition is relatively permanent; Convention on Diplomatic Relations (1961). The
b. De facto recognition does not vest title in exercise of this right is one of the most effective ways
the government to its properties abroad; of facilitating and promoting intercourse among
de Jure recognition does; nations. Through the active right of sending diplomatic
c. De facto recognition is limited to certain representatives and the passive right of receiving
juridical relations; de jure recognition them, States are able to deal more directly and closely
brings about full diplomatic relations. with each other in the improvement of their mutual
(Cruz. International Law. 1996 ed.. p. 83.) intercourse.

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Q: the receiving State. He is not liable to arrest or

1. Discuss the differences, if any, in the detention pending trial unless the offense was
privileges or immunities of diplomatic committed against his father, mother, child,
envoys and consular officers from the civil ascendant, descendant or spouse. Consuls are
or criminal jurisdiction of the receiving not liable to arrest and detention pending trial
state. except in the case of a grave crime and
2. A consul of a South American country pursuant to a decision by the competent
stationed in Manila was charged with judicial authority. The crime of physical
serious physical injuries. May he claim injuries is not a grave crime unless it be
immunity from jurisdiction of the local committed against any of the above-
court? Explain. mentioned persons (Schneckenburger v.
3. Suppose after he was charged, he was Moran, 63 Phil. 249).
appointed as his country’s ambassador to
the Philippines. Can his newly-gained 3. YES, the case should be dismissed. Under
diplomatic status be a ground for dismissal Article 40 of the Vienna Convention on
of his criminal case? Explain. (1995 BAR) Diplomatic Relations, if a diplomatic agent is
in the territory of a third State, which has
A: granted him a passport visa if such visa was
necessary, while proceeding to take up his
1. Under Article 32 of the Vienna Convention post, the third State shall accord him
on Diplomatic Relations, a diplomatic inviolability and such other immunities as
agent shall enjoy immunity from the may be required to ensure his transit.
criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil Q: A foreign ambassador to the Philippines leased
and administrative Jurisdiction except in a vacation house in Tagaytay for his personal use.
the case of: For some reason, he failed to pay rentals for more
a. A real action relating to private than one year. The lessor filed an action for the
immovable property situated in the recovery of his property in court.
territory of the receiving State, unless
he holds it on behalf of the sending a. Can the foreign ambassador invoke his
State for the purposes of the mission; diplomatic immunity to resist the lessor’s
b. An action relating to succession in action?
which the diplomatic agent is invoked b. The lessor gets hold of evidence that the
as executor, administrator, heir or ambassador is about to return to his home
legatee as a private person and not on country. Can the lessor ask the court to
behalf of the sending State; stop the ambassador’s departure from the
c. An action relating to any professional Philippines? (2000 BAR)
or commercial activity exercised by
the diplomatic agent in the receiving A:
State outside his official functions. a. No, the foreign ambassador cannot invoke his
diplomatic immunity to resist the action, since
On the other hand, under Article 41 of the Vienna he is not using the house in Tagaytay City for
Convention on Consular Relations, a consular the purposes of his mission but merely for
officer does not enjoy immunity from the Criminal vacation. Under Article 3(1)(a) of the Vienna
jurisdiction of the receiving State. Under Article 43 Convention on Diplomatic Relations, a
of the Vienna Convention on Consular Relations, diplomatic agent has no immunity in case of a
consular officers are not amenable to the real action relating to private immovable
jurisdiction of the judicial or administrative property situated in the territory of the
authorities of the receiving State in respect of acts receiving State unless he holds it on behalf of
performed in the exercise of consular functions. the sending State for purposes of the mission.
However, this does not apply in respect of a civil
action either: b. No, the lessor cannot ask the court to stop the
a. arising out of a contract concluded by departure of the ambassador from the
a consular officer in which he did not Philippines. Under Article 29 of the Vienna
contract expressly or impliedly as an Convention, a diplomatic agent shall not be
agent of the sending State; or liable to any form of arrest or detention
b. by a third party for damage arising
from an accident in the receiving State Q: Dr. Velen, an official of the World Health
caused by a vehicle, vessel, or aircraft. Organization (WHO) assigned in the Philippines,
arrived at the Ninoy Aquino International Airport
2. NO, he may not claim immunity from the with his personal effects contained in twelve
jurisdiction of the local court. Under crates as unaccompanied baggage. As such, his
Article 41 of the Vienna Convention of personal effects were allowed free entry from
Consular Relations, consuls do not enjoy duties and taxes, and were directly stored at
immunity from the criminal jurisdiction of Arshaine Corporation's warehouse at Makati,
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pending Dr. Velen's relocation to his permanent detention (Article 29) and he enjoys immunity from
quarters. criminal jurisdiction (Article 31).This immunity may
cover the “high-ranking officials” in question, who are
At the instance of police authorities, the assumed to be diplomatic officers or agents.
Regional Trial Court (RTC) of Makati issued a
warrant for the search and seizure of Dr. With respect to the “rank-and-file employees” they are
Velen's personal effects in view of an alleged covered by the immunity referred to above, provided
violation of the Tariff and Custom's Code. they are not nationals or permanent residents of the
According to the police, the crates contained Philippines, pursuant to Article 37(2) of the said
contraband items. Upon protest of WHO Convention. If the said rank-and-file employees belong
officials, the Secretary of Foreign Affairs to the service staff of the diplomatic mission (such as
formally advised the RTC as to Dr. Velen's drivers) they may be covered by the immunity (even if
immunity. The Solicitor General likewise joined they are not Philippine nationals or residents) as set out
Dr. Velen's plea of immunity and motion to in Article 37(3), if at the time of the arrest they were in
quash the search warrant. The RTC denied the “acts performed in the course of their duties.” If a
motion. Is the denial of the motion to quash driver was among the said rank-and-file employees
proper? (2001 BAR) and he was arrested while driving a diplomatic vehicle
or engaged in related acts, still he would be covered by
A: The denial of the motion is improper. As held in immunity.
World Health Organization v. Aquino, 48 SCRA 242,
as an official of the World Health Organization, Dr. Q: MBC, an alien businessman dealing in carpets
Velen enjoyed diplomatic immunity and this and caviar, filed a suit against policemen and YZ,
included exemption from duties and taxes. Since an attache of XX Embassy, for damages because of
diplomatic immunity involves a political question, malicious prosecution. MBC alleged that YZ
where a plea of diplomatic immunity is recognized concocted false and malicious charges that he was
and affirmed by the Executive Department, it is the engaged in drug trafficking, whereupon narcotics
duty of the court to accept the claim of immunity. policemen conducted a "buy-bust" operation and
without warrant arrested him, searched his house,
Q: A group of high-ranking officials and rank- and seized his money and jewelry, then detained
and-file employees stationed in a foreign and tortured him in violation of his civil and
embassy in Manila were arrested outside human rights as well as causing him, his family
embassy grounds and detained at Camp Crame and business serious damages amounting to two
on suspicion that they were actively million pesos. MBC added that the trial court
collaborating with “terrorists" out to overthrow acquitted him of the drug charges.
or destabilize the Philippine Government. The
Foreign Ambassador sought their immediate Assailing the court's jurisdiction: YZ now moves to
release, claiming that the detained embassy dismiss the complaint, on the ground that:
officials and employees enjoyed diplomatic
immunity. If invited to express your legal 1. he is an embassy officer entitled to
opinion on the matter, what advice would you diplomatic immunity; and,
give? (2003 BAR) 2. the suit is really a suit against his home
state without its consent. He presents
A: I shall advice that the high-ranking officials and diplomatic notes from XX Embassy
rank-and- file employees be released because of certifying that he is an accredited embassy
their diplomatic immunity. Article 29 of the Vienna officer recognized by the Philippine
Convention on Diplomatic Relations provides: “The government. He performs official duties,
person of a diplomatic agent shall be inviolable. He he says, on a mission to conduct
shall not be liable to any form of arrest or surveillance on drug exporters and then
detention.” inform local police officers who make the
actual arrest of suspects.
Under Article 37 of the Vienna Convention on
Diplomatic Relations, members of the Are the two grounds cited by YZ to dismiss the suit
administrative and technical staff of the diplomatic tenable? (2004 BAR)
mission shall, if they are not nationals of or
permanent residents in the receiving State, enjoy A: The claim of diplomatic immunity of YZ is not
the privileges and immunities specified in Article tenable, because he does not possess an acknowledged
29. diplomatic title and is not performing duties of a
diplomatic nature. However, the suit against him is a
Under Article 9 of the Vienna Convention on suit against XX without its consent. YZ was acting as an
Diplomatic Relations, the remedy is to declare the agent of XX and was performing his official functions
high-ranking officials and rank-and-file employees when he conducted surveillance on drug exporters
personae non gratae and ask them to leave. and informed the local police officers who arrested
MBC. He was performing such duties with the consent
ALTERNATIVE ANSWER: Under the Vienna of the Philippine government, therefore, the suit
Convention on Diplomatic Relations, a diplomatic against YZ is a suit against XX without its consent
agent “shall not be liable to any form of arrest or (Minucher v. Court of Appeals, 397 SCRA 244).
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Q: Italy, through its Ambassador, entered into a diplomatic immunity (Republic of Indonesia v. Vinzons,
contract with Abad for the maintenance and G.R. No. 154705 [2003]).
repair of specified equipment at its Embassy
and Ambassador's Residence, such as air Q: Adams and Baker are American citizens
conditioning units, generator sets, electrical residing in the Philippines. Adams befriended
facilities, water heaters, and water motor Baker and became a frequent visitor at his house.
pumps. It was stipulated that the agreement One day, Adams arrived with 30 members of the
shall be effective for a period of four years and Philippine National Police, armed with a search
automatically renewed unless cancelled. warrant authorizing the search of Baker's house
Further, it provided that any suit arising from and its premises for dangerous drugs being
the contract shall be filed with the proper trafficked to the United States of America.
courts in the City of Manila.
The search purportedly yielded positive results,
Claiming that the Maintenance Contract was and Baker was charged with Violation of the
unilaterally, baselessly and arbitrarily Dangerous Drugs Act. Adams was the
terminated, Abad sued the State of Italy and its prosecution's principal witness. However, for
Ambassador before a court in the City of Manila. failure to prove his guilt beyond reasonable doubt,
Among the defenses, they raised were Baker was acquitted.
"sovereign immunity" and "diplomatic
immunity." Baker then sued Adams for damages for filing
a. As counsel of Abad, refute the defenses trumped-up charges against him. Among the
of "sovereign immunity" and defenses raised by Adams is that he has diplomatic
"diplomatic immunity" raised by the immunity, conformably with the Vienna
State of Italy and its Ambassador. Convention on Diplomatic Relations. He presented
b. At any rate, what should be the court's Diplomatic Notes from the American Embassy
ruling on the said defenses? (2005 BAR) stating that he is an agent of the United States Drug
Enforcement Agency tasked with "conducting
A: surveillance operations" on suspected drug
a. As counsel for Abad, I will argue that dealers in the Philippines believed to be the
sovereign immunity will not lie as it is an source of prohibited drugs being shipped to the
established rule that when a State enters U.S. It was also stated that after having ascertained
into a contract, it waives its immunity and the target, Adams would then inform the
allows itself to be sued. Moreover, there is Philippine narcotic agents to make the actual
a provision in the contract that any suit arrest.
arising therefrom shall be filed with the
proper courts of the City of Manila. a. As counsel of plaintiff Baker, argue why his
complaint should not be dismissed on the
On the issue of diplomatic immunity, I will assert ground of defendant Adams' diplomatic
that the act of the Ambassador unilaterally immunity from suit.
terminating the agreement is tortuous and done b. As counsel of defendant Adams, argue for
with malice and bad faith and not a sovereign or the dismissal of the complaint. (2005 BAR)
diplomatic function.
A:
b. The court should rule against said a. As counsel for Baker, I would argue that Adams is
defenses. The maintenance contract and not a diplomatic agent considering that he is not a
repair of the Embassy and Ambassador's head of mission nor is he part of the diplomatic
Residence is a contract in jus imperii, staff that is accorded diplomatic rank. Thus, the
because such repair of said buildings is suit should not be dismissed as Adams has no
indispensable to the performance of the diplomatic immunity under the 1961 Vienna
official functions of the Government of Convention on Diplomatic Relations.
Italy. Hence, the contract is in pursuit of a b. As counsel for Adams, I would argue that he
sovereign activity in which case, it cannot worked for the United States Drug Enforcement
be deemed to have waived its immunity Agency and was tasked to conduct surveillance of
from suit. suspected drug activities within the country with
the approval of the Philippine government. Under
On the matter of whether or not the Ambassador the doctrine of State Immunity from Suit, if the
may be sued, Article 31 of the Vienna Convention acts giving rise to a suit are those of a foreign
on Diplomatic Relations provides that a diplomatic government done by its foreign agent, although
agent enjoys immunity from the criminal, civil and not necessarily a diplomatic personage, but acting
administrative jurisdiction of the receiving state in his official capacity, the complaint could be
except if the act performed is outside his official barred by the immunity of the foreign sovereign
functions, in accordance with the principle of from suit without its consent. Adams may not be a
functional necessity. In this case, the act of entering diplomatic agent but the Philippine government
into the contract by the Ambassador was part of his has given its imprimatur, if not consent, to the
official functions and thus, he is entitled to activities within Philippine territory of Adams and
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thus he is entitled to the defense of state possibly be covered by the immunity agreement
immunity from suit (Minucher v. CA, G.R. No. because our laws do not allow the commission of a
142396, [2003]). crime, such as defamation, under the guise of official
duty. Under the Vienna Convention on Diplomatic
Q: Ambassador Gaylor is State Juvenus Relations, a diplomatic agent enjoys immunity from
diplomatic representative to State Hinterlands. criminal jurisdiction of the receiving state except in
During one of his vacations, Ambassador Gaylor the case of an action relating to any professional or
decided to experience for himself the sights and commercial activity exercised by the diplomatic agent
sounds of State Paradise, a country known for outside his official functions in the receiving state. The
its beauty and other attractions. While in State commission of a crime is not part of official duty.
Paradise, Ambassador Gaylor was caught in the (Liang vs. People, G.R. No. 125865, January 28, 2000)
company of children under suspicious
circumstances. He was arrested for violation of
the strict anti-pedophilia statute of State GENERAL PRINCIPLE OF TREATY LAWS
Paradise. He claims that he is immune from
arrest and incarceration by virtue of his
diplomatic immunity. Does the claim of Q: State A and State B, two sovereign states, enter
Ambassador Gaylor hold water? (2014 BAR) into a 10-year mutual defense treaty. After five
years, State A finds that the more progressive State
A: Ambassador Gaylor cannot invoke his B did not go to the aid of State A when it was
diplomatic immunity. In accordance with threatened by its strong neighbor State C. State B
Paragraph 1, Article 31 of Vienna Convention of reasoned that it had to be prudent and deliberate
Diplomatic Relations, since State Paradise is not his in reacting to State C because of their existing
receiving state, he does not enjoy diplomatic trade treaties.
immunity within its territory. Under Paragraph 1,
Article 40 of the Vienna Convention of diplomatic a. May State A now unilaterally withdraw from
Relations, he cannot be accorded diplomatic its mutual defense treaty with State B? Explain
immunity in State Paradise, because he is not your answer.
passing through it to take up or return to his post
or to return to State Paradise. b. Are the principles of pacta sunt servanda and
rebus sic stantibus relevant in the treaty
Q: Andreas and Aristotle are foreign nationals relations between State A and State B? What
working with the Asian Development Bank about in the treaty relations between State B
(ADS) in its headquarters in Manila. Both were and State C? Explain your answer. (2017 BAR)
charged with criminal acts before the local trial
courts. A:

Andreas was caught importing illegal drugs into a. State A may unilaterally withdraw from the
the country as part of his "personal effects" and mutual defense treaty, State B committed a
was thus charged with violation of material breach of the treaty by failing to come to
Comprehensive Dangerous Drugs Act of 2002. the aid of State A. (Art. 60 of the Vienna Convention
Before the criminal proceedings could on the Law of Treaties; Kolb, The Law of Treaties, p.
commence, the President had him deported as 220; Aust, Modern Treaty Law and Practice, pp.
an undesirable alien. Aristotle was charged 236-237)
with grave oral defamation for uttering
defamatory words against a colleague at work. b. Yes. Pacta sunt servanda was what bound State A
In his defense, Aristotle claimed diplomatic and State B to comply with their obligations under
immunity. He presented as proof a their mutual defense treaty, despite the existing
communication from the Department of trade agreements between State B and State C.
Foreign Affairs stating that, pursuant to the Article 62 of the Vienna Convention on the Law of
Agreement between the Philippine Government Treaties, which enunciates the doctrine of rebus
and the ADS, the bank's officers and staff are sic stantibus, on the other hand, can be invoked by
immune from legal processes with respect to State B as the reason why it did not comply with
acts performed by them in their official its mutual defense treaty. Treaty is concluded with
capacity. the implied condition that it is intended to be
binding only as long as there is no vital change in
Is Aristotle's claim of diplomatic immunity the circumstances. To State B, compliance with the
proper? (2018 BAR) treaty would jeopardize its vital trade
development, Because of this unforeseen change
A: The claim of diplomatic immunity is improper. of circumstances combined with State B’s non-
Courts cannot blindly adhere to and take on its face compliance with its obligations under the treaty in
the communication from the DFA that Aristotle is good faith,
covered by an immunity. The DFA’s determination
that a certain person is covered by immunity is State A may now opt to unilaterally withdraw from the
only preliminary and has no binding effect on treaty.
courts. Besides, slandering a person cannot
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Q: An Executive Agreement was executed A: The Supreme Court should dismiss the case. The
between the Philippines and a neighboring jurisdiction of the Supreme Court (or of all lower
State. The Senate of the Philippines took it upon courts) over a treaty is only with respect to questions
itself to procure a certified true copy of the of its constitutionality or validity (See Art. VIII, sec. 5
Executive Agreement and, after deliberating on (2) (a) of 1987 Constitution). In other words, the
it, declared, by a unanimous vote, that the question should involve the constitutionality of a
agreement was both unwise and against the treaty or its validity in relation to a statute (Gonzales v.
best interest of the country. Is the Executive Henchanova, 9 SCRA 230 [1963]). It does not pertain to
Agreement binding (a) from the standpoint of the termination (or abrogation) of a treaty.
Philippine law and (b) from the standpoint of
international law? Explain. (2003 BAR) The authority of the Senate over treaties is limited to
concurrence (Art. VIII, sec. 21 of 1987 Constitution).
A: There being no express constitutional provision
a. From the standpoint of Philippine law, the regulating the termination (or abrogation) of treaties,
Executive Agreement is binding. According to it is presumed that the power of the President over
Commissioner of Customs v. Eastern Sea treaty agreements and over foreign relations includes
Trading, 3 SCRA 351 [1961], the President can the authority to “abrogate” (or more properly referred
enter into an Executive Agreement without the as “terminate”) treaties. The termination of the treaty
necessity of concurrence by the Senate. by the President without the concurrence of the
b. The Executive Agreement is also binding from Senate is not subject to constitutional attack, there
the standpoint of international law. As held in being no Senate authority to that effect.
Bayan v. Zamora, 342 SCRA 449 [2000], in
international law executive agreements are The Philippines is a party to the Vienna Convention on
equally binding as treaties upon the States who the Law of Treaties. Hence, the said Convention thus
are parties to them. Additionally, under Article becoming part of Philippine Law governs the act of the
2(1)(a) of the Vienna Convention on the Law of President in terminating (or abrogating) the treaty.
Treaties, whatever may be the designation of a Article 54 of this Convention provides that a treaty
written agreement between States, whether it may be terminated “at any time by consent of all the
is indicated as a Treaty, Convention or parties.” Apparently, the treaty in question is a
Executive Agreement, is not legally significant. bilateral treaty in which the other state is agreeable to
Still it is considered a treaty and governed by its termination. Article 67 of the Convention adds the
the international law of treaties. formal requirement that the termination must be in an
instrument communicated to the other party signed by
Q: May a treaty violate international law? If the Head of State or of Government or by the Minister
your answer is in the affirmative, explain when of Foreign Affairs.
such may happen. If your answer is in the
negative, explain why. (2008 BAR) ALTERNATIVE ANSWER: The Supreme Court should
dismiss the case. The case involved is a political
A: YES, a treaty may violate international law if it question, because it involves the authority of the
conflicts with a peremptory norm or jus cogens of President in the conduct of foreign relations and the
international law. Jus cogens norm is defined as a extent to which the Senate is authorized to negate the
norm of general international law accepted and action of the President. Since Section 21, Article VII of
recognized by the international community of the Constitution is silent as to the participation of the
states as a whole as a norm from which no Senate in the abrogation of a treaty, the question may
derogation is permitted and which can be modified be answered in different ways and should be decided
only by a subsequent norm of general international by political standards rather than judicially
law having the same character. Article 53 of the manageable standards (Goldwater v. Carter, 444 U.S.
Vienna Convention of the Law of Treaties provides 996 [1979J).
that a treaty is void if at the time of its conclusion, it
conflicts with jus cogens norm. Moreover, under ALTERNATIVE ANSWER: While it is the President
Article 54 of this convention, if a new peremptory who negotiates and ratifies treaties and other
norm of general international law emerges, any international agreements, it must be underscored that
existing treaty which is in conflict with that norm when the same has been concurred by the qualified
becomes void and terminates. majority of the Senate, they become part of the law of
the land. Accordingly, it is submitted that the
Q: The President alone without the concurrence President alone cannot unilaterally abrogate a treaty
of the Senate abrogated a treaty. Assume that without Congressional authorization, in the same way
the other country- party to the treaty is that she would have no authority to repeal a law.
agreeable to the abrogation provided it
complies with the Philippine Constitution. If a Further, even as what the Constitution requires in the
case involving the validity of the treaty concurrence of the Senate in treaties and international
abrogation is brought to the Supreme Court, agreements entered into, not the abrogation of the
how should it be resolved? (2009 BAR) same, the same should not also be construed as
empowering the President to simply render nugatory
a treaty that has already acquired the imprimatur of
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the Senate (See Goldwater v. Carter, 444U.S. 996 Q: In a raid conducted by rebels in a Cambodian
[1979J, cited in Be mas, An Introduction to Public town, an American businessman who has been a
International Law [2002] at 53). long-time resident of the place was caught by the
rebels and robbed of his cash and other valuable
Q: The President signs an agreement with his personal belongings. Within minutes, two
counterpart in another country involving truckloads of government troops arrived
reciprocity in the treatment of each country's prompting the rebels to withdraw. Before fleeing
nationals residing in the other's territory. they shot the American causing him physical
However, he does not submit the agreement to injuries. Government troopers immediately
the Senate for concurrence. Sec. 21, Art. VII of launched pursuit operations and killed several
the Constitution provides that no treaty or rebels. No cash or other valuable property taken
international agreement shall be valid and from the American businessman was recovered.
effective without such concurrence.
In an action for indemnity filed by the US
Is the agreement signed by the President Government in behalf of the businessman for
effective despite the lack of Senate injuries and losses in cash and property, the
concurrence? Explain your answer. (2017 BAR) Cambodian government contended that under
International Law it was not responsible for the
A: YES, the agreement is effective. Being in the acts of the rebels.
nature of an executive agreement, it does not
require Senate concurrence for its efficacy (Bayan a. Is the contention of the Cambodian
Muna v. Romulo G.R. No. 159618) government correct? Explain.
b. Suppose the rebellion is successful and a new
Q: President Black of the Republic of Pasensya government gains control of the entire State,
(RP) had a telephone conversation with replacing the lawful government that was
President Blue of the People’s Republic of toppled, may the new government be held
Conquerors (PRC). In that conversation, both responsible for the injuries or losses suffered
leaders agreed that they will both pull- out all by the American businessman? Explain. (1995
their vessels, civilian or otherwise, sea crafts BAR)
and other ships from the hotly disputed
Kalmado Shoal area within eight (8) days in A:
order to de-escalate the situation. After eight
days, all RP ships and vessels have left the area. a. YES, the contention of the Cambodian
However, several military and civilian ships Government is correct. Unless it clearly appears
carrying the PRC flag remained in the area and that the government has failed to use promptly
began construction of a dock that could provide and with appropriate force its constituted
fuel and other supplies to vessels passing by. authority it cannot be held responsible for the acts
of rebels, for the rebels are not its agents and their
a. Assuming that President Black and acts were done without its volition. In this case,
President Blue both had full capacity to government troopers immediately pursued the
represent their states and negotiate with rebels and killed several of them.
each other under their respective systems
of government, and further assuming that b. The new government may be held responsible if it
both leaders acknowledge the existence of succeeds in overthrowing the government.
the conversation, is the verbal agreement Victorious rebel movements are responsible for
via telephone binding under international the illegal acts of their forces during the course of
law? Explain. the rebellion. The acts of the rebels are imputable
b. Assuming the answer to (a.) is in to them when they assumed as duly constituted
affirmative, does that agreement constitute authorities of the state.
a Treaty under the 1969 Vienna Convention
on the Law on Treaties? (2012 BAR) Q: A, a British photojournalist, was covering the
violent protests of the Thai Red-Shirts Movement
A: in Bangkok. Despite warnings given by the Thai
a. The verbal agreement by telephone is binding Prime Minister to foreigners, especially
between the parties on the basis of customary journalists, A moved around the Thai capital. In
international law. (Aust Modern Treaty Law the course of his coverage, he was killed with a
and Practice, p. 7) stray bullet which was later identified as having
b. The verbal agreement does not constitute a come from the ranks of the Red-Shirts. The wife of
treaty under Vienna Convention on the Law of A sought relief from Thai authorities but was
Treaties. Article 3 requires that for an refused assistance.
international agreement to be a treaty, it must
be in written form. a. Is there state responsibility on the part of
Thailand?
b. What is the appropriate remedy available to
DOCTRINE OF STATE RESPONSIBILITY the victim’s family under international law?
(2009 BAR)
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A: Consequently, the denial of the search warrant should

a. There is no state responsibility on the part of have been anchored on the failure of the court to
Thailand. The wrongful act in question is an act conduct personal examination of the witnesses to the
of private individuals and not of an organ of crime in order to establish probable cause, as required
the government or a state official. Hence, it is by Sections 3 and 4 of Rule 126.
not attributable to Thailand as its wrongful act
for the purpose of state responsibility. In any event, there is no showing that the requisite
quantum of probable cause was established by mere
b. The appropriate remedy available to the family reference to the affidavits and other documentary
of A is to seek diplomatic protection from Great evidence presented.
Britain to press a claim for reparation
(Brownlie, Principles of Public of International Q: William, a private American citizen, a university
Law, 7th ed., pp.460 and 477-478). However, in graduate and frequent visitor to the Philippines,
order that the claim will be allowable under was inside the U.S. embassy when he got into a
customary international law, the family of A heated argument with a private Filipino citizen.
must first exhaust the legal remedies available Then, in front of many shocked witnesses, he
in Thailand (Brownlie, Principles of Public of killed the person he was arguing with. The police
International Law, 7th ed., p. 492). came, and brought him to the nearest police
station. Upon reaching the station, the police
investigator, in halting English, informed William
JURISDICTION OF STATES of his Miranda rights, and assigned him an
independent local counsel. William refused the
services of the lawyer, and insisted that he be
Territoriality principle assisted by a Filipino lawyer currently based in the
U.S. The request was denied, and the counsel
Q: Police Officer Henry Magiting of the assigned by the police stayed for the duration of
Narcotics Section of the Western Police District the investigation.
applied for a search warrant in the Regional
Trial Court of Manila for violation of Section 11, William protested his arrest. He argued that since
Article II (Possession of Prohibited Drugs) of the incident took place inside the U.S. embassy,
Republic Act (R.A.) No. 9165 (Comprehensive Philippine courts have no jurisdiction because the
Dangerous Drugs Act of 2002) for the search U.S. embassy grounds are not part of Philippine
and seizure of heroin in the cabin of the Captain territory; thus, technically, no crime under
of the MSS Seastar, a foreign-registered vessel Philippine law was committed. Is William correct?
which was moored at the South Harbor, Manila, Explain your answer. (2009 BAR)
its port of destination. A: William is not correct. The premises occupied by
the United States Embassy do not constitute territory
Based on the affidavits of the applicant's of the United Stated but of the Philippines. Crimes
witnesses who were crew members of the committed within them are subject to the territorial
vessel, they saw a box containing ten (10) jurisdiction of the Philippines. Since William has no
kilograms of heroin under the bed in the diplomatic immunity, the Philippines can prosecute
Captain's cabin. The RTC found probable cause him if it acquires custody over him (Reagan v.
for the issuance of a search warrant; Commissioner of Internal Revenue, 30 SCRA 968).
nevertheless, it denied the application on the
ground that Philippine courts have no criminal Q: If William applies for bail, claiming that he is
jurisdiction over violations of R.A. No. 9165 entitled thereto under the "international standard
committed on foreign-registered vessels found of justice" and that he comes from a U.S. State that
in Philippine waters. Is the ruling of the court has outlawed capital punishment, should William
correct? Support your answer with reasons. be granted bail as a matter of right? Reasons.
(2005 BAR) (2009 BAR)

A: The RTC may assert its jurisdiction over the case A: William should not be granted bail as a matter of
by invoking the territorial principle, which right. He is subject to Philippine criminal jurisdiction,
provides that crimes committed within a state's therefore, his right to bail must be determined on the
territorial boundaries and persons within that basis of Section 13, Article III of the Constitution.
territory, either permanently or temporarily, are
subject to the application of local law. Jurisdiction Conflicts of jurisdiction
may also be asserted on the basis of the
universality principle, which confers upon all states Q: Under its Statute, give two limitations on the
the right to exercise jurisdiction over delicta juris jurisdiction of the International Court of Justice?
gentium or international crimes, such as the (1999 BAR)
international traffic narcotics. The possession of 10
kilos of heroin constitutes commercial quantity and A: The following are the limitations on the jurisdiction
therefore qualifies as trafficking of narcotics. of the International Court of Justice under its Statute:

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a. Only states may be parties in cases before it. the courts, rationing of products in short supply,
(Article 34) elementary education, public relief and assistance,
b. The consent of the parties is needed for the labor legislation and social security. They also
court to acquire jurisdiction over a case. agreed to accord to them treatment not less
(Article 36) favorable than that accorded to aliens generally in
the same circumstances. The Convention also
Q: Compare and contrast the jurisdiction of the provides for the issuance of identity papers and
International Criminal Court and International travel documents to stateless person.
Court of Justice. (2010 BAR) d. In the Convention on the Conflict of Nationality
Laws of 1930, the contracting states agreed to
A: accord nationality to persons born in their
a. The jurisdiction of the International Court of territory who would otherwise be stateless. The
Justice (ICJ) pertains to international Convention on the Reduction of Statelessness of
responsibility in the concept of civil liability, 1961 provides that if the law of the contracting
while that of the International Criminal Court States results in the loss of nationality as a
(ICC) pertains to criminal liability. consequence of marriage or termination of
b. While states are the subject of law in marriage, such loss must be conditional upon
international responsibility under the possession or acquisition of another nationality.
jurisdiction of the International Court of
Justice, the criminal liability within the ALTERNATIVE ANSWER: Under the Convention on
jurisdiction of the International Criminal Court the Reduction of Statelessness of 1961, a contracting
pertains to individual natural person. [Article state shall grant its nationality to a person born in its
34(i) of the Statute of the International Court of territory who would otherwise be stateless and a
Justice; Articles 25 and 27of the Statute of the contracting state may not deprive a person or a group
International Criminal Court] of persons of their nationality for racial, ethnic,
religious or political grounds.
Nationality and statelessness

Q: TREATMENT OF ALIENS
a. Who are stateless persons under
International Law?
b. What are the consequences of Extradition
statelessness?
c. Is a stateless person entirely without Q: Extradition is the process pursuant to a treaty
right, protection or recourse under the between two State parties for the surrender by the
Law of Nations? Explain. requested State to the custody of the requesting
d. What measures, if any, has State of a fugitive criminal residing in the former.
International Law taken to prevent However, extradition depends on the application
statelessness? (1995 BAR) of two principles –the principle of specialty and
A: the dual criminality principle. Explain these
a. STATELESS PERSONS are those who are not principles. (2017 BAR)
considered as nationals by any State under the
operation of its laws. A: The principle of specialty bars the requesting State
b. The consequences of statelessness are the from prosecuting the extraditee for any offense other
following: than that for which the extraditee was surrendered.
i. No State can intervene or Here, the extraditee cannot be tried for offenses not
complain in behalf of a stateless included in the list of extraditable offenses between
person for an international states.
delinquency committed by
another State in inflicting injury On the other hand, the dual criminality principle is a
upon him. rule which states that the crime for which extradition
ii. He cannot be expelled by the State is requested must be a crime in both the requesting
if he is lawfully in its territory state and state to which the fugitive has fled.
except on grounds of national
security or public order. Q: The Extradition Treaty between France and the
iii. He cannot avail himself of the Philippines is silent as to its applicability with
protection and benefits of respect to crimes committed prior to its effectivity.
citizenship like securing for
himself a passport or visa and a. Can France demand the extradition of A, a
personal documents. French national residing in the Philippines, for
c. NO. Under the Convention in Relation to the an offense committed in France prior to the
Status of Stateless Person, the contracting effectivity of the treaty? Explain.
states agreed to accord to stateless persons b. Can A contest his extradition on the ground
within their territories treatment at least as that it violates the ex post facto provision of
favorable as that accorded to their nationals the Philippine Constitution? Explain. (1996
with respect to freedom of religion, access to BAR)
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A: have conventional extradition treaties with

a. YES, France can ask for the extradition of A for Republic X. If Republic X requests the extradition
an offense committed in France before the of John and William, can Republic A deny the
effectivity of the Extradition Treaty between request? Why? State your reason fully. (2002 BAR)
France and the Philippines. In Cleugh v.
Strakos109 Fed. 330, it was held that an A: Republic A can refuse to extradite John, because his
extradition treaty applies to crimes committed offense is a political offense. John was plotting to take
before its effectivity unless the extradition over the government and the plan of John to
treaty expressly exempts them. As Whiteman assassinate President Harry was part of such plan.
points out, extradition does not define crimes However, if the extradition treaty contains an attentat
but merely provides a means by which a State clause, Republic A can extradite John, because under
may obtain the return and punishment of the attentat clause, the taking of the life or attempt
persons charged with or convicted of having against the life of a head of state or that of the
committed a crime who fled the jurisdiction of members of his family does not constitute a political
the State whose law has been violated. It is offense and is therefore extraditable.
therefore immaterial whether at the time of
the commission of the crime for which ALTERNATIVE ANSWER: Republic A may or can
extradition is sought no treaty was in refuse the request of extradition of William because he
existence. If at the time extradition is is not in its territory and thus it is not in the position
requested there is in force between the to deliver him to Republic X.
requesting and the requested State a treaty
covering the offense on which the request is Even if William were in the territorial jurisdiction of
based, the treaty is applicable (Whiteman, Republic A, he may not be extradited because inciting
Digest of International Law, Vol. 6, pp. 753- to sedition, of which he is charged, constitutes a
754.). political offense. It is a standard provision of
extradition treaties, such as the one between Republic
b. NO, A cannot contest his extradition on the A and Republic X, that political offenses are not
ground that it violates the ex post facto extraditable.
provision of the Constitution. As held in Wright
v. Court of Appeals, 235 SCRA 341, the ALTERNATIVE ANSWER: Republic B can deny the
prohibition against ex post facto laws in request of Republic X to extradite William because his
Section 22, Article III of the Constitution offense was not a political offense. On the basis of the
applies to penal laws only and does not apply pre-dominance or proportionality test his acts were
to extradition treaties. not directly connected to any purely political offense.

Q: John is a former President of the Republic X, Q: The Philippines and Australia entered into a
bent on regaining power which he lost to Treaty of Extradition concurred in by the Senate of
President Harry in an election. Fully convinced the Philippines on September 10, 1990. Both
that he was cheated, he set out to destabilize governments have notified each other that the
the government of President Harry by means of requirements for the entry into force of the Treaty
a series of protest actions. His plan was to have been complied with. It took effect in 1990.
weaken the government and, when the
situation became ripe for a take- over, to The Australian government is requesting the
assassinate President Harry. William, on the Philippine government to extradite its citizen,
other hand, is a believer in human rights and a Gibson, who has committed in his country the
former follower of President Harry. Noting the indictable offense of Obtaining Property by
systematic acts of harassment committed by Deception in 1985. The said offense is among
government agents against farmers protesting those enumerated as extraditable in the Treaty.
the seizure of their lands, laborers complaining
of low wages, and students seeking free tuition, For his defense, Gibson asserts that the retroactive
William organized groups which held peaceful application of the extradition treaty amounts to an
rallies in front of the Presidential Palace to ex post facto law. Rule on Gibson's contention.
express their grievances. (2005 BAR)

On the eve of the assassination attempt, John's A: Gibson is incorrect. In Wright v. Court of Appeals,
men were caught by members of the G.R. No.113213 (1994), it was held that the retroactive
Presidential Security Group. President Harry application of the Treaty of Extradition does not
went on air threatening to prosecute plotters violate the prohibition against ex post facto laws,
and dissidents of his administration. The next because the Treaty is neither a piece of criminal
day, the government charged John with legislation nor a criminal procedural statute. It merely
assassination attempt and William with inciting provided for the extradition of persons wanted for
to sedition. John fled to Republic A. William, offenses already committed at the time the treaty was
who was in Republic B attending a lecture on ratified.
democracy, was advised by his friends to stay in
Republic B. Both Republic A and Republic B
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Q: Lawrence is a Filipino computer expert prohibited by Section 22, Article III of the 1987
based in Manila who invented a virus that Constitution.
destroys all the files stored in a computer.
Assume that in May 2005, this virus spread all Q: What is the difference if any between
over the world and caused $50 million in extradition and deportation? (1993 BAR)
damage to property in the United States, and
that in June 2005, he was criminally charged A: The following are the differences between
before the United States courts under their extradition and deportation:
anti-hacker law, Assume that in July 2005, the
Philippines adopted its own anti-hacker law, to a. EXTRADITION is effected for the benefit of the
strengthen existing sanctions already provided state to which the person being extradited
against damage to property. The United States will be surrendered because he is a fugitive
has requested the Philippines to extradite him criminal in that state, while DEPORTATION is
to US courts under the RP- US Extradition effected for the protection of the State
Treaty. expelling an alien because his presence is not
conducive to the public good.
Is the Philippines under an obligation to b. EXTRADITION is effected on the basis of an
extradite Lawrence? State the applicable rule extradition treaty or upon the request of
and its rationale. (2007 BAR) another state, while DEPORTATION is the
unilateral act of the state expelling an alien.
A: If there was no anti-hacker law in the c. In EXTRADITION, the alien will be
Philippines when the United States requested the surrendered to the state asking for his
extradition of Lawrence, the Philippines is under extradition, while in DEPORTATION the
no obligation to extradite him. Under the principle undesirable alien may be sent to any state
of double criminality, extradition is available only willing to accept him.
when the act is an offense in both countries (Cruz,
International Law, 2003 ed., p. 205; Coquia and Q: Andreas and Aristotle are foreign nationals
Santiago, International Law and World working with the Asian Development Bank (ADS)
Organizations, 2005 ed., 342). Double criminality is in its headquarters in Manila. Both were charged
intended to ensure each state that it can rely on with criminal acts before the local trial courts.
reciprocal treatment and that no state will use its
processes to surrender a person for conduct which Andreas was caught importing illegal drugs into
it does not characterize as criminal. (Bassiouni, the country as part of his "personal effects" and
International Extradition, 4th ed., p. 467) was thus charged with violation of Comprehensive
Dangerous Drugs Act of 2002. Before the criminal
ALTERNATIVE ANSWER: Even if there was no proceedings could commence, the President had
anti-hacker law in the Philippines when the United him deported as an undesirable alien. Aristotle
States requested the extradition of Lawrence, if the was charged with grave oral defamation for
act penalized under the anti-hacker law of the uttering defamatory words against a colleague at
United States is similar to malicious mischief under work. In his defense, Aristotle claimed diplomatic
Article 327 of the Revised Penal Code, the immunity. He presented as proof a communication
Philippines will be under obligation to extradite from the Department of Foreign Affairs stating
Lawrence (Coquia and Defensor, International Law that, pursuant to the Agreement between the
and World Organizations, 4th ed. p. 342). Philippine Government and the ADS, the bank's
officers and staff are immune from legal processes
Q: Assume that the extradition request was with respect to acts performed by them in their
made after the Philippines adopted its anti- official capacity.
hacker legislation. Will that change your
answer? (2007 BAR) Can the President's act of deporting an
undesirable alien be subject to judicial review?
A: The Philippines will be under obligation to (2018 BAR)
extradite Lawrence. Both the Philippines and the
United States have an anti-hacker law. The A: The power to deport aliens is an act of State, an act
requirement of double criminality is satisfied even done by or under the authority of the sovereign
if the act was not criminal in the requested state at power. It is a police measure against undesirable
the time of its occurrence if it was criminal at the aliens whose continued presence in the country is
time that the request was made (Bassiouni, found to be injurious to the public good and the
International Extradition, 4th ed., p. 469). domestic tranquility of the people (Rosas v. Montor,
G.R. No. 204105, October 14, 2015)
ALTERNATIVE ANSWER: The Philippines is under
no obligation to extradite Lawrence. There was no An act of State is one done by the sovereign power of a
anti-hacker law in the Philippines when Lawrence country, or by its delegate, within the limits of the
was charged in the United States; hence, an power vested in him. An act of State cannot be
extradition of Lawrence is tantamount to ex post questioned or made the subject of legal proceedings in
facto application of the Philippine anti-hacker law, a court of law (Black’s Law Dictionary, 4th ed., 44).
With particular reference to Political Law, an act of
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State is an act done by the political departments of Philippines by the State of which Dr. Mengele is a
the government and not subject to judicial review. national.

The application of treaty norms of international law on
INTERNATIONAL HUMAN RIGHTS LAW human rights, such as the provision against torture in
the International Covenants in Civil and Political
Rights pertain to States. The acts of private citizens
Q: Walang Sugat, a vigilante group composed of composing Walang Sugat cannot themselves constitute
private businessmen and civic leaders a violation by the Philippines as a State.
previously victimized by the Nationalist
Patriotic Army (NPA) rebel group, was Q: On October 13, 2001, members of Ali Baba, a
implicated in the torture and kidnapping of Dr. political extremist organization based in and
Mengele, a known NPA sympathizer. Under under the protection of Country X and espousing
public international law, what rules properly violence worldwide as a means of achieving its
apply? What liabilities, if any, arise thereunder objectives, planted high-powered explosives and
if Walang Sugat’s involvement is confirmed? bombs at the International Trade Tower (ITT) in
(1992 BAR) Jewel City in Country Y, a member of the United
Nations. As a result of the bombing and the
A: On the assumption that Dr. Mengele is a collapse of the 100-story twin towers, about 2,000
foreigner, his torture violates the International people, including women and children, were killed
Covenant on Civil and Political Rights, to which the or injured, and billions of dollars in property were
Philippine has acceded. Article 7 of the Covenant on lost.
Civil and Political Rights provides: “No one shall be
subjected to torture or to cruel, inhuman or Immediately after the incident, Ali Baba, speaking
degrading treatment or punishment." through its leader Bin Derdandat, admitted and
owned responsibility for the bombing of ITT,
In accordance with Article 2 of the Covenant on saying that it was done to pressure Country Y to
Civil and Political Rights, it is the obligation of the release captured members of the terrorist group.
Philippines to ensure that Dr. Mengele has an Ali Baba threatened to repeat its terrorist acts
effective remedy, that he shall have his right to against Country Y if the latter and its allies failed
such a remedy determined by competent authority, to accede to Ali Baba’s demands. In response,
and to ensure the enforcement of such remedy Country Y demanded that Country X surrender and
when granted. deliver Bin Derdandat to the government
authorities of Country Y for the purpose of trial
ALTERNATIVE ANSWER: On the assumption that and “in the name of justice.” Country X refused to
Dr. Mengele is a foreigner, his claim will have to be accede to the demand of Country Y.
directed against the members of Walang Sugat on
the basis of the Philippine law and be addressed to What action or actions can Country Y legally take
the jurisdiction of Philippine courts. His claim may against Ali Baba and Country X to stop the terrorist
be based on the generally accepted principles of activities of Ali Baba and dissuade Country X from
international law, which form part of Philippine harboring and giving protection to the terrorist
law under Section 2, Article II of the Constitution. organization? Support your answer with reasons.
His claim may be premised on relevant norms of (2002 BAR)
international law of human rights.
A: Country Y may exercise the right of self- defense, as
Under international law, Dr. Mengele must first provided under Article 51 of the UN Charter “until the
exhaust the remedies under Philippine law before Security Council has taken measure necessary to
his individual claim can be taken up by the State of maintain international peace and security”. Self-
which he is a national unless the said State can defense enables Country Y to use force against
satisfactorily show it is its own interests that are Country X as well as against the Ali Baba organization.
directly injured. If this condition is fulfilled, the said
State's claim will be directed against the It may bring the matter to the Security Council which
Philippines as a subject of international law. Thus it may authorize sanctions against Country X, including
would cease to be an individual claim of Dr. measure invoking the use of force. Under Article 4 of
Mengele. the UN Charter, Country Y may use force against
Country X as well as against the Ali Baba organization
Dr. Mengele’s case may concern international law by authority of the UN Security Council.
norms on State responsibility, but the application
of these norms require that the basis or ALTERNATIVE ANSWER: Under the Security Council
responsibility is the relevant acts that can be Resolution No. 1368, the terrorist attack of Ali Baba
attributed to the Philippines as a State. may be defined as a threat to peace, as it did in
defining the September 11, 2001 attacks against the
Hence, under the principle of attribution it is United States. The resolution authorizes military and
necessary to show that the acts of the vigilante other actions to respond to terrorist attacks. However,
group Walang Sugat can be legally attributed to the the use of military force must be proportionate and
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intended for the purpose of detaining the persons individual or collective self-defense under Article 51;
allegedly responsible for the crimes and to destroy (2) enforcement measure involving the use of armed
military objectives used by the terrorists. forces by the UN Security Council under Article 42;
and (3) enforcement measure by regional
The fundamental principles of international arrangement under Article 53, as authorized by the UN
humanitarian law should also be respected. Security Council. The allied forces did not launch
Country Y cannot be granted sweeping military operations and did not occupy Iraq on the
discretionary powers that include the power to claim that their action was in response to an armed
decide what states are behind the terrorist attack by Iraq, of which there was none.
organizations. It is for the Security Council to
decide whether force may be used against specific Moreover, the action of the allied forces was taken in
states and under what conditions the force may be defiance or disregard of the Security Council
used. Resolution No. 1441 which set up “an enhanced
inspection regime with the aim of bringing to full and
Q: Not too long ago, “allied forces", led by verified completion the disarmament process”, giving
American and British armed forces, invaded Iraq “a final opportunity to comply with its
Iraq to “liberate the Iraqis and destroy disarmament obligations”. This resolution was in the
suspected weapons of mass destruction." The process of implementation; so was Iraq's compliance
Security Council of the United Nations failed to with such disarmament obligations.
reach a consensus on whether to support or
oppose the “war of liberation” Can the action Q: A terrorist group called the Emerald Brigade is
taken by the allied forces find justification in based in the State of Asyaland. The government of
International Law? Explain. (2003 BAR) Asyaland does not support the terrorist group, but
being a poor country, is powerless to stop it.
A: The United States and its allied forces cannot
justify their invasion of Iraq on the basis of self- The Emerald Brigade launched an attack on the
defense under Article 51 attack by Iraq, and there Philippines, firing two missiles that killed
was no necessity for anticipatory self- defense thousands of Filipinos. It then warned that more
which may be justified under customary attacks were forthcoming. Through diplomatic
international law. Neither can they justify their channels, the Philippines demanded that Asyaland
invasion on the ground that Article 42 of the stop the Emerald Brigade; otherwise, it will do
Charter of the United Nations permits the use of whatever is necessary to defend itself.
force against a State if it is sanctioned by the
Security Council. Resolution 1441, which gave Iraq Receiving reliable intelligence reports of another
a final opportunity to disarm or face serious imminent attack by the Emerald Brigade, and it
consequences, did not authorize the use of armed appearing that Asyaland was incapable of
force. preventing the assault, the Philippines sent a crack
commando team to Asyaland. The team stayed
ALTERNATIVE ANSWER: In International Law, the only for a few hours in Asyaland, succeeded in
action taken by the allied forces cannot find killing the leaders and most of the members of the
justification. It is covered by the prohibition against Emerald Brigade, then immediately returned to
the use of force prescribed by the United Nations the Philippines.
Charter and it does not fall under any of the
exceptions to that prohibition. a. Was the Philippine action justified under the
international law principle of "self- defense"?
The UN Charter in Article 2(4) prohibits the use of Explain your answer. (2003 BAR)
force in the relations of states by providing that all b. As a consequence of the foregoing incident,
members of the UN “shall refrain in their Asyaland charges the Philippines with
international relations from the threat or use of violation of Article 2.4 of the United Nations
force against the territorial integrity or political Charter that prohibits "the threat or use of
independence of any state, or in any other manner force against the territorial integrity or
inconsistent with the purposes of the United political independence of any State." The
Nations.” This mandate does not only outlaw war; Philippines counters that its commando team
it encompasses all threats of and acts of force or neither took any territory nor interfered in the
violence short of war. political processes of Asyaland. Which
contention is correct? Reasons.
As thus provided, the prohibition is addressed to c. Assume that the commando team captured a
all UN members. However, it is now recognized as a member of the Emerald Brigade and brought
fundamental principle in customary international him back to the Philippines. The Philippine
law and, as such, is binding on all members of the Government insists that a special international
international community. tribunal should try the terrorist. On the other
hand, the terrorist argues that terrorism is not
The action taken by the allied forces cannot be an international crime and, therefore, the
justified under any of the three exceptions to the municipal laws of the Philippines, which
prohibition against the use of force which the UN recognize access of the accused to
Charter allows. These are: (1) inherent right of
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constitutional rights, should apply. prohibits outrages upon personal dignity, in particular
Decidewith reasons. (2009 BAR) humiliating and degrading treatment.

A: Q: The surviving Filipina "comfort women"
a. The Philippine action cannot be justified as demand that the Japanese government apologize
self-defense. Self-defense is an act of State by and pay them compensation. However, under the
reason of an armed attack by another State. 1951 San Francisco Peace Agreement – the legal
The acts of terrorism in this case were acts of instrument that ended the state of war between
private group and cannot be attributed to Japan and the Allied Forces – all the injured states,
Asyaland, which does not support the Emerald including the Philippines, received war
brigade. Article 51 of the Charter of the United reparations and, in return, waived all claims
Nations has no applicability, because self- against Japan arising from the war. Is that a valid
defense in Article 51 contemplates a response defense?
to a legitimate armed attack by a State against
another State. The attack by the Emerald A: The defense is not valid. Under the preamble of the
Brigade is an attack by a private group without San Francisco Treaty, Japan undertook to conform to
authority or as an organ of Asyaland. the protection and observance of human rights. Article
103 of the United Nations Charter provides that the
b. The contention of Asyaland is correct. The obligations of the member-State prevail over any other
Philippines violated Article 2(4) of the Charter international agreement. The waiver in Article 14(a) of
of the United Nations, which prohibits States the San Francisco Treaty is qualified by Article 14(b),
from the threat or use of force against the which stated that Japan had no resources presently
territorial integrity of any State. sufficient to make complete reparation for all such
damages and sufferings and meet its other obligations.
c. The terrorist should be tried in the Philippines. Thus, the waiver was operative only while Japan had
Section 58 of RA 9372, the Human Security Act, inadequate resources.
provides for its extraterritorial application to
individual persons who, although outside the Q: The surviving Filipina "comfort women" sue the
territorial limits of the Philippines, commits an Japanese government for damages before
act of terrorism directly against Filipino Philippine courts. Will that case prosper?
citizens where their citizenship was a factor in
the commission of the crime. A: The Filipina “comfort women” cannot sue Japan for
damages, because a foreign State may not be sued
Q: In 1993, historians confirmed that during before Philippine courts as a consequence of the
World War II, "comfort women" were forced principles of independence and equality of States
into serving the Japanese military. These (Republic of Indonesia v. Vinzon, 405 SCRA 126).
women were either abducted or lured by false
promises of jobs as cooks or waitresses, and Prisoners of war
eventually forced against their will to have sex
with Japanese soldiers on a daily basis during Q: Reden, Jolan and Andy, Filipino tourists, were in
the course of the war, and often suffered from Bosnia-Herzegovina when hostilities erupted
severe beatings and venereal diseases. The between the Serbs and the Moslems. Penniless and
Japanese government contends that the caught in the crossfire, Reden, Jolan, and Andy,
"comfort stations" were run as "onsite military being retired generals, offered their services to the
brothels" (or prostitution houses) by private Moslems for a handsome, salary, which offer was
operators, and not by the Japanese military. accepted. When the Serbian National Guard
There were many Filipina "comfort women." approached Sarajevo, the Moslem civilian
population spontaneously took up arms to resist
Name at least one basic principle or norm of the invading troops. Not finding time to organize,
international humanitarian law that was the Moslems wore armbands to identify
violated by the Japanese military in the themselves, vowing to observe the laws and
treatment of the "comfort women." (2007 BAR) customs of war. The three Filipinos fought side by
side with the Moslems. The Serbs prevailed
A: The treatment of “comfort woman” by the resulting in the capture of Reden, Jolan and Andy,
Japanese military violated Article XXVII of the and part of the civilian fighting force.
Geneva Convention (IV), which provides that:
“Women shall be especially protected against any a. Are Reden, Jolan and Andy considered
attack on their honor, in particular against rape, combatants thus entitled to treatment as
enforced prostitution, or any form of indecent prisoners of war?
assault.” b. Are the captured civilians likewise
prisoners of war? (1993 BAR)
ALTERNATIVE ANSWER: The treatment of
“comfort women” by the Japanese military violated A:
Article II of the Geneva Convention (IV) which a. Reden, Jolan and Andy are not combatants and are
not entitled to treatment as prisoners of war,
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because they are mercenaries. Article 47 of the on the part of a state not to side with any of the
Protocol I to the Geneva Conventions of 1949 parties at war. Thirdly, neutrality is brought about
provides: "A Mercenary shall not have the right by a unilateral declaration by the neutral State,
to be combatant or a prisoner of war." while neutralization cannot be effected by
Pursuant to Article 47 of Protocol I of the unilateral act, but must be recognized by other
Geneva Conventions of 1949, Reden Jolan, and States. (Id.)
Andy are mercenaries, because they were
recruited to fight in an armed conflict, they in
fact took direct part in the hostilities, they LAW OF THE SEA
were motivated to take part in the hostilities
essentially by the desire for private gain and in
fact was promised a handsome salary by the Q: Under the United Nations Convention on the
Moslems, they were neither nationals of a Law of the Sea (UNCLOS), what are the rights of the
party to the conflict nor residents of territory Philippines within the following areas?
controlled by a party to the conflict, they are
not members of the armed forces of a party to a. Contiguous zone
the conflict, and they were not sent by a state b. Exclusive Economic zone (2019 BAR)
which is not a party to the conflict on official
duty as members of its armed forces. A:
a. The Contiguous Zone is an intermediary zone
b. The captured civilians are prisoners of war. between the territorial sea and the high seas
Under Article 4 of the Geneva Convention extending enforcement jurisdiction of the coastal
relative to the Treatment of Prisoners of War, state to a maximum of 24 nautical miles from
inhabitants of a non-occupied territory, who on baselines for the purposes of preventing or
the approach of the enemy spontaneously take punishing violations of customs, fiscal,
up arms to resist the invading forces, without immigration or sanitary (and thus residual
having had time to form themselves into national security) legislation.
regular armed forces, provided they carry
arms openly and respect the laws and customs b. Under the EEZ, the coastal state retains exclusive
of war, are considered prisoners of war if they sovereignty over exploring, exploiting and
fall into the power of the enemy. conserving all natural resources. Under Article 60
of the United Nations Convention on the Law of
Law on neutrality the Sea (UNCLOS). It also has the right to
construct and authorize and regulate the
Q: Switzerland and Australia are outstanding construction, operation and use of artificial
examples of neutralized states islands, installations and structures for the
purposes provided for in Article 56 and other
a. What are the characteristics of a economic purposes, installations and structures
neutralized state? which may interfere with the exercise of the rights
b. Is neutrality synonymous with of the coastal State in the zone; it shall also have
neutralization? If not, distinguish one from the exclusive jurisdiction over such artificial
the other. (1988 BAR) islands, installations, and structures, including
jurisdiction with regard to customs, fiscal, health,
A: safety, and immigration laws and regulations.
a. Whether simple or composite, a State is said to
be neutralized where its independence and Q: State Epsilon, during peace time, has allowed
integrity are guaranteed by an international foreign ships innocent passage through Mantranas
convention on the condition that such State Strait, a strait within Epsilon's territorial sea
obligates itself never to take up arms against which has been used by foreign ships for
any other State, except for self-defense, or international navigation. Such passage enabled the
enter into such international obligations as said ships to traverse the strait between one part
would indirectly involve it in war. A State seeks of the high seas to another. On June 7, 1997, a
neutralization where it is weak and does not warship of State Beta passed through the above-
wish to take an active part in international named strait. Instead of passing through
politics. The power that guarantee its continuously and expeditiously, the ship delayed
neutralization may be motivated either by its passage to render assistance to a ship of State
balance of power considerations or by the Gamma which was distressed with no one nearby
desire to make the weak state a buffer between to assist. When confronted by Epsilon about the
the territories of the great powers (J. Salonga & delay, Beta explained that the delay was due to
P. Yap, Public International Law, pp. 76 (1966)). force majeure in conformity with the provision of
b. Firstly, neutrality obtains only during war, Article 18(2) of the 1982 Convention on the Law of
whereas neutralization is a condition that the Sea (UNCLOS). Seven months later, Epsilon
applies in peace or in war. Secondly, suspended the right of innocent passage of
neutralization is a status created by means of warships through Mantranas Strait without giving
treaty, whereas neutrality is a status created any reason therefor. Subsequently, another
under international law, by means of a stand warship of Beta passed through the said strait, and
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was fired upon by Epsilon's coastal battery. A: The claim of innocent passage is not meritorious.
Beta protested the aforesaid act of Epsilon While the vessel has the right of innocent passage, it
drawing attention to the existing customary should not commit a violation of any international
international law that the regime of innocent convention. The vessel did not merely navigate
passage (even of transit passage) is non- through the territorial sea, it also dragged red corals in
suspendable. Epsilon countered that Mantranas violation of the international convention which
Strait is not a necessary route, there being protected the red corals. This is prejudicial to the good
another suitable alternative route. Resolve the order of the Philippines (Article 19(2) of the
above-mentioned controversy. Explain your Convention on the Law of the Sea).
answer. (1999 BAR)
Q: Distinguish briefly but clearly between: The
A: Assuming that Epsilon and Beta are parties to territorial sea and the internal waters of the
the UNCLOS, the controversy maybe resolved as Philippines. (2004 BAR)
follows:
A: Territorial sea is an adjacent belt of sea with a
Under the UNCLOS, warships enjoy a right of breadth of twelve nautical miles measured from the
innocent passage. It appearing that the portion of baselines of a state and over which the state has
Epsilon's territorial sea in question is a strait used sovereignty (Articles 2 and 3 of the Convention 336on
for international navigation, Epsilon has no right the Law of the Sea). Ship of all states enjoy the right of
under international law to suspend the right of innocent passage through the territorial sea (Article 14
innocent passage. Article 45(2) of the UNCLOS is of the Convention on the Law of the Sea).
clear in providing that there shall be no suspension
of innocent passage through straits used for Under Section 1, Article I of the 1987 Constitution, the
international navigation. internal waters of the Philippines consist of the waters
around, between and connecting the islands of the
On the assumption that the straits in question is Philippine Archipelago, regardless of their breadth
not used for international navigation, still the and dimensions, including the waters in bays, rivers
suspension of innocent passage by Epsilon cannot and lakes. No right of innocent passage for foreign
be effective because suspension is required under vessels exists in the case of internal waters (Harris,
international law to be duly published before it can Cases and Materials on International Law, 5th ed.,
take effect. There being no publication prior to the 1998). Internal waters are the waters on the landward
suspension of innocent passage by Beta's warship, side of baselines from which the breadth of the
Epsilon's act acquires no validity. territorial sea is calculated (Brownlie, Principles of
Public International Law, 4th ed., 1990).
Moreover, Epsilon's suspension of innocent
passage may not be valid for the reason that there Territorial sea
is no showing that it is essential for the protection
of its security. The actuation of Beta's warship in Q: Describe the following maritime regimes under
resorting to delayed passage is for cause UNCLOS:
recognized by the UNCLOS as excusable, i.e., for the a. Territorial sea
purpose of rendering assistance to persons or ship b. Contiguous zone
in distress, as provided in Article 18(2) of the c. Exclusive economic zone
UNCLOS. Hence, Beta's warship complied with the d. Continental shelf (2015 BAR)
international law norms on right of innocent
passage. A: Under the provisions of UNCLOS III:

Q: En route to the tuna fishing grounds in the a. The territorial waters of an archipelagic state
Pacific Ocean, a vessel registered in Country TW shall extend up to 12 nautical miles from its
entered the Balintang Channel north of baselines over which the State exercises
Babuyan Island and with special hooks and nets jurisdictional control.
dragged up red corals found near Batanes. b. Its contiguous zone shall extend up to 24
nautical miles over which the State exercises
By international convention certain corals are control as is necessary to prevent
protected species, just before the vessel infringement of its customs, fiscal,
reached the high seas, the Coast Guard patrol immigration, or sanitary laws within its
intercepted the vessel and seized its cargo territory.
including tuna. The master of the vessel and the c. Its exclusive economic zone shall extend up to
owner of the cargo protested, claiming the 200 nautical miles from its baselines over
rights of transit passage and innocent passage, which the State exercises sovereignty over all
and sought recovery of the cargo and the the exploration, exploitation, or conservation
release of the ship. and managing of the economic natural
resources, whether living or non- living.
Is the claim meritorious or not? Reason briefly. d. Its continental shelf “comprises the seabed
(2004 BAR) and subsoil of the submarine areas that
extend beyond its territorial sea throughout
143

lOMoARcPSD|5832152
Political Law
the natural prolongation of its land Q: Distinguish briefly but clearly between: the
territory to the outer edge of the contiguous zone and the exclusive economic zone.
continental margin or to a distance of 200 (2004 BAR)
nautical miles from the baselines from
which the breadth of the territorial sea is A: CONTIGUOUS ZONE is a zone contiguous to the
measured where the outer edge of the territorial sea and extends up to twelve nautical miles
continental margin does not extend up to from the territorial sea and over which the coastal
that distance.’ state may exercise control necessary to prevent
infringement of its customs, fiscal, immigration or
Exclusive economic zone sanitary laws and regulations within its territory or
territorial sea. (Article 33 of the Convention on the Law
Q: In the desire to improve the fishing methods of the Sea)
of the fishermen, the Bureau of Fisheries, with
the approval of the President, entered into a The EXCLUSIVE ECONOMIC ZONE is a zone extending
memorandum of agreement to allow Thai up to 200 nautical miles from the baselines of a state
fishermen to fish within 200 miles from the over which the coastal state has sovereign rights for
Philippine sea coasts on the condition that the purpose of exploring and exploiting, conserving
Filipino fishermen be allowed to use Thai and managing the natural resources, whether living or
fishing equipment and vessels, and to learn nonliving, of the waters superjacent to the seabed and
modern technology in fishing and canning. Is of the seabed and subsoil, and with regard to other
the agreement valid? (1994 BAR) activities for the economic exploitation and
exploration of the zone. (Articles 56 and 57 of the
A: NO, the President cannot authorize the Bureau Convention on the Law of the Sea)
of Fisheries to enter into a memorandum of
agreement allowing Thai fishermen to fish within Q: Enumerate the rights of the coastal State in the
the exclusive economic zone of the Philippines, exclusive economic zone. (2005 BAR)
because the Constitution reserves to Filipino
citizens the use and enjoyment of the exclusive A: In the EXCLUSIVE ECONOMIC ZONE, the coastal
economic zone of the Philippines. State has sovereign rights for the purpose of exploring
and exploiting, conserving and managing the natural
Q: Explain exclusive economic zone. (2000 BAR) resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its
A: The exclusive economic zone under the subsoil, and with regard to other activities for the
Convention on the Law of the Sea is an area beyond economic exploitation and exploration of the zone,
and adjacent to the territorial sea, which shall not such as the production of energy from the water,
extend beyond 200 nautical miles from the currents and winds in an area not extending more
baselines from which the territorial sea is than 200 nautical miles beyond the baseline from
measured. The coastal State has in the exclusive which the territorial sea is measured. Other rights
economic zone: include the production of energy from the water,
currents and winds, the establishment and use of
a. Sovereign rights for the purpose of artificial islands, installations and structures, marine
exploring and exploiting, conserving and scientific research and the protection and
managing the natural resources, whether preservation of the marine environment. (Art. 56, U.N.
living or non-living, if the waters Convention on the Law of the Sea)
superjacent to the sea-bed and of the
seabed and subsoil, and with regard to
other activities for the economic
exploitation and exploration of the zone,
such as the production of energy from the
water, currents and winds;
b. Jurisdiction as provided in the relevant
provisions of the Convention with regard
to:
i. the establishment and use of
artificial islands, installations and
structures;
ii. marine scientific research;
iii. and the protection and
preservation of the marine
environment;
c. Other rights and duties provided for in the
Convention (Article 56 of the Convention
of the Law of the Sea.)

144

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2021 Quamto Political Law

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